Edwards, R v

THE VICE PRESIDENT: On 12th May 2004 at Warrington Crown Court, following a trial before His Honour Judge Edwards QC, which had lasted for three half days, the appellant was convicted on two counts of handling stolen goods. He was subsequently sentenced to 9 months' imprisonment on each count concurrently. He appeals against conviction by leave of the Single Judge.

The circumstances were that, in early 2003, the police entertained suspicions about the appellant's Land Rover. It looked too new for the registration number which it bore. They seized it. They found that the chassis was the only original part of the vehicle corresponding to the registration number and the shell, gearbox, and back axle had all come from other stolen vehicles: the shell, from a vehicle stolen in Chester, in November 2002 and the gearbox and back axle from a Land Rover stolen in Liverpool, in the summer of 2002. The vehicle identification number had been replaced with the vehicle identification number plate of the original vehicle.

It was not in dispute that the appellant had had some work carried out on his Land Rover at a mechanics in Farnworth called ALS, though the nature and the extent of that work was a matter of dispute.

The significance of those particular premises in Farnworth was because, in the course of a wholly unrelated investigation by the police, in May 2002, they had traced no fewer than 60 stolen vehicles to those premises. Indeed, criminal proceedings were instituted against people who worked at ALS.

It was the appellant's case that he was a Land Rover enthusiast and had rebuilt his vehicle with parts legitimately purchased from different sources. It was inevitable that stolen parts might be passed on to innocent customers. He had bought the cab, he said, in good faith from a man in Stoke, and then resprayed it. As to the other parts, which turned out to have been stolen, he was innocent of that at the time when he had acquired them.

The prosecution case was that there was far too much stolen property on the appellant's vehicle. It simply could not be a coincidence that it was a compilation of items from so many different sources. Furthermore, it appears that the appellant had made no attempt to trace the person from whom he said that he had bought the vehicle in Stoke until the trial was under way.

It was the Crown's case that the receipt which he proffered in support of that purchase was a forgery, and that the appellant had invented a story about respraying the vehicle, the time at which he did so and the time at which he notified the DVLA about its respraying.

In interview, the appellant initially said that all the parts fitted to his Land Rover were legitimate and he did not want to discuss the matter further. On the second interview, he gave an account generally consistent with his evidence, though he did not make any reference to the vehicle being at ALS. In the course of his evidence, amongst other things, he claimed that the vehicle had been with ALS for about a month and he claimed that ALS must have put the stolen parts on it. The evidence emanating from ALS was that the vehicle had been with them only a week, not a month, and that, had other parts been put on the appellant's vehicle, he would have been charged for them, but had not been, and the only work that had been done at ALS was on its gear box.

That suffices, for present purposes, so far as the evidence before the jury is concerned, because Mr Clarke, who appears on behalf of the appellant, makes no criticism whatever of the terms of the summing-up in relation to the law, or the evidence.

The single ground of appeal is that the verdict of the jury is unsafe because the learned judge failed, at any stage during the course of the trial, to tell the jury that they must not discuss the case with anyone who was not of their number.

Mr Clarke draws attention to two authorities. In R v Oliver [1996] 2 Cr App R(S) 514, where the judgment of the Court was given by Blofeld J, at page 520D to G, he made observations as to what a judge should say to a jury, when it became permissible for them to separate, by reason of the insertion in section 13 of the Jury's Act 1974, by section 43 of the Criminal Justice and Public Order Act of 1994 of the permitting reparation after retirement. Those observations are, of course, entirely apt in that situation. In response, Mr Clarke also draw the Court's attention to a decision of this Court, differently constituted, in R v Burley [2001] EWCA Crim 731. In the course of giving the judgment of the Court, Waller LJ commented that it was critically important that jurors are reminded by the judge of their obligation not to talk to persons outside their number.

Mr Clarke accepts that this jury in the present case had almost certainly seen, before they sat, a video in relation to the carrying out of their task which said, among other things, that jurors should not talk to others not of their number about the case upon which they were sitting. Mr Clarke accepts that there is no evidence that any juror had in fact spoken to anyone outside their number. But he also says that there is no evidence that they had not. He points out that the members of this jury may not have sat on any other jury because the case started first on a Monday morning and it may be that all the jurors were being empanelled from a fresh panel summoned on that day.

On behalf of the Crown, Mr Potter accepts that the judge did not say what judges normally do say and what he undoubtedly should have said to the jury, namely, that they should not discuss this case with anyone who was not of their number. On the other hand, on more than one occasion during the course of the summing-up and the course of the trial, the judge had said that it was the members of the jury who were, alone, the judges of the facts in the case. He submits that, notwithstanding the judge's failure, the verdict of the jury cannot be regarded as unsafe, particularly having regard to the extremely strong evidence and the inferences to which it gave rise against this appellant.

Mr Potter also points out that, in the case of Burley, there were, as is apparent from the terms of the judgment, very many flaws in the trial judge's conduct of the case which gave rise to the quashing of the conviction. Waller LJ, towards the end of his judgment, pointed out that the other irregularities, which included the judge's failure to tell the jury not to speak to someone not of their number "might not have led us to conclude that the conviction was unsafe."

As it seems to us, although the learned judge in this case was in error in not telling the jury what he should have told them, it does not necessarily follow that the verdict was unsafe. The whole of the circumstances have to be considered. They include an absence of any suggestion that any member of the jury did, at any stage during this quite short trial, discuss the case with someone he or she ought not to have discussed it with. The circumstances also include the extremely strong evidence against this appellant.

In the light of all those circumstances, despite Mr Clarke's attractive submissions, we are unpersuaded that the verdicts in relation to this appellant were unsafe and accordingly this appeal is dismissed.