Neutral Citation Number: [2010] EWCA Crim 201
Case No. 2009/02065/D5

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday 4 February 2010

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  PENRY-DAVEY

and

MR  JUSTICE  IRWIN

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R E G I N A

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DAVID  CARTER
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Mr J Carmichael appeared on behalf of the Applicant

Mr D Brooke appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  
1.  On 10 March 2009, in the Crown Court at Sheffield, before His Honour Judge Swanson and a jury, the applicant was convicted of one count of conspiracy to defraud, and on 13 March 2009 he was convicted of five further counts of conspiracy to defraud.  The jury was unable to agree a verdict on one last remaining conspiracy to defraud allegation.  On 22 May he was sentenced to three years' imprisonment concurrent on each count.  

2.  There were a number of co-accused.  John Wright pleaded guilty to all seven counts and was sentenced to a total of three years' imprisonment.  Scott Brunt pleaded guilty to counts 1 and 2 and was sentenced to a total term of two years' imprisonment.  Alison Marriot was acquitted on count 2.  Stephen Bagnall was convicted on count 3 and was sentenced to 52 weeks' imprisonment suspended for 24 months.  Jean Bagnall was acquitted on count 3.  Matthew Wooton pleaded guilty to count 4 and was sentenced to nine months' imprisonment.  Michael Williams pleaded guilty on re-arraignment to count 5 and was sentenced to nine months' imprisonment.  David Costin was convicted on counts 6 and 7 and was sentenced to a total term of 18 months' imprisonment.  Lisa Costin was acquitted on count 6.

3.  The applicant's applications for leave to appeal against conviction and for an extension of time in which to do so have been referred to the full court by the Registrar.  We grant leave.

4.  The facts of this case need very little analysis.  The single ground of appeal raises an interesting point which has not previously been addressed in a considered judgment of the court.  It relates to the course that should be taken when a member of the jury is discharged during the jury's retirement.

5.  The allegations against all the defendants were conspiracy to defraud banks and building societies in relation to funds obtained by way of mortgage.  Lending companies were persuaded to make loans on the basis of false information provided to them which they would not have advanced if they had known the truth about the loan applications. 

6.  The appellant was one of the common threads.  He was party to each of the various conspiracies covered by seven counts of conspiracy to defraud.  His role was to act as a mortgage advisor to a number of individuals who made the allegedly dishonest applications.  Wright, who falsely claimed to be a qualified chartered accountant, was the second common thread to each of these counts.  He produced and certified false accounts to ensure that the individuals making the applications would be able to satisfy the lender about their incomes and therefore be enabled to borrow funds.  

7.  Each of the seven counts reflected a separate conspiracy involving a particular individual or a couple.  The appellant and Wright were allegedly involved in each and every conspiracy.  

8.  The appellant denied any wrong-doing or dishonesty.  The issue for the jury was whether they were sure in the case of each of the defendants that he or she was involved in the conspiracy knowing that false statements, backed up with false accounts and financial documentation, had been made in the loan applications.

9.  The trial proceeded without difficulty.  In due course the jury of twelve retired on 5 March, during the fourth week of the trial.  The case was then adjourned to the following Tuesday to accommodate a long-standing commitment of one juror, and another who had a hospital appointment involving his wife.  Nothing turns on that.

10.  On 10 March, however, when the jury resumed its deliberations, one juror had to be discharged as she had broken a shoulder bone over the weekend.  She was not present and would be unlikely to attend in the immediate future.  No specific or further directions were given to the jury.

11.  On the afternoon of the same day an urgent message was received from the juror's wife who had had to attend hospital.  That caused him to be discharged so that he could leave the building immediately.  No further directions were given to the jury of now ten, and they continued their deliberations.

12.  At the end of that Tuesday verdicts against all the defendants alleged to be involved in the conspiracy to defraud covered by count 3 were delivered.  That involved the appellant and Stephen Bagnall who were convicted, and Jean Bagnall who was acquitted.

13.  The court did not sit on Wednesday 11 March.  The ten members of the jury returned on the morning of Thursday 12 March.  They asked a question which involved an analysis of the burden of proof and a request for further directions.  The judge gave an appropriate direction and the jury again retired.  The jury was given a majority at just after 2pm on 12 March.  They returned unanimous verdicts on the other defendants at the end of the day.  David Costin was found guilty on counts 6 and 7.  Lisa Costin was acquitted on count 6.  

14.  On Friday 13 March the jury returned to court to continue their deliberations in relation to the remaining counts involving the last defendant, who was left, the appellant.  At lunch time, without there being any verdicts, the foreman made a light-hearted observation about the deliberations.  Nothing turns on that. 

15.  At 15.35, after a lengthy retirement, the jury of ten returned  majority verdicts against the appellant on the outstanding counts involving him.

16.  The appeal is based on the proposition that once the jury is in retirement considering its verdict the discharge of one of its number, and certainly the discharge of two, should have been followed by a direction to the remaining members sufficient to bring home to them that they should not allow their verdicts to be influenced by comments already expressed by the jurors who had been discharged.  The submission, advanced attractively by Mr Carmichael on behalf of the appellant, has the disadvantage that it is not supported by earlier authority.  On the other hand, there is no authority which directly contradicts his submission.  

17.  The researches of counsel on both sides have revealed a direction given by a trial judge and the observations by this court about it in a very similar case, R v LS [2009] EWCA Crim 1041.  In that case, after a juror had been discharged during the jury's retirement, the judge directed the remaining members as follows:

		"I do not know and I am not going to enquire as to whether the juror whom I have discharged took part to any great extent in the discussions which you have had but, if she did, then you must put aside from your decisions anything that she may have to contribute to your discussions because you are now eleven and it is now a decision of eleven of you, uninfluenced by anything else, that now matters in this case."

Mr Carmichael's written submissions place considerable reliance on this direction.  However, he recognised some of the practical difficulties which might arise if such a direction were given.  He offered this alternative direction for consideration:

		"You will, of course, have heard contributions from discharged jurors about the evidence.  It would be absurd to expect you to ignore those contributions.  However, if they had indicated their views on the ultimate issue, namely guilt or innocence, or the credibility of crucial witnesses whose evidence is disputed, you must ignore those views for the verdict must now be that of you ten and you ten alone."

It is perhaps worthy of note that, in giving the judgment of this court in LS, Moses LJ said:

		"We question the correctness of the judge's directions to the jury that they should put aside from their consideration anything that the juror he discharged may have had to contribute to the discussion.  That may be a direction which it is impossible or, indeed, wrong for the jury to obey.  It will particularly be impossible in a case .... where the juror, prior to discharge, may well have contributed to a verdict of guilty when verdicts were delivered on different occasions."  

He went on:

		"But we do not think that that particular direction in the instant case leads to the conclusion that the verdicts are unsafe."

18.  The problem with Mr Carmichael's proposed direction is that, in reality, it suffers from the same difficulty identified by Moses LJ in his observations of the impossibility of a jury following with such a direction.

19.  We return to the principle.  We are not here concerned with the discharge of a juror on the grounds of misconduct, impropriety or irregularity.  As it seems to us, whether one or two jurors are suddenly and for good reason discharged, and at whatever stage in the trial, the question whether the judge should direct the remaining members to ignore any views expressed by the discharged juror (or jurors) is identical.  As a matter of first principle the verdict of the jury is the verdict which the members returning it conscientiously believe to be right.  Before reaching their decision, they will have reflected on the arguments they have heard advanced by both, and in a multi-handed case by all the parties at trial, and then, in the privacy of their retiring room, the opinions and views expressed by each member of the jury.  This is, as counsel for the Crown, Mr Brooke, put it in his written submission, a "dynamic" process.  Of course the jurors who have been discharged cannot be, and are not responsible for the eventual verdict.  But until their discharge they are entitled to express their views, favourable or adverse to the prosecution or to some parts of the prosecution case, or favourable or adverse to the defendant or some part of the defence case.  As the discussions proceed, the views expressed at an earlier stage may well develop and change.  It is a continuing process.  But while jurors are properly empanelled, the views of each and every one of them are entitled to the same careful analysis and respect as those expressed by any juror, including jurors who are later discharged.  On discharge they cease to have any responsibility for the verdict, but there is no reason to imagine that the views expressed at a time when they believed that they would be responsible for the verdict were expressed any less conscientiously and responsibly than those of any other juror.  Those views become part of the fabric of opinions under consideration, impossible to isolate and compartmentalise.  It would therefore be wholly unrealistic for a direction to be given to the remaining members of the jury to ignore the views expressed on any subject by the departed jurors.  What matters is that the discussion between the remaining jurors will continue to ebb and flow and, on refection, the views expressed by the departing juror (or jurors) would have been examined and either accepted wholly or in part, or rejected wholly or in part, or treated as irrelevant by the remaining jurors in the course of reaching the decisions to which their conscience impels them.  The eventual verdict, however, is no more than that of the jurors who have been party to it as a result of the process of discussion in the privacy of the jury room.  The views expressed by the departed jurors will only be relevant to the extent that the remaining jurors will have adopted or assimilated those views as their own.

20.  In our judgment no direction was needed.  It would have been productive of confusion if one had been given at this stage of the jury's retirement.  The jury returned a true verdict and these convictions are safe.  Accordingly, the appeal against conviction will be dismissed.

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