No. 2011/01059/D1 & 2011/01341/D1
Neutral Citation Number: [2011] EWCA Crim 1235
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  5  May  2011
B e f o r e:

LORD  JUSTICE  PITCHFORD

MR  JUSTICE  TREACY

and

THE  RECORDER  OF  BIRMINGHAM
(His Honour Judge William Davis QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A

- v -

CHRISTOPHER  MPELENDA

MAXWELL  ANTWI
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Mr A Wright appeared on behalf of the Appellant Mpelenda
Miss T Panagiotopoulou appeared on behalf of the Appellant Antwi
Mr J Lachkovic appeared on behalf of the Crown
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J U D G M E N T
Thursday  5  May  2011

LORD JUSTICE PITCHFORD:  
1.  This is an appeal against conviction with the leave of the full court.  The sole ground of appeal raised on behalf of each of the appellants is that the verdicts of the jury are rendered unsafe by a revelation following an investigation by the Criminal Cases Review Commission that the jury's deliberations were improperly affected by internet research carried out by at least one member of the jury.

2.  On Monday 24 January 2011, at Snaresbrook Crown Court, before the Recorder of Redbridge (His Honour Judge David Radford), Maxwell Antwi, Christopher Mpelenda and Robert Russell were charged in an indictment containing four counts.  The appellant Antwi was charged alone in count 1 with the offence of kidnapping in that he unlawfully, and by force or fraud, took away Cedric Amoah against his will.  All three defendants were charged in count 2 with false imprisonment of Cedric Amoah; in count 3 with blackmail of Cedric Amoah; and in count 4 with assaulting Cedric Amoah, thereby occasioning him actual bodily harm.

3.  The jury retired to consider its verdicts at 10.26am on Friday 4 February 2011.  They returned to court at 12.45pm to seek assistance from the judge on the meaning of "joint enterprise".  They were released for the weekend at 4.25pm and resumed their deliberations at 10.07am on Monday 7 February.  At 12.34pm the jury returned to court and delivered their unanimous verdicts of guilty in respect of Maxwell Antwi upon counts 2, 3 and 4.  The jury received a direction as to majority verdicts and further retired at 12.38pm.  At 2.57pm the jury returned with a verdict of guilty by a majority of 11:1 in respect of Antwi on count 1, and verdicts of guilty by a majority of 10:2 in respect of Mpelenda on counts 2, 3 and 4.  The jury could not agree on verdicts in respect of Robert Russell.  The jury was discharged and a retrial was ordered in his case.  It will be necessary for us to return later in this judgment to other events which occurred on Monday 7 February, the day the verdicts were delivered.

4.  At the outset of the trial the learned judge provided the jury with the clearest possible information about the nature of their duties, the hours of sitting, the need for punctuality, their collective responsibility, the requirement for their personal and independent view upon the evidence, and the need to report any untoward event inside or outside their retirement room.  The judge could not, in our view, have been more helpful to the jury as they prepared themselves for their duties as judges.

5.  As to the prohibition against seeking outside information, the judge said this:

		"In this world .... we all have access through the internet to various mechanisms for seeking .... information on just about everything there is in life.  And we all know about social networking sites and 'Google' and all the other means by which we inform ourselves, or think we are informing ourselves, about matters that arise in the course of our lives.  I must direct you in very clear terms .... that it would be wholly wrong and in breach of your oath should you attempt to seek any information about matters that may arise in this trial by any such means.  The reason for that is this: It is important firstly that you do adhere to your oath.  Any information that is obtained other than in the courtroom would not be known to the parties in the case; they would not therefore have an opportunity of being able to comment or deal with any such information; to correct it, if it was incorrect, or to explain it if it needed explanation.  And you cannot always depend upon what is to be found on the internet or any site on the internet as being accurate and true in any event.  Also you might have a completely futile and forlorn search for information which probably is not going to be there in any event.  But I do emphasise, most importantly, that you must not seek to obtain information by any means whatsoever outside the evidence that will be presented to you in the course of this trial.

		You share a collective responsibility, all twelve of you, to reach a just verdict according to the evidence.  And I should add, I am sure it will not arise, that if any of your number was known by others to have obtained any such information in the way that I have described, you would be duty bound, please, to let me know about that as soon as you become aware of any such breach of the direction that I gave you."

6.  The arrest of the appellants arose following a routine and coincidental visit by a police sergeant and two community police officers to a flat in Leytonstone at 2pm on 7 September 2010.  The flat was known to be frequented by youths who should not have been there.  The officers went to check its security.  Inside they found the complainant, Cedric Amoah, sitting in his underpants on a chair in the bedroom, calling for help.  He had removed clingfilm from his mouth and had managed to untie himself from the chair.  He explained that he had been set upon by a gang of males who were unknown to him, but he believed that their street names had been "Magic", "Logic", "Box" and "Hitz".  He said that his friend Maxwell had managed to "escape".  Later, he told the police that he did not seek police intervention and would deal with the matter himself.  

7.  When he arrived at hospital, however, he began to speak of Antwi as a suspect.  At first, Antwi was treated by the police as a significant witness, but after he denied that he had seen Amoah on 7 September he was arrested.

8.  Mpelenda was arrested on the following day, having been identified by his street name "Logic".

9.  Robert Russell was arrested six weeks later after his palm print had been found on the door frame to the living room at the Leytonstone flat.

10.  Amoah gave evidence that he and Antwi had been friends during their first year together at Middlesex University, which had commenced in September 2009.  Antwi arrived at his address in Canning Town on the morning of 7 September 2010.  Amoah assumed that Antwi intended to give him a lift to college to collect a status document which he required in order to obtain his student loan for the forthcoming year, which commenced on 11 October.  Antwi was with an unknown male (identified only by the name Stefan) who was driving a VW Golf.  When they set off Antwi said that he thought they were going to college, but the car was driven to Mulberry Court in Leytonstone.  Antwi invited Amoah inside while he was to speak to a friend.  They went to flat No 83 on the sixth floor of the block.  Amoah said that almost as soon as he stepped into the flat he was attacked by a number of youths.  He was then pushed into a bedroom.  Inside he and Antwi each sat on chairs.  Antwi demanded £6,000 as a ransom.  Amoah used Antwi's mobile telephone to speak to his cousin, Joe Amissah, who might be able to provide the money.

11.  Amissah gave evidence that in a single telephone conversation Antwi demanded that £6,000 be taken to a Tesco store in Leytonstone.  He was to telephone Antwi when he arrived with the money.  

12.  Amoah said that he was held for three hours.  He was bound to the chair with a belt.  Clingfilm was wrapped around his mouth and face.  He was repeatedly punched and also hit with a piece of wood.  Bleach was poured onto his foot.  His hair was singed with a lighter.  A drill was used to make marks on his arm.  Antwi was in charge of a gang of youths, numbering between four and nine.

13.  Telephone evidence established that a number of calls were made from Antwi's telephone to Mpelenda's telephone between 8.30am and 11.20am on 7 September.  One call from Antwi's phone connected with Joe Amissah's phone at 11.53am.  There were a number of further return calls from Amissah to Antwi, for which no explanation was provided by Amissah.  

14.  At an identification procedure Amoah identified Antwi as the organiser; Mpelenda as "Logic", who had hit him with a piece of wood; and Russell as the man with the drill.

15.  It was Antwi's evidence at trial that he, Amoah and another youth called Lovelock had been involved together in fraud.  The scheme was to use an individual's bank account by which to launder stolen cheques to cash.  According to Antwi, Amoah owed him and Lovelock £3,000 each.  He could not discuss the matter at Amoah's home in the presence of Amoah's father, so he contacted Mpelenda by telephone to ask him if he could provide an alternative address.  Mpelenda suggested Mulberry Court where, Antwi said, Amoah went willingly.  At the flat Amoah had used Antwi's telephone to contact his cousin to arrange payment.  Antwi said that he believed that Amissah had been involved in the fraud.  While this was happening a group of youths arrived at the flat demanding to know what they were doing there.  Amoah was from Canning Town.  They objected to the strangers' presence.  An argument developed which resulted in an attack on Amoah, which Antwi managed to escape by leaving the flat.

16.  Mpelenda's evidence was that, having assisted Antwi and Amoah to find an address at which to discuss their differences, he had nothing further to do with the matter.  He left soon after arriving at the flat.  He called a witness on his behalf to support his alibi that he went straight back to his own flat.

17.  At pages 14E to 17A of the transcript of his summing-up the judge provided the jury with an entirely conventional and clear direction on participation in a joint enterprise.  He concluded his direction at page 16E as follows:

		"I make this clear, members of the jury, mere presence at or close by to the scene of a crime, observing it going on, is not enough of itself to prove guilt.  But if you find that the defendant in question was at the scene of the offence you are considering, playing some role in the furtherance of a joint plan to commit the crime in question, or that he did intend by his presence along to encourage by that presence, adding to the numbers and other parties to commit the offence in his presence in question, then he would be guilty too as part of a joint enterprise."

Furthermore, the judge provided the jury with written directions both upon each count in the indictment and upon several aspects of their consideration of the evidence.  In particular, for present purposes, he gave them a written direction on joint enterprise in almost identical terms as those which he had given orally.

18.  As we have noted, during their retirement the judge was asked by the jury:

		"Would you please be able to clarify the term in law covering joint enterprise?"

The judge reminded the jury of his written direction and said that he wished to add nothing to it.  However, he gave two examples which in our view were entirely appropriate to the circumstances.  He directed the jury that deliberate presence with the intention of encouragement of others and intimidation of the victim would be sufficient participation in a joint enterprise to detain, to blackmail and to assault.  Provided the jury was satisfied of the joint enterprise and of participation by the defendant whose case they were considering, it was unnecessary for the jury to identify with certainty the person carrying out the specific acts which amounted to the conduct element of the offence.

19.  At the conclusion of the proceedings on Friday 4 February 2011, the judge released the jury for the weekend.  Before they left he gave them the following instruction:

		"Well, members of the jury, you have been hard at work for many hours now, and I am going now to adjourn the case until Monday morning for you then to resume fresher from your weekend away ....  But before we part it is necessary for me to do two things: firstly, to release the jury bailiffs from their oaths that they took earlier today; and secondly, to give you a direction of law which I must direct you please faithfully to heed.

		It is the essence of the system, proud system of trial by jury that we have in this country, that the verdicts of the jury are reached only when they are altogether in the jury room with the jury bailiffs sworn duly to ensure that the jury have complete privacy.  You must decide, as I have said to you already, this case based only on the evidence and arguments which you have heard in court and it follows that you must not seek, of course, to obtain any information in any way about this case over the adjournment and you should not discuss this case, one with another or amongst yourselves, in any way or endeavour to contact one another about the case.

		Arrangements will be made that on Monday you will be taken from the room that is provided for all the jurors, in which of course you must not discuss this case with anyone, to your room, but before you should resume any discussion of the verdicts, you will then be asked to come into court and the jury bailiffs will be re-sworn in your presence, and then I shall ask you to retire and consider your verdict further.

		So with that direction in mind, I can now release you. ...."

20.  We have taken some care to demonstrate the assistance which this jury received from the trial judge in order to explain our dismay as to the events which followed.

21.  Sentence was adjourned following the return of guilty verdicts.  
22.  On 10 February 2011 (three days later), one of the jurors wrote to the judge expressing concern at the behaviour of other members of the jury during its retirement.  Following the jury's release on 4 February, one member said that he (or she) had been looking at a website for the Metropolitan Police, seeking information about the case.  On Monday 7 February, another member of the jury said that he (or she) had been searching the internet and discussing the case.  That research had been aimed at "joint enterprise" cases.  

23.  In view of this discovery, application was made by the appellants for leave to appeal against conviction.  The full court considered the applications for leave on 15 March, granted leave, and gave directions that the Registrar should invite the Criminal Cases Review Commission to conduct an inquiry into events leading to the verdict by posing a series of questions to each member of the jury, designed to avoid any breach of the rule that nothing of the deliberations themselves could be either interrogated or revealed.

24.  We are appreciative of the expedition with which those inquiries have been conducted for the court.  Interviews were carried out with eleven of the twelve jurors who were then available between 11 and 21 April 2011.  The results of those inquiries have been summarised in the Commission's report to the court pursuant to section 23A of the Criminal Appeal Act 1968.  

25.  It is accepted by Mr Lachkovic on behalf of the respondent that these inquiries were properly carried out, that the information contained in the report is accurate, and that this material may be admitted under the provisions of section 23 of the 1968 Act.  We therefore admit the report into evidence.

26.  The summary of findings is contained in paragraphs 10 to 13 of that report as follows:

		"10.  The responses of the jurors who have been interviewed suggest that the individual who was referred to in juror number eleven's letter and witness statement as having looked on 'the Metropolitan Police website' was juror number four.  From the answers given by juror number four, and also the answers of jurors two and twelve, it appears that the website in question was not that of the Metropolitan Police, but was a recently launched website which allowed members of the public to search for crime statistics for a particular geographical area. ....

		11.  The Court of Appeal may also wish to note that, in the course of his interview by the Commission, juror number four asked whether he might be in trouble in relation to his internet search.  In light of the fact that none of the jurors was being interviewed under caution, the Commission explained to juror number four that his answers were being obtained in order to assist the Court of Appeal and could not be used in evidence against him in the course of any criminal proceedings.

		12.  The responses of the jurors who have been interviewed also suggest that the individual who was referred to in juror number eleven's letter and witness statement as having researched joint enterprise law and having read about at last one case of joint enterprise crime was juror number twelve.  This issue is expressly referred to in the answers given by jurors three, four, six, seven, eight and twelve.  The dialogue which is recorded at the end of juror number twelve's questionnaire was instigated by juror twelve herself.

		13.  The Court of Appeal will note that the responses of jurors three and twelve to question 28 of the questionnaire indicate that their votes were affected by extraneous material."

27.  We need refer only to the following further information.  One of the jurors informed the Commission that juror number 12 had explained, as a result of her research, that if a person was present, they were as guilty as anyone else in the group.  If a person sees an incident occur and does nothing about it, that person is as involved as the others.

28.  A further member of the jury revealed to the Commission the impression given by juror number 12 that "you only had to be there to be involved in the joint enterprise".  

29.  It would appear that, having received the further assistance of the judge, juror number 12 still did not understand the concept of participation in a joint enterprise as it applied to the cases of the appellants (or one of them), and in an endeavour better to follow the judge's direction sought the assistance of the internet.  Unhappily, that is exactly what the jury had been instructed not to do.

30.  It is apparent to this court that the result of juror number 12's research was discussed by the jury, at least one of whom understood that mere presence was enough to prove guilt in the absence of any attempt to intervene.  These events, without question, undermined the integrity of the process in which the jury was engaged.  

31.  These issues, and the issue of collective responsibility of juries, were considered by this court in R v Thompson and Others [2010] EWCA Crim 1623 (Lord Judge CJ, Hughes LJ, V-P, and Bean J).  We need not repeat the guidance provided by the court at paragraphs 1 to 14, save to emphasise that it is essential reading for trial judges.  Notwithstanding that the Recorder of Redbridge followed the advice of the court both in its letter and in its spirit, this jury failed to respond as it should.   What then of the safety of these verdicts?  We need refer only to paragraph 11 of the judgment in Thompson, which reads:

		"11.  The use of the internet has expanded rapidly in recent years and it is to be expected that many, perhaps most, jurors will be experienced in its use and will make habitual reference to it in daily life.  It has already impacted on the court in cases such as R v Karakaya [2005] 2 Cr App R 5, R v Marshall and Crump [2007] EWCA Crim 35 and R v Thakrar [2008] EWCA Crim 2359; see also the experience in New Zealand, R v B [2008] NZCA 130.  Just as it would in any other instance where it was satisfied that extraneous material had been introduced, the approach of this court is to make inquiries into the material.  If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe (R v Karakaya).  If the material does not affect the safety of the conviction, the appeal will fail."

32.  We note that the jury first returned unanimous verdicts in relation to the appellant Antwi upon counts 2, 3 and 4.  They returned a majority verdict of guilty in respect of the kidnapping two hours and 20 minutes later.  All verdicts returned in the case of the appellant Mpelenda were by a majority.  We do not propose, and are not permitted to speculate as to the process by which these verdicts were reached.  The ultimate issue for this court is whether there is a real risk that extraneous material contaminated the jury's deliberations.  While it is possible to present, as Mr Lachkovic has done, a respectable argument that at least some of the verdicts may not have been rendered unsafe, we are in the end satisfied that none of them can stand.

33.  The evidence of the complainant was the subject of hot dispute and several criticisms for inconsistency and improbability were advanced.  The same might be said for the evidence of the defendants themselves.  Notwithstanding, the learned judge had thought it appropriate on the evidence in the case to advise the jury that they need not identify the principal offender, provided that they were sure of presence and participation in the relevant enterprise.  In these circumstances, in our view, it is not possible to exclude the presence of unfairness in the process of deliberation generated by misunderstanding of the law of joint enterprise introduced by extraneous material gathered from the internet.

34.  For this reason both appeals must be allowed.

35.  We direct that there shall be a retrial.  Ordinarily, having allowed the appeal and quashed the convictions, the court would direct that the appellant should be re-arraigned on the fresh indictment within two months.  We understand that a directions hearing is due to be heard before the Recorder of Redbridge tomorrow morning in respect of the retrial ordered in the case of Russell.  We direct that in these unusual circumstances a fresh indictment will be served by 10.30 tomorrow morning, 6 May; that the appellants Antwi and Mpelenda will be produced at Snaresbrook Crown Court to appear before the Recorder of Redbridge, together with their co-accused Russell.

36.  All succeeding directions as to the progress of the retrial will be dealt with by the learned judge.

37.  Counsel for the appellants will need to apply to Highbury Corner Magistrates' Court for a representation order for their appearances tomorrow at Snaresbrook Crown Court.

38.  In the meantime, the appellants will remain in custody until they are produced before the Recorder of Redbridge.  Any application for bail should be directed to the Recorder.

39.  We do not know when the retrial will, in fact, take place but it is obviously necessary that an embargo be placed upon publication of our judgment until after the retrial of all three accused takes place.  
40.  Would you please ensure that the Court of Appeal Office is notified when that retrial has completed?