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[COURT OF APPEAL]
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R E G I N A v. Y O U N G ( S T E P H E N )
1994 Oct. 24;
Nov. 17
Lord Taylor of Gosforth C.J., Waterhouse and Bell JJ.
Crime—Jury—Retirement to consider verdict—Defendant's trial for
murder—Jury accommodated overnight at hotel after retirement—
Ouija board used by four jurors purporting to give messages
prejudicial to defendant—Subsequent discussion by jury at hotel—
Defendant convicted by unanimous verdict—Whether court having
jurisdiction to inquire into events at hotel or injury room—Whether
ouija board session "material irregularity in . . . course of . . .
trial"—Whether conviction to be quashed—Criminal Appeal Act
1968 (c. 19), s. 2(1 )(c)—Contempt of Court Act 1981 (c. 49),
s.8
Crime—Court of Appeal (Criminal Division)—Jurisdiction—Leave to
appeal to House of Lords—Application to be made within 14 days
of decision—Whether announcement of result decision—Criminal
Appeal Act 1968 (c. 19), s. 34
The appellant was tried on two counts of murder. The jury,
having retired to consider their verdict, were unable to reach a
decision that day and they were accommodated overnight at a
local hotel. Four jurors met in the room of one of them and
conducted a session with an ouija board, purporting to ask
questions of and to receive answers from one of the deceased.
The "answers" received went to the heart of the case, purporting
to deal with points which had been expressly raised by the
evidence, they were highly adverse to the appellant, and caused
distress to three of the jurors present at the session. Next day at
the hotel some discussion took place with other jurors about the
ouija board session. The jury returned to court and reached
unanimous decisions of guilty on both counts. One juror
subsequently consulted a solicitor and provided a written
statement, on the basis of which the appellant applied for leave
to appeal against conviction under section 2(l)(c) of the Criminal
Appeal Act 19681 on the ground that there had been a material
irregularity in the course of the trial. The court granted leave to
appeal to enable determination of the limits of investigation in
view of section 8(1) of the Contempt of Court Act 1981.2
On the appeal:—
Held, allowing the appeal, (1) that since the prohibition in
section 8(1) of the Contempt of Court Act 1981 applied to the
Court of Appeal and an appeal against conviction did not
constitute "subsequent proceedings for an offence" so as to fall
within the exception provided by section S(2)(b), the court could
not, after verdict, inquire into what had passed between jurors
1
Criminal Appeal Act 1968, s. 2(1): "the Court of Appeal shall allow an appeal against
conviction if they think—. . . (c) that there was a material irregularity in the course of the
trial . . . "
S. 34: "(1) An application to the Court of Appeal for leave to appeal . . . shall be made
within the period of 14 days beginning with the date of the decision of the court; . . .
(2) . . . the Court of Appeal may, upon application . . . by the defendant, extend the
time . . . "
2
Contempt of Court Act 1981, s. 8(1): see post, p. 330B-C.
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during their deliberations in the jury room in the respects specified
in section 8(1); but that, since a jury's stay in an hotel was a
hiatus between sessions in the jury room and was not a period
during which the jury as a whole was in the course of its
deliberations, the court had jurisdiction to inquire into what had
happened at the hotel, but not what happened thereafter in the
jury room (post, pp. 330G-331A, D, H-332A).
(2) That what had occurred at the hotel amounted to a
material irregularity within section 2(l)(c) of the Criminal Appeal
Act 1968; that since the answers obtained from the ouija board
went to the heart of the case and were strongly adverse to the
appellant, there was a real danger that what had occurred might
have influenced some jurors and thereby have prejudiced the
appellant; and that, accordingly, the conviction would be quashed
and a retrial ordered (post, p. 334B-C, F-G).
On the Crown's application, following the delivery of the
court's reasons on 17 November 1994 for having allowed the
appeal on 24 October, for a certificate under section 33(2) of
the Act of 1968 that a point of law of general public importance
was involved in the decision:—
Held, refusing the application, that the court's decision on the
appeal had occurred when it had allowed the appeal and ordered
a retrial, not when it had given its reasons; that section 34 of the
Act of 1968 required any application for leave to appeal to be
made within 14 days of the decision, subject to extension on the
application only of the defendant; and that, accordingly, the court
had no jurisdiction to entertain an application for leave to appeal
by the Crown (post, p. 335A-B).
The following cases are referred to in the judgment of the court:
Reg. v. Bean [1991] Crim.L.R. 843, C.A.
Reg. v. Brandon (1969) 53 Cr.App.R. 466, C.A.
Reg. v. Corless (1972) 56 Cr.App.R. 341, C.A.
Reg. v. Davis (George) (1975) 62 Cr.App.R. 194, C.A.
Reg. v. Gearing (Note) [1968] 1 W.L.R. 344, C C A .
Reg. v. Higgins, The Times, 16 February 1989, C.A.
Reg. v. Hood [1968] 1 W.L.R. 773; [1968] 2 All E.R. 56, C.A.
Reg. v. Lawrence [1968] 1 W.L.R. 341; [1968] 1 All E.R. 579, C.A.
Reg. v. Less, The Times, 30 March 1993, C.A.
Reg. v. McCluskey (1993) 98 Cr.App.R 216, C.A.
Reg. v. Maggs (1990) 91 Cr.App.R. 243, C.A.
Reg. v. Stewart (Angela) (1989) 89 Cr.App.R. 273, C.A.
Reg. v. Tharakan, The Times, 10 November 1994, C.A.
Reg. v. Thompson [1962] 1 All E.R. 65, C C A .
The following additional cases were cited in argument:
Attorney-General v. Associated Newspapers Ltd. [1994] 2 A . C 238; [1994]
2 W.L.R. 277; [1994] 1 All E.R. 556, H.L.(E.)
Attorney-General v. New Statesman and Nation Publishing Co. Ltd. [1981] Q.B. 1;
[1980] 2 W.L.R. 246; [1980] 1 All E.R. 644, D . C
Boston v. W.S. Bagshaw & Sons (Note) [1966] 1 W.L.R. 1135; [1967] 2 All
E.R. 87, C.A.
Lalchan Nanan v. The State [1986] A.C. 860; [1986] 3 W.L.R. 304; [1986] 3 All
E.R. 248, P.C
Reg. v. Box [1964] 1 Q.B. 430; [1963] 3 W.L.R. 696; [1963] 3 All E.R. 240,
CCA.
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Reg. v. Farooq and Ramzan, The Times, 13 May 1994, C.A.
Reg. v. Goodson [1975] 1 W.L.R. 549; [1975] 1 All E.R. 760, C.A.
Reg. v. Orgies [1994] 1 W.L.R. 108; [1994] 4 All E.R. 533, C.A.
Rex v. Ketteridge [1915] 1 K.B. 467, C C A .
Rex v. Neal [1949] 2 K.B. 590; [1949] 2 All E.R. 438, C C A .
Rex v. Taylor (Robert) [1950] N.I. 57, C C A .
The following additional cases, although not cited, were referred to in the
skeleton arguments for the Crown:
Ellis v. Deheer [1922] 2 K.B. 113, C.A.
Reg. v. Chionye (1988) 89 Cr.App.R. 285, C.A.
Reg. v. Scholfield [1993] Crim.L.R. 217, C.A.
Reg. v. Wallace, The Times, 15 November 1989, C.A.
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against conviction.
The appellant, Stephen Andrew Young, in the Crown Court at Hove,
before French J. and a jury, was tried on an indictment containing two
counts charging him with murder of a husband and wife, Harry Fuller
and Nicola Fuller. The summing up finished and the jury, who had retired
to consider their verdicts, were unable to complete their deliberations.
They were accommodated at an hotel overnight. As eventually was
established, four jurors conducted what purported to be a session with a
makeshift ouija board for communicating questions to and receiving
answers from the deceased which were highly adverse to the appellant and
caused distress to three women jurors present at the session. On
resumption the next morning, 23 March 1994, in court the jury returned
unanimous verdicts of guilty on each count and the appellant was
sentenced to concurrent terms of life imprisonment. Consequent on a
juror consulting a solicitor and giving him a handwritten statement of
what had occurred at the hotel, communication was made with leading
counsel for the appellant. The appellant applied for leave to appeal against
conviction on the grounds that there had been a material irregularity
rendering the verdicts unsafe and unsatisfactory because the jury had
reached their verdicts "not solely on the basis of the evidence in the case;"
that while they were accommodated at an hotel overnight, some members
of the jury had used an ouija board to communicate with the deceased
regarding the identity of the killer; that the grounds of appeal followed a
handwritten statement made by a member of the jury to an independent
solicitor; and went on to state the effect of the statement; and that a letter
dated 18 April 1994 from the appellant's solicitor set out how the
statement came to be made and passed to those acting for the appellant
accompanied the statement. On 13 June 1994 the court (Lord Taylor of
Gosforth C.J., Waterhouse and Bell JJ.) granted leave to appeal. The
appeal was again before the court, similarly constituted, on 20 June 1994,
23 June 1994 and on 27 July 1994 for consideration of steps to be taken.
The hearing of the appeal was resumed on 24 October 1994 and at the
close of submissions Lord Taylor of Gosforth C.J. announced that the
appeal would be allowed and a retrial ordered, for reasons to be given at
a later date.
The facts are stated in the judgment of the court.
APPEAL
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David Penry-Davey Q. C. and Andrew Mitchell for the appellant. Even
if, as a matter of public policy, the Court of Appeal will not inquire into
what happens in the jury room (see Reg. v. Thompson [1962] 1 All E.R.
65; Reg. v. Less, The Times, 30 March 1993 and Reg. v. Bean [1991]
Crim.L.R. 843), the court will and should consider information about
extrinsic matters concerning the jury and not relating to what happened
in the jury room: Reg. v. Hood [1968] 1 W.L.R. 773 and Reg. v. Orgies
[1994] 1 W.L.R. 108. The present proceedings can be regarded as
"subsequent proceedings for an offence" within section 8(2)(&) of the
Contempt of Court Act 1981. What happened at the hotel was not in the
course of, or during, the jury's deliberations. What happened included
experiments and consideration by some jurors of additional material
outside the evidence in the case, namely, purported communication by use
of an ouija board with the deceased victim. The court is able to inquire
into those and subsequent events. If the events in the hotel had come to
light before delivery of the verdict, the only proper course would have
been to discharge the jury: Reg. v. Hood [1968] 1 W.L.R. 773. Those
events constituted a material irregularity going to the root of the trial:
Reg. v. McCluskey (1993) 98 Cr.App.R. 216.
The jury are to be kept inviolate and free from outside influence: Reg.
v. Bean [1991] Crim.L.R. 843. Once the jury have retired they may not be
given any additional matter: see Reg. v. Davis (George) (1975) 62
Cr.App.R. 194; Reg. v. Gearing (Note) [1968] 1 W.L.R. 344; Reg. v.
Lawrence [1968] 1 W.L.R. 341; Reg. v. Brandon (1969) 53 Cr.App.R. 466;
Reg. v. Corless (1972) 56 Cr.App.R. 341; Reg. v. Stewart (Angela) (1989)
89 Cr.App.R. 273; Rex v. Ketteridge [1915] 1 K.B. 467; Reg. v. Farooq and
Ramzan, The Times, 13 May 1994 and Reg. v. Goodson [1975] 1 W.L.R.
549. Section 8(1) of the Contempt of Court Act 1981 is "aimed at keeping
the secrets of the jury room inviolate in the interests of justice:" Attorney
General v. Associated Newspapers Ltd. [1994] 2 A.C. 238, 248H, per
Beldam L.J. The section cannot operate to cause the court to be in
contempt of itself and does not operate to stifle consideration of
information that, contrary to the interests of justice, some members of the
jury may or may not have fulfilled their oath. The court has to consider
whether what is alleged to have taken place might have affected the jury's
deliberations. If there is a reasonable apprehension that the jury may have
taken such matters into consideration, an irregularity has occurred during
the course of the trial. A retrial should not be ordered; in view of the
press coverage a fair trial could not result.
Michael Lawson Q.C. and Peter Clarke for the Crown. The period
between the enclosure of the jury by the judge for their retirement and
their return to deliver verdict is indivisible and the court cannot inquire
into events concerning the jury during that period. The nature of their
confinement and the reasons for it remain the same as does the jury
bailiff's oath. Only administrative arrangements are liable to change. The
jury must be kept together while deliberating.
Formerly, juries were segregated from the moment they took the oath:
Rex v. Taylor (Robert) [1950] N.I. 57, 67. If absence of one juror or more
jurors from the other jurors constitutes an interruption of their
deliberations, then any verdict returned by a jury where discussion
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continued in the absence of any juror might be invalid. The purpose of
the jury's enclosure is to ensure that there should be no opportunities of
tampering with or influencing the jury during the course of the trial:
Rex v. Taylor (Robert) [1950] N.I. 57, 71 and Reg. v. McCluskey,
98Cr.App.R. 216,221.
Any "direction" given the jury that they should not deliberate further
has no legal basis. The jury are masters of their "deliberations." A trial
judge may direct the jury on matters of law only. The judge may suggest
ways in which the jury should look at the facts, how they might structure
their examination of the evidence, or when they might elect a foreman.
The judge may also give directions about any relaxation of the strict rules
of enclosure, e.g., for excursions: see Rex v. Neal [1949] 2 K.B. 590. The
courts have always refused to countenance the examination of any material
going to the content or manner of a jury's deliberations: see Reg. v.
Thompson [1962] 1 All E.R. 65; Boston v. W. S. Bagshaw & Sons (Note)
[1966] 1 W.L.R. 1135; Reg. v. Bean [1991] Crim.L.R. 843; Reg. v. Less,
The Times, 30 March 1993 and Reg. v. Hood [1968] 1 W.L.R. 773.
[Reference was made also to section 8 of the Contempt of Court Act 1981
and Attorney General v. Associated Newspapers Ltd. [1994] 2 A.C. 238,
256A, per Lord Lowry.]
How the jury reached their decision is not known. All that is known is
that some incident took place on the evening when the jury were at the
hotel. [Reference was made to Reg. v. Box [1964] 1 Q.B. 430.] There is no
material before the court to show that the unanimous verdict was tainted.
What occurred in relation to the ouija board was a drunken game and did
not fall outside proper influences brought by jurors to bear on one
another.
As to inquiries about additional evidence, see Reg. v. Davis (George)
62 Cr.App.R. 194. As to additional evidence possibly flowing from
additional material, see Reg. v. Stewart (Angela) 89 Cr.App.R. 273; Reg.
v. Higgins, The Times, 16 February 1989 and Reg. v. Maggs (1990)
91 Cr.App.R. 243. As to procedural irregularities, see Reg. v. Farooq and
Ramzan, The Times, 13 May 1994; Reg. v. McCluskey, 98 Cr.App.R. 216
and Reg. v. Goodson [1975] 1 W.L.R. 549.
Dorian Lovell-Pank Q.C. as amicus curiae. This application is to be
considered under at least three headings, namely, (a) the extent to which,
if at all, the Court of Appeal is bound by section 8 of the Contempt of
Court Act 1981; (b) the scope for the Court of Appeal to act within the
provisions of section 8 of the Act of 1981; and (c) the maintenance of the
established rule of the secrecy of the jury's deliberations: see Lalchan
Nanan v. The State [1986] A.C. 860.
As to (a), section 8 was enacted following the failure of the prosecution
in "The Thorpe Case" {Attorney General v. New Statesman and Nation
Publishing Co. Ltd. [1981] Q.B. 1). It cannot have been within the
contemplation of the legislation to restrict the authority or powers of the
Court of Appeal by the provisions in section 8 of the Act of 1981.
As to (b), section 8(1) is concerned with juries in the course of their
deliberations. It is arguable that, at the time of the ouija board incident
and during the conversations at breakfast, the jurors cannot be said to
have been discussing matters "in the course of their deliberations." In
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accordance with section 8(2), it has no application to any disclosure of
particulars "in evidence in any subsequent proceedings for an offence
alleged to have been committed in relation to the jury in the first
mentioned proceedings." It is, therefore, arguable that the conduct relating
to the ouija board is an act tending to pervert the course of justice and,
hence, an allegation of an offence on the lines of the subsection.
As to (c), the common law rule appears to be that the deliberations of
juries should remain secret. A material irregularity which arises extrinsically
and can be proved so is capable of being examined by the Court of
Appeal; not so, matters arising from within the jury's deliberations.
It is arguable that, where the liberty of the subject is concerned, a
different approach is to be taken and that the authorities need to be
reconsidered.
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17 November. LORD TAYLOR OF GOSFORTH C.J. read the following
judgment of the court. On 23 March 1994, in the Crown Court at Hove,
the appellant was convicted of two counts of murder and was sentenced
to life imprisonment concurrently in respect of each. He applied for leave
to appeal against conviction and we granted it on 13 June 1994. On
24 October 1994, we allowed the appeal and ordered a retrial. We now
give our reasons.
The appeal did not involve any complaint about the conduct of the
trial or the summing up. It was based solely upon matters arising from
the conduct of the jury whilst they were accommodated in an hotel.
Accordingly, it is sufficient to state in the barest outline the nature of the
case.
On 10 February 1993, the dead bodies of Harry Fuller and Nicola
Fuller were found at their cottage home in East Sussex. They had both
been shot. The appellant ran an insurance business in Sussex and was
authorised to hold firearms. A recorded message on the deceased's
answerphone indicated that the appellant was due to meet Harry Fuller at
the cottage on 10 February. The Crown's case was that Harry Fuller; a
second-hand car dealer known to deal in cash, had conducted a cash
transaction the day before his death and the appellant, being short of
cash, had gone to the cottage on 10 February, had killed Harry Fuller for
his money and shot Nicola to silence her. The next day, the appellant paid
cash into a bank account and was able to settle a debt. Reliance was
placed upon bullets and cartridge cases recovered from the deceased's
cottage which were of the same make, type and size as ammunition
recovered from the appellant's home and bore markings which showed
that all had been fired from the same gun. Although no weapon was
recovered, at the trial there was reference to a Walther P.P.K.
The jury retired to consider their verdict on 22 March 1994. They were
unable to reach a decision that day and were accommodated overnight in
a local hotel. They returned to court the next day and reached a
unanimous decision of guilty on both charges.
What had occurred in the hotel had caused one juror such concern
that he consulted a solicitor to whom he gave a handwritten statement in
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early April 1994. The solicitor consulted counsel who spoke to leading
counsel for the appellant. The application before this court on 13 June
1994 for leave to appeal was based upon the juror's written statement.
We had first to determine whether this court could look into the matter
at all and if so, how far we could investigate it having regard to section 8
of the Contempt of Court Act 1981. That provides:
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"(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. (2) This
section does not apply to any disclosure of any particulars—(a) in the
proceedings in question for the purpose of enabling the jury to arrive
at their verdict, or in connection with the delivery of that verdict, or
(b) in evidence in any subsequent proceedings for an offence alleged
to have been committed in relation to the jury in the first mentioned
proceedings, or to the publication of any particulars so disclosed."
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We had the advantage of hearing argument from Mr. Penry-Davey for
the appellant, Mr. Michael Lawson for the Crown and Mr. Dorian LovellPank as amicus instructed by the Treasury Solicitor.
In brief, the allegation was that whilst in the hotel, using an ouija
board, some members of the jury purported to make contact with the
deceased Harry Fuller and to have received certain information from him
bearing upon the case. Three possibilities were canvassed. First, that the
court could inquire into what happened at the hotel and what happened
in the jury room thereafter. Secondly, that the court could inquire only
into what occurred at the hotel. Thirdly, that the court could not inquire
at all into the jury's activities.
Mr. Penry-Davey, supported by Mr. Lovell-Pank, contended for the
first proposition. They advanced two arguments based upon a construction
of section 8. First, they argued that this court is not bound by section
8(1), that the court cannot be in contempt of itself and that public policy
requires the court, in the interests of justice, to be able to look into any
irregularities alleged to have occurred in the jury room. We cannot accept
this. Section 8(1) is in the widest terms and contains no exceptions.
Moreover, section 8 (2) (a) does expressly allow the disclosure of particulars
in the proceedings in question to enable the jury to arrive at their verdict
or in connection with their delivering it. Thus, section 8 (2) (a) was
regarded by Parliament as necessary to enable the court itself to receive
notes from the jury and to ask them, for example, whether they require
help on any point or in the case of a majority verdict of guilty, how many
agreed and dissented. If the court were excluded from the embargo in
section 8(1), section 8(2)(a) would not have been necessary. As a matter
of principle, the object of the section is clearly to maintain the secrecy of
the jury's deliberations in their retiring room. To give the court power,
after verdict, to inquire into those deliberations, would force the door of
the jury room wide open. If one dissentient juror or sharp-eared bailiff
alleged irregularities in the jury room, the court would be pressed to
inquire into the jury's deliberations. We are in no doubt that section 8(1)
applies to the court as to everyone else.
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Secondly, it was submitted that the proceedings before this court
should be regarded as "subsequent proceedings for an offence" within the
meaning of section 8(2)(ft). The argument, which can most charitably be
described as tenuous, is that the activity alleged in the present case
amounts to misconduct or even an act tending to pervert the course of
justice. We reject this. It is sufficient to say that the appeal proceedings
before us were not "subsequent proceedings for an offence."
It is true that there have been cases in which possible extrinsic
influences on a jury in retirement have been investigated by the court.
Examples are Reg. v. Hood [1968] 1 W.L.R. 773 (where a juror was
acquainted with the appellant's wife who was called as a witness and
might have known.of the appellant's record), Reg. v. Brandon (1969)
53 Cr.App.R. 466 (where a jury bailiff made remarks to jurors in
retirement which might have indicated the appellant had previous
convictions) and Reg. v. McCluskey (1993) 98 Cr.App.R. 216 (where a
juror used a mobile telephone from the jury room to make a business
call). But in each of those cases and in others too, the court was prepared
to consider the alleged irregularity only because it related to something
other than the jurors' deliberations amongst themselves. The court has
resolutely refused to consider, after verdict, what may have taken place
between jurors during their deliberations or how the jury reached their
verdict. Examples are Reg. v. Thompson [1962] 1 All E.R. 65; Reg. v. Bean
[1991] Crim.L.R. 843 and Reg. v. Less, The Times, 30 March 1993. In our
judgment, the court cannot, after verdict, inquire into what passed between
jurors during their deliberations in their retiring room in the respects
specified in section 8(1).
But does the same embargo apply to what may have happened during
a jury's accommodation in an hotel during their retirement?
Mr. Lawson submits that it does. He argues that once the summing up
ends and the jury retire to consider their verdict or (as he puts it) once
the jury is enclosed, section 8(1) applies and the veil must be drawn over
the jury's activities. Counsel could not find any case relating to a jury's
stay in an hotel. However, Mr. Lawson submits that the period of the
jury's retirement from the moment the judge encloses them up to the
return of their verdict, is indivisible.
Oxford English Dictionary definitions of "deliberation" include
"consideration with a view to a decision," "weighing . . . in the mind,"
"careful consideration," "discussion of . . . reasons for and against,"
"debate." In our view, the whole object of sending a jury to an hotel is to
give them a break, rest or respite from their deliberations. It would be
absurd to suggest that when every juror is in a separate bedroom, whatever
their thoughts, the jury could collectively be described as being "in the
course of their deliberations." For one thing, Mr. Lawson accepts that the
jury are required to be kept together whilst deliberating. Appendix 5B to
the Crown Court Manual, dealing with guidelines for overnight stays by
juries in hotels states that all directions are a matter for the judge but goes
on to indicate that deliberations must not continue in the hotel. In
practice, judges tell juries that they should have a break from their
deliberations until they return to their jury room next morning and should
not deliberate at the hotel. The trial judge in the present case did just that.
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Mr. Lawson submits that whilst the judge can give guidance on this matter
to the jury, his instruction is not a direction of law. Nevertheless, it
underlines the reality of the situation, that a jury's stay in an hotel is in
fact a hiatus between sessions in the jury room during which the jury as a
whole is in the course of its deliberations.
We concluded having heard all the arguments that we were entitled to
inquire into what happened at the hotel but not as to what happened
thereafter in the jury room. Accordingly we ordered that affidavits should
be taken from each of the 12 jurors and from the two bailiffs looking
after them at the hotel. We asked the Treasury Solicitor to take charge of
the inquiry in conjunction with a senior police officer of at least the rank
of chief inspector. We required the affidavits to cover what if anything
happened at the hotel, but not to breach section 8 of the Act of 1981 by
trespassing on what happened during the jury's deliberations in their
retiring room. In the result, we obtained affidavits from all 12 jurors and
from the two bailiffs. The affidavits were provided to the parties although
the names of the jurors (save for the four who were alleged to have been
involved with the ouija board at the hotel) were not disclosed, numbers
being substituted instead. We also received an affidavit from the appellant's
solicitor describing how the matter raised on the appeal came to his
attention.
Whilst there were differences of detail, the affidavits gave a reasonably
clear and consistent account of what occurred in the hotel. After dinner,
there was conversation amongst some of the jurors about ouija boards.
One of the bailiffs spoke out strongly against them as did a lady juror,
and the other bailiff agreed, saying "not to be so stupid." At about
11 p.m. the bailiffs conducted the jurors to their rooms. Thereafter it is
clear that four jurors, the foreman and three women, got together in the
room of one of the women. An ouija board was set up.
The word "ouija" is simply a combination of the French word "oui"
and the German word "ja" and means therefore "yes, yes." An ouija
board is used at a seance to seek messages from the spirits of absent or
deceased persons. In this case there was no formal board. Letters of the
alphabet were printed on scraps of paper and a glass was used as a
pointer. Those present each put a finger on the glass which then moved
towards a succession of letters, thereby purporting to reveal a message. At
least some of those present began this procedure as a joke or "harmless
prank." After purporting to receive messages from persons known or
related to two of the jurors (one of them being deceased), the matter
proceeded as follows, according to one of those present:
>
"Ray then asked, 'Is anyone there?' The glass went to 'yes.' Ray
said, 'Who is it?' The glass spelt out 'Harry Fuller.' When I say the
glass spelt it out, I mean it went to each letter. I realised Fuller was
the subject of the evidence we were hearing. Ray said, 'Who killed
you?' The glass spelt out 'Stephen Young done it.' Ray said, 'How?'
The glass spelt 'shot.' Ray said something else and the glass spelt
'shotgun and pistol.' Ray said, 'Where is the gun?' The glass spelt
'Police.' Ray also asked who killed Nicola, and the glass spelt out
'Stephen Young.' Ray then cut up paper and put numbers 0 to 10 on
them and put them in an inner circle. The alphabet was on an outer
A
"
Q
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F
P
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333
Q.B.
A
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Reg. v. Young (C.A.)
circle. Previously Ray had asked the motive and the glass spelt out
'money.' Ray asked where it was and the glass spelt 'case.' He then
asked how much had been taken and the glass spelt out '63,000.'
Ray asked where the money was now and the glass spelt out 'bag.'
Ray asked where and the glass spelt out 'Harry Brinklow, room
above office.' We then discussed among ourselves what we should do
and the glass spelt out 'Tell police.' I said 'We can't.' It then spelt
out 'later, us and you.' It continued, 'Vote guilty tomorrow.' During
this time Ray made notes. It is only right to say I was crying by this
time and the other ladies were upset as well. We realised it had gone
too far and we ended the exercise. Ray threw the paper away. We
retired to our rooms and agreed not to relate what we'd done to
anyone."
C
D
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F
Q
"
Despite that agreement, it is clear that the matter was discussed at
breakfast with other jurors who had not been present at the ouija board
and one of them was told (in addition to the account given above) that
"Walther P.P.K." was mentioned as having emerged from the session.
A gun of that type had been referred to in the evidence as had the name
Harry Brinklow.
We should add that more than one juror admitted on affidavit to
having had more drink than was good for them whilst in the hotel and to
feeling the worse for it the next morning. Neither of the bailiffs, according
to their affidavits, seemed to have been aware of that or of the fact that
four jurors had got together in one room over an ouija board.
Mr. Lawson on behalf of the Crown submitted that what had emerged
did not amount to a material irregularity requiring this court to interfere.
He maintained the verdicts could be regarded as safe and satisfactory. The
use of the ouija board did not constitute an experiment of the
kind forbidden in cases such as Reg. v. Stewart (Angela) (1989)
89 Cr.App.R. 273; Reg. v. Higgins, The Times, 16 February 1989 and Reg.
v. Maggs (1990) 91 Cr.App.R. 243. Nor did what occurred breach the rule
against a jury receiving further evidence or information after retirement:
see Reg. v. Gearing (Note) [1968] 1 W.L.R. 344; Reg. v. Lawrence [1968]
1 W.L.R. 341; Reg. v. Corless (1972) 56 Cr.App.R. 341 and Reg. v. Davis
(George) (1975) 62 Cr.App.R. 194. This was, says Mr. Lawson, no more
than a drunken game and the court ought not to consider that it could
have had any practical effect on the case. Nothing that happened, it was
submitted, fell outside the scope of influences which jurors can properly
bring to bear on one another.
Mr. Penry-Davey, however, submits that the use of the ouija board
was an irregularity for three reasons. First, it was an attempt to acquire
further evidence or information beyond the evidence in the case. How
possible or hopeless such an attempt was depends upon one's views about
the occult. But, it is clear that the four jurors purported to have received
information, that they treated it seriously enough to be upset by it and
that the episode was discussed with other jurors at breakfast. Secondly or
alternatively, Mr. Penry-Davey submits that what occurred was in the
nature of an experiment which, as indicated above, cannot be
countenanced. Thirdly, on any view of what occurred, only a third of the
334
Reg. v. Young (C.A.)
|1995|
jury was present, so that matters relevant to the case took place when the
jurors were not all together.
There is good reason for the rule that jurors should all be together
when they are deliberating. It was stated as follows by Swinton
Thomas L.J. in Reg. v. Tharakan, The Times, 10 November 1994:
"One of the strengths of the jury system is that they do act as a
body, and if there is disagreement then individual jurors can look to
others of the same view for support. If they continue their discussions
outside the jury room, then those of a weaker disposition may be
open to persuasion without having the support of others of the same
mind."
In our view, what occurred in the present case was not merely
objectionable but amounted to a material irregularity. Although many,
perhaps most, people would regard attempts to communicate with the
dead as futile, there can be no doubt that the four jurors were going
through the motions of asking questions to that end and apparently
receiving answers. It seems to us that what matters is not whether the
answers were truly from the deceased, but whether the jurors believed
them to be so or whether they may have been influenced by the answers
received during this exercise or experiment.
Was it merely a drunken game which the court should disregard, as
Mr. Lawson suggests? We do not think it can be laughed off in that way.
The three women jurors were upset about what emerged. One was crying
and took the view that it had gone too far. Why, if it was just a game?
And why, when the verdict had been unanimous, should one juror (not
one of the four) have been sufficiently concerned to consult a solicitor and
make a statement about what had happened?
Is Mr. Lawson right in saying that what occurred was no different
from jurors influencing each other? There is, in our view, a clear
distinction between the views of one juror however strongly expressed,
intended to influence others, and on the other hand revelations purporting
to come from outside the jury and to be invested with some external
authority however specious. We stress that the answers which upset the
jurors went to the heart of the case. They purported to deal with points
which had been expressly raised by the evidence and they were strongly
adverse to the appellant.
Having considered all the circumstances, we concluded there was a
real danger that what occurred during this misguided ouija session may
have influenced some jurors and may thereby have prejudiced the
appellant. For those reasons we allowed the appeal but ordered a retrial.
A
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Appeal allowed.
Conviction quashed.
Retrial ordered. *
H
* Reporters note. Reporting of the reserved reasons of the court was restricted until after
verdict in the retrial. The retrial took place at the Central Criminal Court (Blofeld J. and a
jury), resulting in conviction of both murders and sentences of life imprisonment for each
on 16 December 1994.
335
Q.B.
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"
Reg. v. Young (C.A.)
The Crown applied for a certificate under section 33(2) of the Criminal
Appeal Act 1968 that a point of law of general public importance was
involved in the decision, contending that the 14-day period for application
for an appeal, imposed by section 34 of the Act of 1968, ran from the
date when the court delivered its reasoned judgment.
LORD TAYLOR OF GOSFORTH C.J. The position, in our view, is made
quite clear by section 34, that the period of 14 days begins with the
decision of the court, which we gave when we allowed the appeal and
ordered a retrial. Subsection (2) of the section does allow the court to
extend time, but only on the application of the defendant. The Crown
have to make up their minds within 14 days or that is that. We are afraid
we do not certify or grant leave.
C
Application refused.
Solicitors: Gilchrists; Crown Prosecution Service, Brighton; Treasury
Solicitor.
L. N. W.
D
E
[COURT OF APPEAL]
ELGUZOULI-DAF v. COMMISSIONER OF POLICE OF THE
METROPOLIS AND ANOTHER
p
[1993 E. No. 621]
McBREARTY v. MINISTRY OF DEFENCE AND OTHERS
[1992 M. No. 4239]
1994 Nov. 15; 16
Steyn, Rose and Morritt L.JJ.
G
H
Negligence—Duty of care to whom?—Crown Prosecution Service—
C.P.S.'s alleged carelessness resulting in plaintiffs' prolonged
detention before prosecutions discontinued—Whether C.P.S. owing
duty of care to persons prosecuted—Whether immune from liability
The plaintiffs in both cases were arrested, charged and
remanded in custody for serious offences but, after periods of
detention of 22 and 85 days respectively, the Crown Prosecution
Service ("C.P.S.") discontinued proceedings against them. In
actions against the C.P.S., among others, the plaintiff in the first
case claimed that the C.P.S. was negligent in failing to act with
reasonable diligence in obtaining, processing and communicating