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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lambeth, R v [2011] EWCA Crim 157 (13 January 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/157.html Cite as: [2011] EWCA Crim 157

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 13 January 2011

1. LORD JUSTICE MOSES: This is an appeal which raises the question as to the consequence of a failure of a judge to give the correct warnings to the jury about their behaviour during the course of the case.
2. The appellant was convicted of unlawful wounding in October 2010 at Birmingham Crown Court. The case was a very strong one in which it was alleged that she joined two other ladies in going to the home of the victim in Walmesley Way, Birmingham and attacking her. She was identified by the complainant's mother and through the names that were used at the time by the complainant. The jury, despite her evidence, convicted her.
3. A number of grounds were raised but the appellant was given permission to appeal on only one and very fairly and helpfully Mr Small does not advance the others by way of renewal. This unfortunately leaves him in a difficult position as to the ground in respect of which permission was granted.
4. The judge ought to have directed the jury at the outset of the trial in accordance with the guidance that is now well familiar and is set out in R v Oliver [1996] 2 Cr.App.R 514 and reiterated in R v Hastings and identified not only in the Crown Court Bench Book but also at Archbold paragraph 4-425. He must direct the jury that they must decide the case only on the evidence that they hear in court and only discuss the case in the privacy of their own jury room between themselves - particularly that they should not discuss the case with anyone outside their number when they return home or during any adjournments.
5. Mr Small says the judge failed to give those directions until the second day when he was reminded to do so by prosecuting counsel and he gave those directions at the end of the day. There is unfortunately no transcript of the start of the trial. It is apparent from the judge's remarks on Tuesday 28th September 2010 (the second day) that he believed he had given those directions both at the short adjournment and in the evening. Mr Small says he did not and in the absence of any transcript we are quite prepared, without any disrespect to the judge, to assume without further investigation that the judge did not do so.
6. In our judgment his failure to do so has no effect upon the safety of the conviction. When he did remind the jury at the end of the second day, no one suggests that there was any comeback or reaction by the jury such as to suggest that something had previously gone wrong and there is nothing in the course of the case down to the time when they convicted, on the plainest evidence, to suggest that any irregularity had in fact occurred. It was clearly incumbent on the judge to give those directions and even assuming he did not, it does not necessarily follow that a failure to do so leads to the conclusion that the conviction was unsafe. In the context of these facts, the overwhelming nature of the case against this appellant and the absence of any reaction of the jury, we are satisfied that there was no irregularity such as to cast doubt upon the safety of the conviction.
7. There is however a third point which we should deal with. The judge was also asked to tell the jury that they should not be tempted to make any investigations of their own on the internet. This is consistent and indeed obeys the strictures of the Lord Chief Justice on this topic. The judge declined to do so. He took the view that to warn the jury not to be tempted to use the internet would amount to an invitation to go and do it. In so considering he paid insufficient regard to the reasoning and directions of the Lord Chief Justice. One of the points of instructing the jury not to do so is to put the other members of the jury on guard should one of their number be tempted to do so and made them aware of the concept of collective responsibility for the proper conduct of the trial. By doing so he invites members of the jury to be on guard lest one of their number should disobey the instruction and invites them to draw that to the attention of the judge. In that way collective responsibility might ensure that the practice of looking things up outside the scope of the evidence is avoided.
8. It was incumbent upon the judge to obey the instructions of the Lord Chief Justice in that regard, but having said that, there is no suggestion in any way that that affected the safety of the verdict for the reasons we have given. The notion that there was anything on the internet in any event which might assist one way or the other in relation to this young lady, aged 21, who was convicted of the unlawful wounding, is fanciful. In those circumstances this appeal is dismissed.