B e f o r e :
LORD JUSTICE WALLER
MR JUSTICE CURTIS
and
MR JUSTICE RODERICK EVANS
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Lawrence Bryan
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Appellant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Andrew Campbell QC and Lesley E Dickinson (Solicitor Advocate) instructed by William Hicks & Partners appeared for the Appellant
J Graham K Hyland QC and Stephen Wood appeared for the Crown
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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LORD JUSTICE WALLER:
The appellant was charged on an indictment containing 25 counts. Count 1 charged living on the earnings of prostitution between 1.1.89 and 21.10.98. Count 2 charged being concerned in the supply of a controlled Class A drug, namely crack cocaine, between 1.1.89 and 21.10.98.
Counts 3-10 related to offences said to have been committed against Kelly Ann Bourgaise; two counts being of assault occasioning actual bodily harm; two counts alleging rape and the remainder alleging indecent assaults.
Counts 11-15 related to offences said to have been committed against Shellie Marie Floyd; (count 11 alleging false imprisonment was withdrawn by the judge from the jury); counts 12-13 alleged rape; counts 14-15 alleged indecent assaults.
Counts 16-18 related to offences said to have been committed against Rebecca Ann Ward; count 16 alleged false imprisonment and counts 17-18 alleged rape.
Counts 19-21 related to offences said to have been committed against Rossalyn Edmondson; count 19 alleging rape; count 20 alleging indecent assault and count 21 alleging assault occasioning actual bodily harm.
Counts 22-24 related to offences said to have been committed against Natasha Joyce Mary Lee; counts 22-23 alleging rape; count 24 alleging assault occasioning actual bodily harm was withdrawn from the jury.
Count 25 alleged rape of Michelle Davis.
The point which arises on this appeal relates to an incident concerning certain jurors which occurred after the jury had been sent home for the night during their deliberations and after they had delivered verdicts on certain counts. There is no criticism of the way in which the trial was conducted or of the summing up, up until the point when the incident occurred.
Thus it was that on the evening of 10th August 1999 the jury brought in unanimous verdicts on certain counts.
On counts 1-2 (living on the earnings of prostitution and being concerned in the supply of crack) the jury brought in verdicts of guilty although this was hardly surprising since counsel for the appellant had conceded that the appellant was guilty on these counts.
On counts 8-9, (two counts of indecent assault relating to Kelly Ann Bourgaise) verdicts of guilty were brought in, but, and not unimportant, on count 10 (an assault occasioning actual bodily harm relating to Kelly Ann Bourgaise), the jury acquitted.
On counts 14-15 (two counts of indecent assault relating to Shellie Marie Floyd) the jury brought in verdicts of guilty.
On counts 20-21 (one count of indecent assault and one count of an assault occasioning actual bodily harm relating to Rossalyn Edmondson) the jury brought in verdicts of guilty. But again, of some importance, on count 19 (a count alleging rape of Rossalyn Edmondson) the jury acquitted.
On that evening of 10th August 1999 the jury were sent home before considering further their verdicts on the remaining counts of the indictment. It was on that evening that an incident occurred in which two jurors on a bus were overheard discussing the case. We will come to the detail of that in a moment.
On the following morning, after a debate as to how to deal with this incident, the judge refused to discharge the jury in relation to the remaining counts. The judge gave a majority direction and a warning, the details of which again we shall have to examine hereafter. The jury retired at 11-28am on the morning of 11th August and returned ultimately at 4-02pm in the evening. At that stage they returned a unanimous verdict on count 16 alleging false imprisonment in relation to Rebecca Ann Ward. The jury returned majority verdicts of 10-1 in relation to counts 17-18, the counts alleging rape of Rebecca Ann Ward. They returned a majority verdict of guilty 10-1 on count 25 the count alleging rape of Michelle Davis.
The jury could not agree on any of the other counts. They were then discharged from giving verdicts on all of those other counts, those counts being the remaining counts relating to Kelly Ann Bourgaise counts 3-7 and count 10; the remaining count relating to Shellie Marie Floyd i.e. count 13; the remaining count relating to Rossalyn Edmondson and the counts relating to Natasha Joyce Mary Lee.
The judge then proceeded to sentence. Those sentences were as follows. Count 1, living on the earnings of prostitution, 4 years imprisonment. Count 2, being concerned in the supply of Class A drugs, 5 years consecutive. Counts 8-9, 14-15 and 20, counts relating to indecent assaults of Kelly Ann Bourgaise, Shellie Marie Floyd and Rossalyn Edmondson, 4 years concurrent. On the count of false imprisonment of Rebecca Ann Ward, count 16, 12 months concurrent. Count 21, assault occasioning actual bodily harm on Rossalyn Edmondson, 12 months concurrent. Counts 17, 18 and 25, the rapes of Rebecca Ann Ward and of Michelle Davis, 9 years concurrent as between themselves but consecutive to counts 1 and 2. The total sentence was thus one of 18 years imprisonment.
The Facts
Before coming back to the incident which is the subject mater of this appeal, it is necessary to say a little more about the facts. It is possible to do so by reference to counts on which the appellant was convicted and to take the same essentially from the precis in the advice of counsel on behalf of the appellant.
Count 1. Living on the earnings of prostitution.
The allegation under this count covered a course of conduct between 1.1.89 and 21.10.98. The allegation was that the appellant associated with prostitutes including each of the complainants on the various counts and the allegation was that he took money from them knowing that money was the earnings from prostitution. The appellant in evidence admitted that he had benefited financially from the earnings of at least Shellie Marie Floyd with whom he had lived. He had used her earnings to buy crack cocaine for himself and to buy household supplies for both of them. The various complainants in their evidence alleged that the appellant had taken money from them when they returned from working on the streets. The complainants alleged that the appellant shared crack cocaine with them and that he would inform them that they owed him money for the drugs and that they had to work the streets to earn money to repay him.
Count 2. Being concerned in the supply of Class A drug: crack cocaine
This count covered the same period as count 1. The allegation took the form of sharing crack cocaine with the complainants. The appellant admitted that on occasions he had smoked crack cocaine with the women sharing his own supply with them and admitted thus that he had supplied them with the drug.
Thus, as the judge put it in his summing up in relation to count 1:
“So everybody seems to b e agreed, members of the Jury, that if as they both invite you to do, you accept the defendant’s admission then a verdict on Count 1 of guilty will follow and, as both Counsel have said to you, that should not detain you long”.
As regards count 2, the judge put it this way:
“Again both Counsel, though it remains a matter for you, accept the defendant’s admissions in this respect and do not invite you to find other than that the requirements of this offence are made out”.
Counts 8-9; Indecent assaults on Kelly Ann Bourgaise
These counts were specimen counts with regard to the appellant’s conduct towards Kelly Bourgaise between 1.1.94 and 31.12.96, this period being when she was over 16 years of age. The counts in relation to Kelly Bourgaise on which the jury could not agree related to a period when she was under 16. The appellant challenged the allegations that he had first met Kelly when she was 13 or 14 years old, but he did accept that there had been a lengthy period of acquaintance with her during which time Kelly worked as a prostitute. The allegations of indecent assault related to the appellant asking Kelly to have intercourse with a “punter” without a condom thus allowing the man to ejaculate inside her vagina, following which she was to return to the appellant who intended to lick out the semen from her vagina. Kelly Bourgaise resisted this but did agree to bring back condoms used by “punters”. The contents of the condoms would then be poured out on to her body by the appellant who would then lick the semen off of her body. This practice was alleged to have happened frequently and it is alleged that the counts were specimen allegations of that conduct. The allegations were consistently denied by the appellant.
Counts 14-15; Indecent assaults on Shellie Marie Floyd
Again these are put as specimen counts covering conduct over the period 1.9.97 to 30.11.97. For part of this period the complainant lived with the appellant at his home in Huddersfield before she left him to go and live in Manchester. She worked as a prostitute and the appellant benefited from that work in that her earnings were used to purchase crack cocaine and pay for their joint household expenses. She alleged that on several occasions during that period, at the appellant’s insistence, she had unprotected sex with “punters” and returned immediately to the house where the appellant then licked the semen from her vagina. On other occasions she had retrieved the condoms used by “punters” and brought the used condoms home. The appellant poured the contents of the condom on to her body and then licked the semen off. She agreed to do this because she was intimidated by the appellant. Again the appellant always denied these allegations.
Counts 16-18; False imprisonment and two rapes of Rebecca Ann Ward
The complainant had been working as a prostitute for a few months prior to the events she alleges against the appellant. At a time in August or September 1998 when she was living in a hostel in Huddersfield, she and two other girls went to Bradford to work the “beat” as prostitutes. The appellant met her and invited her to go with him and another man to premises in the vicinity. She did not want to go with him but the appellant took her arm and she said that she felt that she had no choice. He “walked” her to the flat where crack cocaine was smoked and money was taken from her by the appellant. When the complainant asked to go and look for friends the appellant went with her and after a nominal attempt to find the friends the appellant took the complainant to his home in Huddersfield by taxi and against her will. The complainant alleged that once in Huddersfield they smoked crack cocaine. After that the appellant made sexual advances to her and had full sexual intercourse with her against her will. The complainant said that she submitted to intercourse for fear of the appellant. The appellant wanted her to have unprotected sex with a “punter” and then return to his home where he was to lick the semen out of her vagina. She refused to do this. The complainant alleges that she was too frightened of the appellant to attempt to leave his house. Later that morning the appellant again had sexual intercourse with her although she told him that she was unwilling. Only partial penetration was achieved by the appellant on this occasion. That day a friend of the complainant came to the house with another man and both women were instructed by the appellant to work the streets of Huddersfield as prostitutes for his financial benefit. Eventually the complainant and her friend were able to return to the hostel.
In cross-examination the complainant agreed that she had pretended that she had wanted to have sex with the appellant and that she had gone along with what the appellant wanted to do to keep him happy so that he would not be violent. She agreed that in the past, and as a prostitute time and again, she would have pretended to have enjoyed the sexual act. She insisted that the appellant had taken her arm on the way to the flat in Bradford, but demonstrated that her effort to shake off his hand was in the nature of a half-hearted shrug. The appellant denied that he had detained the complainant against her will. He said that throughout he genuinely believed that she was willing to accompany him to the flat in Bradford and thereafter to Huddersfield. Further, the appellant genuinely believed he said that she consented to sexual intercourse. He maintained that there had only been one act of intercourse and that the alleged act of partial penetration had never taken place.
Counts 20-21; Indecent assault and assault occasioning actual bodily harm on Rossalyn Edmondson
These assaults were alleged to have occurred on 20.10.98 when the complainant was aged 16. She gave her evidence by video and television link. She was a prostitute, and together with other prostitutes she left Bradford with the appellant on 19 October 1998 and went to his home in Huddersfield. In Huddersfield she and the other girls worked on the “beat” and handed over their earnings to the appellant. She smoked crack cocaine with him at the house. On 20 October 1998 she alleged that the appellant asked her to take him to the place where she had had sex with punters. At his request she retrieved about four used condoms and the appellant took the used condoms home. She refused to agree to him pouring the contents of the condoms on her body and went to sleep. She woke later to find that nevertheless the appellant had poured the semen on to her body and was in the process of licking it off. Later that day the complainant said that she wanted to return to Bradford but the appellant would not agree and set about her, punching her in the face, knocking her to the ground, banging a door against her head and kicking her in the stomach and on her head. In due course she was able to leave the house and subsequently reported these matters to the police. She is the only complainant to have made any report against the appellant to the police. On examination she was found to have bruising to her face and red marks on her back. The appellant has denied consistently that he has ever indulged in the fantasy relating to licking the semen of other men with regard to all of the complainants. In respect of Rossalyn Edmondson he denied that he used any violence towards her.
Count 25; Rape of Michelle Davis
The complainant was a prostitute who had known the appellant for several years. She was partially deaf. On the occasion alleged, in about November 1997, she and the appellant were at a house in Bradford. After smoking crack cocaine together the appellant said that he wanted to have sexual intercourse with her. She refused and she alleged that the appellant repeatedly threw her about the room until, through fear, she submitted to having intercourse with him. She agreed in evidence that after that incident she had visited the appellant at his home in Huddersfield on several occasions since the alleged rape, had maintained friendly relations with him and had made no complaint to the police about the rape. The appellant denied ever having sexual intercourse of any sort with the complainant.
The incident with the jurors
The judge throughout the trial consistently reminded the jury not to discuss the case with anyone and not to discuss the case with each other save when they were together as a group. After the first verdicts were returned on 10th August 1999 the judge sent the jury home giving them a warning consistent with that which he had given throughout the trial. Indeed, he emphasised that
“… far more important now than ever before, but I must repeat again the importance of not allowing anybody to approach you and of not discussing this case, even those counts you have returned as final verdicts, with those at home or indeed with anyone else, or dreadful problems will arise. Please do not let them”.
The judge then told the jury that it was only a very short time ago that juries would have been sent to hotels and kept all together not being allowed to speak to anybody else, and not allowed to go home, and he emphasised the privilege which juries now had. The judge ended his warning with these words:
“But please realise it is something of a privilege and it carries great responsibilities so forget the case from now on, hasten ye home and make sure you are back for tomorrow morning for half-past 10 when we will meet again in Court and I will give you a further direction”.
Mr Campbell QC, for the appellant, accepts that although the judge did not in words as such say that the jurors were not to discuss the case amongst themselves, save when they were gathered together in a group, it must have been clear to the jury having regard to the number of times that the judge had already said that, and having regard to the final sentence quoted above, that the jurors were not to do so.
Unfortunately, it is clear that two jurors, when travelling home together on a bus, disobeyed and flagrantly disobeyed the directions of the judge. That disobedience was brought to the attention of the prosecution who immediately made it available both to the defence and to the judge. The information at that stage was in the form of a minute from DC 4347 Crabtree West Yorkshire Police and was in the following terms:
“AT 10.50PM ON TUESDAY 10TH AUGUST 1999, I HAD CAUSE TO SPEAK WITH THE FOLLOWING PERSON MRS JOAN BROWN 8, WELL GROVE, SHEEPRIDGE, HUDDERSFIELD TEL 01484 454075
SHE STATED THAT SHE WAS A VOLUNTARY WORKER WITH THE BRADFORD WORKING WOMANS PROJECT.
AT 4.40PM THIS DATE SHE CAUGHT THE X6 BUS TO HUDDERSFIELD FROM THE BRADFORD INTERCHANGE AND SAT ON THE LOWER DECK TWO SEATS IN FRONT OF THE REAR SEATS. SHE OVERHEARD A CONVERSATION BETWEEN A MALE AND FEMALE. THE MALE IN PARTICULAR SPEAKING QUITE LOUDLY AND NON TOO DISCREET.
NAMES WERE MENTIONED. KELLY BORGAISE, NAMA AND REBECCA. BROWN WHO HAD WORKED WITH THESE PERSONS WITHIN THE PROJECT INSTANTLY RECOGNISED THEY WERE INVOLVED IN THE ABOVE TRIAL AND THE TWO PERSONS WERE OBVIOUSLY JURORS DISCUSSING THE TRIAL. THE MALE IN PARTICULAR STATING HE THOUGHT THE WITNESSES HAS DISCREDITED THEMSELVES WHILST GIVING EVIDENCE AND THEY HAD “JUMPED ON THE BANDWAGON” IN ORDER TO CONVICT BRYAN. THEY WERE CONCERNED WITH AN ELDERLY JUROR WHO HAD CONSIDERED BRYAN GUILTY THROUGHOUT THE TRIAL. MRS BROWN PRIOR TO GETTING OFF THE BUS IN HUDDERSFIELD OVERHEARD THE PAIRS OBVIOUS CONCERN THAT SHE MAY HAVE OVERHEARD THEIR CONVERSATION. MRS BROWN WAS CONCERNED THAT THE TWO APPARENT JURORS HAD OPENLY DISCUSSED THE MATTER IN PUBLIC AND CONTACTED HER LINE SUPERVISOR CATHERINE FRASER TEL 01422 205037 WHO IN TURN CONTACTED THE POLICE. BROWN DESCRIBES THE MALE AS WHITE, 20 YRS, BLACK SPIKED GELLED HAIR, WISPY GOATEE BEARD, WEARING BLACK LEATHER JACKET AND WHITE RIBBED SHIRT. FEMALE AS WHITE, 23 YRS, SHOULDER LENGTH MOUSEY/BLOND HAIR”.
The above minute was the only information by reference to which decisions were taken at this stage. We have before us further information in that a full witness statement was taken from Mrs Joan Brown. That witness statement expands on matters covered by the minute and, so far as is relevant, is in the following terms:
“As the bus travelled towards Huddersfield I was sat alone but became aware of a conversation between a man and a woman taking place behind me. The man was speaking loudly and I could clearly hear everything he was saying. I heard him say he wasn’t happy with the way the case was going because he didn’t think Laurence was guilty of all 13 charges. The female asked him what made him come to that conclusion because she thought it was going well and was satisfied with the accounts given by the witnesses. He then went into detail about why he didn’t believe some of the witnesses. He named Kelly BORGAISE and stated that she looked very young and that she wasn’t convincing with what she was saying.
He then named a witness NANA and said that her evidence was inconsistent and that in his view she was out of it. He then said that the only reliable witness was Rebecca. He did say her surname but I’m not sure what he said, it sounded like MOURNA. He stated she sounded educated and knew what she was talking about and how she had now got herself out of the situation. He added that he thought the witnesses had jumped on a bandwagon to send this man down.
He then referred to a black bin liner being moved from room to room and disputed what relevance it had. He then said that he knew he would be elected Foreman. He went on to say that Laurence was an innocent man looking at a long time in prison and he was an innocent man.
The woman was speaking to the man giving her own opinions but I couldn’t clearly make out what she was saying as she was talking quietly.
After the woman had given her opinion he made reference to an old man on the jury who had Laurence down for guilty already even though he hadn’t heard the evidence. The man made comment about a majority verdict and he would have something to say about that. He made mention about reading some transcripts.
I am aware of the Laurence BRYAN trial and have followed it in the papers. I do not know him myself but he is known to some of the girls I work with. I have no doubt that the 2 people were jurors in this particular trial. The names mentioned by the man, Kelly BORGAISE and the way he described her is a girl that I know from my work. I also know NANA through my work”.
From that statement it is worth making the following points although these points would not be apparent to the judge when making the ruling that he had to make. First, the statement refers to the man not being happy about the way the case was going, and not thinking, that “Laurence was guilty of all 13 charges”. The number 13 is so accurate that we can now see that it is clear that such conversation as was taking place related to the counts that remained so far as the jury was concerned. The statement of Mrs Brown however reads as if she thought that a foreman was still to be sworn and that the jury had not commenced their deliberations of the various counts. Mrs Brown clearly did not know that verdicts on certain counts had already been entered. Second, we know that verdicts had already been entered in relation to Kelly Bourgaise, those verdicts being unanimous, and we also know that in fact the jury did not agree and thus did not return verdicts in relation to any other counts relating to Kelly Bourgaise. Third, it is safe to conclude that Nana would refer to Natasha and so far as she was concerned the jury were not going to agree on any allegation relating to her and thus the appellant was not convicted on any counts relating to her. Fourth, Rebecca must refer to Rebecca Ann Ward. So far as she was concerned, we know that verdicts were ultimately entered the next day by a majority in relation to the rape, and unanimously in relation to false imprisonment. Fifth, in relation to the comment that an old man on the jury had Laurence down for guilty even though he had not heard the evidence, we know, as indeed did the judge so far as this aspect was concerned, that on 10th August unanimous verdicts had been entered of Not Guilty on two counts.
How was the problem resolved at the trial?
All were taken by surprise. One must feel considerable sympathy for both counsel and the judge. One can see that little thinking time was given to anybody. The jury were there waiting to continue. Counsel and the judge in open court were all thinking (on their feet) anxious that the jury should not be kept waiting. One major consideration was that verdicts had already been returned on certain counts and thus nothing could be done by the judge so far as those verdicts were concerned. It further occurred to the judge that it was possible that if the facts were true the two jurors might be in contempt of court. A further problem was an obvious one - how could any investigations take place which would not compound the problem if the trial was to continue? In particular how could investigations take place without infringing section 8 of the Contempt of Court Act 1981, which, so far as material, reads:
“(1) Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.
Indeed Mr Campbell on behalf of the appellant was submitting that the jury should be discharged and was against there being any investigation. At 7G of the transcript he said:
“We are concerned therefore that the information, and we submit that it cannot at this stage be investigated further without compounding the problem, we submit that the Court must take this material at face value, coming from someone who if anything would be sympathetic to the girls rather than the defendant, this is not a report from anyone who could possibly be described as sympathetic to the Defence …”.
Mr Campbell’s main concern before the judge, as it was before us, was with the reported comments of one juror relating to “an elderly juror who had considered Bryan guilty throughout the trial”. In that regard, both before the judge and before us, reliance was placed by the prosecution on the fact that Not Guilty verdicts had been entered unanimously the evening before. Thus it was said, the court could be sure that there were no jurors who were simply saying Bryan was guilty without considering the evidence. But Mr Campbell submitted before the judge and before us that the Not Guilty verdicts could not detract from the fear that one juror had been barred from consideration of the case without any intention of considering the evidence properly and with the intention of convicting the appellant whatever the evidence demonstrated.
Mr Wood for the Crown also supported Mr Campbell in his submission that there should be no further investigation. It was his submission that the jury should be given “the strongest possible direction” and it was his submission that the verdicts so far delivered went “100% to prove … that the concerns being expressed about this other juror … must be groundless”.
This debate between the judge and counsel took place over a relatively short time, 10-30am to 11-20am, with the jury waiting outside. The judge decided to continue with the case and it is clear from the remarks that he made that a major consideration was (1) that they were at the end of a very long trial; (2) that if he discharged the jury in relation to the remaining counts that would leave another court to consider what the position was on the counts on which verdicts had already been returned but would be likely to lead to no consideration at any trial in the future of the subject matter of the remaining counts. Thus it was that the judge stated:-
“… it seems to me that to abandon at this stage would be to defeat justice. Justice is two-sided and to allow this to abort a three week trial in the knowledge that it is most unlikely that it could be re-instated, strikes me as a decision which I shall not take”.
The jury were then brought back into court. It seems again that the judge did not take time to consider precisely how he should direct them at that stage. The judge then gave a majority direction about which there is no complaint, but he then went on in these terms:
“It has come to my attention that a discussion took place last night in a public place which was overheard. That was a scandalous thing to do. It may have consequences with which you need not be concerned, but you were given express directions not to do that and you ignored them. That could be a contempt of Court which might attract punishment. I am not going to take any such step at this stage but I say that to you because somebody among your number has ignored what I had to say and I have got something else to say now and this must not be ignored.
The conversation which has been reported suggests that one member of the Jury may not have been addressing the evidence in the case but acting on general prejudice. So far as I can see no evidence in the verdicts which have been returned that that is so.
There is, however, other suggestions that those having the conversation might have been acting in a manner other than a careful and impartial consideration of the evidence. Now will you please, please heed me now when I say you have sat here for three weeks, in excess of three weeks, listening carefully to the evidence. Some of you, indeed all of you on the evidence that I see of the verdicts thus far, appear to have looked at the evidence very carefully. This conversation which has been reported to me may just be a load of silly nonsense but I am bound, having heard what I have heard, to tell you that you must put prejudice of any kind out of your heads. You must put aside that broad paintbrush. You are working here with a fine brush, with detailed evidence, and you bear in mind too the burden of proof and the standard of proof. I spent almost a day directing you about that and I am not going to do it again, but I want verdicts from you which are sensible, rational, unprejudiced and well founded, otherwise we shall all have been wasting our time.
You consider your verdicts, the ones that remain, members of the Jury, remembering my direction, heeding my words, and I hope reaching a unanimous verdict on what remains. Will you kindly retire and continue”.
The jury were in fact brought back into court once more at 12-48pm because Mr Campbell had a concern that the judge may have given the impression in his direction that he , the judge, approved the verdicts already entered. Nothing turns on this aspect but the judge gave a further direction at 12-48pm in order to put right any impression the jury might have in that regard. Ultimately, as already indicated, the jury returned at 4-02pm and entered the verdicts already indicated and intimated their disagreement and inability to reach verdicts on the other counts.
Mr Campbell QC’s submissions
Mr Campbell took three points before us. First, his submission was that the comment relating to the elderly juror was such as to give rise to a fear that the appellant had not received a trial from an independent and unbiased tribunal. Second, he in any event, submitted that the judge exercised his discretion wrongly in not discharging the jury in relation to the remaining counts. He submitted that the judge took into account matters that he should not have taken into account including the fact that the trial was very close to its end. The judge should have concentrated simply on the question whether the appellant could have a fair and unbiased consideration given to the counts remaining. Third, he submitted that the direction in fact given to the jury did not dispel the risk of prejudice, so far as the elderly juror was concerned. Furthermore, he submitted that by threatening contempt in the way that the judge did, that would place the two jurors in fear. His submission was that that must mean that those two jurors would be unable to focus properly and fairly on the evidence relating to the other counts.
Mr Hyland QC’s submissions
Mr Hyland QC accepted that for the two jurors to have talked together on the bus meant that there was a material irregularity in the trial. He was also inclined to accept that the language used by the judge in giving the direction that he did was intemperate, and that that too, might be said to be a material misdirection. He furthermore accepted that it might well have been appropriate in this case for the judge to carry out further investigations before ruling as he did and that itself might also constitute a further irregularity in the trial. The main thrust of the submission of Mr Hyland however was that if one examined the verdicts in this case, one could deduce the following. First, having regard to the unanimous verdicts of Not Guilty on two counts on 10th August, it certainly was not true that there was one member of the jury who was going to find the appellant guilty whatever. The likelihood accordingly would be that whatever was heard by Mrs Brown in this regard was not the expression of a serious anxiety about the inability of a juror to address the issues fairly. Second, the direction of the judge could not have made it clearer that the jury’s duty was to consider the case on the evidence and nothing else. Third, the fact that on 11th August the jury deliberated all day and then refused to agree on a substantial number of counts demonstrated that no-one was cowed or put in fear so that they could not focus on the evidence relating to the respective counts. The jury clearly gave ample consideration to each count. Fourth, thus that there was no risk that the verdicts returned in this case were not safe.
Discussion
As already indicated we have the greatest sympathy for the judge and all those concerned. It may be easier for this court to consider what the right approach should be after some deliberation than it was for those concerned at the time. We would however say this. It is understandable why the judge, and indeed counsel, were anxious to continue with the case and not keep the jury waiting, and it is thus understandable why matters were worked out “on the hoof”. However, one lesson we suggest should be learnt from a case such as this is that in truth there is no necessity for taking decisions in that way. There is no reason why, the moment a major crisis arises of the sort that arose here, a pause for consideration is not organised. The jury could be told, and in this case should have been told, to cease deliberating and be told to go with an usher to get some refreshment and await the ruling of the court as to when they will be asked to continue their deliberations. They could be told there might be a pause for some time. Counsel and the judge should then adjourn for half an hour or so just to allow proper consideration to be given as to what steps to take. The judge should then hear submissions from counsel and if necessary rise to consider what to do.
In this instance all there was before the judge was the Minute. No opportunity was taken to check with Mrs Brown what precisely she had heard. Nor was any opportunity taken to examine Mrs Brown by reference to the context in which the case had actually reached rather than the context which she appeared to assume to exist. It seems to us inconceivable that if Mrs Brown had been made aware of all the verdicts brought in on 10th August that she would not have accepted that the remark about the elderly juror had either been misunderstood by her or was one being made without being seriously meant.
We think that if the jury had been stopped deliberating and a pause organised, it would have been seen that at least some investigation should have taken place as to precisely what Mrs Brown had overheard. At least Mrs Brown should have been asked to consider what it was that she was alleging that she had heard in its proper context. The speediest way of dealing with that would have been to bring Mrs Brown to court.
Some suggestion was made by the court during argument of the possibility that having established the position with Mrs Brown the judge might have gone on to identify the two jurors and possibly even thereafter to have identified the elderly juror. On reflection we think there would have been risks in taking that course and no benefits. To have the two jurors in alone would have had the risk of appearing to threaten them. Furthermore, to have asked them questions about any views that they had about one of their number would clearly risk contravening section 8 of the Contempt of Court Act. To have tried to identify the elderly juror would not have achieved any purpose in that, if having established with Mrs Brown the nature of the comments she had overheard, the judge had formed the view that a warning to the jury as a whole would not suffice, then interviewing the elderly juror alone, if he could be identified, would be unlikely to achieve any beneficial result. If, as we think he would have been bound to do, (we having now read Mrs Brown’s statement) the judge had concluded that a firm direction was needed after which the trial could continue, it would be more appropriate to give that direction to the whole jury than to try to identify one member to whom to give it.
As is by now apparent, having established the position so far as Mrs Brown was concerned, we think thus that the judge would have had to make up his mind whether a firm direction which warned the jury to approach the matter without any preconceived ideas and by reference to the evidence alone, would expunge any danger of an unfair trial. If he had concluded that such a direction could not suffice then a discharge of the jury in relation to the remaining counts would have been the only course open to him. The fact that the trial had got so far; the fact that there were verdicts already returned on some counts; the fact that a discharge might lead to no trial at all on the remaining counts was simply irrelevant and should not have been taken into account in making the necessary ruling (see R v Spencer (1986) 83 Cr.App.R. 277 in the speech of Lord Hailsham at 279-280).
If (as we believe on the material we now have that he would have done) the judge concluded that a direction firmly given would preclude any unfairness, then we would suggest that before the direction was given he would be best to have adjourned for a moment in order to put down in writing that which he wished to say. It might even have been appropriate to rehearse that direction with both counsel in order to allow them to make their submissions as to whether it sufficed or could be improved in any way. Such a direction should not have contained any suggestion that certain jurors might be in contempt with an inference that that might be dealt with at some later stage. That carried with it the risk that those jurors might have felt under threat. Any question of contempt could and should have been held over until after the conclusion of the trial.
How does the above impinge on this appeal?
There was, as we have indicated, an irregularity in the conduct of the jurors. We think that there was also an irregularity in the judge failing to establish with more precision what Mrs Brown had overheard. We think that it was wrong ever to suggest at this stage that if the trial were to continue that there was a possibility of contempt proceedings being brought against any juror. We thus think that the direction contained a misdirection. The direction was however strong and compelling in relation to the jurors considering their verdicts on the evidence, and on the evidence alone. The real question thus is whether the verdicts of the jury in this case were safe. That can only be considered in the context of how serious the irregularities were in the context of the case as a whole.
Seriousness of the irregularities
The conduct of the jurors was reprehensible in the extreme. But decisions on this appellant’s case should not be made for the purpose either of punishing jurors or discouraging other jurors from the same misconduct. It must be left to judges in their particular cases to make clear that jurors must not conduct themselves in the way that these two jurors did. As to what the jurors actually said and its effect on this trial, it seems to us that on analysis it is not serious. First, the verdicts of Not Guilty on 10th August demonstrate that the remark about the elderly juror was not a serious one and certainly demonstrate that there was no truth in the remark made. Second, no verdicts were entered against the appellant in relation to Kelly Ann Bourgaise on 11th August and thus comments about Kelly Bourgaise do not cast any doubt on future verdicts.
The judge’s failure to ascertain the true position so far as Mrs Brown was concerned was also, as it turned out, not a serious irregularity. We have a copy of the statement of Mrs Brown and it accords very much with the Minute. Indeed, in so far as it expands on the Minute, it helps us to see how Mrs Brown would have been likely to assuage any fears about the likely fairness of the jury’s approach once she appreciated the true context in which such remarks as she had heard, had been made. The judge would, as he in fact did, have decided to give a clear direction to the jury in terms which would have made it clear to them that they must decide the case on the evidence and only on the evidence. The direction that the judge in fact gave referred to the contempt aspect and that, as already indicated, was unfortunate. However, once again we are able to see that the jury were not disabled in any way from considering fully the other counts. The fact that the jury were unanimous on one count, brought in majority verdicts on three counts, and could not agree on nine counts, demonstrates that there was no prejudice to the appellant so far as those further counts were concerned.
Conclusion
We have obviously considered this case with considerable anxiety. The jurors’ conduct was a major and serious irregularity. Some criticism can be made of the way in which that irregularity was handled. We have thus reviewed the matter with great care. We believe that on analysis the verdicts of the jury were in fact safe and that being so we dismiss the appeal against conviction.
Appeal against sentence
As already indicated the total sentence that this appellant received was one of 18 years imprisonment. That sentence was in essence made up of consecutive sentences of 4 years on count 1 and 5 years on count 2; concurrent sentences on the indecent assaults, false imprisonment and assault occasioning actual bodily harm; and consecutive sentences of 9 years in relation to the counts alleging two rapes against Rebecca Ward and one rape against Michelle Davis.
We have come to the view that a period of 18 years imprisonment for the conduct covered by the counts on this indictment was manifestly excessive. In essence the court was concerned to sentence for interconnected acts of criminal conduct over a substantial period of time. We have accordingly asked ourselves what we think the appropriate sentence for the totality of that criminal conduct should be. Albeit the conduct was of a most unpleasant kind, so far as the indecent assaults were concerned, and although the court is sentencing for rapes committed against young girls, we take the view that a period of 14 years imprisonment would be the appropriate sentence to reflect the totality of the criminal conduct.
It seems to us that the most appropriate way to give effect to that view is to make the sentences in relation to count 1 and count 2 concurrent. Indeed, the reality of the position in relation to count 1 and count 2 is that there was a great deal of overlap, and there was a danger that, in making the sentences on those two counts consecutive, the appellant was receiving double punishment. The effect of making those sentences concurrent is that the sentences for the rapes of 9 years, running consecutively to sentences of 5 years, equals 14 years. That is the appropriate sentence and the appeal against sentence is allowed as indicated.
