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Anna Wright considers the recent decision of R v Goodwin [2024] EWCA Crim 1383 and related authorities concerning the importance of disclosing jury communications to counsel.
The question for the Court of Appeal in Goodwin was whether a judge’s failure to respond to or inform counsel of a jury note amounted to a material irregularity, such that it rendered the conviction unsafe.
The applicant had been convicted by majority verdict on two counts of being concerned in supplying a controlled drug of Class A to another. The applicant accepted involvement in the supply of Class A drugs and that on various occasions he had control of the county “Debo” line.
The defence of modern slavery was raised, pursuant to Section 45 of the Modern Slavery Act 2015 , on the basis that the applicant had been compelled to supply the Class A drugs out of fear for his own safety.
The jury retired to consider their verdicts on Thursday 14th September 2023 at 11:38am. The judge reassured the jurors that they were under no time pressure.
The judge informed counsel that if he received a note indicating that a majority direction would be of assistance he would discuss it with them. He confirmed that the procedure by which the jury could send notes if in difficulty was included in their information on jury service.
On Friday 15th September 2023, after the jury had been in deliberation for six and a half hours, the judge reassembled the court and counsel were informed that a majority direction would be given.
The jury returned at 2:04pm with a guilty verdict on both counts by a majority of 10 to 2. Following the verdict, it was disclosed to counsel that “some letters” (jury notes) had been received expressing that the jury would have “real difficulty” if the trial went into the following week.
Counsel had not been informed nor given the opportunity to make submissions. Further, the judge had failed to respond to the note or reassure the jurors that they would not have to return the following week if a verdict was not reached.
The applicant submitted that there was a “real risk the jury felt pressured to reach their verdicts that day and therefore did not make their decisions solely on the evidence”. They stated the majority verdict of 10 to 2 created a “a level of unease, because even if just one juror felt pressure, despite misgivings, to agree with the majority in order to conclude the matter that day, then the conviction was unsafe” (at 28-29).
It was further submitted that had counsel been aware of the jury notes, they could have made submissions on whether it was appropriate to give a majority verdict at that point. Further, counsel may have asked the judge to reassure the jurors that they would not have to return the following week.
Prosecution counsel submitted that the trial had come to a “natural end and there was no unfair pressure brought to bear on the jurors”, noting that the jury had returned verdicts within a short deliberation period (12:14pm to 2:04pm) with“plenty of time for further deliberation remaining that afternoon” (at 30).
The Court of Appeal made reference to the leading authority of R v Gorman (1987) 85 Cr App R 121 which sets out the procedure to be adopted in answering jury questions (at 126-127):
[33] “First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court …Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.”
The Court also made reference to R v Ball [2018] EWCA Crim 2896 which confirmed that the Criminal Procedure Rules have not altered the procedure to be followed in Gorman. On that basis, the Court of Appeal stated that:
[34] “Undoubtedly, therefore, the judge should, in accordance with the principles set out in Gorman and Crim PR 25.14, have shared the jury notes that he received on the morning of 15 September with counsel and given them the opportunity to make representations. He should have done that before he gave the majority direction.”Crim PR 25.14(2)(d)(i) sets out that the court must “if necessary, recall the jury to answer the jurors’ questions”. Ballhad clarified that “save in the limited situation of an uncontroversial communication raising something unconnected with the trial, it will in almost every case be necessary for the judge to recall the jury if they have asked a question and to answer their question in open court” (at 19).
In considering whether the judge’s failure to do so rendered the applicant’s conviction unsafe the Court concluded that:
[36] “… We have already noted that the judge’s failure to follow the guidance in Gorman and in the Criminal Procedure Rules in relation to those jury notes was a material irregularity”. [37] “… Counsel could not make submissions at the time about how the judge shoulddeal with those notes, given that he had failed to bring the notes to the attention of counsel until after the verdicts had been delivered and the jury had departed”.
The Court made clear there was no suggestion that the jury was put under improper pressure to reach their verdicts by the end of the week. However, concern was expressed that the lack of response may have caused at least one juror, to acquiesce to vote with the majority in order to avoid returning the following week. It was reiterated that this concern was heightened by the majority verdict of 10 to 2.
The Court of Appeal held that the conviction was unsafe. The appeal was granted, and they declined to make an order for a retrial.
There is a consistent line of authority predating Goodwin which reflects the importance of jury notes connected with the trial being read in open court. It has been recognised that private and undisclosed communications between a judge and jury, however unintentional, offends “against the principle of open justice” (R v Braithwaite [2019] EWCA Crim 597 at 49).
In R v Inns [2018] EWCA Crim 1081 the Court of Appeal reiterated that judges should share notes with counsel and seek their views before answering questions. Further, this was restated in R v APJ [2022] EWCA Crim 942 where the failure to share a note during jury deliberation deprived counsel of the opportunity to make submissions to ensure the jury was properly directed as to its approach.
There is a clear difference between jury notes concerning trial matters, which should be made known to counsel, and those concerning “domestic management”, where it is desirable that notes are disclosed but a failure to do so will not affect the integrity of the trial process. However, Archbold 2025 specifies that “a communication prima facie relating to domestic management (inconvenient to come back on Monday) but having potential consequences for the conduct of the trial (timing of the retirement of the jury)” should be treated as concerning trial matters (Brown and Stratton [1998] Crim. L.R 505, CA). Thus, in Goodwin, counsel should have been made aware of such communication.
Goodwin and the preceding authorities illustrate that it is seldom proper for a judge to decide against the disclosure of jury notes to counsel. It is important, particularly in cases of sensitivity, that one is alive to the fact that such a decision can amount to a material irregularity. Although a failure to apply the procedure in Gorman will not inevitably render a conviction unsafe, it should be followed to ensure integrity and open justice.
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