Fiona Robertson Challenges Murder Convictions Following Disruptions to Jury Deliberations

Fiona Robertson represented 4 appellants challenging their convictions for murder in the Court of Appeal Criminal Division (R v Woodward, Spencer, Lamzini and Stoute [2019] EWCA Crim 1002). The appellants faced an 8-10 week trial and jurors were selected partly on the basis that they did not have pre-booked holidays. The trial was blighted by every manner of delay and interruption ranging from technical issues with the court equipment, reluctant witnesses, other work in the court list, illness and problems with transportation of the defendants.

The delays caused the trial to run into pre-booked juror holidays with the result that the jury retired for less than 2 days before having a 3 week break to accommodate these holidays. The jury then returned for a further 5 days of deliberations before having a further three week break. No reminder of the evidence or issues in the case was provided to the jury on their return. Guilty verdicts were returned against the defendants some 80 days after the evidence had closed.

The appellants were granted leave to appeal their convictions limited to the decision to continue with deliberations after the second three week delay in jury retirement. The appeal was heard on 8^th May 2019.

Unlike previous reported cases, no criticism was made of the Judge’s summing up nor the conduct of the case generally. Rather, the appellants argued that the interruptions fundamentally undermined the quality of the jury’s deliberations, creating an unacceptable risk of contamination from outside influences and of important evidence and directions being forgotten. The respondents countered this arguing the jury had been engaged throughout, the summing up was appropriate and the jury had a large volume of material from which to refresh their memories during deliberations. The issue for consideration was whether, in light of the severely disjointed jury deliberations in which no reminder of the evidence was provided, the appellants had received a fair trial and the verdicts were safe.

The Court of Appeal took the opportunity to issue guidance on some of the concerns that may arise when the jury separates during the course of deliberating on their verdicts. The Court concluded that there can be no general rule relating to the length of time a jury is dispersed during deliberations that renders a trial unfair or otherwise calls into question the safety of a conviction – the issue involves a fact sensitive analysis.

Nevertheless, the Court of Appeal set out that the following matters may be material:

1. The quality of the summing-up. If there are deficiencies in the summing-up, then this may be material. Conversely, while there is a risk that the length of dispersal will deprive the jury of a fair opportunity to assess the evidence, that risk will be reduced by a careful and meticulous summing-up.
2. It may be necessary to consider the extent and quality of the material that the jury has available on retirement, and the extent to which this will enable them to focus on the issues and the evidence in relation to those issues.
3. The gap in the jury’s consideration between the summing up and the final verdicts will be relevant to the fairness of the process. The longer the period, the greater the risk that the jury will be unable to remember the evidence summarised in the summing up and the points made by the prosecution and defence. In the present case the Court of Appeal recognised that the cumulative periods during which the jury were not considering the verdicts in the present case was considerable and unsatisfactory.
4. Fourth, it may be relevant that an application was made to discharge the jury at the time the issues regarding their retirement arose.
5. The existence of indications which tend to establish that, by reason of the length of the trial and the retirement, the jury were unable to discharge their functions. Are there indications that the jury were alert and attentive to their task during the trial and (to the extent this can be discerned) during retirement on the one hand; or discontented and distracted on the other? Is there material which shows that the jury were in difficulties in discharging their task following retirement? The Court of Appeal took the view that in the present case that it was clear the jury were taking their time to work through the charges and the evidence in relation to ten defendants facing different charges before reaching their verdicts.
6. Finally, the verdicts themselves will be relevant. Do they suggest, for example, that the jury were assessing the evidence in relation to each defendant or were unable to do so?

In the present case the summing up was clear and provided considerable assistance to the jury, the jury had a large volume of material available to them in the retiring room and the different verdicts on different charges in relation to ten defendants suggested that the jury had focused on their task despite the interruptions. The Court of Appeal took the view that although the second break in the jury deliberations was very far from satisfactory, the prosecution case against the appellants was strong and applying the relevant factors for consideration it could not be concluded that the process was unfair to the appellants so as to render the verdicts unsafe.

Fiona was instructed by Namita Pawa of Hallinan, Blackburn, Gittings and Nott LLP and led by Michael Borrelli Q.C.

The full judgment may be found here