No: 2008/1033/D2 
Neutral Citation Number: [2009] EWCA Crim 13
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 15 January 2009
 
B e f o r e:

LORD JUSTICE HUGHES 

MR JUSTICE WILKIE 
 
THE RECORDER OF CROYDON
(HIS HONOUR JUDGE WARWICK MCKINNON) 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

VINCENT HAMBLETON 
 
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Mr H Gow appeared on behalf of the Appellant
Mr D Travers appeared on behalf of the Crown
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J U D G M E N T 

1.	LORD JUSTICE HUGHES:  This is an appeal against conviction for burglary.  The question is whether there is reason to fear that the jury was infected by information damaging to the defendant which was not part of the evidence.  The possibility that that was what had happened arose after conviction as a result of a report by one of the jurors to the jury officer.  The trial judge properly ruled that at that stage it was too late for him to do anything about the matter other than to ensure that the juror's concern was properly recorded and to certify the point for appeal so that it got to this court promptly.  We are grateful to the trial judge for taking those evidently correct steps.
2.	It is not necessary to say very much about the evidence in the case.  The defendant was being tried for burglary with another man called Shannon.  The Crown case was that a house had been burgled in the middle evening by three men who had been seen by a neighbour.  One of them got away in a car, leaving the other two to make off on foot.  The defendant and Shannon were arrested following the intervention of an off duty police officer who had been passing the burgled house at about the time the alarm was activated.  The Crown's case was that those were the two of the three burglars who had left the scene on foot.
3.	The evidence against the two defendants was not however identical.  If the off duty police officer was right he had had Hambleton in sight for virtually the whole period of pursuit, except for a moment when he was obscured by a parked car.  That was not true of Shannon.  The evidence against Shannon was that the officer said that he was able, after arrest, to recognise Shannon as one of the people he had seen leaving the house.  So there was a significant difference in the evidence.  Moreover, there was evidence that Hambleton had been noisily advising Shannon after arrest what to say, so again that made a difference in the evidence.
4.	The eventual result of the trial was that Hambleton was convicted by a majority of 10 to 2 and Shannon was acquitted.  What the breakdown of the jurors' various views about him was, of course cannot be known.
5.	After the trial the report made by one juror was to the effect that one of the jurors had been overheard telling another something to the effect that "He's been like that since he was 11 years old".  It transpired that the reporting juror, who is referred to in the report before us as MH, was doing no more than reporting what had been said to her after the trial by another juror, Z.  We are able to say that because in this case, as in others like it, the court has been enormously assisted by a thorough enquiry into what happened made by the Criminal Cases Review Commission.  These enquiries are very difficult to make.  It is vital that they are never undertaken by the parties or the parties' representatives and that mistake has not been made in this case.  The commission is particularly skilled in tailoring the enquiries to compliance with section 8 of the Juries Act.
6.	The result of the enquiry can be summarised in this way.  First, many of this jury had served together previously on a different trial.  Second, in that previous trial there had also served somebody to whom it is convenient to refer as juror X.  Third, at the outset of the present trial, X was one of those initially balloted to form the present jury, but she indicated that she knew one of the defendants and was accordingly, with complete propriety, stood down.  There seems to us to be no reason to doubt that the person that X knew or knew of was not Hambleton but Shannon.  It seems that Shannon had been at the same school as X's daughter.  Fourth, X accordingly left the court of this trial but she was returned to the pool of jurors and found herself on another jury in the same large building and thus was in and about the jurors' assembly area at the various non sitting times during the present trial.  She already knew several of the jurors in the present trial because they had served together in the earlier trial.  She particularly knew the juror who is referred to as Y.  She knew Y from the previous trial (first) but also because they had in the course of that trial discovered some common link via employment.  Fifth, there is no doubt that X and Y spoke together from time to time during the current trial.  Thus far no problem.  Sixth, however, it is also clear that X and Y spoke, among no doubt other unconnected matters, about the reason why X had (completely correctly) indicated that she could not sit on the present trial and it is clear that X told Y that she knew one of the defendants and that there was conversation about that.  Those facts are clear.
7.	The Commission discovered from MH (the original reporting juror) that her concern arose from something which she had been told not by X, not by Y, but by a third juror Z, not during the trial but after it.  MH says that after the trial Z told MH that Y had told Z that Y's friend X knew "him" and knew that was a bad lot, apparently because a friend of X's daughter had at some stage gone out with him.  It is apparent that Z believed that the defendant about whom she was being told something was Hambleton rather than Shannon.  There is every reason to think that that is probably a misunderstanding.  It was Shannon that X had known rather than Hambleton.  The scope for misunderstanding in a four stage hearsay transmission from X to Y to Z to MH is obvious.  Indeed the reported suggestion that "my friend's daughter went out with him" seems to figure nowhere in the original knowledge that X had and may well be an illustration of the way that the message can become corrupted in even a two stage reporting, let alone a four stage.  However, what matters in the case and what has emerged as a result of the original report, whatever its basis may have been, is what Z says occurred.
8.	Z says that some time during the course of this relatively short trial, before the evidence was completed and when the jury was in its retiring room for some reason, another juror announced:"He's guilty, my friend knows him, he's a bad 'un." Z formed the belief that the defendant being spoken of was Hambleton.  It can reasonably be inferred that the remark was made by Y.  Z's belief that it was a reference to Hambleton may well be wrong.  There are a number of possibilities.  Y might have misunderstood X and thought that the person X knew was Shannon, although that is not what Y now says.  More likely, since as reported the remark did not identify which defendant it was, it may simply be Z's misunderstanding that the reference was to Hambleton rather than to Shannon.  Moreover, says Z, after the conviction of Hambleton and acquittal of Shannon this same juror remarked to Z:"He was guilty".  Once again it is impossible to know to which defendant that was a reference.  The point is that, whichever it was a reference to, it is consistent at least with the speaking juror, apparently Y, having formed a clear view not only on the basis of the evidence but on the basis of something else.
9.	We have given anxious consideration to the question whether if this remark made in the jury room some time during the evidence was in fact a report of a reference to Shannon rather than Hambleton, that can have any effect upon the safety of Hambleton's conviction given that Shannon was acquitted.  The test is not in dispute and is well‑known.  Would a fair‑minded and well‑informed observer conclude, knowing what we now know, that there was a real possibility of bias in the sense that the jury or any member of it may have been infected by information which was not part of the evidence, which was damaging to the defendant and which ought not to have been taken into consideration?  It is common ground that if this was a reference to Hambleton there can be no doubt the conviction is unsafe.  If it was in fact in Y's mind a reference to Shannon and was misunderstood by Z as a reference to Hambleton then the question is much more finely balanced.  However, we have come to the clear conclusion that even if Y was speaking of Shannon and Z misunderstood her and thought that she was referring to Hambleton, this is nevertheless a situation in which a fair‑minded and well‑informed observer would conclude that something had gone seriously wrong with the administration of justice.
10.	There are at least three reasons why that is so.  The first is that Shannon gave evidence (so for that matter did Hambleton, but the important matter is that Shannon did) exculpating Hambleton.  Anything by way of material which should not have been before the jury which affected Shannon's credibility might well rebound on Hambleton and the fact that Shannon was acquitted and Hambleton was not does not prevent that from being so.  Secondly, if Y believed that one of these defendants was a "bad lot" and had been since youth, it is quite impossible to know what influence that may have had upon any contribution she made to the deliberations generally about both defendants.  It is true that Shannon had put his character in issue in any event and it is true that Shannon had a previous conviction for wounding with intent, but his case had been that despite that single error he was a decent man and he had asserted, in support of that contention, that he wanted to join the navy.  Accordingly, it is simply impossible to be confident that any conviction on the part of Y that Shannon, contrary to his case, not only had a single previous conviction but had always been a bad lot had no impact on the trial of Hambleton.  It may well have done.  Thirdly, Z understood this remark to be about Hambleton.  No one can know what impact Z's understanding of that had upon the trial.  We are invited to the tempting assumption that Z must have been one of two dissenting jurors who would have acquitted Hambleton, but that is simply an unsafe assumption to make.
11.	In all those circumstances we are persuaded that in the present case it is impossible not to fear that the jury has been infected by material which it ought not to have had.  On any view X and Y ought not to have been speaking to one another about anything connected with the present case, including the reasons why X could not sit, and certainly not about any antecedents of either of the defendants.  In a very large court one can normally rely on jurors if released from one court to continue to sit in another court without this kind of problem arising, but it did arise in this case.  For the reasons which we have indicated it is impossible to be confident that the effect on the trial of Hambleton was not an unfair one.
12.	In those circumstances the appeal against conviction must succeed and the conviction must be quashed.  Mr Travers?
13.	MR TRAVERS:  My Lord, the evidence of P.C. Bridger is still on the face of it clear and albeit I will further consider the evidence no doubt that the defence would seek to adduce at a retrial, I think the matter should be listed and ‑ I have no prior experience ‑ be listed for mention, is it, in Liverpool Crown Court as soon as possible?
14.	LORD JUSTICE HUGHES:  Well there is one preliminary stage.  Do I understand you are applying for a retrial?
15.	MR TRAVERS:  I do apologise.  I meant no discourtesy.  I do seek a retrial.  
16.	LORD JUSTICE HUGHES:  Mr Gow?
17.	MR GOW:  It is irresistible, your Lordship.
18.	LORD JUSTICE HUGHES:  Absolutely irresistible.  Of course he must be retried.  We are satisfied that the interests of justice call for a retrial.  He is to be retried on the same charge as he was tried in the court below.  He must be arraigned on a fresh indictment within two months of today, unless this court directs otherwise.  He was tried at Liverpool.  Is there any reason why the retrial should not be at Liverpool?
19.	MR GOW:  My Lord, no.
20.	LORD JUSTICE HUGHES:  The trial will be at Liverpool Crown Court unless either this court or a presiding judge of the Northern Circuit directs otherwise.  There is no reason to imagine that arises.  He is not in custody, so he should remain on bail in the mean time, should he not?
21.	MR GOW:  Technically he is not on bail.  He has completed his sentence.  
22.	LORD JUSTICE HUGHES:  I know he has, but he is now awaiting trial in the court below.  Unconditional bail.  You will need a representation order, Mr Gow, for solicitor and junior counsel for the retrial.
23.	MR GOW:  Thank you very much.
24.	LORD JUSTICE HUGHES:  Is there anything else that we need to direct?
25.	MR GOW:  Just for my information, your Lordship has granted a representation order for junior counsel at the trial.  Those instructing me have reminded me that they have had the expense of bringing all these witnesses down today, out of their own pockets.  The witnesses were ordered to attend by the court in Leeds when this court sat in Leeds.  So I ask for some kind of representation order to allow those instructing me to recover the witnesses' expenses.
26.	LORD JUSTICE HUGHES:  Tell us what kind of order you want, Mr Gow?  It is not a representation order, is it?  It is a matter of witnesses' expenses.
27.	MR GOW:  I think a costs order.
28.	(The judge conferred with the Registrar) 
29.	LORD JUSTICE HUGHES:  You probably heard that.  I am advised that if your solicitors tender their bill, including the reasonable expenses of the witnesses, to the Court of Appeal costs office, it should be covered by the representation order.  I will endorse your recollection that you were required to bring them here.  That is on the record.
30.	MR GOW:  Apart from that your Lordship it has been a pleasure.
31.	LORD JUSTICE HUGHES:  Should there be any restriction on reporting pending the retrial, or not?  There is no reason why there should be is there.  Nothing that arises in this appeal could affect any jury who hears the retrial, could it?
32.	MR GOW:  I agree and have no comments on that.
33.	LORD JUSTICE HUGHES:  There is no need for that.