Trials - Jury Selection, Protection & Misconduct

TRIALS - JURY SELECTION, PROTECTION & MISCONDUCT


Written  February 2015 by:
Colin Wells - 25 Bedford Row - Called 1987

Colin Wells specialises in Fraud, Money Laundering, Confiscation and related Regulatory proceedings. His recent case load includes VAT, Land Banking, Boiler Room and Carbon Credit Fraud.

Colin Wells is the author of 'Abuse of Process' published by Jordans.

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INTRODUCTION

  • The Lord Chief Justice of England and Wales gave judgment, on 13th December 2013, in the Court of Appeal Criminal Division in R. v Mehmet Baybasin, Andrew Molloy, Martin McMullen (appellants) and others (applicants), reported at [2013] EWCA Crim 2357, on important issues of jury selection, protection and misconduct. The decision contains important guidance on the principles and procedures to be followed when complaint is made of trial unfairness surrounding the choice, safeguards and conduct of a trial jury.

APPEAL HEARING

  • The Court of Appeal (Criminal Division), sitting at Liverpool Crown Court1, Lord Chief Justice Thomas, Mrs.Justice Cox and Mr.Justice Holroyde, considered (on 13-14th November 2013) and dismissed the Appellants appeals against conviction and sentence; following conviction on a large scale Conspiracy to Import Class “A” drugs at the Crown Court of Liverpool before His Honour Judge David Aubrey QC and a jury (18 May - 8 July 2011).

    PROSECUTION CASE
  • At trial the prosecution alleged that there was a well planned conspiracy to import cocaine between (1) a group of criminals in London headed by Baybasin, (2) a group of criminals based in Liverpool headed by Taylor and (3) other drug dealers based overseas, between September 2008 and April 2009, from Central America to the UK. It was the prosecution’s case that Baybasin was linked to drugs supplies in Central America. It was Baybasin’s case that he was on legitimate business and had no involvement with the conspiracy.

  • The prosecution case against McMullen was that he was a member of the Liverpool team providing expertise in transportation. It was alleged he travelled to Central America. It was McMullen’s case that he was not involved in the conspiracy and had not been to South America. He had other businesses interests that did not involve drugs. His links with Taylor were explicable.

  • The case against Molloy was that he was a person who delivered the drugs; Molloy’s case was that when he had delivered articles he was not delivering drugs.

  • The evidence adduced by the prosecution comprised surveillance evidence and evidence of recorded conversations obtained from probes installed in buildings.

CONV​ICTION APPEAL GROUNDS

  • The applications of Baybasin, McMullen and Molloy for leave to appeal against conviction were based on two principal grounds:

  • The general practice of the Crown Court at Liverpool of balloting jurors by number in cases of over two weeks in length was said to be unlawful. There was no basis for the trial judge to have balloted by number, as the prosecution had specifically abandoned their application for that to be done. The trial judge had also failed to give proper directions to the jury in relation to arrangements relating to their transportation to the court from a city-centre pick-up point and to their separation from other jurors during the course of the trial.

  • On the basis of fresh evidence obtained through an inquiry by the Criminal Cases Review Commission, it was contended that a member or members of the jury had found on the internet and in a book material relating to the members of the Baybasin family who had been engaged in drug dealing. The trial judge had specifically excluded evidence relating to the activities of Baybasin’s family. Four of the trial jurors gave live evidence before the COACD.

  • The two grounds gave rise to more general issues relating to the adoption of local practices and inquiries into alleged misconduct by jurors.

  • The COACD rejected the juror misconduct outright, but granted leave on the local practices ground.

GROUND 1: BALLOTING BY NUMBER AND OTHER JURY PRACTICE MEASURES

  • The COACD grant leave on this ground and gave judgment in the following terms:

  • (a) The general practice as to ballot by number: R v Comerford“

  • [10]The usual procedure for empanelling a jury is to ballot from those assembled by calling out the names of the jurors in open court in the presence of the defendant. As each person’s name is called, that person steps into the jury box and is sworn. In this way everyone in court knows the names of the jurors who are to try the defendant.[11] In R v Comerford [1998] 1 Cr App R 235, this court (Lord Bingham CJ, Potts and Butterfield JJ) considered an appeal from a trial in the Crown Court at Middlesex Guildhall where jury nobbling was anticipated. The assembled jurors were each allocated a number before being brought into court. Instead of their names being called out in the ballot, their number was called for the ballot. No juror was identified in court by name. This court held that this procedure was lawful as it had no material and adverse effect on the fairness of the trial for reasons we set out below. At the conclusion of the judgment Lord Bingham giving the judgment of the COACD made clear:“It is highly desirable that in normal circumstances the usual procedure for empanelling a jury should be followed. But if, to thwart the nefarious designs of those suspected of seeking to nobble a jury, it is reasonably thought to be desirable to withhold juror's names, we can see no objection to that course provided the defendant's right of challenge is preserved.”

  • The COACD then considered balloting by number in this case.

  • (b) Prosecution application for balloting by number, its withdrawal and Judges decision

  • Immediately before the trial was due to begin, the judge raised with counsel the empanelling of the jury. The prosecution initially invited the judge to proceed to ballot by number, but then withdraw the application. The trial judge in ordering balloting by number stated "it is standard practice in this building for juries in long cases to be balloted by number. This court is clearly of the view that no prejudice whatsoever is occasioned by such a jury provided, of course, that the panel is told that it is the normal practice in this building for cases of some length." The trial judge concluded that the overriding objective in dealing with a criminal case justly included not only dealing with the case efficiently and expeditiously, but by respecting the interests of jurors. The court then proceeded that day to empanel the jury by balloting it by number.The judge explained the process to the assembled jurors in waiting saying in the following terms that it was standard practice in the court. That practice had originated in a Guidance Note: Trial Management in Long/Secure Cases issued on 15 January 2004 by the then Recorder of Liverpool and approved by the Presiding Judge of the Northern Circuit. The Guidance set out in a clear and careful manner the practice to be followed at Liverpool under a series of headings including: “Special jury arrangements during the trial” which set out details about collection points in the city and the provision of tea and coffee making facilities in the jury room. The practice applied by the trial judge had been modified in the period after 2004 so that in all cases of more than two weeks in length, subject to the discretion of the judge, jurors were balloted by number and special arrangements about transportation and refreshment were made for them. Each jury to which this practice was applied were told that these arrangements were standard practice. It is therefore clear that in the present case the procedure followed by the judge was in accordance with the general practice adopted at the Crown Court at Liverpool for all cases over two weeks in length, irrespective of whether there was any evidence of risk of jury nobbling.

  • (c) The effect on the fairness of the trial of the appellants

    • The COACD found that although it is clear that the practice adopted in the Crown Court at Liverpool is one that is unique to that location of the Crown Court, the COACD could not see how in the circumstances of this case it had any effect on the fairness of the trial, stating:

    • "[27] In Comerford the COACD court determined the fairness of the trial was not affected by the procedure of balloting by number as long as the right of the defendant to challenge was not impaired. It is difficult to see how these rights could be impaired given the right to inspect the panel from which the names of jurors might be drawn under s.5(2) of the Juries Act 1974. There is no suggestion in the present case that the right of challenge was in any way impaired."

    • The COACD also stated that it could not have had any effect on the perception of the jury in the light of the explanation given by the judge to the jury.

    • Further, observing:

    • " [29] In any event we would agree with the comment made in the Criminal Law Review in its report on Comerford at [1998] Crim LR 285:

    • With the procedure adopted by the judge in this case, it is unlikely that the jurors themselves would have known that the procedure was unorthodox, so there is no reason to suspect that they adopted a different attitude to the accused because of it.[30] Nor in our view did the arrangements for lunch and coffee have any effect on the fairness of the trial. Although the jury were not directed that they should not hold arrangements against the defendants, the jurors would have attached no significance to the court making such arrangements for refreshments; it is fanciful to suggest that these could have that effect....[32] The practice of picking jurors up at a point in the City is, in our judgment, not a measure that is akin to special protection of which the jury might become aware and so lead jurors to be tempted to “view with disfavour an accused person whose friends or associates are thought likely to act in a criminal way”. It is, however, an unusual step and could give rise to some suspicion as to why it was being done. In the present case, as this was the practice at Liverpool in cases of over two weeks duration, the jury were rightly told that this was the usual practice. There was no risk that the jury would therefore hold this against these applicants."

  • The COACD therefore reached the conclusion that the fairness of the trial was not affected and the safety of the conviction not in any way impaired by the practice adopted at Liverpool.

    GROUND 1 - LOCAL PRACTICE BALLOTING REFUSAL

  • From the above summary, it is clear that the COACD accepted that the balloting by number and jury arrangements was a practice peculiar to Liverpool, but did not affect the fairness of the trial, even though there was no judicial warning given as to the travel and separation arrangements. The trial was still fair as (a) safeguards were still in place including the right to inspect the panel from which the names of jurors might be drawn under s.5(2) of the Juries Act 1974. There is no suggestion in the present case that the right of challenge was in any way impaired; (b) the Jury would not have any adverse perception in light of the explanation given by the judge to the jury for the balloting; (c) the travel and refreshment arrangements did not amount to special protection. Although it is an unusual step and could give rise to some suspicion as to why it was being done, in the present case, as this was the practice at Liverpool in cases of over two weeks duration, the jury were rightly told that this was the usual practice. There was no risk that the jury would therefore hold this against these applicants.

  • In short, the COACD (a) upheld the correctness of Comerford as good law and practice, but (b) made factual findings, specific to the case, which meant that the trial was Comerford compliant.

  • Accordingly, the COACD accepted the Appellant arguments about Comerford, but made factual findings which meant that the fairness of trial rights were not breached.

    OBSERVATIONS ON LOCAL PRACTICES

  • The COACD acknowledged that there is very considerable force in the Appellant submission that the Crown Court was a single court and local practices should not be permitted. Such local practices, including the practice at Liverpool, can no longer be justified after the creation of the Criminal Procedures. The LCJ observing “[35] The Crown Court is a single court; its procedure and practice must be the same in all its locations, unless there is anobjectively justifiable basis for such a practice based on local conditions. If a court considers that such a practice is required because of local conditions, then in these rare circumstances, details of the practice and the justification must be submitted to the office of the Lord Chief Justice before it is implemented. The Lord Chief Justice may, if appropriate, refer it to the Criminal Procedure Rule Committee.”

  • No such justification for the local practice of balloting at Liverpool was advanced by the prosecution before the COACD. “[36] However, the practice has some advantages; it may be the case that balloting by number is a practice which should be allowed in defined circumstances in the Crown Court. We will therefore ask the Criminal Procedure Rule Committee to consider the issue.

  • The COACD have therefore disapproved of local practices unless sanctioned by the Criminal Procedure Rules Committee. This amounts to a change in the law and practice but did not amount to a successful ground of appeal against conviction.

    GROUND 2 JURY ACCESS TO THE INTERNET
  • The COACD refused leave on this Ground and dismissed the point on (a) the basis that the trial Judge gave a direction at the outset of the trial not to carry out internet research and (b) case specific factual findings.

  • The judge’s direction to the jury at the outset of the trial

  • Immediately after the jury had been empanelled, the judge gave the jury the standard directions, including a direction that they must not research matters on the internet. He said that included looking up anything to do with the trial, including the lawyers. In the opinion of the COACD at paragraph 38, “His remarks were clear and suitably forceful”.

THE ALLEGATION IMMEDIATELY AFTER THE CONCLUSION OF THE TRIAL

  • After the verdict juror A told Darryn Robinson that juror B, had googled the defendants. Based on that material an application was made to the COACD court for leave to appeal against conviction. On 20 December 2011 the COACD (Pitchford LJ, Wilkie and Sharpe JJ) decided that a reference should be made under s.23A of the Criminal Appeal Act 1968 to the Criminal Cases Review Commission for the conduct of an investigation. The CCRC, assisted by Merseyside Police carried out an investigation.

  • In the course of the investigations by the Criminal Cases Review Commission of the allegations of a serious irregularity by the jury in researching on the internet, specific allegations emerged.

  • a. Juror C had read during the currency of the trial a book entitled Cocky about an infamous Liverpool drug dealer, Curtis Warren, which referred to the Baybasin family. He had told the other jurors of this.

  • b. Juror B had researched matters on the internet relating to the trial. There was on the internet material about the Baybasin family and Baybasin’s brothers which detailed their extensive involvement in drug dealing.

  • c. Jurors B and C talked about the value of Baybasin’s house.

  • Jurors A-D gave live evidence before the COACD.

  • Juror D gave evidence that she recalled juror C reading the book about Curtis Warren during the trial. Juror B also gave evidence that juror C was reading a fictional book about international drug dealing during the trial, but he did not recall what it was.

  • The COACD found Juror C to be a most impressive witness and accepted that “[49]....he did not read any book about drug dealing during the trial. He had said that he had bought Cockythe book about Curtis Warren and another book to do with drug dealers after the trial, as he was interested in learning more about international drug dealing. He was, however, plainly incensed at the attack on his integrity. After he had given his evidence, he examined his account with Amazon; it showed that he had bought the book Cocky and another book about drug dealing two weeks after the conclusion of the trial.”

  • The COACD found that “[49] Juror D’s recollection when she was asked about this a year after the trial must have been mistaken; even if juror B’s recollection was correct (and we do not think it was) and juror C had been reading a fictional book on drug dealing, it would not have mattered.

  • Accordingly, the first allegation of jury irregularity failed on the factual finding of the COACD.

  • The second allegation of internet research rested substantially on the evidence of witness A. He was interviewed by the police on behalf of the Criminal Cases Review Commission on 23 August 2012. He made clear in his evidence to the COACD that his recollection was best set out in that interview. In it he said that although he was not really interested, he knew that two jurors had googled Baybasin and one had googled a barrister, as he had overheard conversations. He identified one of the persons who had conducted the google search on Baybasin as juror B; juror B had said he had googled Baybasin and had said Baybasin had a past. He also identified the juror who had looked the barrister up on the internet as juror D; he said she had “fancied” him. He had not reported anyone for doing this during the trial as he did not want to get them into trouble.

  • In his evidence to the COACD Juror A repeated the allegation that juror B had said on one occasion that he had googled Baybasin, but as juror B had not told anyone what he had found, he, juror A, had not told the judge. Juror A said later in his evidence that juror B must have said Baybasin had a past. Juror A added that he was shocked at the conduct of juror B; he hadbeen brazen and he was disgusted with him. The other jurors had laughed and said that he must not do that. Juror A accepted that juror B might have said something which he did not hear properly.33. In his evidence to the COACD Juror B denied emphatically that he had conducted any research on the internet during the trial. Juror B said he did so only after the end of the trial when the jury were told they could do so. He had then googled “Baybasin” on his mobile phone when he went to the pub with other jurors, but could not recall what if anything came up; he thought there was nothing specific.

  • Juror C told the COACD that he only looked at the internet in relation to the case after the trial had finished when he was told that the jury could do so. Juror C did not do so during the currency of the trial. Juror C told the COACD that no juror looked anything up on the internet.

  • Having considered the evidence the COACD made factual findings : (a) accepting the evidence of Juror’s B and C to the effect that “Neither these jurors nor any other juror looked up matters relating to the trial during the trial”; (b) Juror A was on his own account a man who kept himself to himself. He told the COACD that he was an alcoholic who was on anti- depressants. The COACD found him to be an unreliable witness, who invented an account to minimise his role in the convictions.

  • The COACD made further factual findings, rejecting the allegations in respect of the value of Baybasin’s house and Juror D’s recollection was unreliable in relation to the book about Curtis Warren.

  • The COACD made factual findings and rejected all the allegations of jury impropriety and irregularity.

    GENERAL OBSERVATION ON JURY IMPROPRIETY AS GROUND OF APPEAL
  • The COACD in rejecting the Jury impropriety ground of Appeal observed “[60] We would add that great care has to be exercised before this kind of appeal proceeds. In Lewis [2013] EWCA Crim 776 this court observed at paragraph 25 that the inference that complaints after verdicts simply represent a protest by a juror at verdicts with which he or she disagrees are likely to be overwhelming.”

  • Further the COACD observed that “ [63] we have little doubt that if one of the jurors during the trial falls below the standards expected of a juror, the other jurors will report that to the judge during the trial and before the verdict. That is the presumption upon which this court should act, if the complaint is first made after the taking of the verdict. Inquiries should therefore not be ordered in such cases and the finality of the verdict accepted, absent other strong and compelling evidence. To do otherwise is neither fair nor just. Jurors doing their public duty should not in such circumstances be put through an examination of their conduct some considerable time after the performance of their civic duties.

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