Leslie Allen [2019] EWCA Crim 1256

R v Leslie Allen [2019] EWCA Crim 1256 concerned an application for permission to appeal against conviction following a trial in the Crown Court at Warwick at which, after discharge of the jury for tampering, the trial judge determined guilt himself; the Court of Appeal (Warby, Holroyde and Julian Knowles JJ) refused permission to appeal.

Mr Allen, aged 62, was convicted on 23 November 2018 of two offences contrary to section 5(1)(b) of the Misuse of Drugs Act 1971, namely possession with intent to supply class A drugs and possession with intent to supply class B drugs, and one offence of possessing a prohibited weapon, namely pepper spray, contrary to section 5(1)(b) of the Firearms Act 1968. He was sentenced to a total of thirteen years’ imprisonment. His conviction followed a judge-alone trial conducted under section 46 of the Criminal Justice Act 2003 after his Honour Judge Lockhart QC had discharged the jury that had been sworn to try the case. Mr Allen accepted that jury tampering had occurred, but contended that he was wholly uninvolved and that a retrial before another jury would have been the right course.

The prosecution arose from a search on 16 June 2016 of premises adjacent to the Capitol Gym in Coventry. Officers sought a red Jaguar X-Type car suspected of involvement in crime in Lancashire. At Mr Allen’s home they found the car, the applicant, his son and a third man. Shopping bags containing large quantities of cannabis valued at £78,800 were found in the kitchen. A pepper spray was found in a drawer in the study. A search of the Jaguar revealed a block of white powder in the boot, later identified as unadulterated cocaine with a street value of nearly £100,000, and some £4,700 in cash in the glove compartment. Mr Allen was the registered keeper of the Jaguar and one of the owners of the house, and he had links to the Capitol Gym. The prosecution case was that the applicant was a major drugs wholesaler who possessed all the items found. His defence was that he had no knowledge of any of the drugs or the spray, which belonged to others; his home was shared with several adult family members and he kept an open house with a number of employees coming and going at all hours; his hospitality and openness had been abused; the money in the car was linked to boxing events he promoted; and the spray might have been confiscated by security from people attending those events.

The trial began on 13 November 2018. Prospective jurors were asked whether any of them knew of the Capitol Gym and told that an affirmative answer would exclude them. No one responded positively. A jury was sworn and put in charge of the defendant. The prosecution called its evidence, which was largely agreed and not significantly challenged. The defendant gave evidence and was cross-examined. A substantial number of witnesses were called in support of his case. One of them, Daniel Porter, gave evidence that he, not the applicant, was supplying drugs and was responsible for the cannabis and for putting the cocaine in the applicant’s car. Another witness, Michael Kershaw, corroborated other aspects of the applicant’s case. After the prosecution and defence addressed the jury, the Judge gave legal directions in terms agreed by counsel and summed up the evidence to the jury. On 19 November 2018, the jury were sent out to consider their verdicts.

On 20 November 2018, two jury notes indicated that one juror, juror No 1, knew of the Capitol Gym. One note also stated that juror No 1 was “being defensive of all the evidence” and had indicated that he would not be open-minded. The Judge discharged that juror but refused a defence application to discharge the jury in its entirety. The remaining eleven jurors continued to deliberate. The police took possession of juror No 1’s mobile phone because it had been suggested that he was using it to record jury deliberations. That was never substantiated. On 21 November 2018, however, the prosecution provided the Judge with a transcript of a phone conversation between the juror and his mother recorded on the phone. This suggested that the juror, at the instigation or with some encouragement from his mother, had set out to assist the applicant by doing his best to ensure his acquittal. The mother appeared to have been in contact with someone who knew the applicant and was encouraging such activity. Moreover, the juror had spoken to his mother about the inner workings of the jury deliberations, including numbers and voting strengths, and there had been a discussion about the number of dissenters required to achieve a not guilty verdict. The Judge was satisfied so that he was sure that jury tampering had taken place and decided to discharge the entire jury. The defence made no contrary submission.

The Judge then heard submissions from counsel about what should happen next. The prosecution argued that he should proceed without a jury. The defence submission was that the trial should simply be terminated. Mr Doyle, who appeared below and in the Court of Appeal, submitted that trial by jury was a hallowed principle and a right of which a defendant should not lightly be deprived. The Judge decided that the trial should continue to verdict without a jury. He prepared a detailed written ruling dated 21 November 2018, which he handed down on the morning of 22 November, giving the salient parts orally by reading out or summarising them in open court. The Judge then proceeded to give judgment on the merits by way of an oral judgment on 23 November 2018, followed by the handing down of a written version in identical terms. No criticism was levelled at any part of the reasoning contained in the judgment on the merits. The attack was on the Judge’s decision to embark on the process at all.

Section 46(3) and (4) of the Criminal Justice Act 2003 provide that where the judge, after considering representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied that jury tampering has taken place and that to continue the trial without a jury would be fair to the defendant; but if the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial. Section 47 provides that an appeal to the Court of Appeal lies from an order under section 46(3), subject to obtaining the leave of the Judge or the Court of Appeal. Five business days are allowed for the lodging of an application for leave to appeal, and the order is not to take effect before that period expires or, if an appeal is brought, before the appeal is finally disposed of or abandoned. Section 48 governs the procedure to be followed if a Judge makes an order under section 46(3) and it takes effect. The Judge is invested with all the powers that would otherwise be vested in the jury, but instead of simply rendering a verdict, he must give a judgment stating the reasons for the conviction.

No application for permission to appeal under section 47 of the 2003 Act was made. The application before the Court of Appeal was an application for permission to appeal against conviction under section 1 of the Criminal Appeal Act 1968. The test for allowing an appeal under that provision is whether the conviction is safe. Mr Doyle advanced two grounds. First, that the Judge erred in, as he put it, “refusing to allow the applicant the opportunity to appeal” pursuant to section 47. Secondly, that the Judge erred in making his order under section 46(3) for the trial to continue without a jury. He made two main submissions in support of the second ground: first, that the applicant was wholly uninvolved in the process of jury tampering; and, secondly, that the interests of justice required the trial to be terminated in this case.

After submissions had been made on 21 November 2018 as to whether the trial should proceed by judge alone, there was discussion of the right of appeal under section 47 and when it should be exercised. A provisional consensus was arrived at, namely that the ruling, if it went against the applicant, would not be amenable to an interlocutory appeal; any appeal would be against the ultimate decision under section 48, if that went against the applicant. Mr Doyle said that he would not trouble the Judge further. The Judge, addressing Mr Doyle, said that if he wanted to make any further submissions on it the following day he should do any research he felt necessary and do it. When the Judge delivered his reasoned decision the following day, no further submissions were made. The Court of Appeal held that it could not fairly be said that the Judge “refused to allow” the applicant the opportunity to exercise the right of appeal under section 47. On the contrary, he made it clear that the applicant was free to argue on 22 November that he had a right of appeal and to seek leave to appeal against the ruling under section 46(3). The Court accepted that there was a right of appeal and that, if an application had been made within the five-day period, an appeal could have been pursued with leave. However, what happened was that the applicant took an informed view on advice and decided not to appeal. He could not now complain of injustice. The Court did not think it arguable that the conviction was unsafe on this account. The Court observed that it might be said that it was irregular for the trial to proceed before the five days prescribed by the statute had elapsed, but nobody sought to delay proceedings below on that or any other ground, nor did Mr Doyle make any complaint on that score. The Court did not think that made the further process a nullity or that the conviction could on that ground be characterised as unsafe.

The Court then turned to Mr Doyle’s second ground. In R v McManaman [2016] EWCA Crim 3, the Court of Appeal gave guidance on the application of section 46(3). Lord Thomas CJ observed that it is not necessary to determine whether or not the defendant was involved in the tampering. The legislation is clear; it only requires proof of tampering, not proof that the defendant did it. It cannot have been intended that the trial Judge should have to determine whether the defendant was involved in the tampering. The courts should not qualify the provisions of the Criminal Justice Act 2003 by requiring any proof of the involvement of the defendant. The Court in R v McManaman addressed the twin questions of fairness to the appellant and the interests of justice. The Court approved an observation of Lord Judge in R v Twomey [2009] EWCA Crim 1035 at paragraph 20. Lord Judge referred to the purposes of the legislation, the inconvenience and expense involved in a retrial and the desirability of reducing any possible advantage to the perpetrators or beneficiaries of jury tampering. Citing, in addition, the desirability of ensuring that trials proceed to verdict rather than ending abruptly with the discharge of the jury, he concluded that, save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial. The Court in R v McManaman said that a Judge should approach section 46(3) with these observations firmly in mind.

In his ruling in this case, his Honour Judge Lockhart recited the statutory provisions, the commentary in Archbold, and the guidance in R v McManaman, which he set out fully. He also considered a decision made at first instance by Goss J in R v Hussain. The Judge concluded that the law was clear. A judge being sure that jury tampering has taken place will in all ordinary circumstances order that a trial will continue provided that this can be a fair trial. The judgment to be made is one that takes into account all the matters set out in the legislation and in the authorities of Twomey and McManaman. The Judge identified five chief features of the case. The case had run for over a week. The prosecution case was in a short compass and mostly agreed. The defence had called a large number of witnesses to the facts, all of whom had been cross-examined. One of those witnesses had come in what the Judge called “unusual and controversial circumstances” to admit at least one of the offences with which the defendant was charged. Other witnesses as to character were called. The Judge was wholly unpersuaded that the case had any “unusual” feature, in the sense described by the authorities, which would make it wrong to continue with the trial. He was satisfied that the interests of justice did not require him to terminate the trial and that it would be fair to continue. He recorded that he had neither read nor heard anything other than the evidence which the jury had received and had no knowledge of the defendant other than that received during the trial. He could direct himself on the law, as he had directed the jury in terms agreed by the defence. He could assess the evidence and come to clear conclusions in a reasoned and reviewable judgment. There would be huge inconvenience and expense if the case was retried. Proceeding to judgment would reduce any possible advantage to those responsible for the tampering or those for whose perceived benefit it had been arranged.

Mr Doyle did not challenge the Judge’s summary of the applicable law. Nor did he challenge the way the Judge arrived at his conclusions on the merits. In his written grounds, however, Mr Doyle submitted that the Judge’s assessment of the interests of justice was wrong. Those, he submitted, are fact specific to the case in hand, and in this case they required the Court to terminate the trial. He reiterated his submission below that trial by jury is a hallowed principle, adding in his written grounds that it is an Article 6 right. The Court observed that that last point is clearly wrong. Many criminal trials across the Convention countries are conducted without a jury. In this jurisdiction the majority of criminal trials are conducted before lay magistrates. The broad submission that the Court should give the desirability of jury trial pre-eminent weight in a case under section 46(3) cannot be sustained in the light of the authorities. Mr Doyle’s grounds relied on R v Guthrie [2011] EWCA Crim 133 as authority for the proposition that it would be harsh to deprive this applicant of a jury trial. The Court held that that submission did not go far enough to make good his main point and was misplaced. That aspect of Guthrie is authoritatively addressed in R v McManaman. Judge Lockhart rightly proceeded on the basis that it did not have to be shown that the applicant was responsible for the tampering and that he should not attempt to reach a conclusion on the issue. His focus should be on the interests of justice and the fairness of a non-jury trial.

Mr Doyle argued that this was an “unusual” case. He identified the gravity of the charges, the age of the applicant and his previous good character as factors that count in favour of his application for leave to appeal. The Court held that those, however, are not in themselves unusual factors in jury tampering cases or at all. It is unusual for a defendant to call a witness who then admits to the offences with which the defendant is charged; but what is needed is not just something unusual but something that, unusually, makes it contrary to the interests of justice to proceed without a jury or unfair to do so. The Court observed that this was, in fact, quite a straightforward case evidentially, and Mr Doyle had failed to identify anything about the particular facts of this case which arguably meant that the procedure adopted was contrary to the interests of justice or unfair. The Court did not consider that either the Judge’s decisions or the process followed by the Judge could be impugned. The Court observed that it had dealt with these issues as if this were an application for permission to appeal under section 47, and it would have refused such an application

McManaman [2016] EWCA Crim 3
R v Guthrie [2011] EWCA Crim 133
TR & Ors [2009] EWCA Crim 1035

Allen (Leslie) [2020] EWCA Crim 1183