ROBERTS v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
1. The applicant, Mr Lee Anthony Roberts, is a British national, who was born in 1975 and is currently detained at HM Prison Grendon in Aylesbury. He was represented before the Court by B. Richardson of CM Solicitors, a firm of lawyers based in Manchester. The respondent Government were represented by their Agent, Ms A. McLeod, of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. 2. On the afternoon of 15 March 2011 the applicant attacked D.W., stabbing him several times. He was charged with attempted murder and his trial took place in April 2011 in the Crown Court before a jury. Before the trial commenced, the jury were shown a video about their role as jurors, setting out what they should and should not do. At the start of the trial, the judge reiterated the instructions given in the video and expressly instructed the jury members that they should not look up information relevant to the case on the Internet. 3. The applicant’s defence at trial was that although he had intended to cause serious bodily injury to D.W. he had not intended to kill him. Whether he had intent to kill was therefore the only contested issue. 4. The trial judge’s summing-up and directions to the jury set out in detail the factors that the jury was required to take into account when deciding whether the prosecution had proved that the wounding was done with intent to kill. The jury then retired to consider its verdict. No verdict was reached that day and the jury was sent home for the evening. 5. The next morning the jury members sent the judge a note which read: “Can the judge give the jury any guidance on the factors to be taken into account in deciding whether the defendant intended to murder D.W. with particular onus on the definition of intent?” 6. With the agreement of counsel for the prosecution and the defence, the judge gave the jury a written extract from the relevant section of her summing-up where she had discussed intent. The judge also read the passage out to the jury members. She gave additional details at some length as to the circumstances that needed to be considered. 7. On 19 April 2011 the applicant was convicted of attempted murder by a majority verdict of the jury (ten jurors to two). On 23 September 2011 he was sentenced to indefinite imprisonment for public protection with a minimum term of seven years’ imprisonment, less time spent on remand. 8. Meanwhile, on 21 September 2011, A.O., who had been a juror at the trial, sent an email to the Crown Court alleging a number of shortcomings in the conduct of his fellow jurors. In particular, he alleged that information had been obtained from the Internet by three jurors and had been disclosed to fellow jurors. The trial judge informed counsel for the prosecution and the defence that allegations of jury irregularities had been made by a juror. 9. The applicant subsequently sought leave to appeal his conviction and sentence, alleging that his trial was unfair on account of significant jury irregularities. On 13 January 2012 the Court of Appeal directed that the Criminal Cases Review Commission (“CCRC”) be asked to investigate the allegations. 10. The CCRC interviewed the jurors in the case. A.O. claimed that Juror C, the foreman and a solicitor, had researched sentencing tariffs in similar cases and had shared the information he had discovered with his fellow jurors. In its report of 12 February 2013 the CCRC summarised statements from three other jurors alleging that the jury foreman had looked up the definition of “attempted murder”, had looked at information concerning the question of intent and had looked up the sentencing guidelines for attempted murder. Seven of the jurors had no recollection of the alleged improper conduct having taken place. None of the jurors supported the claim that two further jurors had undertaken Internet research. 11. The CCRC subsequently interviewed the jury foreman under caution. After receiving legal advice, the jury foreman gave a prepared statement and refused to answer questions. In his statement he confirmed that there had been some uncertainty as to the law on intent, for which further direction had been required from and provided by the trial judge; and that the issue of possible sentences had arisen. The statement neither confirmed nor denied that the foreman had conducted Internet searches relating to the case. 12. The CCRC report noted that A.O.’s allegations in interview appeared to be not “quite so stark” as those made in his initial email. It further noted that there was no support for the majority of his allegations. However, it accepted that there was some corroboration for the more general allegations that the jury foreman had conducted case-related research on either the question of the differing elements of intent as between the offences under consideration, or the different sentences which might arise, and had provided information to his fellow jurors. 13. On 1 July 2013 the Court of Appeal granted leave to appeal against conviction and refused leave to appeal against sentence. 14. In its judgment on the merits of the appeal against conviction, the court noted that the summing-up by the trial judge had been “impeccable” and had not been criticised by the applicant. The court referred to the jury’s question during deliberations regarding the law on intent and noted that the trial judge’s response was very thorough and that the jury could not have had any doubt as to the correct directions in law and the factors to which they were required to have regard. 15. The court agreed with the parties that it should proceed on the basis that an irregularity had occurred at trial. It considered that two matters had to be examined: first, the information introduced to the jury in relation to the requirements to establish the intent to kill; and second, the information introduced concerning applicable sentences. 16. As to the former, the Court of Appeal considered it inconceivable that the jury members would have paid any attention whatsoever to what had been said by the foreman after the judge had handed them the answers to the questions they posed. The court rejected the applicant’s submission that it could not be presumed in his case that the jurors would follow directions. Had the judge not handed a direction to the jury, there might have been some doubt but considering the timing, the probabilities and the care with which the judge provided a written document to the jury, the court had no doubt whatever that the jury followed the direction of the judge and ignored what the foreman of the jury had said. 17. On the question of what was said regarding sentencing guidelines, the Court of Appeal accepted that it should bear in mind the potential effect that a jury knowing the range of sentences could have on their attitude towards conviction. However, it continued: “35. But we must look at the reality of this case. As we have explained, there was one narrow issue before the jury, namely whether the Crown had proved, in addition to the intent to cause really serious bodily injury ... an intent to kill. It must have been obvious to the jury that the reason why the Crown was proceeding with the trial was that they did not consider that a plea to wounding with intent was sufficient to enable the judge to pass a severe enough sentence. It must have been obvious to the jury that by proceeding to seek a verdict on the count of attempted murder, the Crown were interested in establishing the more serious offence, so that the punishment could be the more serious. Thus, the fact that the foreman explained to the jury that sentences for attempted murder were more serious than for wounding with intent cannot have any effect ... 36. It seems to us that it must have been obvious to the jury that they were tasked with deciding whether the Crown had proved the intent to kill, that if they did so the sentence would be more severe and therefore the introduction by the foreman of that further material can have had no material effect upon their decision to convict ...” 18. For these reasons, the court dismissed the appeal against conviction. 19. The applicant did not ask the Court of Appeal to certify a question of general public importance to enable him to apply for leave to appeal to the Supreme Court. 20. The applicant provided a copy of counsel’s advice dated 14 March 2014. The advice explained: “At the hearing of the appeal it was accepted ... that extraneous material had been introduced into the jury’s deliberations, and that the material related at least in part to the ingredients of the offence of attempted murder. There was no dispute as to the relevant law. It was accepted that the introduction of such material prima facie constituted a material irregularity in the trial process. The issue to be determined on appeal was whether that irregularity affected the safety of the appellant’s conviction. Following full argument, [the Court of Appeal] expressed the opinion that the appeal concerned the fact-specific issue of considering whether, in the light of the admitted irregularities, the appellant’s conviction was safe ... The issue at appeal ... was wholly fact-specific ... As there was no dispute between the parties on any point of law it was not possible to request a certification of a point of law of general public importance, and I regret to inform Mr Roberts that there are no further domestic avenues of appeal.” 21. Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them. 22. Once selected for jury duty, jurors must swear an oath or affirmation that they will: “faithfully try the defendant and give a true verdict according to the evidence.” 23. At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case. 24. The rule governing the secrecy of jury deliberations is set out in the Contempt of Court Act 1981. Section 8(1) of the Act states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. 25. Section 23A of the Criminal Appeals Act 1968 enables the Court of Appeal to direct the CCRC, in the context of an appeal against conviction, to investigate and report to the court on any matter deemed relevant to the resolution of the appeal. 26. In R. v Thompson and others [2010] EWCA Crim 1623, the Court of Appeal, addressing the matter of jury irregularities, explained: “2. Much more difficult problems arise when after the verdict has been returned, attention is drawn to alleged irregularities. This may take the form of a complaint from a defendant, or his solicitors, or in a very few cases it may emerge from one or more jurors, or indeed from information revealed by the jury bailiff. It is then beyond the jurisdiction of the trial judge to intervene. Responsibility for investigating any irregularity must be assumed by this court. In performing its responsibilities, it is bound to apply the principle that the deliberations of the jury are confidential. Except with the authority of the trial judge during the trial, or this court after the verdict, inquiries into jury deliberations are “forbidden territory” ... If any complaint about jury deliberations is received by the trial court after verdict it is immediately referred to this court and whether the complaint has been received from the court of trial or by this court directly, the practice is to examine each case to see whether or not, exceptionally, further inquiries ought to be made, and if so, to invite the assistance of the Criminal Cases Review Commission to conduct the necessary inquiry.” 27. The court confirmed that the rule that jury deliberations were confidential was subject to two narrow exceptions. The first arose if it emerged that there might have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence (for example, a decision arrived at by the toss of a coin). The second exception arose in cases where extraneous material had been introduced into the jury deliberations. Where the complaint was made that the jury had considered non-evidential material, the court was entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts. 28. Section 1 of the Criminal Appeal Act 1968 (as amended) provides that a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction. An appeal can only proceed with the leave of the Court of Appeal or if the judge of the court of trial grants a certificate that the case is fit for appeal. 29. Section 2(1) of the 1968 Act provides that the Court of Appeal: “(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.” 30. Pursuant to section 33(1) of the 1968 Act, a defendant has the right to appeal to the Supreme Court against a decision of the Court of Appeal (Criminal Division). Section 33(2) clarifies that the leave of the Court of Appeal or the Supreme Court is required and that leave will not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the latter court. 31. The Human Rights Act 1998 (“the 1998 Act”) incorporates the Convention into United Kingdom law. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings.