R v Nicholas Stuttle

On 4 April 2024, in the Crown Court at Southampton, the appellant, Nicholas Stuttle, was convicted of one offence of dangerous driving and one offence of aggravated vehicle taking. He was sentenced to 18 months’ imprisonment for the dangerous driving offence, suspended for 2 years, with a requirement that he do unpaid work and with a requirement requiring him to undertake certain programmes of rehabilitation activities. In relation to the aggravating-taking offence, he was sentenced to 9 months’ imprisonment to be served concurrently and also suspended and had similar requirements imposed. He appeals against conviction having been granted leave by the single judge.

The issue that arises in this case concerns disclosure of evidence to the jury after they had retired to consider their verdict.

The background facts can be stated relatively briefly. On 30 June 2022, a red Lexus car was stolen from outside the owner’s home. On 1 July 2022 (approximately 24 hours later) the car was detected on the M27 motorway. Police driving in a marked police car followed the Lexus car. The Lexus accelerated away and a high-speed chase ensued. During the pursuit, an unmarked police car driven by Inspector Kirby, and with PC Gibbs also in the car, took over as the lead vehicle following the Lexus. The Lexus drove through red lights at high speed. At times it drove on the wrong side of the road, again at high speed. It drove through residential areas at speeds far in excess of the speed limit. The pursuit was filmed on police dash cam video recorders and we have viewed the footage. The Lexus came to a stop at the end of a road known as Monks Way. The driver immediately leapt out, ran down a wooded path, turned right, slipped, got up and ran off. This can all be seen on the video footage. Commentary on the footage from Inspector Kirby said that the driver was wearing grey. PC Gibbs chased the driver on foot but after turning right, he lost sight of him. On entering a nearby churchyard he saw the appellant come out of some bushes. The appellant was arrested at 1.05 am. During a search of the area, a grey hooded jumper or “hoodie” was discovered by PC Burton who gave it to PC Gibbs. PC Burton did not make a witness statement and did not give evidence at the trial. The hoodie was not forensically examined. It was not, it seems, even searched by the police.

The appellant was charged with two offences. The critical issue in each case was the identity of the driver of the vehicle. The prosecution said that the appellant was the driver. They said he was the man wearing the grey hoodie who leapt out of the car and ran away. The appellant denied that he was the driver of the vehicle.

The prosecution case against the appellant comprised the following. First, there was the description given of the driver by Inspector Kirby, who said the driver was wearing a grey hoodie, shorts and trainers. He was a white, muscular male. Secondly, there was the evidence of PC Gibbs who chased the driver, albeit that he lost sight of him, and then saw and arrested the appellant in the churchyard. Thirdly, there was the fact that the appellant was present in the vicinity of the car at 1.00 am in the morning, and he emerged from bushes close to where the grey hoodie was found. Fourthly, there were inconsistencies between the appellant’s account as to his whereabouts on the evening, as set out in his Defence Statement, and the evidence that he gave at trial.

The appellant gave evidence at trial. He said he was not the driver of the car that night. He said that he had been at his girlfriend’s, whom he named as Ellie, watching a film with her. He then visited his father. He said he then went with a friend to a kebab house and then he said he went to the woodland. He said he had drugs with him. He saw two people running, first a man and then a policeman. The appellant said he dropped the drugs he had with him. When the policeman (who was PC Gibbs) approached him, he panicked because of the drugs he had dropped. He therefore told PC Gibbs that he was out for a jog. During his evidence at trial he was shown the grey hoodie and he said he did not recognise it. The hoodie was in an exhibit bag and was made an exhibit in the case. The defence also relied upon the fact that there was no forensic evidence, that is no fingerprints or DNA, from the appellant on the car.

That was, in essence, the extent of the evidence on identity. Following speeches and the summing-up, the jury retired at 12.40pm to consider their verdicts, taking with them the exhibit bag with the grey hoodie. At 14.06 the parties were called into court and were told that the jury had sent a note. The trial judge entered court at 14.19. He read out the note which was in the following terms:

“On examination of the hoody, we identified mud marks consistent with falling into mud on the right cuff. Plus, the bag and hoody was previously not turned as the arms were inside out. On our check we found a bank card belonging to Miss Ellie May Faulds that we believe belongs to the partner of the Defendant.”

Counsel for the appellant immediately pointed out that the jury had not heard the full name of the appellant’s partner; the appellant had simply referred to his girlfriend as “Ellie” in his evidence. Counsel was given time to take instructions. Having done so, at 14.52 she applied to the judge to discharge the jury. She took the judge through the facts, noting that the hoodie had not been examined by the police and had not been served as evidence or referred to until the day of trial when it was produced. She took the judge to the relevant passage in Archbold, dealing with situations where inadmissible prejudicial material is inadvertently disclosed to the jury. She took the judge to R v Docherty [1999] 1 Cr App R(S) 274, which deals with the approach a judge should adopt in such circumstances to applications to discharge a jury. Counsel for the prosecution accepted that the hoodie had not been examined by the police when it was put into the exhibit bag. He made other submissions and he very fairly accepted that counsel for the appellant had properly addressed the judge as to the position on discharging the jury.

At that stage, it seems that the judge had not yet given his decision, or had not yet told the parties what his decision was on the application to discharge. The transcript records that there is a pause. The transcript then continues and has the judge saying this:

“The jury, having retired, I have now received information that they have reached verdicts. I do not intend to discharge this jury.”

The jury then returned and gave their verdicts convicting the appellant on each of two counts.

Ms Hazlitt, who represents the appellant as she did in the trial, identifies one principal ground of appeal, namely that the conviction is unsafe because the learned judge erred in failing to discharge the jury after a note from the jury indicated that they had received further evidence in the course of their deliberations by finding a hitherto undiscovered bank card within a hoodie. That ground is then developed by way of six subpoints.

In very helpful, focused and succinct submissions Ms Hazlitt developed the ground of appeal. She relied upon the decision of R v Davis (1976) 62 Cr App R 194 and R v Deny [2013] EWCA Crim 481. In essence, Ms Hazlitt submitted that this was a situation where there was new evidence, that is the bank card, and that had been introduced after the jury retired. That had given rise to unfairness as the appellant had not had the opportunity to deal with that material. One of the concerns surrounded the continuity of the material and there was a need to investigate those matters. Further, no directions were given to the jury about how to approach the evidence. She submitted that the judge should have told them to stop deliberations, then heard counsel and then reached a decision on whether or not to discharge the jury and, if not, to decide what directions should be given.

Mr Evans, on behalf of the prosecution, submitted that there was no new evidence introduced after the jury retired. The grey hoodie was an exhibit and the bank card, as a matter of fact, was within that exhibit. More significantly, he submitted that the conviction was not unsafe. The case depended on circumstantial evidence alone and there was no direct evidence and no identification evidence as the appellant as the driver. However, he took us through the circumstantial evidence, particularly the location of the defendant, the time at which he was there and the change in his story, as indicating that the evidence was such that the conviction was not unsafe. Further, he submitted there was no need for any new investigation into any new matter.

The question for this Court is whether the conviction is unsafe. The starting point for consideration of that issue is that evidence is not to be introduced into the case after the jury have retired, subject to certain exception which are not relevant in this case. The authority often cited for that proposition in R v Davis (1976) 62 Cr App R 194. There, copies of statements made by a witness were handed to the jury after they had retired. The jury had asked an usher for copies and the usher had obtained from the clerk and then provided them to the jury on his own initiative. At page 201, the Lord Chief Justice said this:

“The principle which arises out of this incident is one which is now well established, and it is that the jury may not when they have once retired to consider their verdict be given any additional evidence, any additional matter or material to assist them. They can come back and ask the judge to repeat for their benefit evidence which has been given, but they cannot come back and ask for anything new and the judge must not allow them to have anything new.”

In that case however, the Court considered that, whilst there had been a material irregularity on the facts of that case, no miscarriage of justice had actually occurred, reflecting the language of the statutory test in place at the time for determining whether to allow an appeal against conviction. The reason for that conclusion was that the witness had given evidence and counsel for the defence had put each and every line of the witness’s first and principal statement to that witness for comment. The jury had heard every word of that statement during the evidence. In those circumstances, the Court decided to refuse leave to appeal, as the giving of the witness statement to the jury could not have affected their verdict.

The position now is set out in R v Deny [2013] EWCA Crim 481. The appellant, Deny, was accused of conspiracy to supply drugs. Others said to be involved were Morten,Kirwan, and at the very end of the period of time covered by the conspiracy, Jason Payne. Mr Payne was alleged to be responsible for collecting the drugs for onward distribution. After the jury had retired to consider their verdicts, the jury sent a note to the judge saying that in one of the juror’s bundles there were two extra pages which were not in other jurors’ bundles. The note asked: should the pages be there, should they be ignored and could the judge clarify? The two pages in fact referred to two counts to which Payne pleaded guilty and which should have been removed from all of the jurors’ bundles but had not been removed from one of them. The judge discharged the jury from giving verdicts in relation to Payne. He declined to discharge the jury from giving verdicts in relation to Deny and the other two accused. He directed the jury that the allegations against Payne were completely irrelevant to their consideration of the case of any of the other defendants, that they had absolutely no bearing whatsoever against any of the other offenders, and the allegations should be completely ignored. Deny and the other two defendants were found guilty by the jury.

The Court referred to two other cases setting out the approach to material that has been improperly produced to the jury and stated that they would adopt those tests. The first test was taken from R v Thompson [2010] Cr App R(S) 27 and was expressed in the following terms:

“Just as it would in any other instance where it was satisfied that extraneous material had been introduced, the approach of this court is to make inquiries into the material. If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe … If the material does not affect the safety of the conviction, the appeal will fail.”

The second test was taken from R v Lawson [2007] 1 Cr App R 20 and is in the following terms:

“The ultimate question for the court in determining whether the judge correctly ruled against the appellants’ application to discharge the jury is whether, given the error he made and the steps he took to mitigate it, it is satisfied that the convictions are safe; Docherty. And, in determining that question in a case such as this of wrongly admitted prejudicial material the appropriate test for the trial judge is that identified in Docherty, namely as to ‘the most prejudicial interpretation’ and its possible effect on the jury.”

We propose to apply the approach set out in those two extracts in this case. First, we do regard the situation as one where in substance new evidence was introduced after the jury had retired. We note that the hoodie was an exhibit in the case. However, the bank card was in substance something quite different from the hoodie. The bank card itself was not referred to or adduced in evidence. It is not intrinsically linked to the hoodie. The fact is that the hoodie was not checked or examined by the police and the presence of the bank card had not been discovered - it was first discovered by the jury when they examined the exhibit. The situation was similar to Kaul,where items were found by the jury in a rucksack. The rucksack was an exhibit, and the items were inside the rucksack. The court however treated the items within the rucksack as new evidence. Similarly, we regard the bank card found within the hoodie by the jury to be or a in substance to be new evidence.

In the circumstances of this case, we do consider that the introduction of that material does result in the conviction being unsafe. We reach that conclusion for the following reasons. First, the sole issue in the case was whether the appellant was the driver of the car which was driven dangerously on 1 July 2022. Central to that issue was the fact that the driver was seen to be wearing a grey hoodie. A grey hoodie was found in the vicinity. If there was a bank card in the hoodie which belonged to the appellant’s partner, that would be a significant piece of evidence potentially linking the appellant to the hoodie and in turn to the car. The jury obviously considered the evidence important. They believed the name on the card was that of the appellant’s partner and they believed that it belonged to her. The evidence that was introduced therefore was significant and important evidence in the context of this case.

Secondly, the appellant had no opportunity to deal with that evidence. It emerged after the jury retired. The judge was considering submissions on discharging the jury and was in the process of giving his ruling on that application when it seems he was notified that the jury had reached a verdict. The appellant had no opportunity to address the evidence, its significance, whether it was in fact his partner’s card or to how or when it might have come to be in the hoodie or indeed in the exhibit bag. It may well be that the appellant would not have been able to give any explanation or any explanation that the jury would accept. However, as a matter of fairness, he was entitled to have the opportunity of addressing the issue and the absence of that opportunity, given the significance of the evidence, materially contributes to the conviction being unsafe.

Thirdly, the judge has no opportunity to give any direction at all as to the effect that the jury should ignore the bank card because it was not evidence in that case. We express no view as to whether or not any such direction would have affected the safety of the conviction. But the fact is that no such direction was given. That was the result of circumstances and timing. The bank card was discovered and a note sent by the jury. Counsel then had to have an opportunity to take instructions, then there was, quite properly, time taken hearing submissions on the application to discharge and, as the judge was giving his ruling, he appeared to have received a note that the jury had reached a verdict. There was no opportunity for the judge to give any directions about the new evidence before they reached their decision on guilt. It may well be, it is not necessary for us to express a view, that any harm had already been done. Certainly the note to the judge implied that the jury had considered that evidence and considered it significant.

For those reasons, we consider that the conviction is unsafe and must be quashed. The conviction for the offence of dangerous driving and the offence of aggravating vehicle taking will therefore both be quashed.