R v Ashley Boyce

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

This is an appeal against conviction following the grant of leave to appeal on certain grounds by the full court on 19 February 2026. The full court also granted an extension of time for the filing of the Appellant's Notice.

On 18 August 2023 at Snaresbrook Crown Court, following a trial before Her Honour Judge Kamill and a jury, the Appellant was convicted of one count of rape, three counts of causing a person to engage in sexual activity without consent, one count of assault occasioning actual bodily harm, one count of possessing a prohibited air weapon, one count of possessing a firearm with intent to cause fear of violence, one count of threats to kill, and one count of controlling a child aged 13-17 who was subject to sexual exploitation. He was acquitted of two further counts: one of false imprisonment and one of causing a person to engage in sexual activity without consent. The jury could not agree on three further counts of rape, and these were ordered to lie on the file.

On 8 December 2023, the Appellant was sentenced to an extended sentence of 23 years for the rape, comprising a custodial term of 18 years and an extension period of 5 years. Concurrent sentences were imposed for the other offences. Ancillary orders were made which it is not necessary to set out here.

A co-defendant, Victoria Bailey, was found guilty of arranging or facilitating sexual exploitation of a child, contrary to section 50 of the Sexual Offences Act 2003, and was sentenced to 2 years' imprisonment, suspended for 24 months.

Leave to appeal was granted for two grounds of appeal. They are both concerned with the way in which the trial judge dealt with concerns that were raised about friction between jury members.

Ground 1 is that “the judge misdirected herself on how she ought to have dealt with a serious jury irregularity, involving a serious altercation between certain jurors during deliberations, and withholding a jury note of those events, which she later claimed led her to the conclusion that the jury was unable to function.”

Ground 2 is that the judge fell into error in her earlier refusal to direct an appropriate investigation, following disclosure of a note from the clerk and usher reporting an earlier incident at the same time, due to ‘a lack of time’.

The Appellant's leading counsel, Mr Cross, was asked to particularise the failures of the judge in relation to the jury issues and responded as follows:

The full Court refused leave to appeal in relation to three other grounds put forward by the appellant. These were:

In light of the nature of the remaining grounds of appeal, it is not necessary to provide a detailed review of the nature of the case against the appellant or about the evidence in the case. In short, the prosecution case was that the appellant had lured a girl aged 17 (C1) into the home address of Ms Bailey in Romford and had kept her there against her will, then drugged her with MDMA and cocaine, raped her, forced her to perform sexual services on various men, threatened her with violence and a firearm, and assaulted her. The defendants were alleged to have taken C1 and another girl, C2 (aged 15) to Primark to obtain clothing which was to be used in their scheme to offer C1 as a sex worker. The rape of which the appellant was convicted was alleged to have taken place on the communal landing of the housing block where Ms Bailey lived.

The complainants each gave evidence. The defendants challenged this evidence and they were cross-examined. Both of the defendants gave evidence at trial. Their case was that the complainants had concocted the allegations to cover up the fact that they had been taking drugs and, in C1's case, dealt drugs. The Appellant said that C1 and C2 had stayed with Ms Bailey voluntarily, having claimed to be homeless. The Appellant denied that he had sex with C1 or had forced her to perform any sexual services on anyone else. He denied that he had threatened or used violence towards the complainants or that they had been prevented from leaving the property.

Ms Bailey gave evidence that was adverse to the appellant, in that she claimed that she had seen him attack C1 in the way described by her and that C2 had told her that the appellant had asked her for sex.

The trial lasted for approximately 3½ weeks. The summing-up on the facts commenced at 11.17 am on Wednesday 16 August 2023. At 3.15 pm, the jury retired to consider its verdicts. Within about half-an-hour, the judge was told by court staff that there had been an altercation between jury members and that the jury had indicated that they wanted to go home for that evening. At 3.50 pm the jury was returned to court in order to be sent home for the night. The judge told the jury:

No jury note was received on the afternoon of 16 August 2023, but the judge was provided with notes from the jury bailiffs, who were the usher, Mr Terry Doherty, and the court clerk, Ms Kareema Dhuny.

The jury bailiff’s note said:

On the following morning, Thursday 17 August 2023, before the jury came into court, the judge disclosed the contents of the notes from the jury bailiff and court clerk to counsel. Prosecuting counsel, Mr Paul Evans, observed that it was likely that the jury had had a long and tiring day the day before, but he invited the judge to ask the jury to retire and carry on with their deliberations, on the basis that the court could then see what develops as between the jury and the conclusions that they reached in relation to the verdict. For the Appellant, his junior counsel, Mr Payne, agreed with this approach. He said that the juryare plainly here to exchange views and sometimes that is in a robust way. He pointed out that (so far as he was aware) the jury had not sent a note, either the preceding afternoon or that morning. Counsel for Ms Bailey, Ms Tayo, at first agreed that the jury should be sent out to continue with their deliberations, on the basis that things may have calmed down.

However, in the next few minutes whilst the court was waiting for the jury to come into court, counsel checked the relevant passage in Archbold, paragraph 4-309, and jointly prepared some questions which they asked the judge to put to the jury. These were:

The judge declined to ask these questions of the jury. She informed counsel that she had received a note from a juror that morning, though she did not immediately read the note out. This note said:

The judge said that the problem with the jury, so far as she understood, was about character, a clash of character, rather than about the trial itself. She said that she would not make further enquiries of the staff, and that what she proposed to do, in accordance with the guidance in the Crown Court Compendium, was to tell them to respect each other's opinion, and then, if there was any further trouble, the court would deal with it. The judge said that the jury was made up of every race, religion, sex, age and everything and sometimes people do not get on.

Counsel did not press any further the proposal that the jury be asked questions.

At 11.01 am, the jury was brought back into court and the judge addressed the following remarks to them:

The jury then retired to continue its deliberations. At that point, the judge told counsel the gist of the jury note, namely that one of the jurors had been called a number of names by one of the other jurors and really unpleasant names, and the juror had written to the judge to say how uncomfortable it had made her. The judge said that they would just have to see if it continues. Counsel did not make any further submissions at that stage.

At 3.39 pm on 17 August 2023, the jury returned with verdicts on some of the counts. These were unanimous. They found the appellant guilty on Count 5, Count 8, Count 9, Count 11, Count 12 and Count 13. Counts 5, 8 and 9 were counts of causing a person to engage in sexual activity without consent; Count 11 was a count of assault occasioning actual bodily harm; Count 12 was a count of possessing a prohibited firearm; and Count 13 was a count of possessing a firearm with intent to cause fear of violence.

The jury was then sent out to continue deliberating on the remaining counts. During the course of the day, the judge received jury notes which were not about friction amongst the jurors. One note mentioned that a juror had an appointment the following day and one queried whether the jury would be required to sit the following week. The judge discussed these notes with counsel.

The court adjourned at 3.54 pm and resumed at 4.39 pm. In the meantime, the judge received two notes from the jury. One note pointed out that the judge's legal directions did not include any directions on Count 14. The other note was from the same juror who had sent a note in the morning. It was timed at 4.45 pm, but this timing must be incorrect as the court resumed to deal with it at 4.39 pm. The note, which was signed, said:

The judge called counsel into court in the absence of the jury. She said:

Ms Tayo, counsel for Ms Bailey, invited the judge to refer to the section in Archbold that she had referred to that morning, at paragraph 4-309. The judge read it and said that the position was that the jury would work without this person but will not work with this person and so she was going to discharge the juror.

Mr Payne made submissions on behalf of the Appellant, in the absence of Mr Cross. He said that they were concerned that what was proposed by the judge appeared initially to be an attractive proposition, but that where a dispute arises because of different views the jury have of the evidence, it would be an undesirable and maybe even an incorrect approach to discharge a person with a minority view in order to achieve a collective agreement.

The judge said that she did not believe that this was the situation facing the court. Rather, it was "entirely personality".

Mr Payne then said:

The jury was brought back into court at 4.46 pm. The judge said the following to the jury:

The jury were then sent out of court to have a discussion. For the Appellant, Mr Payne then expressed his objections to the course of action that the judge had taken. He said:

The judge said that she would give counsel the opportunity to read the most recent jury note and said that counsel could tell her their position the following morning. Though the transcript does not record that the two letters from the juror complaining about Juror 3 were read by the judge to counsel, it is clear from the Respondent's Notice that they were shown the notes and that it must have happened at some point during the late afternoon of 17 August 2023. Mr Evans, who was counsel for the Prosecution, recalls that the contents of the note were disclosed to counsel, and this is corroborated by the fact that his contemporaneous trial note contains a note of their contents (including the bad language and threats from juror number 3).

The jury bailiff then came into court and said that he had spoken to the jury and they wanted the relevant juror, Juror 3, dismissed because he was causing problems. The jury bailiff said that that this was the collective view of the remaining eleven jurors and that he would tell them to put it in writing.

At this point Ms Tayo, counsel for Ms Bailey, interjected to invite the judge to look at Archbold, paragraph 4-308, which sets out the step-by-step process to be used where there are jury irregularities. The judge observed that one of the steps was to consider appropriate provisional measures but there was no time to do that.

The jury then wrote a note to the judge dated 4.55 pm, which said:

The judge re-called the jury into court at about 4.55 pm. She said:

The following morning, Friday 18 August 2023, the judge gave directions to the jury on Count 14 (threats to kill), which had been inadvertently omitted when the legal directions were originally given. The jury then retired to continue its deliberations. At 11.59 the jury sent a question about an aspect of the evidence related to Count 14. The judge dealt with it after consulting with counsel.

At 12.03 pm the jury returned a further verdict of guilty on count 3, rape, and the judge then dealt with the question about Count 14. At 12.24 the jury returned a verdict of guilty on Count 14, threats to kill. At 2.12 pm, the jury returned a verdict of not guilty on Count 2, not guilty on Count 10 and guilty on Count 15. The jury also sent a note, asking for a transcript of C1's interview at the police station but were told they could not have it. The jury sent a further note, asking for clarification on an aspect of the evidence. At 3.20 pm, the jury was given a majority direction in relation to the remaining counts concerning the appellant and a count relating to Ms Bailey. At 3.38 pm, the jury found Ms Bailey guilty, by a 10-1 majority, but had not reached agreement on the remaining three counts against the appellant, Counts 4, 6 and 7. The foreperson of the jury was asked if there was any prospect of verdicts being obtained in relation to those counts and indicated that there was none. The judge therefore discharged the jury from returning verdicts in relation to those remaining counts.

The essence of the grounds relied upon by the Appellant is that the Appellant's conviction was unsafe because the judge did not properly follow the steps set out in the Crim PD 8.7 which are designed to ensure that verdicts are not tainted by unfairness as a result of jury irregularities. In particular it was submitted that:

It was submitted that as a result of these errors and the cumulative effect of them, the judge failed properly to consider whether any further step should have been taken in relation to the jury to safeguard the integrity of their deliberations and/or failed properly to consider whether the jury's deliberations should be stopped because there was an unacceptable risk that the jury might be biased or that the defendants could not receive a fair trial.

Crim PD 8.7 deals with jury irregularities.

Paragraph 8.7.1 states that "A jury irregularity is anything that may prevent one or more jurors from remaining faithful to their oath or affirmation".

Paragraph 8.7.3 states that "The primary concern of the judge should be the impact on the trial".

Paragraph 8.7.4 states that "A jury irregularity should be drawn to the attention of the judge in the absence of the jury as soon as it becomes known. The judge should obtain, where possible, a written record of the matter that has been raised."

Paragraph 8.7.5 summarises the procedure that a judge must follow when she or he becomes aware of a jury irregularity. These are:

Further detailed guidance is provided in paragraphs 8.7.6 - 8.7.35.

So far as Step 1 is concerned, paragraph 8.7.6 states that the judge must consider, where two or more jurors are concerned, whether they should also be isolated from each other, particularly if one juror has made an accusation against another.

As for Step 4, paragraph 8.7.14 states that the judge’s enquiries may involve having the juror(s) concerned write a note of explanation and/or questioning the juror in the absence of the other jurors unless there is a good reason not to do so. The judge may enquire whether the juror(s) feel able to continue and remain faithful to their oath or affirmation. However, where there are circumstances internal to the jury, such as friction between members, the whole of the jury should be questioned in open court as to their capacity to continue.

Following these investigations, paragraph 8.7.16 states that the judge should further consult with counsel.

As for Step 6, paragraph 8.7.20 states that there are three options open to the judge: the first is to take no action and to continue with the trial; the second is to discharge the juror concerned; and the third is to discharge the entire jury. Whichever course of action is taken, the judge must consider what if anything to say to the jury.

The authorities make clear that the trial judge has a discretion regarding how to proceed in the face of a potential jury irregularity. However, in a recent judgment of this Court in Shawn Runakl Delecia [2026] EWCA Crim 42 at [37] the Court said:

The nature of the potential jury irregularity and the manner in which it may come to light will differ from case to case, and so the way that a judge should proceed whilst remaining true to the requirements of Part 8.7 of the Crim PD will be case-specific. In KK [2019] EWCA Crim 1634, this Court said, at [31]:

At paragraphs [80] and [81] of KK, the Court said:

Though there are two grounds of appeal, they are closely interrelated and can be considered together.

The possibility that there might be difficulties with the jury's deliberations first came to light in the late afternoon of 16 August 2023, not long after the jury had retired to consider its verdicts. At that stage, as soon as it became clear to the jury bailiff that an altercation was taking place, he isolated the juror who appeared to be at the heart of it and then told the jurors to stop deliberating. The judge immediately sent the jurors home. As they were separating for the night, there was no need to consider isolating anyone else. She obtained written statements from the jury bailiffs. She then raised the matter with counsel first thing the next morning and informed them what the jury bailiffs had said. This was wholly in accordance with Steps 1-4 of Crim PD 8.7.

The following morning, after consulting with counsel, the judge decided that the best course of action was to give guidance to the jury in open court about continuing its deliberations in a positive and co-operative manner whilst avoiding friction and then to send out the jury to continue its deliberations. In our judgment this was well within the scope of the judge's discretion and was consistent with the spirit and the letter of Crim PD 8.7. It is true that by this stage the judge had received the note from the juror who complained that juror number 3 had been abusive to her and had threatened her with violence. It is also true that all counsel had invited her to ask questions of the jurors before going any further. However, the judge was not bound to accept the submissions of counsel, and it was open to her to decide that the note from the jury bailiffs and the single juror was sufficient to establish the basic facts, and it was also open to her to decide that the best course of action was to invite the jury to continue with their deliberations in the hope that the jurors had cooled off overnight and that each of the jurors would take on board the guidance she had given about deliberating in a positive and cooperative manner. The case was a serious one and had lasted several weeks. The complainants were young and vulnerable, and the judge was no doubt keen to keep a full complement of jury members for as long as possible, and to avoid a situation in which the jury had to be discharged, if at all possible. There was still a real chance that the difficulties that had been encountered the day before would evaporate. Significantly, there had been no allegation of jury bias and no suggestion that the altercation arose because one or more of the jurors was failing in their duty to consider the evidence in an appropriate manner. It might have been better if the judge had read the exact text of the juror's note to counsel before she gave guidance to the jurors and sent them out to continue their deliberations, but she had given them the gist of its contents and counsel were in a position to make submissions about the best way to proceed. She gave more detailed information about the contents of the note immediately after the jury left court.

We do not accept that the judge rushed the matter inappropriately on the late afternoon of 17 August 2023. She made enquiries of the jury and received a clear response that the jury felt that it could deliberate in a much more safe and secure environment without juror number 3 before she discharged that juror.

Whilst the judge did not refer specifically at any stage to Crim PR r.8.7, she did refer to the guidance in the Crown Court Compendium and said that she proposed to follow it. It is clear from the context that this was a reference to the part of the Compendium which deals with jury irregularities and which makes clear that judges should follow Crim PR r.8.7. She was also referred specifically to the part of Archbold which sets out Crim PR r.8.7.

In the event, the jury was, later that day, then able to return unanimous verdicts on six counts against the appellant. Not long afterwards however, the judge received a second note from the juror who had complained about juror 3 the day before. She said that this behaviour had continued in the same manner, and the juror had threatened to beat her up outside court. The judge consulted with counsel. It appears that the judge, who was very experienced, had already reached a preliminary view that she had to discharge juror number 3, but she nonetheless consulted with and took account of the views of counsel. No question of isolating the juror arose because the judge intended to act immediately by discharging him. The judge complied with Step 4 by calling the jury into court and by asking the jury to state whether they felt able to proceed as a jury of twelve. The jury bailiff then passed on the message that the jury wanted juror number 3 to be discharged, and this was followed up by a jury note which said that the jury wanted this to happen so that the jury could deliberate in a much more safe and secure environment. It was clear therefore that the reason for the friction amongst the jurors was that one juror was behaving in a way that was threatening to the other jurors. It was also clear from the jury's response to the observations of the judge in open court that the issue was not simply disagreements about the facts or about the verdicts but was the result of a clash of personalities. In our judgment the judge was plainly right to discharge juror number 3 rather than to discharge the whole jury, given that there was no reason to think that the problem was anything more than inappropriate and threatening conduct on the part of one juror. There was no suggestion of bias or that the jurors had fallen out because they had different views about the case. This was borne out by the fact that the jury had been able to return unanimous verdicts on five counts despite the friction. It was also borne out by the fact that the friction with juror 3 started within a very few minutes of the jury retirement. Given the length of the trial, it would not have been in the interests of the defendants or the complainants to discharge the jury altogether, thereby necessitating a retrial. It was not a realistic option to continue with a twelve-member jury including juror 3. As we have said, we do not consider that the judge rushed her decision in any improper way.

For these reasons, we conclude that the way in which the judge dealt with friction amongst the jurors did not render the appellant's convictions unsafe. For these reasons, the appeal is dismissed.