Shawn Runakl Delecia v R

On 21 January 2026, we refused leave to appeal to the Applicant. We now give our reasons.

On 03/03/2025 in the Crown Court at Southampton (His Honour Judge Nicholas Rowland) the Applicant (then aged 45) was convicted (by a majority of 10 to 2) of one count of Rape (Count 1).

On 21/03/2025 before the same court and judge, the Applicant was sentenced to 7 years 3 months’ imprisonment, with ancillary orders under the Sexual Offences Act 2003.

His application for leave to appeal against convictionhas been referred to the full court by the single judge.

Although the application principally concerns a development during the trial, it is necessary to summarise the evidence, to understand the nature of the case and the issue which arises. The facts can be summarised as follows.

On 16 April 2023 the complainant who was aged 17 at the time, was out with her sister and friends. The complainant had been drinking and was drunk. The relevant events took place outside a bar and a club called Buddha, in Southampton.

The complainant gave evidence. She had had a great deal to drink. Her sister agreed that the complainant was very drunk. At one point the sister tried to put her in an Uber to get her home. The complainant got in a taxi at 00:55, but shortly afterwards her sister received a notification on her phone that the journey had finished. The sister tried to call the complainant because she knew she could not have got home in that time, but she could not get through. The complainant said she remembered getting out of the Uber but did not remember much thereafter, until the point when she eventually got home. It was perhaps unsurprising that her evidence was patchy at best.

After getting out of the Uber, the complainant remained in the vicinity. She said she tried to find her sister but initially failed. At some stage the complainant called her sister and messaged a friend. She was saying that a man had told her that he knew where her sister was. It was acknowledged that was a reference to the Applicant.

A friend of the complainant gave evidence that the complainant had called her at around three or four in the morning. She sounded very drunk and was distressed and crying. She was slurring her words and repeating herself.

At some point, the Applicant approached the sister and asked her what she was doing. The complainant’s sister replied that she was looking for her sister. The Applicant told the sister that he knew where the complainant was, and they walked off together to find her. They parted shortly after, because the sister realised the Applicant did not in fact know where the complainant was. The sister did not see the Applicant again.

However, the complainant did see him, as the CCTV shows. They met again in the melee.

The complainant remembered a man asking her if she was on her period and saying ‘no’. It is not in issue that this was the Applicant. She remembered kissing the man, and saying ‘no’, but she did not remember what she was saying no to. She said she was 10 out of 10 on a scale of drunkenness. The next thing she remembered was sitting on the floor with her trousers down. She did not know why she had blood on her jeans or why her jeans and knickers were down. She vaguely remembered a couple taking her back to her sister.

After that the complainant and her sister got in another Uber together. The complainant was quiet and then whispered that she thought she had been raped. Her sister asked her to repeat it and she replied “it hurts down there”. They arrived at the sister’s house and noticed there was blood on the complainant’s jeans. The next day the complainant repeated that it ‘hurt down there’ and she thought she had been raped.

There was extensive video footage of the movements outside the bar and the club, which – once analysed – it was said would give the jury a clear view of the movements and the demeanour of the people involved.

CCTV evidence showed that when the complainant got out of the first cab, she spent much of her time leaning on a bin. At one point she moved towards the entrance to the club, where she leant on the railings. The Applicant was then seen to approach her and engage her in conversation. They were in company for 15 seconds before the Applicant pointed in an opposite direction to where he had earlier gone with the complainant’s sister, and he then directed the complainant away in a different direction, at the same time as her sister appeared back in the area.

The Applicant was identified from the CCTV and the identification he used to enter the club. He was interviewed on 22 May 2023 and gave a prepared statement in which he stated the sex between them was consensual. He was interviewed again on 3 October 2023, shown the CCTV and answered “no comment” to all questions asked.

The prosecution case was that the complainant was incapable of giving consent to sexual intercourse, and in the alternative, even if she had capacity to consent, she did not do so.

The defence case was that there had been sexual intercourse, but neither the complainant nor her sister were drunk. Intercourse had taken place but was consensual and the complainant was capable of giving consent. The Applicant had a conversation outside the club with the complainant’s sister and was told that the complainant had gone home. After some more movements outside the club, he went to enter the club when he noticed the complainant. She asked him to go somewhere to be alone and told him she found him really attractive. They took a few steps away from the club and started kissing. The complainant took “a little tumble” as they walked off (as shown in the video evidence), not because she was drunk, but because the ground slanted down. They went to an alleyway, and she pulled her trousers down and said ‘let’s do it’. He penetrated her from behind and then noticed blood. He asked her why she did not say she was on her period. She said she was not, but he lost his erection and stopped. He said he needed to go and wash himself off and they agreed to go to the club together after that. However, the complainant then left.

The Applicant’s argument for an appeal arises from a matter which came about after this evidence had been laid out before the jury and after the judge’s summing up.

The jury retired to consider their verdict on Friday 28 February 2025.

Later that day, as the jury were being re-assembled to be sent home for the weekend, the judge received a note. The judge indicated to counsel he had received a note and said in the presence of the jury he would deal with it on the coming Monday. The jury were provided with the usual directions not to discuss the case over the weekend and told they would be given further directions on Monday.

Once the jury had been sent home, the judge showed the note to counsel. It was from an identified juror, addressed to the judge, and it read:

“I don’t see anyone changing their mind, there’s split decision. We have had a week of evidence and there is not one point that makes it certain that rape has happened or not. I feel people are using their preconceptions. Noone is sure that he is guilty. People are saying guilty for the possibility. Please can you give us some guidance.”

The judge then spoke to counsel. The dialogue was brief:

“ HHJ Rowland: Before they retire again on Monday morning, I’m not proposing to read that note out, because I don’t know whether the others are party to the contents. But what I will say to them is it’s very important that before they resume their deliberations in their room, they should reread with care the legal directions that I’ve given them, and to consider the arguments that have been put forward on both sides. And once they do that, once they’re true to their oath or affirmation, they reach a true verdict.

Mr McElduff: Thank you.

HHJ Rowland: Anybody suggest I say anything else?

Ms Fairbairn: No, I don’t think so, Your Honour.

Mr McElduff: No, I don’t.

HHJ Rowland: No? Thank you very much”

Over the weekend, Mr McElduff clearly reconsidered. Counsel for the Applicant drafted representations, relying on the provisions of Criminal Practice Direction 8.7 of 2023 [PD 8.7], which deals with Jury Irregularity. The essence of the submission was laid out in para 8 of the defence Note:

“On the face of the note, the court is confronted with an alleged jury irregularity as one juror is asserting that other jurors (number unclear) are approaching the case on the basis of prejudice as opposed to in accordance with judicial direction. There is an obvious anxiety on behalf of the Defendant that the basis of the prejudice, whilst not fully articulated in the note, is racial prejudice. The jury are trying a case where the complainant’s ethnicity is the same as most of the jury and possibly none of the jury share the Defendant’s ethnic grouping.”

Mr McElduff also cited Momodou and Limani [2005] EWCA Crim 177; 2 CAR 6. In essence, he was arguing that the judge had an obligation to go farther than he had indicated, and make further enquiries of the author of the note, in order to undertake a “proper investigation of the allegation of prejudice”.

On Monday morning, as arranged, trial counsel were absent, due to prior commitments. Before the jury were called into court, the judge opened by indicating that he had read the defence written submission. He observed that Mr McElduff’s recollection of the text of the Note, when he cited “prejudice” as the word used, did not fit with the actual word “preconceptions”. Mr Harding then appearing for the Applicant submitted that further enquiry was needed, into what was meant by “preconceptions”, which he said could bear a range of meanings from the unimportant to something much more serious. Ms Fargin then appearing for the Crown indicated she would not object to that in the form of a question.

However the judge decided against that. He concluded that he had given a direction as to stereotypes and preconceptions, at the outset, and in his closing directions, and he would repeat that once more before they retired again. That is what he proceeded to do, reminding them firmly of their obligations as follows:

“At the beginning of the trial, you took an oath or affirmation to try this case on the evidence which has been presented to you by both sides, and then to return a true verdict according to the evidence. That’s your role in this case. And the way you do that is by applying the closing legal directions that I gave you on Thursday afternoon to the evidence which you’ve heard during the course of this trial.

And as you know, after the introduction, those legal directions start with the burden and standard of proof. It’s for the Prosecution to prove their case to you if they can, and they succeed in doing that by making you sure of guilt, nothing less than that will do. The possibility of guilt is not enough, nor is probability. And that’s the direction I gave you at the outset of this case so that you were aware of the Prosecution’s role in this case, and your role in response to that. So that’s the burden and standard of proof.

You know what it .. is that the Prosecution are required to prove, that’s the next section of my directions. Consent and reasonable belief in consent, the issues in the case. And again, I outlined that at the beginning of this trial. I’ve given you directions as to drink, the significance of that, direction as to what consent is, capacity to consent, reasonable belief in consent, directed you how to approach this case, in particular to avoid stereotypes.

Put aside any preconceptions that you may have, that’s a direction I gave you from the outset, it’s a vitally important direction, as are all the directions of law that I have given you………………. So because you’re resuming your deliberations now, what I direct you to do please is to reread those directions of law, because they are the anchor for your deliberation in this case. And by following those directions of law, which you must do, as a matter of law, you must follow those directions, in that way, you will reach a true verdict whatever it is. And each one of you then will be faithful to your oath or affirmation.

So that sets the scene for the resumption of your deliberations. So please go and reread those directions and apply those directions faithfully to all the evidence that you’ve heard in this case. Thank you all very much indeed…”

The sole ground of appeal advanced by counsel for the Applicant is that the conviction is unsafe “due to the judge’s failure to undertake any enquiry, as proposed by Counsel or at all, regarding a potential jury irregularity.” It is said the Note was unequivocal in suggesting prejudice on the part of the jurors, almost certainly racial prejudice. It is said the terms of the Note were such that a clear obligation arose for the judge to conduct an enquiry. Mr McElduff argues that the terms of the Practice Direction, particularly PD 8.7.14, mean that an enquiry was mandatory. The learned judge provided no clear reasoning as to why he concluded it was not mandatory. This failure would lead any fair-minded and impartial observer to conclude that there was a real possibility that the jury or jurors may be biased. The lack of investigation renders the conviction unsafe.

The Crown argue that the course taken by the judge was proper. Ms Fairbairn emphasises that the Note in question was not on its face any kind of unequivocal indication of prejudice or of a failure to carry out the duty of a jury on the evidence and in accordance with the law. “Preconceptions” in this context might refer to the assumptions about the behaviour of women affected by excess alcohol intake.

The Crown submit that the judge proceeded properly following the sequence in the Practice Direction. They also argue that the Practice Direction lends structure to the approach to be taken, but the decision in such cases is an exercise for discretion by the trial judge. He exercised his discretion properly on the facts before him.

Crim PD8.7 is an essential tool for the judge faced with a possible jury irregularity, assisting good decision making. However it is to be understood as providing structure and guidance for the court’s approach, not a straitjacket on decisions.

PD 8.7.1 defines a jury irregularity as “anything that may prevent one or more jurors from remaining faithful to their oath or affirmation” . Where a judge “becomes aware of a jury irregularity” then the judge “must” follow the procedures set out in PD 8.7.5, set out in a series of Steps:

“8.7.5

When the judge becomes aware of a jury irregularity, the judge must follow the procedure set out below:

STEP 1: Consider isolating juror(s)

STEP 2: Consult with advocates

STEP 3: Consider appropriate provisional measures

STEP 4: Seek to establish basic facts of jury irregularity

STEP 5: Further consult with advocates

STEP 6: Decide what to do in relation to conduct of trial

STEP 7: Consider ancillary matters (contempt in face of court and/or commission of criminal offence)”

The first step is the awareness of a jury irregularity, and that in itself may be a question of degree and of judgement. In many cases, as we find to be the case here with this juror’s Note, the trigger for concern will not be unequivocal as amounting to a jury irregularity. It may cause some concern, but may well not mean that the jury will be prevented from reaching a proper conclusion. The steps in the procedure are there to help the court address the risk in a structured fashion.

Here, although the judge made no explicit reference to the Practice Direction, the first steps in the sequence indicated in PD 8.7.5 were in fact carried out. The jury were separating when the Note came to attention of the court – they were going home for the weekend, and the judge warned them not to speak about or return to the case until they re-assembled on Monday morning. They were in effect isolated from each other.

Then he drew the attention of counsel to the Note and showed it to them, indicating his view of what action was appropriate. There were no submissions at that point. Then the judge read the written submissions from the defence before court opened on Monday morning and gave a further opportunity to counsel at that point, before indicating or affirming the way he intended to approach the matter.

The judge clearly concluded that he knew sufficient about the position with the jury – the “basic facts” – so as to determine what was the best way of responding. He considered that a clear repeated direction would mean that the jury would be capable of reaching a decision consistent with their oaths or affirmations. The law is clear that this is a matter for the judge.

Many of the authorities emphasise the judge’s discretion in addressing such questions. We understand the term “discretion” used in this context, as in many others, not to mean that the trial judge has an open choice according to his own inclination, but to mean that the trial judge must exercise care and judgment in his or her decision, and is best placed to do so.

There are strong reasons for not invading the confidentiality of the jury process unless it is essential to do so: see Ellis v Deheer [1922] 2 KB 113 at p121, and Smith and Mercieca [2005] UKHL 12, in particular the speech of Lord Carswell emphasising the need to maintain “the sanctity of the jury’s deliberations so that its members will continue to feel confident that they can discuss the issues in the case before them with complete candour”. [7]

In the more recent case of Saad Essa [2023] EWCA Crim 608 this court re-stated :

“There is a long-established common law principle that jury discussions must remain confidential and that no enquiry may be made into jury deliberations and that evidence as to those deliberations is inadmissible. To that principle there are only two narrow exceptions: first, where there has been a complete repudiation by the jury of their oath to try the case according to the evidence, for example if a jury were to reach its verdict by tossing a coin; and secondly, where extraneous material, not the subject of evidence adduced during the trial, has been introduced into the jury’s deliberations” [26].

Hence, the reasons for a cautious approach here are real and have been recently re-stated.

Even where there exists a strong indication of difficulty within a jury, there is no unequivocal obligation on the judge to intervene by way of enquiry. In Smith and Mercieca (supra) the House of Lords were asked the following certified question:

“When a member of the jury sends to the trial judge in the course [of a trial a letter criticising the conduct] of other members of the jury in terms that suggest, or might arguably suggest, bias on their part, and it is accepted that the letter has been written in good faith, is the judge obliged as a matter of law (whether by the application of the opinions of their Lordships in R v Mirza [2004] 2 WLR 201 or otherwise) to question the members of the jury about the criticisms before deciding that the delivery of lawful and unbiased verdicts by the jury can be achieved by the giving of a further direction rather than by discharging the jury?”[15]

The answer was no such obligation to question the juror or jurors arose [27].

In the leading case of Momodou [2005] EWCA Crim 177, Judge LJ emphasised the judge’s discretion in the following terms:

“[94]…the analysis of these decisions in the House of Lords, and the judgments in Mirza itself, lead us to conclude that the exercise of the trial judge's discretion to discharge an individual juror or the entire jury for impropriety, requires him to address the question whether impropriety has in fact occurred, and if it has, whether it can be cured, and if so how, or whether it is irremediable. This is a case specific decision. ”

In R v KK [2019] EWCA Crim 1634, this court emphasised a similar approach:

“It is at all events to be noted that, whilst the Practice Direction specifies the seven steps which are to be followed when a jury irregularity is revealed the Practice Direction is relatively open-ended as to the way in which the judge goes through those steps. Thus the language frequently is directed at what the judge should "consider" or what the judge "may" do. The language thus is – consistently with previously decided authorities – geared towards discretion rather than prescription.

This is as it should be. The Practice Direction is aimed at jury irregularities in general terms. But, whilst the seven steps are ordinarily to be followed in each case, how best to follow them must necessarily depend on the facts and circumstances of each case. Moreover, the very nature of the irregularity in each case, and the stage at which it occurs, will necessarily impact on the judge's consideration of what to do by reference to each step and on his decision at each step and on his ultimate conclusion. Thus, a different appraisal may follow depending on whether, for instance, there is a suggestion of jury intimidation or tampering or whether there is a suggestion of internal friction or bullying or whether more than one juror is involved in the irregularity: and so on. In short, therefore, the judge, whilst required to have regard to the Practice Direction, has a discretion as to what best to do, a discretion which is to be exercised by reference to the facts and circumstances of the individual case: provided always that prime regard throughout is had as to the impact of the irregularity on the fairness of the trial.”

Was it a proper exercise of discretion, or perhaps what is better expressed as judgement, not to segregate and question this juror?

As the House of Lords emphasised in Porter and Magill [2002] 2 AC 357 [2001] UKHL 67, the question is whether there is a real possibility or risk that the tribunal in question, in this case a jury, is biassed, and will be unable to reach a proper conclusion in accordance with their duty and their oath or affirmation. This is not always a black and white question. In many of the reported cases, the position was much more stark than are the facts here. In Momodou for example, there was a clear suggestion of prejudice and discriminatory feeling, indicating that jurors could not adhere to their obligations. So too in Cepe [2025] EWCA Crim 1634, the individual juror concerned had drawn attention to themselves by unusual and worrying behaviour throughout the trial, and then had been the subject of specific and direct concern from another juror, so that there was a clear risk that the juror concerned would not apply the law as the judge had directed them.

In this case, we consider that the risks arising from the juror’s concern were much less stark. We understand that the defence were concerned by the term “preconceptions”, but in this context the meaning of that term is far from clear. The term would usually arise here in the need to avoid preconceptions as to the implications for consent where the complainant of rape was heavily intoxicated. The term might have been used to mean “prejudice” but there is no necessity or even probability that was so.

The context is also important. This was one juror, at the end of a hard week, concerned and perhaps under strain, and commenting on the whole jury. She herself evinced no evidence of prejudice. The principal request at the end of her note was for clear direction from the judge. That was what she and her fellow jury members duly got. We consider this was well within the discretion or exercise of judgment by the trial judge. There was no irregularity in the trial and no basis for concluding this conviction was unsafe.

For those reasons, the application for leave to appeal has been dismissed. Because of the issues raised, we certify that this decision may be cited and reported.