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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Burcombe v R. [2010] EWCA Crim 2818 (29 November 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2818.html Cite as: [2010] EWCA Crim 2818

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ Michael Brooke
T20057061

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th November 2010

Mr Justice Nicol:

1. On 22^nd August 2007 at Basildon Crown Court before HHJ Michael Brooke QC and a jury the Appellant was convicted of conspiracy to contravene s. 170 of the Customs and Excise Management Act 1979. He appeals against conviction with the leave of the Full Court (Lord Judge, Chief Justice, Hughes LJ, Vice President of the Court of Appeal Criminal Division and Bean J. ) given on 27^th May 2010 when the Court also granted the necessary extension of time within which to appeal.
2. The charge of which the Appellant was convicted was count 1 on the indictment. He was acquitted of one charge of possession of criminal property (count 4 on the indictment). The Judge directed verdicts of not guilty on two counts (3 and 5) of being concerned in a money laundering arrangement after the jury was unable to agree on these counts.
3. The Appellant stood trial with three others: Michael Roberts, Wojciech Kurczewski and Gary Sandell. Kurczewski was acquitted of count 1 and of a charge of being concerned in a money laundering arrangement (Count 2). Roberts was acquitted of two counts of possessing criminal property (counts 6 & 7). In respect of him, the jury were unable to agree on counts 1 and 5 and the Judge directed not guilty verdicts. Sandell was acquitted on count 2. The jury could not agree as to the charges against him on counts 1 and 3 and, again, the judge directed that not guilty verdicts should be entered.
4. Thus the Appellant was the only one of the four defendants to be convicted on any charge. The jury returned 6 verdicts of not guilty and were unable to agree in respect of 6 charges.
5. On 4^th September 2007 the Appellant was sentenced to 18 months imprisonment suspended for 18 months.
6. In view of the only ground of appeal, we can summarise the facts very briefly. The prosecution alleged that between October and December 2004 the appellant and others were involved in a business enterprise to import tobacco products from Eastern Europe into the UK without paying the duty which was payable on them. They would then distribute the goods for profit and the profit would then be used to procure further contraband goods. The tobacco products flowed into the UK; the money went back into Eastern Europe. Roberts was alleged to have been the link to the Polish supplier of the tobacco products. The Appellant was the distributor and collector of the products. Kurczewski was the man used to take the money back to Poland and Sandell was used to run errands.
7. The Appellant's case was that he was simply a store man for the cigarettes that were found at his property and he had no knowledge of any conspiracy. By their verdict on count 1 the jury rejected this defence. The Appellant said that he ran a hot dog stall and the money which the prosecution alleged in count 4 to be criminal property was in fact the proceeds of his hot dog business. This was the count of which he was acquitted. He said he knew nothing of the other sums of money which were alleged in counts 3 and 5 to be part of money laundering arrangements. These were the counts on which the jury could not agree in respect of him. The Appellant did not give evidence at his trial, nor did Roberts or Sandell.
8. This was a retrial. The jury at the first trial had been discharged. The jury for the second trial was selected on 25^th June 2007. The Judge concluded his summing up and the jury retired on Thursday 16^th August 2007. The Judge gave the jury a majority direction towards the afternoon of Monday 20^th August 2007. On Wednesday 22^nd August 2007 they returned what verdicts they could including a unanimous conviction of the Appellant on count 1, and his acquittal on count 4.
9. Unknown to anyone involved in the trial, the court official responsible for summoning potential jurors to the Crown Court had added three relatives or friends who were not properly summoned to the pool. She then made false entries on the jury computer. This official, Elaine Hemblade, had the title 'Jury Officer'. One of these three was Ms Hemblade's son. He was apparently detected and not allowed to sit on any jury. The other two were Michael Clifton and Susan Wood. They became two of the jurors in the trial which tried the Appellant.
10. On 20^th May 2009 Ms Hemblade was convicted of misconduct in public office. She was sentenced to 9 months imprisonment on each count concurrent. Mr Clifton and Ms Wood were charged with fraud by falsely claiming that they were self employed and so entitled to expenses. They were acquitted.
11. In the course of the investigation concerning Ms Hemblade's activities, a statement was obtained from Shelley Jiggens. Ms Jiggens was the court usher in the retrial of the Appellant and his co-defendants. She mentioned three incidents in the course of the trial which had related to Ms. Hemblade.

i) Some time into the trial, the jury arranged to have a lunch together which was to be cooked by one of their members who was a chef. He mentioned to Ms Jiggens that Ms Hemblade was going to join them for this lunch. This appears to have been some time before the end of the trial.

ii) After the jury had retired and begun their deliberations and Ms Jiggens had been sworn as the Jury Bailiff, Ms Hemblade came to see her, Ms Hemblade asked if she would go into the jury room and 'tell Sue I'll be outside waiting for my lift'. Ms Jiggens objected that this would be improper to which Ms Hemblade responded, that she would wait outside anyway.

iii) On the Monday after that weekend (and so, we infer, Monday 20^th August 2007), Ms. Jiggens took the jurors outside at one point for a cigarette break. She overheard 'Sue' talking about her weekend. Sue said that she'd been out with Elaine and they had had a brilliant time, boogying all night.

12. Ms Jiggens' account was put to Ms Hemblade. She accepted having had lunch with the jurors on one occasion. She did not accept that she had asked Ms Jiggens to pass a message to Sue while the jury was in retirement. She could not remember being given a lift home by Sue, although towards the end of the trial, Michael had done so. She denied going out for the evening with Sue. Susan Wood was interviewed. She did not recall giving Ms Hemblade a lift at all. She agreed that they had had a drink together at a pub.
13. The Juries Act 1974 s.18 provides so far as is material,

"(1) No judgment after verdict in any trial by jury in any court shall be stayed or reversed by reason -

(a) that the provisions of this Act about the summoning or impanelling of jurors, or the selection of jurors by ballot, have not been complied with. "

Accordingly, Mr Banks on behalf of the Appellant, accepts that he cannot challenge the conviction because two of the jurors had not been properly summoned to court in the proper manner,

14. However, he does submit that the Appellant's conviction is unsafe because of the improper association during the trial between Ms Hemblade on the one hand and Mr Clifton and Ms Wood on the other and which is the more troubling because of the irregular way in which Mr Clifton and Ms Wood came to be jurors on the case. He observes that this was a lengthy trial. It followed an earlier and abortive trial which itself lasted for some time. It was a case which would have been well known to all of the staff at court including Ms Hemblade, Ms Jiggens described Ms Hemblade as pleasant, friendly and helpful but also strong minded and a person who would not take nonsense from anyone. She was, in other words, Mr Banks submitted, a forceful personality. It was troubling enough that one juror (or possibly two) had been in the habit of having a lift with Ms Hemblade and that Ms Hemblade had had lunch with all of the jurors. Of greater concern, though was that this contact had continued during the sensitive time after the jury had begun their deliberations. Thus, on Ms Jiggens' evidence, Ms Hemblade was again expecting a lift from the juror after the jury had begun to deliberate and the night of boogying had been during the weekend between the days when the jury were in retirement.
15. Mr Banks submits that a reasonable bystander appraised of these facts would entertain a reasonable fear that Ms Hemblade had either passed information to a juror about the case which she should not have done or had otherwise improperly influenced the juror. Whether or not this had led to actual bias or prejudice against the Appellant is beside the point, the appearance of injustice is sufficient to render the verdict unsafe. In such circumstances, whatever the strength of the evidence against the Appellant, the conviction should be set aside,
16. Mr Banks is undoubtedly right that the law is concerned that a tribunal should be free of apparent as well as actual bias: "... it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" (R v Sussex Justices Ex p. McCarthy [1924] 1 K B 256 at p. 259 per Lord Hewart C. J. ).
17. The test to be applied is now well settled. It is "whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased": (Porter v Magill [2001] UKHL 67; [2002] 2 A C 357 at [103].) This is also the test which the Court is now also required to apply as a result of Article 6(1) of the European Convention on Human Rights, see Gregory v United Kingdom (1997) 25 EHRR 577 at p. 587, [41], [42] and R v Khan [2008] 2 Cr App R 13 at [5].
18. An associated concern is that the jury should decide the case exclusively on the evidence presented in the course of the trial. It is inconsistent with this principle for a juror to receive other information which is relevant to the trial. In part this is because none of the parties will have had an opportunity to make submissions in relation to that information and there will have been no consideration as to whether the information is even admissible. In part the concern is that the receipt of such information is likely to have been in breach of the instructions, which jurors are customarily given at the start of a trial, not to try to conduct their own researches into the case. If there has been a disobedience to that direction, it may provoke anxiety as to any other respects in which the juror concerned may not have followed the trial judge's directions. If the information was shared with other jurors, a yet further concern will be that they have not drawn the irregularity to the attention of the Judge. These issues have been highlighted by ready access to the internet. Notwithstanding all of these potential concerns, the reaction of this Court has not been to say that a conviction is unsafe whenever there is evidence that a juror has conducted his or her own researches on the internet. Rather the Court will examine the evidence as to the particular information which has been obtained and consider whether this would cause a risk of unfair prejudice to the defendant - see R v Thompson [2010] 2 Cr App R 27 and R v Macdonell [2010] EWCA Crim 2352. In the latter case, the Court said at [28]

"In some cases the very nature of the enquiries might give cause to think that in the course of them one or more members of the jury may have been given access to material which is prejudicial to the defendant. However, we think that the court ought to have some firm basis for reaching that conclusion and should not act on the basis of speculation."

19. In our judgment the difficulty in Mr Banks' way is that he is really asking us to act on the basis of speculation. Mr Clifton and Ms Wood should not have been on this jury, but there is no evidence at all that Ms. Hemblade had engineered their presence in order to prejudice the Appellant. So far as can be told her motives were to fill a gap in numbers on the jury panel and/or to put her friends in a position where they would be able to claim juror expenses. (In view of the verdicts in their prosecutions, we cannot assume that any of those claims for expenses was fraudulent). Indeed the verdicts in the trial of the Appellant and his co-defendants would not support any claim that this was a jury which was in some way biased in favour of the prosecution.
20. Nor is there any evidence at all that Ms Hemblade had imparted any information to Ms Wood or Mr Clifton that they as jurors should not have learned. Mr Banks comments that he was not allowed to investigate the matter with members of the jury. But that is because of the firm rule (qualified only where there is evidence of the most egregious abuse of the jurors' oath such as information that a verdict had been decided by consulting a Ouija Board) that evidence of jury discussions is simply inadmissible - see R v Mirza [2004] 1 AC 1118. Here there is no evidence at all of misbehaviour within the jury room, let alone evidence of the kind which would lead the Court to require an investigation to be conducted of the jurors by the Criminal Cases Review Commission.
21. Mr Banks submits that in this case, Ms Hemblade must have known that she was prohibited from lunching with the jury or from socialising with a juror, especially after the jury had begun their deliberations. Neither Mr Banks, nor Mr Warren was able to produce any documentary guidance to court staff to this effect. A precautionary approach on these lines might be sensible so as to avoid any inadvertent disclosure to the juror, particularly at such a sensitive time in the trial process as when the jury has been required to deliberate on its verdict. However, save in very exceptional cases, we no longer (as once used to be the case) lock juries up until they reach a verdict. The power to allow the jury to separate in the Juries Act 1974 s.13 is now almost invariably exercised if no decision has been reached by the end of the court's sitting day. Once a jury has been allowed to separate there is nothing in law to prevent them accepting or offering a lift from court or from boogying the weekend away.
22. Mr Banks argues that because Ms Hemblade has been demonstrated to be so wanting in the proper observance of her job as a court official there was a real risk that she would also break the rules about what information the jury was supposed to have and say something to Ms Wood or Mr Clifton that they were not supposed to know. Alternatively, the reasonable observer provided with all the facts would reasonably entertain a fear that that was what had happened. However, this, too, is speculation. We have seen that where a juror is shown to have disobeyed the Judge's instructions by conducting independent research on the internet and where other jurors have also failed to observe the Judge's direction to report anything untoward in the course of their discussions, the Court will not without further evidence assume other misbehaviour on the jury's part which would impugn the safety of the subsequent verdict.
23. We remind ourselves that Ms Hemblade was a court official, an errant court official, but not someone who was identified with any of the parties to this prosecution. Even then, as close an investigation as is possible in the circumstances may elucidate what passed between the juror and the outsider (see for instance R v Sawyer (1980) 83 Cr App R 283). The assessment of whether the reasonable observer would consider there was a real possibility of bias is made on the basis of the facts as so ascertained - see R v Gough [1993] AC 646 at 670.
24. Mr Banks relied strongly on the case of R v Devall [1992] Crim LR 664. In that case, on the second day of a six day retrial a juror had lunch with a barrister who was not in the case but who prosecuted regularly at the Central Criminal Court. As the report in the Criminal Law Review summarises it, "The conversation over lunch ranged over matters concerning the administration of justice and mutual friends (including members of the Bar) but did not involve discussion of the case being currently tried." The Judge had questioned the juror. The barrister was unnamed in the report. He was in fact Sir John Nutting, a highly regarded member of the Bar; and he confirmed that he had not discussed the case with the juror. The judge discharged the individual juror but refused an application to discharge the jury as a whole. This Court allowed the appeal against conviction, saying that it was reluctantly driven to conclude that a reasonable bystander might infer bias in the whole jury room from what had happened. For a number of reasons, though, we do not find that this case greatly assists us. Firstly, we have only the abbreviated report in the Criminal Law Review which does not allow us a complete picture of what had happened. Secondly, there was an independent reason why the Court of Appeal was concerned with the trial judge's decision. He had taken into account that this was a retrial and, if the case had to start over a third time, the complainant would have to give evidence yet again. Thirdly, the case was decided before R v Gough. If, as the trial judge and the Court of Appeal appeared to accept, the lunchtime conversation had included nothing about the trial in which the juror was concerned, we question whether a reasonable observer with that knowledge could have entertained a reasonable concern that the juror would be biased. Finally, what seems to have influenced the court in Devall was that the barrister was a regular prosecutor and, presumably, in that indirect fashion, might have been seen to be on the same side as the prosecution in the case that the juror was trying. There is not even an indirect link of that type in the present case between Ms Hemblade and the parties in the case that we are considering.
25. Nothing in Ms Jiggens' statement suggests that Ms Hemblade was present in the jury room at the time the jury were holding their discussions. Indeed, as the jury bailiff, it was part of Ms Jiggens' duties to see that no one entered the jury room while they were deliberating. Quite different considerations apply if there is any such unwarranted intrusion - see for instance R v McNeil [1967] Crim LR 540 where the jury bailiffs were two uniformed police officers who retired with the jury. Even though the foreman assured the trial judge that the officers had had no influence on their deliberations, the Court of Appeal quashed the resulting convictions saying "if strangers retire with the jury during their deliberations that is an irregularity which is difficult to cure. In the present case, although no harm was done McNeil, who had a criminal record, might well feel that he had not had a fair trial where two police officers retired with the jury." These days the question would be whether a reasonable observer appraised of all the facts would think there was a reasonable likelihood that the jury was influenced in consequence of the officers' behaviour, but we imagine that, in the unlikely event that these facts were to be repeated, the court's answer would be in the affirmative and the conviction would be quashed.
26. For all of these reasons we do not consider the Appellant's conviction to be unsafe. Accordingly, his appeal is dismissed.