R v Nicola Tams

LADY JUSTICE MACUR: On 31 January 2024 Nicola Tams (the applicant) and her co-accused Michael Allen were convicted of robbery, contrary to section 8(1) of the Theft Act 1968 and wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. They both await sentence.

The Registrar has referred this application for permission to appeal against conviction to the full court to decide whether to direct the Criminal Cases Review Commission to conduct an investigation under section 23A of the Criminal Appeal Act 1968, that is as a matter relevant to the determination of an application for permission to appeal which cannot be resolved by the court without an investigation by the Commission (see sections 23A(a) and (c)) or otherwise to determine the extant application.

The brief facts comprising the offences charged against the applicant are as follows. On 9 August 2023 John Young (the complainant) and the co-accused met the applicant who was in a relationship with the co-accused and another woman. They were all regular drug users. They consumed drugs at John Young's house and then went to the co-accused's residence to consume some more.

Once there, the complainant said he was assaulted by the applicant and co-accused and robbed of his bank card after he refused to provide the cash to purchase cocaine. He eventually made good his escape and was treated in hospital overnight. He suffered bruising and cuts to his face and his limbs. He said the applicant started the attack, stabbing him with a knife to the legs and then the face. Afterwards the co-accused joined in by punching and then slashing him across the forehead. He gave evidence at trial to this effect.

The applicant was arrested later the same day and was found in possession of John Young's bank card. She said she was not aware of any assault, she had not been present when John Young was assaulted or robbed and if he had been assaulted and robbed she did not know who it was who had attacked him. She said that she had been in an occasional sexual relationship with John Young and he had given his bank card to her daughter to allow her (the daughter) to withdraw cash that she had transferred to him as she did not have her bank card with her. After withdrawing the cash her daughter had given the applicant the bank card to return to John Young but she had forgotten to do so and hence it was still in her possession when she was later arrested. (As a matter of fact it was agreed during cross-examination of the applicant that there had been no withdrawal of money from the cash point up to that point).

The co-accused also denied being responsible for the assault but gave evidence that did not entirely accord with that of the applicant. That is he said that he saw John Young's injuries when he and the applicant returned home from buying drugs.

At trial the complainant, applicant and co-accused gave evidence. The prosecution also relied upon the applicant's previous conviction for unlawful wounding as evidence of her propensity for violence. Of some significance, in view of the nature of the application made on behalf of the applicant, the prosecution adduced evidence that the applicant had been remanded in custody between January and June 2022 to rebut her evidence that she had been in a sexual relationship with John Young at that time.

In this application no criticism is made of the trial judge's case management or his summing-up. The application is directed to events post-verdict.

On 31 January 2024 the jury returned guilty verdicts on all counts. On 1 February a prison officer is said to have asked the applicant how she was, as he had heard about her guilty verdict from his friend who was a juror on her trial. The applicant's counsel, Miss Anderson properly asked the court below to reconvene in relation to a possible jury irregularity which it did on 5 February. The trial judge, having heard her application, stated, correctly, that he had no jurisdiction and no power in relation to a jury irregularity that had come to light during the adjournment between verdict and sentence.

Miss Anderson submits that the conversation between the prison officer and his "friend on the jury" needs to be investigated:

Consequential directions are sought from this court.

The relevant part of the applicant's witness statement filed as fresh evidence in this application states that:

Other witness statements have been served to which we need not refer.

There is a Respondent's Notice which, without prejudice to the applicant's reliability in relating the conversation and other events, asserts that even if her account is credible the conversation took place after the verdicts had been returned, the content of the conversation does not imply any irregularity, there is no account from any other juror as to any other irregularity and the jury were aware the applicant had spent time in prison and so there was no prejudice. Further, the applicant has failed to address why the conversation could affect the safety of the convictions. There was nothing to justify an investigation.

Mr Normanton, on behalf of the Respondent, cites Mirza [2004] UKHL 2 and Thompson [2010] EWCA Crim 1623 at paragraphs 3 to 5 in support of the proposition that in all but a very limited set of specific circumstances (none of which apply here) jury deliberations are “forbidden territory”.

It is important not to overlook the import of paragraph 6 of Thompson to the following effect:

We accept for the purpose of the application, which includes an application in relation to the admissibility of fresh evidence, that the applicant's account of her conversation with the prison officer is capable of belief. However, we fail to see how this fresh evidence supports or is capable of implying any suggestion of jury irregularity. The clear indication is that the prison officer had received news of the verdict which was in any event in the public domain. There is no suggestion that he provided information concerning the applicant to the jury during the trial. His reported enquiry was supportive of the applicant's wellbeing. There is no suggestion of bad faith.

Miss Anderson confirms to us that the judge gave the orthodox direction to the jury regarding conduct at the outset of the trial, that is that they were to report any matter of concern to a jury bailiff if that became necessary. No such report was made at any stage of the trial. The judge confirmed in summing-up the case that the jury were to try the case on the evidence that had been called. It was a straightforward issue for the jury to determine. Did they believe the complainant?

In reality, the only information the prison officer possessed was that the applicant was remanded in custody. We do not understand why this circumstance would prejudice the applicant in the jury's eyes in the context of the evidence to which we have referred and which was before them.

Consequently, we refuse to admit the fresh evidence since it is incapable of affording an arguable ground of appeal. This necessarily means that we refuse the application to direct the Criminal Cases Review Commission to conduct inquiries and the application for permission to appeal conviction since this inquiry is not necessary to determine such an application.

Before we conclude, we should make clear that we regard Miss Anderson to have behaved impeccably at all stages. She immediately alerted Mr Normanton and the court of the information which had been passed to her. She has made realistic concessions before us today and has made every possible endeavour to ensure the integrity of the trial is thoroughly reviewed and appraised at all stages. For this her client should be grateful.

In the circumstances, therefore, this application is refused and it follows from what Miss Anderson says that there will be no further applications to be made.