R v Jake Vesey

On 9 July 2020 the applicant was convicted of robbery contrary to section 8(1) of the Theft Act 1968, for which he was sentenced on 31 July 2020 to an extended determinate sentence under section 226A of the Criminal Justice Act 2003 of 9 years, comprising a custodial term of 6 years and an extended licence period of 3 years.

The applicant seeks leave to appeal his conviction on the basis that jury irregularity renders the conviction unsafe. As part of his application, he seeks leave to adduce the evidence of his former girlfriend Ms Chaisty, which is contained in a witness statement dated 31 July 2020. He also applies for an extension of time of 26 days in which to apply for leave to appeal against conviction. The application has been referred to the full court by the single judge. It was previously considered by a different constitution of this court on 13 January 2023, whereupon it was adjourned until the conclusion of the trial of the juror concerned.

Given the issues raised by this appeal, it is not necessary to set out the background to the conviction for robbery in any detail, save to say that in August 2018 the complainant was robbed of a Rolex watch in the early hours of the morning by two men who knocked him to the ground. The two men left the scene, leaving behind a black cap and mobile phone. Forensic analysis attributed the items to the applicant.

The relevant background to the allegation of jury irregularity is as follows. After his conviction on 20 July 2020 the prosecution notified the trial judge about an allegation of jury misconduct. A juror was said to have spoken to the applicant's then girlfriend, Ms Chaisty, on two occasions during his trial. CCTV footage was obtained from the court and confirmed contact on two separate occasions. The matter was referred to the Registrar of the Court of Appeal.

A statement was taken from Ms Chaisty by the applicant's solicitors. It is dated 31 July 2020. In it, Ms Chaisty explains that on 7 July 2020, when leaving court, she was approached by a juror in the case who said he had noticed her in court. He asked her if the applicant had any previous convictions, to which she said "No" — which, we pause to note, was incorrect. She went on to say that the applicant was in prison. The juror asked if he had been in prison for two years (i.e. since the offence). At some point the juror said he should not be talking to her. The following day a further conversation took place, during the course of which the juror said he was not allowed to talk to her but that he knew what he was going to say.

Following an investigation into the alleged irregularity, the Attorney General gave consent for the juror to be charged with an offence under section 20A of the Juries Act 1974, which makes it a criminal offence for a member of a jury to research the case during the trial period. The trial of the juror was due to take place in May 2023 but was subsequently adjourned to July 2024 and then again to April 2025. Ms Chaisty was called to give evidence at the trial. Following her evidence, the trial judge directed the jury to return a not guilty verdict on the basis her evidence had not come up to proof. We have been provided with a transcript of her evidence which we have reviewed.

The ground of appeal is that the jury irregularity renders the conviction unsafe. On behalf of the applicant, it is said that as a result of his conversations with Ms Chaisty the juror had discovered that she was in a relationship with the applicant; that the applicant was in prison, which was something a juror would not normally be aware of. The conduct of the juror raised a concern as to whether any other research had been conducted and what information the juror may have shared with the rest of the jury. Internet searches of the applicant’s name would have led the reader to headlines of press articles which were written in emotive language. They also contain details of the applicant’s prior offending which had been excluded from the trial and would inevitably cause prejudice. The grounds go on to contend that there was a high probability that the juror had conducted his own research and this raised a serious concern as to whether he had shared details of his conversation with Ms Chaisty with others and the details of any research he had conducted. A fair-minded and independent observer would conclude there was a risk of bias.

In oral submissions before us Mr Gray has submitted that the outcome of the juror's trial is not determinative of the question for this court. The reasons for Ms Chaisty not coming up to proof were that she could not remember a conversation from five years earlier, but she gave evidence that events were as set out in her statement of July 2020, and her account would not have been a lie. The inescapable conclusion is that the trial was being discussed during the conversations between Mr Chaisty and the juror given the length of the first of the conversations. The issues under discussion were central to the trial — Ms Chaisty’s status as the applicant's girlfriend; the applicant’s previous convictions, and what the juror was going to say in deliberations. No one at the trial was informed of what had occurred, despite the clear warning given to jurors about this sort of conduct. The impact of this juror's conduct on other jurors could not be known; and the integrity of the jury's deliberations must be called into question. It is trite to say that jurors must only decide the case on evidence heard in court. The delay in the juror's trial and Ms Chaisty's inability to recall precise details of the conversation given the passage of time should not be held against the applicant.

The question for this court is whether or not the conviction for robbery is unsafe (section 2 Criminal Appeal Act 1968). The fact that there were conversations between Ms Chaisty and the juror during the course of the trial is not in dispute. They led to the prosecution of the juror. However, the conversations will only impact on the safety of the conviction if they show either that the juror was biased against the applicant or that he acquired information (through research or otherwise) which he ought not to have had. Not every type of juror irregularity leads inexorably to a conclusion that the conviction was unsafe.

Even on the evidence in Ms Chaisty's statement of 31 July 2020, there is nothing to suggest bias on the part of the juror. In terms of information which the juror ought not to have had, Ms Chaisty's written evidence indicated that he was in possession of information which had not been given in court about his previous convictions (albeit it was incorrect information) and his remand in custody. Ms Chaisty's evidence was subsequently tested in accordance with the rules of evidence in the trial against that juror. At the trial she did not repeat this aspect of the evidence, albeit that we accept that her inability to recall a conversation from five years previously should not necessarily be held against the applicant.

Ms Chaisty also acknowledged at the trial that the juror had repeatedly stated that he could not speak to her about anything (page 20E of the transcript). Moreover, the following extract from her evidence at the juror's trial indicates she had a motive for the assertions made in her witness statement made in 2020 and taken after the applicant and she were aware that the applicant had been convicted. During cross-examination of her the following exchange took place:

The transcript of her evidence records in this regard Ms Chaisty stating that at the time she made the written statement in July 2020 she was in an abusive relationship with the applicant, and she was encouraged by him to make the statement after he had been convicted by the jury. This indicates a further motive for the assertions made in the 2020 witness statement. Before us Mr Gray rejects that characterisation of matters on behalf of his client and disputes that the relationship was abusive. Nonetheless, even if we accept the initial account of Ms Chaisty, the extent of the initial information that the juror would have been in possession of was information that the applicant had no previous convictions (which was incorrect) and that he was on remand. That information cannot be said to be materially prejudicial to the applicant. The status of Ms Chaisty and the applicant's relationship was not central to the issues before the jury and there was forensic evidence in relation to the phone and cap left at the scene linking them to the applicant. The applicant did not give evidence at trial.

Accordingly, for these reasons we consider there is no foundation on which to conclude that the applicant's conviction for robbery is unsafe. We decline to receive the statement of Ms Chaisty dated 31 July 2020 pursuant to section 23 of the Criminal Appeal Act 1968 on the basis it does not appear to us to be capable of belief and does not afford any ground for allowing the appeal. We refuse leave to appeal against the conviction. Given our view on the merits of the application it is not necessary for us to determine the application for an extension of time.