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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 >> Cepe, R. v [2025] EWCA Crim 196 (23 January 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/196.html Cite as: [2025] EWCA Crim 196

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
(RECORDER LEWIS KC) [01YR1461523]

		Royal Courts of Justice The Strand London WC2A 2LL
		23 January 2025

Thursday 23 January 2025

LORD JUSTICE HOLROYDE:

1. This applicant was charged with seven offences against a woman to whom we shall refer as "V": controlling or coercive behaviour (count 1), false imprisonment (count 2), assault occasioning actual bodily harm (count 3), sexual assault (count 4), assault by penetration (count 5), rape (count 6), and damaging property (count 7). He pleaded guilty to count 7. Following a trial in the Crown Court at Wood Green before Recorder Lewis KC and a jury, he was convicted of count 1 and counts 3 to 7. The jury found him not guilty of count 2. He was later sentenced to a total of six years' imprisonment. He now applies for leave to appeal against conviction on a ground relating to the judge's decisions as to the discharge of jurors. His application has been referred to the full court by the Registrar.
2. V is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of the sexual offences.
3. It is unnecessary for us to go into any detail about the facts. V gave evidence of a course of controlling behaviour and incidents of physical and sexual violence. The prosecution also relied on the evidence of a witness who had observed V's distress and who had seen injuries which V said had been inflicted by the applicant. In addition, the prosecution relied on the applicant's previous conviction for harassment. The applicant, who had not answered questions when interviewed under caution, gave evidence denying the allegations.
4. The issues for the jury were essential factual, and turned on their assessment of the truthfulness and reliability of V's evidence. There can be no doubt that the prosecution evidence – in particular that of V – provided, if accepted by the jury, an ample basis for the convictions. No criticism is or could be made of the judge's directions of law.
5. We must summarise the events during the jury's retirement which give rise to the application for leave to appeal.
6. On the first day of the jury's retirement, they had deliberated for about three hours by the end of the court day. At that point a juror sent a note to the judge, saying:

"One of our members has stated that they will not discuss the case and will only vote at the end; how do you suggest we proceed?"

After discussing this with counsel, the judge indicated that she would give the jury an appropriate direction, which she would draft overnight.

7. At the start of the following day, however, a note was received from a different juror, whom we shall call "J7". J7 said that she had serious concerns about another juror, whom we shall call "J10". J7 said that J10 had refused to engage with the rest of the jury. J7's note continued:

"I heard him discuss his own case where he was allegedly falsely accused of sexual misconduct by a co-worker. He has made comments like, 'All women lie', etc. He refuses to consider the evidence before him, and I strongly believe he has tried to use the rules of Sharia law to this case in disregarding anything that is being instructed to do. I am happy to elaborate why I believe this to be the case."

The judge commented that her observations of J10's behaviour earlier in the trial had already caused her some concerns. The judge gave counsel time to consider what submissions they wished to make in relation to J7's note.

8. A further note was then received, this time from J10. The judge summarised it to counsel. J10 said that he wished to bring to the judge's attention "the atmosphere of severe bullying, severe hostility, open slander, open lies and insults, racism and bias and severe hostility intimidation in the deliberation room". The judge added that J10 referred to it being a "lynch mob". The judge continued as follows:

"He [J10] refers to one of the jurors saying to him that he hates women, i.e. all women – has openly said she is biased in the trial in front of all. Another person has implied that he believes [the applicant] because he's a man and 'I don't accept all of what [V] says because she's a woman'. Another person has said, 'All Turks are aggressive' and has claimed [the applicant] is lying because he blinked a lot."

The judge added that J10 alleged that the first juror about whom he had complained was continuing to bully and to intimidate and said that he (J10) was not allowed to "fairly, impartially and objectively speak based on the evidence" and was being lied about, slandered and insulted into silence. Finally, the judge noted that J10's note contained allegations of bias against other members of the jury based on race and religious beliefs, and because the applicant is a man.

9. Summarising the position at that stage, the judge said this:

"So, in effect, we have an allegation against him, which comes not in isolation, but in the context of ongoing concerns that we have been keeping on throughout the trial. Then we have, in effect, counter allegations coming from him against other members of the jury."

10. The judge then referred counsel to Part 8.7 of the Criminal Practice Direction 2023 and said that she had already taken the step of isolating J10 from other jurors. Prosecution counsel submitted that it would be appropriate to question J10. Defence counsel, then as now Miss Etemadi, suggested that she may apply for the whole jury to be discharged.
11. After considering submissions from counsel, the judge decided that questions should be asked in writing of J10 and J7, both of whom were at this stage isolated from other jurors. The questions, in effect, sought further details of some of the allegations which each of those jurors had made. J7 replied that the reference made in her earlier note to J10 saying that "all women lie" was a paraphrase. J7 continued:

"He mentioned it early on in the trial when talking about something where he was accused of some sort of misconduct. He has also repeatedly talked about his friends who have been accused falsely and made comments about the Me Too movement."

J7 went on to say of J10:

"He said he would not accept any evidence except the video evidence or three to four eyewitness accounts who are credible. … He did not use the phrase 'Sharia law'."

J7 added that it was the reference to eyewitness accounts by four witnesses which had led her (J7) to believe that J10 was referring to Sharia law.

12. Prosecution counsel submitted that J10 should be discharged. Miss Etemadi submitted that he should not. There was a discussion as to whether further questioning of either juror was necessary. The judge concluded that J7 should be asked whether she could provide any further context to the circumstances in which J10 had said that he would only accept video evidence or the evidence of three or four credible eyewitnesses. J7's answer to that question was that J10 had said it in front of all the other jurors. She added that J10 had at one point "started trashing the Me Too movement" and that another juror said that J10 referred to women as "birds".
13. J10's response to the questions asked of him stated that the only clear, open racial comment he had heard was made by a juror whom we shall call "J5". J10 said of J5:

"He said that Turks get angry a lot, implying they often lose control; words to this effect. He also said [the applicant] was lying because he was blinking a lot. No other racial comments were made clearly to my recollection."

The judge added that J10's reply had gone on to express the view that "even though other people aren't making racial comments, his view is that they are acting due to race, religion and gender. So he is not able to attribute that to any specific reason".

14. J10 in his reply denied that he himself hated women and asserted that it was the rest of the jury who were biased, not he.
15. The judge discussed that reply with counsel. She indicated that the suggestion that J5 thought that the applicant was lying because he blinked a lot was not a racial comment and did not need further investigation. She did, however, arrange for J5 to be asked in writing whether he did make the comment "Turks get angry a lot", and, if he did, to explain the context. That question was asked of J5 who quickly replied in writing:

"I mean by some of my friends and workmates – when they talk loud, when they get upset and move their hands around. It wasn't just about Turkish people."

16. Prosecution counsel submitted that it would be sufficient for the judge to give a strong direction and that only J10 should be discharged. Miss Etemadi submitted that J5's reply showed unconscious bias which was of concern, because the applicant is Turkish.
17. The judge, having considered these submissions, concluded that it was necessary to discharge J10. This was done.
18. The judge then brought the remaining 11 jurors into court and said:

"Each of you has taken an oath to return a true verdict in this case according to the evidence and I am going to ask you each individually to confirm that you are able to do that and remain true to your oath to try this case on the evidence."

Each of the jurors in turn was asked that question and each replied "Yes". The judge then reminded the jurors of directions which she had previously given to them in writing and orally as to the need to put aside their own feelings and to decide the case calmly and dispassionately on the evidence they had heard. The judge continued:

"It is important as you deliberate together that each of you is able to contribute to the discussion to the extent that each of you wishes to do so. It is important that you respect each other's opinions and value the different viewpoints you each bring to the case. Listen to one another. Do not let yourselves be pressured into changing your opinion and do not pressure anyone else. Please keep your deliberations focused on the evidence and the law and you have the Route to Verdict with the legal questions which you apply to the facts as you decide them to be.

You will recall me telling you at the outset of the case, if you have any concerns to please raise them with me. You have done that appropriately throughout the case. If there are any concerns as matters go forwards, please raise them with me by writing me a note."

19. The jury of 11 retired to continue their deliberations, which they did for the rest of the court day. Later in the day, Miss Etemadi applied for all the jurors to be discharged. The judge refused that application.
20. The judge explained her reasons for the decision she had made as to the discharge of jurors. In relation to the discharge of J10, she said that the background to her decision was that at the beginning of the previous week she had noticed that during the evidence of V, J10 had been making noises, stretching his arms and acting in a bizarre fashion. The judge said that at the end of the day she had asked her usher to have a word with J10 to see if there was a problem, given that his behaviour may have been distracting to others. J10 had replied that he found the emails being referred to in evidence as funny and had not realised that his behaviour was noticeable. The judge added that she had raised this with counsel the following morning and that Miss Ellis, prosecuting counsel, had indicated that she had noticed a juror smirking or smiling during her opening. The judge had also been informed that a member of the public associated with the complainant had had concerns about J10 smirking at inappropriate parts of the evidence. Further, the judge said that there had been delays to the trial on a number of mornings which had been due to the jury being consistently late. There had similarly been delays in in jurors coming into court after breaks, which the judge understood to be because of J10's behaviour. Later in the trial, the judge herself had noticed that J10 was on his mobile phone during evidence, apparently checking the time. The judge had asked him to put his phone away, which he appeared to do slightly reluctantly. The same thing had happened the following day when the juror again was checking his phone. Prior to beginning her summing up, the judge had had to ask J10 again to put his phone away. She concluded:

"His behaviour throughout the trial has been notable in terms of his demeanour and distracted behaviour."

21. The judge went on to say that, against that background, during the jury's deliberations two jurors, namely the one who had first sent a note and then J7, had indicated serious concerns about J10. The judge referred to the procedure set out in Criminal Practice Direction 8.7.5. She directed herself that the test she must apply is that she must discharge a juror where there is an evident need to do so, where it is necessary. The judge further directed herself that where there is a question of bias, the test she should apply was whether she could conclude that a fair minded and informed observer would not consider that there was a real possibility of bias. The judge expressed her conclusions as follows. She had concluded that there was an evident need to discharge J10. She could not conclude that a fair minded and informed observer would not consider that there was a real possibility of bias. Further, the judge had real concerns about J10's ability to discharge his duty in a proper way and his potential to disrupt the jury deliberations. The judge reiterated the background, which we have summarised. She said that she could not conclude that J10 was applying Sharia law, but the approach reported by J7 in the context of her own observations and J10's accepted refusal to partake in ongoing discussions had caused her concern.
22. As to her refusal to discharge the whole jury in response to Miss Etemadi's application, the judge indicated that the application was based on two issues: first, the comment about the applicant lying because he was blinking too much; and secondly, concern as to whether what had taken place in relation to J10 may have inhibited other jurors in conducting their deliberations. In relation to those submissions, the judge concluded that in the light of the directions she had given to the jury, and the clear answer given by each juror about their ability to continue to be faithful to their oaths, there was no necessity to discharge the jury and that the jury were able, fairly and properly, to consider her legal directions and to consider the evidence.
23. In relation to the application to discharge J5, the judge said that she was satisfied that there was no evident need to discharge J5. If there was any apparent unconscious bias, it had been dealt with by J5's confirmation of his ability to try the case in accordance with his oath and the directions which the judge had later given to the jury.
24. We note that at the end of that court day the jury sent a note to the judge asking for assistance with an aspect of the law relating to the allegation of false imprisonment.
25. On the following morning, the jury of 11 continued their deliberations before returning the unanimous verdicts to which we have referred.
26. Miss Etemadi submits that the convictions are unsafe because the judge erred in rejecting the applications to discharge the jury as a whole and J5 individually. She puts forward two principal arguments. First, she submits that the discharge of J10 on the basis of what had become apparent about his personal views, rejecting the prosecution case and disbelieving V's evidence, had given rise to a risk that other jurors would feel unable to challenge or question the prosecution case through fear that they would be associated with J10's views, or placed in the same group as him.
27. Secondly, Miss Etemadi argues that J5 ought to have been discharged because he had shown unconscious bias against persons of Turkish origin by his generalisation that all Turkish people become angry. Furthermore, Miss Etemadi submits that the reference to the applicant lying because he was blinking too much also gave rise to concern. It created the risk that J5 would base his decision not on the evidence, but on his own personal bias.
28. Developing these arguments orally, Miss Etemadi submits that when the jury of 11 were each asked whether they could remain true to their oaths, there was a risk that jurors would feel obliged to answer in the affirmative because of a fear of being seen to align themselves with J10. The risk, she submits, that jurors would be inhibited by what had happened to J10 was a risk which it was too great for the judge to take.
29. Miss Etemadi goes on to submit in relation to J5, that although J5's reported comments were not directly racial, they did indicate an unconscious bias against persons of Turkish ethnicity. In the circumstances of unconscious bias, suggests Miss Etemadi, the judge's question as to whether jurors could remain true to their oaths may not be a reliable guide. In short, because the personal bias of a juror is unconscious, he may honestly answer "Yes" to that question because he does not recognise his own bias.
30. The application is opposed by Miss Ellis on behalf of the respondent. We should note that Miss Ellis had been prosecuting counsel at the trial but, because of other professional commitments, had been absent and had been replaced by other counsel during the period of the jury's deliberations. Miss Ellis submits that the judge conducted proper enquiries and rightly ensured that the remaining 11 jurors were able to try the case in accordance with their oaths. She draws attention to the fact that, following that process, the 11 jurors had sent a note about one aspect of the evidence and had gone on to return a not guilty verdict on count 2. Those features, Miss Ellis suggests, indicate that the jury were properly considering the evidence and did not feel themselves under any obligation or pressure to accept every aspect of the prosecution case.
31. As to J5, Miss Ellis submits that it is by no means clear that the comments about persons of Turkish origin, as explained by J5, were necessarily adverse to the applicant's case. But in any event, submits Miss Ellis, the judge properly dealt with that by the questions she asked and the directions she gave.
32. Responding to Miss Etemadi's point about the questioning of a juror as to whether he can remain true to his oath in a context of an unconscious bias, Miss Ellis submits briskly that if that were a decisive point, there would never be any purpose in asking the conventional question.
33. We are very grateful to both counsel for their submissions, which have been clear, focused and helpful. Reflecting on the submissions, we have reached the following conclusions.
34. The judge was faced with a difficult situation which developed rapidly as jurors sent a succession of notes to her. She rightly focused on the impact on the trial, as Criminal Practice Direction 8.7.3 requires a judge to do when a jury irregularity is said to have occurred during the jury's retirement. The judge carefully followed through the stepped procedure set out in Criminal Practice Direction 8.7.5 and following. It is not suggested that she failed to take any necessary steps. Nor is it suggested that she misdirected herself in law. She applied the principles stated in a number of cases including Porter v Magill [2001] UKHL 67; R v Gynane [2020] EWCA Crim 1348 at [40]; and R v Skeete [2022] EWCA Crim 1511 at [25].
35. The judge was entitled to conclude that there was a high degree of need to discharge J10. J10's conduct earlier in the trial was relevant and important background. His reported stance of declining to take part in the jury's discussions and simply indicating that he would vote for what he considered to be the appropriate verdicts would not in itself have been a ground for discharge. It is of course desirable that all jurors contribute to the discussion, but provided that every juror is able to participate to the extent that they wish, and provided of course that each juror complies with the directions of law given by the judge and tries the case fairly on the evidence, then he or she may permissibly choose to say little or nothing during the jury's deliberations. But, as the judge explained, there was much more to it than that. Having presided over the trial, and having been able to observe the behaviour of individual jurors, the judge was entitled to conclude that there were real concerns about J10's ability to discharge his responsibilities as a juror; that there was a real risk that his behaviour would distract other jurors from discharging their responsibilities; and that a fair minded and informed observer could consider that there was a real possibility that J10 was biased. Accordingly, no criticism can be made of the decision to discharge J10.
36. We are unable to accept the submission that the discharging of J10 would or might have had a chilling effect on other jurors, or would have caused them to feel unable to challenge the prosecution case. Each of the 11 had expressly confirmed that they remained able to try the case fairly in accordance with the evidence. There is no reason to doubt that that was so. There was nothing by way of evidence to suggest that the judge could not safely and properly act on the answers given to that question. Moreover, we agree with Miss Ellis that the jury's later asking of a question about count 2, and their not guilty verdict on that count, were inconsistent with jurors feeling unable to express views favourable to the applicant.
37. Turning to the submissions relating to J5, we are unable to accept the submission that he should have been discharged for apparent bias. Again there is, and can be, no criticism of the judge's careful approach. We do not see that a juror who expresses a view about the body language of a defendant is thereby showing conscious or unconscious bias. Whether or not other jurors would agree with it, such a view is, in essence, part of an individual juror's assessment of the demeanour of the accused. J5 had provided an explanation for his alleged generalisation about Turkish men. Moreover, it seems to us an important feature of the process undertaken by the judge that the investigation of that allegation would in itself have caused J5 to reflect carefully upon his position and his responsibilities as a juror. In our view, the judge was entitled to conclude that, whatever precisely J5 may have said by way of a generalised comment, there was no reason why a reasonable and informed bystander would think there was a real risk the J5 would be biased against the applicant, and would be unable to assess the evidence fairly and dispassionately. In J5's case, as with the other jurors, the judge was entitled to accept his explicit confirmation that he could and would try the case in accordance with his oath or affirmation.
38. For those reasons, we conclude that the judge dealt appropriately with the jury matters which arose and reached decisions which were properly open to her and cannot be impugned.
39. Miss Etemadi's submissions, in particular in her ground relating to J5, have persuaded us that we should grant leave to appeal. Having granted leave, however, we are satisfied that the appeal against conviction must fail. It is accordingly dismissed.
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