Amy Packham appeared on behalf of the CPS in the Court of Appeal, responding to an application for leave to appeal conviction. Anogika Souresh assisted her with this case throughout the appeal.
The suggested irregularity arose because the foreperson sent a note the day after conviction apologising for erring in returning a unanimous verdict, when in fact it had not been unanimous.
The Registrar had initially referred the case to the Vice President, Lord Justice Fulford, to consider whether the CCRC ought to be invited to question the jurors on the apparent irregularity.
At a hearing on 2nd July 2020, the full court rejected this suggestion and listed the appeal against conviction for hearing on 30th July 2020.
At the final hearing, the Court dismissed Mr Adebayo’s application for leave to appeal conviction.
Anogika Souresh has assisted on this appeal throughout. She has added the below case summary after attending the Court of Appeal with Amy Packham.
The Jury Trial
Mr Adebayo faced a three count indictment: (i) wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861; (ii) possessing a controlled drug of Class A (cocaine) with intent, contrary to section 5(3) of the Misuse of Drugs Act 1971; (iii) possessing a controlled drug of Class A (diamorphine) with intent, contrary to section 5(3) of the Misuse of Drugs Act 1971.
On 23rd September 2019, the jury were sent out to begin deliberations. Later that day, a note was received, that the advocates were not privy to, indicating that the jury had reached a unanimous verdict on all but one count. On the remaining count, they were split 11-1.
The Judge convened the jury and proposed that any unanimous verdicts should be taken. Thereafter, he would give a majority direction on the remaining counts.
The jury returned a guilty verdict on all three counts.
The next day, on 24th September 2019, a note was received from the foreperson stating that there had been an error; on Count 1, the jury were not unanimous but 11-1. The Judge received this note on 30th September 2019. He contacted the Registrar of criminal appeals, who in turn referred the application for leave to appeal conviction to the full court.
Court of Appeal
The Court first addressed the submission that the Judge ought to have identified the count on which the jury had reached a majority decision. The Court concluded that ‘there is no rule, Practice Direction or jurisprudence to support this contention’.
Pursuant to the Criminal Practice Directions 2015, 26Q.7 indicates that the court should take a verdict ‘in those cases where the jury are unanimous and the further direction [be] given in cases in which they are not unanimous’. The procedure as set out in 26Q.2 should be followed:
(a) “Have you reached a verdict upon which you are all agreed? Please answer ‘Yes’ or ‘No’.”;
(b) (i) If unanimous, “What is your verdict?”;
(ii) If not unanimous, the jury should be sent out again for further deliberation, with a further direction to arrive if possible at a unanimous verdict.
The Court rejected the suggestion that the Judge should not have followed the procedure in the Practice Directions and asked the jury to identify the count on which they were not unanimous.
The Court then turned to the Applicant’s submission that the CCRC should have been invited to investigate the jury irregularity. This was rejected at the directions hearing.
The Court referred to the Privy Council decision in Nanan v The State [1986] AC 860:
‘If a juryman disagrees with the verdict pronounced by the foreman of the jury on his behalf, he should express his dissent forthwith; if he does not do so, there is a presumption that he assented to it’.
The Court also referred to R v Millward [1999] 1 Cr App R 61:
‘It would in our judgment set a very dangerous precedent if, save in quite extraordinary circumstances, an apparently unanimous verdict of a jury delivered in open court, and not then and there challenged by any juror, were to be re-opened and subjected to scrutiny’.
If an issue with the verdict had arisen at the time of the verdict or shortly thereafter, the jury could have been reconvened. In the instant case, it would be inappropriate for the CCRC to investigate whether the jury verdict had been unanimous.
The Court of Appeal can ask the CCRC to investigate if a judge fails to respond to a contemporaneous dissent. Alternatively, judges can investigate an issue straightaway if there was substance to the concerns expressed. They can impose a short additional period of retirement to resolve any misunderstanding that may have arisen. This would not be to recommence deliberations but, instead, to resolve whether the verdict given reflected the decision made.
In the instant case, the verdict was unambiguous and no contemporaneous objections were raised.
The verdict on Count 1 was not unsafe. Application for leave to appeal conviction was refused.
