Neutral Citation Number: [2008] EWCA Crim 2394
Case No: 200802189 C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT OF WOOLWICH
HHJ Carroll
U20070172
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/10/2008
Before :

LORD JUSTICE PILL
MR JUSTICE JACK
and
MR JUSTICE OPENSHAW
- - - - - - - - - - - - - - - - - - - - -
Between :

	DERRICK ANDREWS	Appellant	
	- and -		
	R	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr DH Southey (instructed by Hickman & Rose) for the Appellant 
Miss C Johnston QC and Miss H Willcocks (instructed by CPS) for the Respondent

Hearing date : 13 October 2008 
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Pill : 
1.	On 7 September 2007, in the Crown Court at Woolwich before HHJ Carroll, Derrick Andrews was convicted of failing to attend as a juror contrary to Section 20(1)(a) of the Juries Act 1974.  He was ordered to pay a fine of £100 or to serve 7 days imprisonment in default of payment.  He applies for an extension of time in which to appeal against conviction.  The extension is granted.  
2.	The appellant also applied to the Crown Court to state a case for the opinion of the Administrative Court.  A case having been stated, Collins J informed the appellant that the correct avenue of appeal was to the Court of Appeal Criminal Division.  We agree.  
3.	The appellant was summoned to serve as a juror in the trial of R v Riley and Riley at Woolwich Crown Court.  He had some years earlier served on a jury in a difficult case at the Central Criminal Court.  The case at Woolwich, before Judge Carroll, was a serious one, a co-defendant who pleaded guilty having been sentenced to 19 years imprisonment.  The trial proceeded with the appellant as a member of the jury and on the afternoon of Friday, 13 July, the jury retired to consider their verdicts.  They were due to continue their deliberations on 16 July.  The appellant appeared at court in good time but, in circumstances it will be necessary to describe, he left.  He was discharged by the Judge and the trial continued with the remaining eleven jurors.  Both defendants were in the event acquitted.  The appellant was subsequently summoned to attend court to show cause why he was not present in court to serve on the jury.  
4.	Section 20 of the Juries Act 1974 provides, in so far as is material: 
“20. (1)	Subject to the provisions of subsections (2) to (4) below—
(a) 	if a person duly summoned under this Act fails to attend (on the first or on any subsequent day on which he is required to attend by the summons or by the appropriate officer) in compliance with the summons, . . .
(b)	. . . 
he shall be liable to a fine not exceeding [level 3 on the standard scale].
(2)    An offence under subsection (1) above shall be punishable either on summary conviction or as if it were criminal contempt of court committed in the face of the court.
(3)     . . . 
(4)  	A person shall not be liable to be punished under the preceding provisions of this section if he can show some reasonable cause for his failure to comply with the summons, or for not being available when called on to serve, and those provisions have effect subject to the provisions of this Act about the withdrawal or alteration of a summons and about the granting of any excusal or deferral.”
5.	In R v Dodds [2003] 1 Cr App R3, [2002] EWCA Crim 1328, this court stated, at paragraph 17, the minimum requirements for a fair hearing in a case of this kind:
“(1)	The juror must understand what he is said to have done wrong;
(2)	The court must be satisfied that the juror when (by act or omission) he did wrong, had the means of knowing that it was wrong;
(3)	The juror must understand what defences (if any) may be available to him; 
(4)	The juror must have a reasonable opportunity to make any relevant representations he wishes; 
(5)	If necessary the juror must have an opportunity to consider what representations he wishes to make once he has understood the issues involved.”
6.	On 27 July 2007, the appellant appeared at court but was not represented.  Following submissions, the judge granted an adjournment to allow him an opportunity to obtain legal representation.  He was granted a representation order to cover counsel and solicitor.  At the adjourned hearing on 7 September, submissions were made on the appellant’s behalf by Miss Champion, of Counsel.  Having heard submissions, the judge stated that the court had found itself in “a most unfortunate set of circumstances”.  He imposed a fine of £100.  
7.	For the appellant, Mr Southey submits, first, that the judge showed actual or apparent bias and should have recused himself from trying the appellant’s case.  Secondly, before a decision was made, witnesses should have been called to establish the conduct complained of.  Thirdly, the judge misdirected himself in law on Section 20.  Fourthly, he misunderstood the evidence and should have held that the appellant had shown reasonable cause, within the meaning of Section 20(4), for his absence from the court.  
8.	In the event, the court decided to allow the appeal on the fourth ground and it is unnecessary to deal with the first three, save that the third overlaps with the fourth.  Mr Southey, and Miss Johnston QC, who appears for the prosecution, though in effect as amicus curiae, agrees with the appropriateness of that course.  
9.	The problem arose because the appellant had fallen out with his fellow jurors at a late stage of the trial.  He believed that one of them had been behaving inappropriately and contrary to the direction given by the judge before they retired.  There was, as the judge put it, “a breakdown in the relationship between members of the jury, for whatever reason”.  The judge accepted that the other members of the jury had taken very seriously against the appellant.  A judge is in a very difficult position when that occurs and Judge Carroll was clearly anxious to proceed, and to proceed in a manner fair to the parties, with the trial before him.  
10.	Because we decided to allow the appeal on the fourth ground, we make no further comment on the allegations made on the first and second grounds.  It is necessary, when resolving the fourth issue, to describe the submissions made by or on behalf of the appellant at the hearings.  In the course of those submissions, the judge made clear that he accepted the appellant’s explanation of the events on the morning of 16 July.  He stated:
“I am quite prepared to accept that what your client tells me is happening is the truth,” “I accept his explanation” and “I am quite prepared to accept everything your client says”.  
His explanation was given by counsel; the judge did not take up his offer to give evidence on 7 September.  
11.	During the trial, the judge had received notes from the appellant, in particular, an application that the court should not sit on one day so that he could attend the funeral of a friend.  That application was granted.  It emerged that the notes had been written by the appellant’s wife.  
12.	In the course of the hearing, on 7 September, the judge repeatedly stated that he had told jurors:
“My door was always open during this trial.  The direction I had given at the start of the trial was that if anything was distracting them during the trial I required a note and I would act and put a stop to it.  Even during their deliberations if anything was making it difficult or impossible to continue those deliberations, send me a note and I would do my best to alleviate the problem.”
The judge made clear the concern he had had, in an “extremely serious” trial, for the state of mind of the defendants themselves resulting from the distraction that occurred when the jury should have been deliberating on the evidence.  The judge also needed to take care that the appellant should not disclose publicly the jury’s deliberations in retirement.    
13.	The following exchange occurred at the hearing on 27 July:
“JUDGE CARROLL:  What, you think you can just walk out of a jury trial in the middle of a jury’s deliberations and refuse to come back?
MR ANDREWS:  Certainly not, sir. 
JUDGE CARROLL:  Well, that is what you did. 
MR ANDREWS:  No, sir, that is not what I did, sir.  
JUDGE CARROLL:  You attended – 
MR ANDREWS:  No, sir.  
JUDGE CARROLL:  -- you attended on the Monday. 
MR ANDREWS:  Yes, I did, sir.  I did, and if you – I can – I can produce a witness who – 
JUDGE CARROLL:  Well, I would like to hear from you first.  
MR ANDREWS:  Certainly, sir.  I did leave – I did leave the court after an agreement was made with – is it Ms Bett?  
JUDGE CARROLL:  Ms Penn? 
MR ANDREWS:  Ms Brett. 
(An unknown speaker addresses the judge). 
JUDGE CARROLL:  Well, now that you know what this is all about, do you wish an adjournment to be represented?  
MR ANDREWS:  (inaudible) I did what was asked of (inaudible), sir.  Your office confirmed to me, Ms Penn confirmed to me, that I had been discharged by yourself. 
JUDGE CARROLL:  Yes.  
MR ANDREWS:  I was not advised that I needed to come in.  I made it quite clear to her, do I need to come in, and she said no.”
14.	The judge granted a representation order and the appellant was represented on 7 September by Miss Champion.  We summarise to avoid too much setting out of the transcript for 7 September.   
(a)	The appellant is severely dyslexic.  While he can scribble notes that mean something to him, he is not capable of writing an understandable note, especially concerning a difficult matter.
(b)	His wife had accompanied him to court on 16 July. 
(c)	He did not ask his wife to write a note on 16 July because he understood he was not supposed to tell his wife the details of what went on in the jury room.
(d)	His wife always acts in effect as the secretary in his life. 
(e)	When challenged on the point by the judge, it was accepted on his behalf that it would have been possible to get a note written and that he went about things in the wrong way, for which he was contrite.
15.	His account of events on the morning of 16 July emerges from his statements on 27 July and the account given by Ms Champion on his behalf:
“When they arrived at court on the Monday morning, in plenty of time, they spoke to reception.  They did not actually get to speak to a jury bailiff.  They spoke to reception who communicated with Mrs Brett, who said she was not prepared to come down and speak to him. 
It was suggested to him that he should go up, and he certainly took the view he was being told he had to go up to the jury room.  Whether that was to speak to her, or simply to wait in the jury room with other jurors he was not clear.  He certainly got the impression that he was being told she would not come and meet him as he thought had been arranged, but that he would have to go upstairs.
He did not want to meet the jurors again.  He was upset that was the case.  I think your Honour was given a rather exaggerated account of his behaviour on that day.  
JUDGE CARROLL:  Not of his behaviour.  I think it was more of the behaviour of his lady wife.  
MISS CHAMPION:  Well, I cannot say anything about that.  
JUDGE CARROLL:  I do not hold that against him.  We are not liable for the acts of our spouses.  
MISS CHAMPION:  He was very concerned.  It was still quite early at that stage.  He and his wife having, they felt, got nowhere, went back to the car park, where in fact a member of the jury again abused him.  It reinforced his feelings that he was in an untenable position.  They went home.  
They live only five minutes away from court.  They telephoned the court from home in plenty of time, had they been told he must return, for him to get back.  At that stage, it is right that his wife was on the phone acting again as his assistant, it would seem.”
The judge intervened to query again the absence of a note: 
“MISS CHAMPION:  His wife was told by a member of staff, who seemed not have any particular authority, that someone would ring him back and he would speak to them.  They waited for a phone call and this time he did, in fact, take the call.  By this time it was 10.50am and it was too late for him to get back.  
JUDGE CARROLL:  No, it was not.  Why should it be too late for him to get back?  We were sitting here for two hours waiting.
MISS CHAMPION:  Your Honour, that is not what he was told.  He was told at that stage that he had been discharged.  He emphasises, as indeed does his wife, that had either of them been told that he must come back to court or he would himself be in trouble, he would have immediately come.”
16.	The judge accepted that by 11.10am he had indicated that he would discharge the appellant from the jury.  In the course of submissions, the judge commented: 
“Really, it was his reaction which was wholly inappropriate.  In my view, it smacked to some extent of a rather spoilt school boy who when they would not play ball, went home with his ball.  I mean that quite seriously.  That is how it appears to me.”
17.	Miss Champion robustly persisted stating:
“He was extremely upset by the way he was treated by the other jurors.  He does not use the word afraid, but he was put in a position where it was absolutely untenable for him . . .”
“It may well have been a complete misunderstanding but when he came to court he was asked to go upstairs and he thought that meant just simply go back into the jury room and wait for it to be dealt with.  He did not want to find himself, yet again, in a position of being with a group of people who had taken very seriously against him and who were abusive to him.  That was reinforced again when he went into the car park and one of the jurors was abusive to him there.  He deeply regrets what has happened.  No doubt having heard your Honour’s views with regard to the problems that it could, and did, cause to the defendants themselves, he is even more regretful of what he did.  It was, really, misunderstanding by him.  He did not deliberately do anything to delay the trial.  He was concerned and he went about it in the wrong way.  He is contrite with regard to that.”
18.	In his ruling, the judge emphasised that “my door was always open during this trial”, that he accepted the accuracy of the appellant’s concern about another jury member and that the appellant felt he was being bullied or ganged up on and found himself in exceptional circumstances.  The judge found it difficult to accept why the appellant’s complaint had not been set down in writing.  
19.	The judge accepted that the appellant did not set out deliberately to antagonise the court or to show disrespect.  He concluded:
“I am bearing in mind the concern that it has caused him, and also bearing in mind that he did not deliberately set out to cause the anxiety, the worry and delay that was caused on that Monday morning.  Bearing in mind, and I accept, his profuse apology for this, and also for a long time since this incident, he has had concern that I might well deal with his conduct as a matter of contempt for which he could have received a prison sentence, I will mark that by imposing an extremely modest fine in this case, one of £100.”
20.	The appellant’s position was, as the judge accepted, a difficult one.  So was that of the judge; a jury were in retirement in a very serious case, following a trial of considerable length.  His exasperation, on being told that someone who had taken the oath, taken part in a trial of substantial length and from whom earlier notes had been received, did not produce a note setting out what was a legitimate complaint, is understandable.  
21.	The events of the morning of 16 July 2008 do require analysis, however, in the contexts of a charge under Section 20.  Against the background described, the appellant, whose account was accepted, attended at court in plenty of time.  He was not prepared to meet other jurors in the jury room because, as the judge put it, he felt he was “being bullied or ganged up on”.  He and his wife live only five minutes walk from the court.  He went home under the impression that someone would speak to him on the telephone, his wife having been told someone would ring him back.  They waited by the phone.  Had he been told that he must come back to court, he would have come immediately.  His wife, acting as his assistant, did phone.  By the time a message was received, the appellant had been discharged from the jury.  
22.	While there was room for further enquiry into that account, and possibly challenge, no such enquiry was conducted.  In his ruling, the judge did not address the explanation given for leaving the court, and as to the appellant’s continuing availability nearby.  The ruling is silent upon an explanation which was capable, at the least, of showing reasonable cause for the failure to be at court when the court sat.  The absence of a written representation from the appellant remains surprising, and is an important part of the background, but it must be considered in the context of the events of the morning of 16 July and the explanation given.  
23.	While the absence of a note was capable of being a material factor under Section 20, analysis of what happened at the desk, and what the appellant was told would have been necessary to justify a conclusion that the cause of absence at 10.30am was unreasonable, within the meaning of Section 20(4).  The error was in the failure to address the explanation given.  
24.	It was for those reasons that, at the conclusion of the hearing, the court allowed the appeal and quashed the conviction.  The question of what the judge should have done had he received a written complaint about the conduct of another juror does not arise.