Neutral Citation Number: [2011] EWCA Crim 2651
Case No: 2011/02170/C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
His Honour Judge Horton 
T20100139
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10th November 2011
Before :

LORD JUSTICE MOORE-BICK
MR JUSTICE BUTTERFIELD
and
MR JUSTICE IRWIN
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Between :

	THE QUEEN	Respondent	
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	VICTOR MEARS
and
HENRY MEARS

THE SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS	
Appellants

Intervener	

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Mr. Geoffrey Robertson Q.C. and Miss Annabel Timan  (instructed by Bishop & Light) for Victor Mears
Mr. Rossano Scamardella (instructed by the Registrar of Criminal Appeals) for Henry Mears
Mr. Malcolm Gibney (instructed by Crown Prosecution Service) for the Crown
Mr. Paul Ozin (instructed by the Treasury Solicitor) for the Secretary of State

Hearing date : 26th October 2011
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Approved Judgment

Lord Justice Moore-Bick : 

1.	In the summer of 2008 the appellants, Victor and Henry Mears, conceived the idea of promoting an attraction at Matchams Park near Bournemouth under the name ‘Lapland New Forest’. It was to be open from 28th November until 24th December in order to take advantage of the period immediately prior to Christmas. The concept was to create in a woodland area scenery of a kind similar to that which one might expect to find in the northern Scandinavian countries, with heavy snow and log cabins and various attractions including a Christmas market of the kind that take place in Germany and other continental countries. A company called Lapland New Forest Ltd, of which Victor Mears was the sole director, was used to mount the attraction. Henry Mears was responsible for marketing and advertising the venture, which was widely advertised in the local press, by posters and handbills and also on the internet.  Tickets were priced at £30 each, or £25 for four, and the attraction was clearly aimed primarily at young people and particularly at parents of young children.
2.	Lapland New Forest opened to the public on 29th November 2008.  On the following Monday (1st December) a very large number of complaints were received by Dorset Trading Standards Service to the effect that in a number of respects the experience provided did not match up to what had been advertised. The complaints were investigated by Trading Standards officers and the attraction quickly received a good deal of adverse attention in the media. Lapland New Forest closed on 4th December 2008, having been open to visitors for less than a week, and the company itself later went into liquidation.
3.	The appellants were charged with various offences under the Consumer Protection from Unfair Trading Regulations 2008. The Regulations, which were made by the Secretary of State for Trade and Industry under s. 2(2) of the European Communities Act 1972, implement Council Directive 2005/29/EC, which is aimed at unfair practices directed by businesses at consumers. It covers (among other things) both misleading acts and misleading omissions which cause, or are likely to cause, the average consumer to take a transactional decision that he would not otherwise have taken. However, Regulation 17 provides a defence in the following terms:
“(1) In any proceedings against a person for an offence under regulation 9, 10, 11 or 12 it is a defence for that person to prove—
(a)	that the commission of the offence was due to—
(i)	a mistake;
(ii)	 reliance on information supplied to him by another person;
(iii)	 the act or default of another person;
(iv)	an accident; or
(v)	another cause beyond his control; and
(b)	that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control. ”
4.	In this case the appellants were charged with misleading acts contrary to regulation 9 and misleading omissions contrary to regulation 10 on the grounds that they had allowed the company to give descriptions of various features of the attraction in its advertising material that were either not present at all or which fell far short of what was actually provided.  Trading standards officers viewed the company’s website, obtained advertising material from local shops and visited the attraction itself. They considered that the descriptions given in the advertisements were misleading in the following respects:
(i)	The advertising material described a “magical tunnel of light” and “a breath-taking tunnel of light”, which turned out to be no more than two rows of conifers lightly dusted with fake snow and lit by coloured up-lighters. Part of the avenue was also lit from above by fairy lights, but none of the lighting showed up well in daylight. Although the effect was better at night, the advertising did not give a fair description of what was provided.
(ii)	The advertising material referred to “beautiful snow-covered log cabins” and contained pictures and descriptions of buildings of the kind that one would normally associate with that description. In addition, the website showed pictures of what were said to be the interiors of the log cabins as well as the area around them, all of which tended to reinforce the impression that they were genuine. The cabins on the site, however, bore little resemblance to traditional log cabins and were covered with very little snow. The pictures tended to  reinforce the impression that the log cabins were ‘real’ when in fact they were not.
(iii)	Pictures on the website and other advertisements of “Santa’s amazing snow-covered Lapland village” showed images of deep snow, but the artificial snow used at the site, although realistic, was little more than a heavy dusting and was confined to a limited number of areas.
(iv)	“Seasonal food” was advertised, but there were only two food stalls, one selling turkey baguettes with cranberry sauce and another selling German sausages and cinnamon nuts, together with a stall selling mulled wine.  The pictures and description on the website were plainly misleading. 
(v)	A “bustling Christmas market” was advertised, but there were no more than two or three market stalls which quite failed to match the description given.
(vi)	The advertising material referred to an ice rink, but it was not available for use.
5.	The attraction generated a good deal of interest.  A total of 8,661 transactions were processed through the company’s website between 22nd September and 1st December 2008, generating revenue from the sale of tickets of a little over £1 million and a further 1,237 transactions were processed through the company’s ‘Streamline’ facility between during November 2008 with a total value of £140,248.05.
6.	The appellants accepted that in the event various aspects of the attraction did not live up to the advertising, but they sought to rely on the defence provided by regulation 17, in some cases seeking to blame those who had contracted to supply equipment and services and in other cases blaming third parties for deliberately undermining the venture. They  also said that it had suffered from negative reporting, difficulties over finances and adverse weather conditions which blew away the artificial snow. They maintained that they had exercised all due diligence to avoid the commission of the offences both by themselves and those under their control. However, on 18th February 2011 in the Crown Court at Bristol before His Honour Judge Horton they were each convicted of eight offences under the Regulations and were sentenced to a total of 13 months’ imprisonment. They were also disqualified from acting as company directors for 5 years. Each of them now appeals against conviction by leave of the single judge, who referred their applications for leave to appeal against sentence to the Full Court.
7.	There are two quite distinct grounds of appeal in this case. The first arises out of the actions of a member of the jury who was found to have been in contact with her fiancé during the course of the trial by mobile telephone. He had been sitting in the public gallery of the court on several days and from time to time had observed proceedings which took place in the jury’s absence. The second concerns the judge’s direction to the jury on the burden of proof under regulation 17. In short, the appellants say that the regulation is to be construed as imposing an evidential rather than a legal burden on the accused and that in directing the jury that it was for the appellants to establish the facts giving rise to a defence under that regulation the judge misdirected them.
8.	In those circumstances we decided to hear full argument on the first ground before proceeding to consider the second and, having reached the conclusion at the close of the argument on the first ground that the convictions were unsafe, we announced our decision to quash them and said that we would give our reasons at a later date. As a result it became unnecessary for us to hear argument on the second ground of appeal, but we should like to record our thanks to counsel, especially counsel for the Secretary of State, for the careful preparation of that limb of the appeal and their very helpful skeleton arguments. 
9.	We now set out our reasons for allowing the appeals.
10.	The trial lasted for the best part of eight weeks. During the short adjournment on the second day of the summing up Victor Mears (junior) noticed one of the female jurors meeting a man who had been sitting in the public gallery from time to time during the trial. His attention was drawn to the two of them partly because they seemed to be acting in a furtive manner, leaving the building in different directions and subsequently meeting up some distance away. His uncle’s counsel, Mr. Scamardella raised the matter with the judge and expressed his client’s concern that the juror might be discussing the case with her companion who had been present in court observing the proceedings at times when the jury were absent. After hearing submissions the judge decided to investigate the matter and the juror was brought into court. She confirmed that she did have a friend who had been sitting in the public gallery (it later became clear that he was her fiancé with whom she was living) and on further questioning she admitted that he had discussed with her various matters which the jury as a whole had not seen or heard and that she had mentioned some of them to one other member of the jury, possibly overheard by two others. As far as she could remember they included matters such as the judge raising his voice to Victor Mears (who was representing himself) and incidental matters, such as people coming in or going out, how long the jury was likely to be kept waiting and matters of that kind. On occasions she had received text messages from him when she was “downstairs”, by which we understand she meant in the jury retiring room. 
11.	Not surprisingly, the  disclosure that the juror had been receiving text messages from her fiancé while she was in court or in the jury room caused a good deal of concern. At the judge’s request she allowed her mobile phone to be examined and as a result we were provided with a schedule setting out what are said to be the only messages relevant to the issues we have to determine. We shall return to them in due course. The next morning the juror was brought back into court and asked whether she could identify any of the jurors to whom she had disclosed any of the matters relayed to her by her fiancé. She identified one juror by name and said that there might have been two others in the vicinity at the time whom she also identified. 
12.	After hearing further submissions the judge decided to ask the remaining members of the jury whether they had received any information from extraneous sources. He had them brought into court and put the following question to them, asking them to put up their hands if the answer was ‘Yes’:
“Has any member of the jury panel mentioned or discussed, which would include texting, with you, anything which has or may have occurred at a time when you, the jury, were not sitting in open court which has or may have been passed on to that juror by a person who has been present in the public gallery for some of the case? ”
No hands went up and a second, more detailed question was asked. Again, no hands went up and the jury were asked to retire.
13.	The errant juror was then brought back into court and asked to recall the number of occasions on which she had mentioned to other jurors what she had been told by her fiancé. She found it difficult to remember, but thought that it would not have been more than five. By that time there was available the schedule of text messages retrieved from her mobile phone. Most were fairly innocuous, but there were a few which were potentially of greater significance. In particular, there was a message from the juror to her fiancé telling him to turn off his phone in case he was caught and another telling him that he was missing an interesting part of the evidence. Most significant, however, was a message sent by the fiancé to the juror during the morning of 11th February 2011 while the judge was summing up which simply read “Guilty”.
14.	In the light of what had been discovered an application was made to discharge the jury. The judge directed himself that the test he had to apply was whether a fair-minded, independent and informed observer would conclude that there was a real danger that the jury might be biased, that is, that its decision might be affected by information that it ought not to have received. Having reviewed the evidence he concluded that there was no evidence on which he could come to the conclusion that the juror in question had discussed any matter with other members of the panel apart from the kind of administrative matters she had described, which were not of a prejudicial nature. He expressed himself satisfied by the reaction of the jury when the matter was raised and by their response to his question that no other matters had been disclosed to them.  His decision not to discharge the jury was fortified by the fact that there was still an opportunity for him to give a direction emphasising the importance of deciding the case solely on the evidence given in court; and indeed at the end of the summing up the judge did give the jury a clear direction to decide the case only upon the evidence that they had heard in the courtroom and to disregard any press recording or any opinion or comment from other sources.
15.	Mr. Robertson Q.C. and Mr. Scamardella submitted that the judge should have discharged the jury because there was a clear risk of prejudice. Although attention was directed mainly to the information that passed between the juror and her fiancé while she was in court, they submitted that there was a real possibility that they had discussed the case when alone together outside the building. In other words, the texts were, as Mr. Scamardella put it, only the tip of the iceberg. That was a point that had been raised in argument before the judge, but appears not to have weighed heavily with him. They submitted that the number and tone of the text messages suggested that the two were interested in the case and that it was a regular topic of discussion. That being so, it is highly unlikely that they did not discuss it on other occasions. Although there was no firm evidence about the days on which the fiancé had been in court, it was accepted that he had been present on several occasions and that there was a risk that he had obtained information about the appellants to which the jury should not have had access. That was particularly the case in relation to Victor Mears’ previous convictions for dishonesty. Counsel also submitted that the question which the judge put to the remaining members of the jury was confusing and that by putting it to them as a group in open court there was a serious risk that they would be inhibited from admitting the truth.
16.	Mr. Gibney for the Crown submitted that, having regard to the contents of the text messages themselves, the evidence given by the juror in question and the absence of any indication on the part of any of the other jurors that they had been told anything of relevance, the judge was entitled to reach the conclusion that no one could possibly have thought that there was any risk that they might have been prejudiced against either appellant. He acknowledged that the judge did not expressly couch his decision in terms of the view that would be taken by the hypothetical informed, independent and fair-minded observer, but that was in effect what he had decided.
17.	In R v Hewgill [2011] EWCA Crim 1778 a number of defendants were charged on an indictment containing seven counts of conspiracy to supply drugs. One, a woman by the name of Gloria Murray, who had been convicted on two counts, was granted bail while the jury continued their deliberations on another count involving Hewgill. She went to a nearby public house where, during the luncheon adjournment, she spoke to some of the jurors who had gone there for refreshments. Hewgill, who was subsequently convicted on the only remaining count of conspiracy to supply heroin, appealed on the grounds that there was a real risk that the jury had been prejudiced by what Murray had told them. The Crown accepted that the conversation should not have taken place and that Murray had introduced extraneous material to the jury, but argued that it was necessary to consider whether the conversation had actually had a material effect upon the decision reached by the jury. The court rejected that submission, holding that the test to be applied in cases of this kind is that derived from Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 and Magill v Porter [2002] 2 AC 357, namely, whether a fair-minded, independent and informed observer would conclude that the jury could nonetheless reach a verdict without taking into account, even subconsciously, what they had been told.
18.	The characteristics of the fair-minded, independent and informed observer were summarised by Lord Hope in Helow v Home Secretary [2008] UKHL 62, [2008] 1 W.L.R. 2416. Among other things, he or she is not unduly sensitive or suspicious, nor yet complacent, and knows that judges (and jurors) must be, and be seen to be, unbiased. None of that was in dispute. Nor was it in dispute that the independent observer must reach his decision on the likelihood of bias by considering the facts in their context. In this case the judge made some findings about what had, or rather had not, been communicated to the other members of the jury, but being no more than findings based on his own assessment of the evidence, they are not facts of which knowledge can be attributed to the fair-minded, independent and informed observer. He must make his own assessment of the risk of bias based on all the available raw material. Although the judge correctly identified the test to be applied, he failed properly to apply it because he substituted his own view of the facts for that of the fair-minded independent and informed observer.
19.	In our view the fair-minded independent and informed observer would have concluded that there was a real risk in this case that the jury had received information from an extraneous source which it could not put out of its mind, despite the further direction given by the judge at the close of his summing up, and which might adversely affect its view of the appellants. The errant juror’s fiancé had been sitting in court for a significant part of the trial, both when the jury were in court and when they were absent. There was therefore a significant risk that he had obtained information concerning the appellants or the proceedings to which the jury were not intended to have access. The behaviour of the errant juror and her fiancé outside court and some of the texts that she sent him suggest that they were both aware that they were acting in defiance of the instructions to jurors not to discuss the case with anyone outside their own number. The texts themselves show that on some occasions the fiancé told the juror what was going on while the jury were absent from court: for example, that the judge was raising his voice to Victor Mears. The case had been going on for quite a long time and it is reasonably clear that the fiancé was following it with some interest. It is highly likely, therefore, that the two of them regularly discussed it when they were at home or elsewhere in private and the juror’s text to her fiancé to warn him that he was missing the evidence of an important witness, Charlie Cooper, adds further support to that conclusion. That only increased the risk that information of some significance had been passed by her fiancé to the juror herself. The “Guilty” text speaks for itself and we think that one is entitled to approach with some scepticism the juror’s evidence that she had not opened it until she returned home at the end of the afternoon.
20.	The juror herself admitted that she had received texts when in the jury room and had passed on information received from her fiancé on a few occasions. She identified one person to whom she had spoken and two others who were, or may have been, in the vicinity at the time. It seems likely, therefore, that at least one other member of the jury knew that she was receiving text messages and was party to some of the information that was being received. There was no direct evidence that information or opinions derived from discussions between the juror and her fiancé had infiltrated the jury, but for the reasons we have given there was a risk that that had occurred. We do not think that concerns of that kind are capable of being allayed by the fact that when questioned by the judge none of the other jurors admitted to having been told anything. Unfortunately, the question posed by the judge was somewhat more complex than it might have been and did not make it sufficiently clear that communication of information from outside, however, apparently trivial, ought to be disclosed. It is surprising, in the view of the juror’s own evidence that there had been at least some discussion with another juror resulting from the text message traffic, that nothing was drawn to the judge’s attention. It may be, as he said, that nothing had in fact been said to any of them or that whatever was said was so trivial as to have been forgotten; but it is also possible that none of them wanted to answer the question publicly without being given a chance to think about it.
21.	In the light of all the information that had become available by the time the judge had to decide whether to discharge the jury, we reached the clear conclusion that a fair-minded, independent and informed observer, knowing that jurors must be, and must be seen to be, unbiased, would have concluded that there was a real risk that during the course of the trial the jury in this case had received information and views emanating from an extraneous source that it could not put out of its mind. In those circumstances we were satisfied that the appeal had to be allowed and the convictions quashed.