The defendants were each charged with murder or, alternatively, manslaughter and the first defendant was also charged with having a bladed article in a public place. During their deliberations to consider their verdict, the jury sent a note to the judge, in light of which the judge announced that he proposed to bring the jury back into court and give them a majority direction. After the jury were brought back, the clerk of the court asked the forewoman whether the jury had reached verdicts in relation to all defendants. The forewoman answered in the affirmative and, in respect of each count, confirmed that the jury had found the defendants “not guilty”. When asked whether that was the verdict of all of the jury members, she said it was. The judge accordingly discharged the defendants and the jury. However, within a few minutes of the court rising the judge received a communication from the jury, indicating that the forewoman had made a mistake when answering the questions put to her and the jury had not reached unanimous verdicts in respect of any of the counts. Having heard brief submissions from counsel, the judge revoked his direction for the discharge of the claimants and the jury. The jury were brought back into court, given a majority direction in conventional terms and invited to retire to continue their deliberations. The defendants remained in custody. The next day the jury returned a not guilty verdict on the bladed article offence against the first defendant but were unable to agree verdicts on the remaining counts. The jury was discharged, the defendants were remanded in custody, and the prosecution decided to retry the case. Each defendant applied for a writ of habeas corpus on the ground that their detention in custody was unlawful, requesting in the alternative that their application be treated as an application for permission to proceed with a claim for judicial review. The issue arose whether the judge’s decision was amenable to judicial review, it being common ground that there was no immediate right of appeal to the Court of Appeal.
On the applications for permission to seek judicial review and for writs of habeas corpus—
Held, applications refused. (1) A judge in the Crown Court had power, in the interests of justice, to consider whether a mistake had been made in the giving of a verdict and to correct it (by revocation) even if that verdict was one of guilty and the jury had been discharged. When considering whether to exercise that power, the judge was not functus officio in relation to the trial on indictment. In particular, if the power was exercised in respect of a not guilty verdict, and the jury continued to deliberate, neither the judge nor the jury were functus officio. An error of law in the exercise of that power did not alter the obligation of a prison governor to comply with any order which was valid on its face (even if improperly issued) remanding a defendant in custody or warrant reflecting the same, unless and until varied or set aside by a superior court or in the proper exercise of the court’s own jurisdiction. It followed that the remand orders made by the judge provided a complete answer to the defendants’ habeas corpus claims (paras 14, 20, 21, 30–34, 89, 95).
(2) Where a judge exercised the discretion to allow a verdict of the jury to be corrected even after they have been discharged, the exercise of that discretion related to the issue between the prosecution and the defendant formulated by the indictment, since the judge's decision might determine whether the defendant was guilty or not guilty at that stage, or whether the trial was to continue, which affected the conduct of the trial and was an integral part of the trial process. Such a decision therefore fell within section 29(3) of the 1981 Act which excluded judicial review in relation to the jurisdiction of the Crown Court “in matters relating to trial on indictment” and, accordingly, it could not be challenge by judicial review. Instead, in the event of a defendant being convicted at a retrial, they would have a right of appeal to the Court of Appeal (Criminal Division) in relation to the judge's decision to accept the correction of the verdict and to revoke the discharge of the jury. Although the case law established that the High Court could still intervene by way of judicial review, notwithstanding the restrictions imposed by section 29(3), in relation to an order made by a judge during a trial on indictment which the judge had no jurisdiction to make, or to address a jurisdictional error of sufficient gravity as to take the order out of the jurisdiction of the Crown Court, the decisions made by the judge in the present case involved no such error of law and lay well within the ambit of the discretion which the judge was empowered to exercise. In that regard, while the legitimacy of the exercise of the discretion to allow a verdict of the jury to be corrected, even after they had been discharged, was fact-sensitive, relevant factors in the present case were that (i) the jury had identified the mistake made by their forewoman promptly, (ii) they had alerted the judge promptly, which was consistent with the jury’s earlier note to the judge (indicating that they had not reached unanimous verdicts on any count) and allowed of no real possibility that further deliberations had taken place in the intervening minutes resulting in any juror changing their mind before the court was reconvened, and (iii) the matter had then been sensibly and expeditiously sorted out by the judge. It could not be said, in those circumstances, either that the judge had made any jurisdictional error of such gravity as to deprive him of the jurisdiction to accept the jury's correction of the verdicts returned, or that he had erred in the exercise of his discretion (paras 14, 39, 47, 67–69, 87–89, 95).
(4) Practical guidance on jury management (paras 90–94).
Kerim Fuad KC and Fiona McAddy (instructed by Spence & Joseph Ltd, Bromley) for the first defendant.
Felicity Gerry KC and Jade Gambrill, solicitor (respectively instructed by and of Sperrin Law Ltd) for the second defendant.
Tana Adkin KC and Ranjeet Dulay (instructed by LF Law Ltd) for the third defendant.
Myles Grandison (instructed by Treasury Solicitor) for the prison governor.
Jonathan Hall KC and William Davis (instructed by Crown Prosecution Service) for the Crown Prosecution Service.
The Crown Court was not represented.