Edgar & Ors, R. v

On 20 December 2016, in the Crown Court at Cardiff, these appellants were convicted of murder. They were subsequently sentenced and in due course an appeal against the length of sentence was allowed in each case. They now appeal against their convictions with leave of the single judge. The grounds of appeal common to all assert that the integrity of the trial was fatally compromised by bias on behalf of a juror, Lauren Jones. In those circumstances, the verdicts are said to be unsafe.

In the circumstances of this case it is not necessary for us to set out the facts underlying the convictions in any great detail. If a defendant has not had the benefit of a fair trial to which he is entitled, then the strength of the case for the prosecution is irrelevant. If the trial has not been fair, then there has been no real trial at all and a conviction cannot be sustained by reference to the strength of a case against an accused.

Lynford Brewster was stabbed to death on the evening of 12 June 2016 in broad daylight in a residential part of Cardiff in front of a number of local residents. He had been involved in an argument with Whelan on the morning of 12 June and on that evening a number of witnesses saw three men chasing the deceased down an alleyway, where he received his fatal stab wounds. Whelan was seen getting into his car after the stabbing and the two men ran away through some woods. A knife and its sheath were recovered. Bloodstains on the knife matched the DNA profile of the deceased and the DNA of both Whelan and Edgar was recovered from the sheath. Lainsbury's DNA was recovered from the hand of the deceased. There was other evidence available to the Crown so that on its face the case was a strong one.

Several weeks after the trial an appellant’s solicitor received information that a police officer providing family liaison, Detective Constable Bryant, who had attended court during the trial to provide support to the deceased's family, had a close relationship with a member of the jury. That officer's son was in a long-term relationship with the juror.

Consideration has been given as to whether there should be a prosecution but we understand that there is to be none. There are, however, pending disciplinary proceedings against the officer.

As far as the juror is concerned, she did not respond to invitations to assist the inquiry and at an earlier hearing in this court it was decided that since there was no dispute about the facts which had come to light, there was little purpose in prolonging matters with a view to ascertaining whether any bias on the part the juror was actual and subjective as opposed to objective. The court was concerned that the interests of justice would be better served by a prompt hearing of this appeal when the essential facts were already known rather than incur further delay.

An application for the court to receive fresh evidence in the form of DI Hathway's report, the schedule of text messages received and transcripts of interviews conducted with the police officer was not resisted by the Crown. This is fresh evidence which is reliable and bears upon the integrity of the trial. We are entirely satisfied that the interests of justice require us to receive the evidence under section 23 of the Criminal Appeal Act 1968.

In addition, at our request, we have been provided with a copy of the transcripts of instructions provided to the jury pool on two occasions when it was necessary for the jury to be sworn in in this case. The juror, Ms Jones, was part of the panel sworn in on each occasion. At the heart of the appeal is the contention that bias on the part of the juror is established incontrovertibly by the fresh evidence.

The approach of this court to the question of bias is not controversial. Bias may be actual or subjective on the one hand; on the other hand, it may be apparent to a fair-minded observer, or objective. The question will be whether a fair-minded and informed observer would conclude that there was a real possibility or real danger that the juror was biased.

The Crown has not in the circumstances sought to sustain the safety of these convictions but has correctly recognised, following R v McIlkenny & Ors [1991] 93 Cr App R 287 at page 310, that the safety of the convictions is a matter for the court.

The evidence before us shows that at the relevant time Lauren Jones had been the girlfriend of the police officer's son for some months prior to the start of the trial on which she served as juror. The son lived at home with his mother, the police officer. The officer had almost 30 years' service and had been assigned to assist the bereaved family in June 2016. She had also taken a witness statement from the deceased's partner. The officer and the juror were clearly on friendly terms in the months prior to the trial, regularly exchanging texts demonstrating this. The officer became aware that the juror had been summoned to perform jury service at the time when this trial was due to take

In the days immediately preceding the start of the trial they exchanged a number of texts referring to the trial. They include the following:

Those exchanges immediately prior to the trial clearly showed the officer's awareness that the juror might well be involved in the trial and both parties' knowledge that the officer would be concerned with the trial, as well as the important fact that both were aware that the juror knew the victim's sister. She saw her regularly at school collecting her young son, who attended the nursery where Ms Jones worked. The exchanges also reveal that the juror was concerned about her position if there was not a conviction.

The trial was due to start on 1 December. On that morning, the first phase of two jury empanelments involving the juror took place. Later that day there was an exchange of messages which showed that the officer had been in the courtroom at that time and had seen the juror looking nervous in the courtroom. Despite the juror's close connection with the officer and her knowledge that she was involved in the case, she said nothing about that or about her connection to the sister of the deceased. At one point she did say something to the effect that she was a teacher at the school but went no further than that. She appears to have followed the advice given in the first text mentioned.

The police officer also failed to say anything to anybody although she was aware that the juror was sitting on the murder trial.

On the following day, 2 December, the first jury was empanelled. The jury was given an information sheet showing names of witnesses in the case, including two members of the deceased's family. During the process of swearing the jury another juror reported in the presence of Ms Jones that she knew the brother of the deceased. A second juror was excused since he knew a witness who was a friend of one of the accused. Both those jurors were excused by the judge, who made plain that it was impossible for them to serve in the circumstances. Ms Jones must have witnessed those exchanges, yet she failed to declare her close connection with the case. The case was then opened but that jury had to be discharged because of timetable problems for two jurors.

On the same day, the officer phoned Ms Jones and a 51-second conversation took place.

On the following day, a Saturday, both the officer and the juror attended a family party for members of the officer's family.

On Monday, 5 December, a second jury was empanelled. It included Ms Jones. Again this jury had been provided with the case information sheet and the judge asked whether any of them knew the people involved in the case or those who might be giving evidence.

On 8 December, the judge announced a non-sitting day for later in the trial and this change potentially interfered with plans the juror had for a hair appointment and a day out with the officer. The officer advised the juror to tell the usher that she had an appointment for the day in question which could not be changed. Her advice was not to say that it related to a hair appointment, merely to say that it was an appointment that had already been changed once. The juror replied, accepting that advice.

These exchanges emphasise the close relationship between the pair and show that each of them was prepared to connive in giving misleading or incomplete information to the court

A little later on the evening of 8 December the juror spoke to the officer by phone in a call lasting more than 11 minutes. We do not know what was said on this occasion. On 9 December, the juror text the officer apparently with a view to visiting her home that evening. On 13 December, there is a further message in which the officer refers to checking whether the juror needed a lift to court. By this stage defence evidence was being called.

The totality of the messages shows a close familiarity between the pair, with each fully aware of the other's connection with the case. The officer was a family liaison officer or acting as such during the trial. She provided support at court to the deceased's mother and sister, both of whom attended significant parts of the trial. She had been in court at the time of at least one of the jury empanelments and was present during evidence given by each of the accused. At no stage did she report the matter to anyone; nor did the juror.

Instead, they maintained contact during the trial, with the officer offering to drive the juror on occasions, an offer which one message shows the juror accepted with enthusiasm. They met at a family party between the two jury empanelments and colluded in a plan to mislead the court in order to preserve a previously arranged day out. In addition, there were telephone calls between them during the trial whose contents are unknown to us.

The police inquiry's dealings with the officer reveal that she lied in the initial stages to two officers about having had any relationship with the juror, leading to the inference that she realised that her connections with the juror were improper in the circumstances. It also appears that she was not truthful about the point at which she knew that the juror was involved in this murder trial.

This material reveals a shocking state of affairs. We have no hesitation in holding that the clearest case of bias on the part of the juror is established. Any fair-minded and informed observer would conclude from the facts that there was a real possibility or danger that the juror was biased. Despite ample opportunity, she failed to declare either her connection with an officer whom she knew was closely connected with the victim's family or her connection with the deceased's sister or her concerns about how that person might react if they met following a not guilty verdict. Moreover, the juror had shown herself willing to participate in a deception of the court in order to pursue relatively trivial arrangements for her own private satisfaction. Both parties failed utterly in their civic duty as citizens and both of them must have known that at the time.

Since the officer's disciplinary proceedings have yet to take place, we say nothing further as to the outcome of them. However, it is crystal clear that this juror should never have sat on this trial and that the assertion of objective bias is fully made out.

In the circumstances, this trial was fatally flawed and the safety of the convictions is totally undermined. The folly of the juror and the police officer have wasted vast amounts of time and cost the public a great deal of money. Moreover, the agony for the victim's family is inevitably prolonged. We very much regret that fact.

However, there has not been a fair and proper trial because of the conduct of the officer and the juror and in those circumstances it is our duty to act. We allow the appeal. We quash each of these convictions. It is plainly in the interests of justice that in this serious matter there should be a retrial and we so order.

We will now give directions as to that.

LORD JUSTICE TREACY: The next matter will be the question of whether these appellants should remain in custody or be released on bail. What is the Crown's position?

Then there is a question about reporting of these proceedings. What do you want to say about that?

Just before we rise, I will just ask the law reporter present whether they want to say anything about the question of reporting restrictions?

LORD JUSTICE TREACY: The formal directions are as follows. We allow the appeal and quash the convictions. We order a retrial on an indictment which is to be served containing a count of murder against each of the three appellants. We direct that the appellants are re-arraigned on a fresh indictment within 2 months. As to venue for trial, we direct that that be determined by the presiding judge for the Wales circuit. Any submissions as to the appropriate venue for retrial should be submitted in writing to the presiding judge within 21 days of today. We direct that the appellants be held in custody pending their retrial. We make an order pursuant to section 4(2) of the Contempt of Court Act 1981 restricting reporting of the proceedings until after the conclusion of the retrial.