Schrodinger's Verdict

When can a jury be agreed and, at the same time, hung? This intriguing question is posed (and answered) by R (Yusuff) [2024] EWHC 692.

Background

In the latter part of 2023 and early 2024, three men were tried in relation to the death of a man in south London. The deceased had been stabbed twice in the back and once in the shoulder outside a bar close to Waterloo Station.

On 10 January 2024, the jury were in retirement considering charges of murder and manslaughter. That afternoon, the judge received a note from the jury which caused them to be brought into court. The judge intended to give them a majority direction. In the usual way, the forewoman was asked whether or not the jury had reached verdicts upon which they were all agreed in relation to all defendants. As the judgment notes, ‘to the evident surprise of those in court, the forewoman answered yes’.

The court clerk then proceeded to take verdicts in respect of all counts. On each count, the forewoman’s reply was ‘not guilty’. When asked if it was the ‘verdict of them all’, the forewoman said it was. The judge proceeded to discharge both the defendants and the jury.

That, however, was not the end of the matter. Shortly after rising, the judge received a further communication from the jury and, because of that, had them write a further note. When the court reassembled, the judge explained that the ‘forewoman had made a mistake when answering the questions put to her’ and that the jury had, in fact, not reached unanimous verdicts.

Having heard brief submissions, the judge gave a conventional majority direction and invited the jury to retire once again. The jury were discharged the following day, being unable to reach verdicts on either murder or manslaughter.

The case was then adjourned and a re-trial fixed.

Unsurprisingly, the three men who (for at least 17 minutes) had been acquitted of these serious charges, were aggrieved and brought proceedings in the High Court with a view to (a) securing their release and (b) requiring the Crown Court to record ‘not guilty’ verdicts against them.

The Conundrum

The question for the Divisional Court was, in essence, what should the judge have done in these circumstances?

The Court found as follows:

1. That it is well established that ‘a judge has a discretion to allow a verdict of the jury to be corrected after they have been discharged’;
2. Where a judge permits such a correction to be made, it cannot be challenged by way of a judicial review by virtue of section 29(3) Senior Courts 1981 which grants the Crown Court the exclusive power to deal with matters ‘on indictment’;
3. That although the High Court can interfere with the Crown Court’s decision making where the court ‘had no jurisdiction’ or where there had been a ‘jurisdictional error of sufficient gravity as to take the order out of the jurisdiction of the Crown Court’, no such error arose here;
4. That the question of correction after discharge was ‘fact sensitive’;
5. That on the timeline as set out in this case (the jury having been ‘discharged’ at 2.35pm, and first notice of the error having been circulated by email 17 minutes later at 2.52pm), the issue had been raised sufficiently quickly such that ‘there was no real possibility that further deliberations had taken place in the intervening minutes’.

Dame Victoria Sharp went on to make some practical observations about the procedure for giving majority directions noting that it was possible that the forewoman ‘suffered what might reasonably be called a form of stage fright’. She continued, ‘we ask a lot of our juries; particularly the person appointed as foreman or forewoman, who will be faced with questions they are required to answering public in the somewhat stressful environment of court proceedings’.

The court suggested that in certain cases, following discussion in open court with counsel, the jury should be given ‘some forewarning of the procedure that will be followed when they are brought back into court and of the questions the foreman or forewoman will be asked’. This may or may not be in writing.

Habeas Corpus and Judicial Review

Habeas Corpus

The challenge to the dilemma in this case was brought by way of an application for a writ of habeas corpus, or in the alternative, permission for judicial review of a number of the judge’s decisions.

In respect of habeas corpus, the court affirmed the position that a prison is required to follow a valid order ‘unless varied or set aside by a superior court, or in the proper exercise of the court’s own jurisdiction’.

The court emphasised that, ‘an error of law in the exercise of that power does not alter the obligation of a [prison] Governor to comply with any order remanding a defendant in custody or warrant reflecting the same;  and that remains the case unless and until the remand order in question is set aside’.

The court described submissions to the contrary as ‘untenable’.

Judicial Review

So far as judicial review was concerned, the court also considered a number of authorities dealing with the power of the High Court to review decisions made by the Crown Court. The starting point remains section 29(3) of the Senior Courts Act 1981 which ousts the High Court’s supervisory jurisdiction in respect of all matters relating to ‘relating to trial on indictment’.

Ultimately, the Court concluded that it had no such power in this case, observing at paragraph 68:

"Further, whilst this court may intervene by way of judicial review 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 this case involved no error of law and lay well within the ambit of the discretion which he was empowered to exercise."

This case has not really established any new principles or made new law. Rather, it entrenches existing decisions relating to all three areas of law considered in the judgment.

Decisions such as these will continue to disappoint defendants who (like those in this case) have been expecting or even promised one result namely, an acquittal. However, it clearly demonstrates how the courts are prepared to dispense with procedural strictures in order to meet the overriding objective. In our view, it is a clear embodiment of what Sir Robin Auld once said: ‘A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth.’