Rosa Hicks & Ors v R

This is an application for leave to appeal against conviction, with a direction that if leave is given the appeal will also be dealt with. The applications have been referred to the full court by the Registrar. All five appellants rely on ground 1. The self-representing appellants rely on four further grounds, grounds 2, 3, 5, and 6. Ground 4 was abandoned during the hearing on 12 May 2026 by Mr Beard, speaking on behalf of Mr O’Callaghan and Ms Davidson as well as himself. Very sensibly, they had agreed that they would divide the oral representations, so that Mr Beard dealt with ground 1, Ms Davidson with grounds 5 and 3, and Mr O’Callaghan with grounds 6 and 2. We heard those representations in that order, after hearing from Ms Scott KC who argued ground 1 on behalf of Ms Hicks and Ms Schafer. In those circumstances, we accept the abandonment of ground 4 on behalf of all three self-representing appellants and will say no more about it.

There is an application for leave to rely on fresh evidence under section 23 of the Criminal Appeal Act 1968. This relates principally to the conduct of a juror, whom we will call “Juror 5” in the course of the deliberations of the jury. The evidence comes from another juror, “Juror 4”, and from the results of an investigation following receipt of Juror 4’s complaint by the police.

On 20^th March 2025 in the Crown Court at Isleworth (Her Honour Judge Hannah Duncan), the appellants were each convicted (by a majority of 11 to 1) of a single count of Conspiracy to Cause a Public Nuisance, contrary to s.1(1) of the Criminal Law Act 1977. On 16^th May 2025, before the same court and judge, the applicants were sentenced as follows (Surcharge Orders of £187 in were made in each case):

In total, ten defendants were on the indictment. In addition to the five appellants, three others were also convicted of the same count at the trial, one was acquitted, and 1, Rory Wilson, had pleaded guilty before the trial. He was sentenced at the same time as the appellants, after the trial, to 10 months imprisonment, less 35 days spent on qualifying curfew.

The appellants, and the others on the indictment, were prosecuted for their parts in an attempt to penetrate the fence at Heathrow Airport in order to further the cause of an organisation to which they belonged, namely Just Stop Oil. Seven of the ten defendants on the indictment, in two separate groups, were stopped and arrested by police close to the perimeter fence at the northern border of the airport at approximately 9am on 24 July 2024. The first group consisted of the appellants Sean O’Callaghan, Adam Beard and Rory Wilson. The second group consisted of the appellants Sally Davidson and Hannah Schafer together with Luke Watson and Luke Elson (who were convicted at trial and who have not appealed). Both groups had travelled to a house in Wraysbury near the airport on 22 July 2024, at which they stayed until the morning of 24 July 2024.

The remaining three defendants, who were not arrested with the two groups at the perimeter, were arrested a short time later. Julia Mercer, the one who was acquitted at the trial, and William Goldring, who was convicted by a majority of 10-2, and who has not appealed, were both arrested at the house in Wraysbury. The appellant Rosa Hicks was arrested on a canal boat in Tottenham Marshes owned by Luke Watson.

Those arrested at the perimeter to the airport carried rucksacks containing items including angle grinders, safety glasses, orange high visibility vests, super glue, cable ties and ear plugs or defenders. They also had written statements with them in which they all explained that each statement-maker would not set foot within the airport perimeter until a 999 call had been made, that they would not approach any runways or any aeroplanes, and that they would act non-violently at all times.

Following the arrests, the police seized an electronic device which enabled them to access messages on the electronic communications application ‘Signal’ between the group who were on trial. These messages were said to be highly probative of the conspiracy alleged.

The prosecution case was that those arrested at the perimeter had intended to cut through the fence, enter the grounds of the airport unlawfully and to disrupt the activities of the airport. It was the prosecution case that they had intended to then attach themselves to objects, whether the tarmac on the taxiways or runways, the airplanes themselves, or even structures around the airport, thereby causing considerable disruption to the business of the airport and travellers using it. The prosecution relied on the possession on arrest of equipment, identified in summary above, whose purpose was enable this to be done. It was the prosecution case that they wanted to do this as they were all members of ‘Just Stop Oil’, an environmental activist group committed to persuading the British government to end the United Kingdom’s reliance on fossil fuels.

The defence case was that they expected to be arrested before they got through the fence or immediately after and to be prevented from causing any serious disruption. They said that they wanted to be arrested so that there would be extensive publicity in which what they say is accurate information about the climate emergency would be communicated to the public through national media organisations. They wished to point to reports which actually appeared after their arrests as evidence that this was a realistic expectation which supported their evidence that this is what they genuinely expected and wanted to happen.

Ground 1, common to all appellants complains that the convictions are unsafe because Juror 5 conducted research into the case on the internet which created a risk that he was biased by it and which he shared with the rest of the jury. We will deal with this after we have dealt with the applications for leave to appeal on Grounds 2, 3, 5, and 6.

These Grounds are relied upon by each of the self-representing appellants, and we will set them out in their words.

Ground 2 - The appellants were given less than half a working day to make the practical arrangements for attending the trial in London, causing substantial prejudice to the self-represented defendants in particular. The case was originally listed as a 6 week trial to begin on 20 January 2025. The appellants, who are located across different areas, had to make practical arrangements to attend trial, including arrangements concerning employment, healthcare and accommodation in London. On 16 January, just days before the trial was due to start, the appellants were summoned to court to be told the trial would be adjourned because of lack of court sitting days, leading to the appellants cancelling the practical arrangements that had been made. Subsequently, on Friday 24 January the court ruled the trial would begin on Monday 27 January, leaving the appellants with just half a working day to remake the arrangements they had seven days previously unmade, resulting in substantial financial loss, distress and confusion. Such a process was inconsistent with the ECHR Article 6 right to a fair trial.

Ground 3 - Prejudicial police conduct, including in front of the jury. The police wrongly arrested one of the appellants, Sally Davidson, mid-trial, apparently as a result of a confusion over her bail conditions and needlessly arrested a friend of the appellants, who had been sitting in the public gallery, at court and in sight of one of the jurors, with two further jurors later being given an account of the scene from the witnessing juror. Although the trial judge was highly critical of the police conduct, she wrongly refused a defence application to discharge the jury on the basis that jury could be directed that the matter was nothing to do with the appellants (a direction which would not have been convincing). These matters caused substantial prejudice to the appellants, including by affecting the demeanour and composure of the appellants in ways that were open to misinterpretation by the jury.

Ground 5 - Despite the prosecutor giving a misleading description to the jury of the media coverage resulting from the action, the judge wrongly informed the jury that the prosecutor was incapable of saying anything misleading in consequence of his professional code of conduct. It was common ground between the prosecution and the appellants that the appellants’ objective was to generate media coverage regarding the climate emergency. It is a matter of record that despite causing no disruption, the appellants’ actions featured in the media more than 2,000 times over two days, with headlines across the national and international press, but the judge refused to allow the content of this material to be shown to the jury. In his closing speech the prosecutor falsely characterised this coverage as ‘a sidebar in the Daily Mail’. Because the jury had not seen the media coverage for themselves, this false characterisation had additional potency. After the appellants described the prosecutor’s characterisation as misleading, the judge told the jury that the prosecutor could not be misleading because his professional code of conduct prevented him from acting in a way that was misleading. The prosecutor’s characterisation of the media coverage was false and misleading. The judge was wrong to direct the jury otherwise, attributing the ‘error’ to the appellants’ ‘inexperience’.

Ground 6 - the judge was wrong to imply that the existence of a climate emergency is a matter of opinion, in contradiction to the Agreed Facts in the case. There were a number of Agreed Facts between the prosecution and the appellants concerning the climate emergency to the effect that: i) the Government is aware it represents an existential threat to humanity; ii) that preventing catastrophic and irreversible harm depends on limiting warming to 1.5˚C, and that iii) it is predicted that that limit will be permanently breached by 2030. It was relevant to the credibility of the appellants that their actions were motivated by a scientifically recognised state of emergency, rather than personal opinion or belief. The judge was wrong to imply to the jury that the existence of a climate emergency was a matter of opinion, in contradiction of the agreed evidence in the case.

The prosecution response to Grounds 2, 3, 5, and 6 is set out in their Skeleton Argument and Mr Jarvis KC did not seek to add anything in his oral submissions. This written response is in these terms:-

Ground 2. The self-representing Applicants submit that their convictions are unsafe because HHJ Duncan gave them less than half a working day to make practical arrangements to attend their trial in London. Even if that is true, it does not affect the safety of the convictions that were returned many weeks later.

Ground 3. The self-representing Applicants submit that HHJ Duncan was wrong to allow the trial to continue despite what is described by them as prejudicial police conduct. The prosecution submit that the judge dealt with this development entirely appropriately. She checked to see which jurors had witnessed the arrest on court premises and confirmed that any jurors who had seen it were able to continue to participate in the trial.

Ground 5. The self-representing Applicants submit HHJ Duncan was wrong to allow the jury to be misled concerning the media coverage of their actions. In fact, they submit that the judge should have directed the jury to read press reports about the case. The prosecution submit the judge was required to direct the jury not to read press reports about the case but to focus instead on the evidence.

Ground 6. The self-representing Applicants submit that HHJ Duncan was wrong to imply that the climate emergency was a matter of opinion rather than a matter of fact. The prosecution submit that the climate emergency – and whether its existence is a matter of fact or opinion – was a matter of only tangential relevance to this case. The real issue was whether the Applicants had joined in an agreement to commit a public nuisance at Heathrow airport. No complaint is made by the self-representing Applicants about the judge’s legal directions in relation to the elements of that offence.

We received carefully prepared and courteously presented oral submissions in support of these Grounds, and it is clear that the appellants genuinely feel that they were unjustly treated in each of the four respects identified.

However, in our judgment the prosecution are clearly right that each of these Grounds are not properly arguable. We have reviewed the transcripts from the trial where the HHJ Duncan dealt with the issues in Grounds 3, 5 and 6. In each case she was careful and fair, and her directions to the jury were impeccable.

Ground 2 relates to a reasoned ruling before the trial by HHJ Edmunds KC, the Resident Judge responsible for Isleworth Crown Court. We have also reviewed that ruling and are entirely satisfied that he made a reasonable case management decision which was designed to ensure that this trial took place as soon as it could, and to make the best use of the available resources of the court which had recently been supplemented by an allowance of additional sitting days which it was his duty to use if he could. He heard detailed submissions from the affected appellants and weighed the matters they now raise in the balance before deciding that it was in the interests of justice that the trial should start 7 days after the originally planned date, on 27 January 2025, which was a date when all parties had expected to be involved in the trial. The case was, effectively, put back by a week. This caused financial loss to the affected appellants which, they say, caused additional stress and adversely affected their trial preparations. The trial, however, was managed by Judge Duncan in a way which took particular care to ensure that these appellants were able to present their cases and they are not able to point to any respect in which the week’s delay in starting the case rendered their convictions in March unsafe. Their financial loss is regrettable but actually not relevant to anything we have to decide.

Ground 3 concerns arrests by the police. The arrest of Ms Davidson during the trial took place in Central London and the jury knew nothing about it. Whether it was justified or not, it was irrelevant to the trial. The arrest which took place in Isleworth Crown Court was the arrest of a friend of theirs who had attended the trial. The judge was critical of the decision of the police to make that arrest at that time and place which, she said, was quite unnecessary. She made detailed enquiries to ascertain whether it had any prejudicial effect on the jurors who witnessed it and decided that it did not. She then directed the whole jury that this incident was not connected with these appellants and had nothing to do with them or their trial. It is said that this was not true, because the arrested person was their friend, and had attended the trial to give them moral support. However, it was true that the arrest was not said to be the consequence of anything said or done by any of the appellants and in that sense the Judge’s direction was true. The judge’s decision not to discharge the jury and to deal with the matter by the directions she gave was well within the range of reasonable options open to a trial judge and does not arguably render the convictions unsafe. The incident took place on 6 February 2025, weeks before the end of the trial and by the time the jury made its decisions any impact it may have had will in any event have receded.

Ground 5 concerns the contention that the judge’s direction about Mr Jarvis’s closing speech rendered the conviction of Ms Davidson unsafe. This is also unsustainable by her, and even more so by Mr Beard and Mr O’Callaghan. Because of the jury research relevant to Ground 1, it is necessary to deal with this in a little detail because it concerns some of the press reporting of the incident at the airport and the subsequent arrests which, it is said in the Ground 1 argument, caused prejudice to the fairness of the trial. In this Ground the self-representing appellants contend that it was necessary for the fairness of the trial for the jury to see not only the material seen by Juror 5 as a result of his research but much more besides. The press reporting was not in fact in evidence, but this Ground does not complain directly about that. It confines itself to a complaint that Mr Jarvis misrepresented the state of the evidence in his closing speech and the judge failed to correct the position, but instead made it worse by the direction she gave.

Ms Davidson had printed out her closing speech at the court, her document is before us. In it she said:-

“Mr Jarvis told you yesterday that the media coverage we got was ‘modest’.

He said if we’d caused disruption we were ‘Going to get headlines, not just a side-bar on the Daily Mail’.

Why did Mr Jarvis mislead you like that, claiming the only coverage we had was a ‘side-bar on the Daily Mail’?

That was not true. Our action at Heathrow made headlines across the national media. BBC, Times, Daily Mail, Sky, Telegraph, you name it.

Our action featured in hundreds and hundreds of articles, nationally and internationally. Those articles focussed on our statement and quotes.

But have you noticed how when someone like Mr Jarvis says something that is obviously untrue, but says it with confidence and authority, nobody interrupts him? Nobody corrects him.

We have been prevented from showing you both the headlines and the content of those articles, which would have made it clear to you that we made headlines across the national media, and that the content of those articles focussed on our messaging.

And knowing that the content being concealed from you, Mr Jarvis misrepresents it. That is wrong.

Our action was successful in our intention to get important information to the public - it was a proportionate and effective means of doing so - with no harm or disruption to anyone.”

The judge gave a direction about this at the start of the second part of her split summing up, after hearing the 9 closing speeches on behalf of defendants. We do not know what other criticisms were made of Mr Jarvis by other speakers, but we suspect that the passage quoted from Ms Davidson’s did not stand entirely alone. Indeed, it was not the only pointed criticism of Mr Jarvis in her speech. The judge said this:-

“Members of the Jury, Mr Jarvis in his closing speech made a number of comments on the evidence. He is entitled to do that. In fact, it is his job to do that. Comments are not evidence. That is not what he was purporting to do and not what he was doing. They are offered in closing speeches like opinions or interpretations of the evidence for you to consider. You can accept them or you can reject them. Like opinions and interpretations, it is not a matter of being true or false, dishonest or misleading. Such terms do not apply to comments. Mr Jarvis was not giving facts, he was not giving evidence, he was not suggesting that he was. He was commenting on the evidence so you can agree with him or you can not agree with him. It is important that you know, however, that he was not being dishonest. He was not misleading you. That, of course, is a serious accusation made, I am sure, not through malice but just through inexperience about the terms, what we use and what is done at each time. But it is important that you know there is a very strict code of conduct. Barristers cannot mislead you or be dishonest and Mr Jarvis did not do so.”

The judge had heard the evidence and knew whether Mr Jarvis had in fact actually misled the jury about it. She decided he had not, otherwise she would have required a correction from him. She therefore decided to give this direction, in general terms and not by specific reference to the comment about the Daily Mail side-bar, about how they should approach any allegations against Mr Jarvis of dishonesty. This was not a direction that they must accept the comments he made, but only that they should not reject them on the ground that they were dishonest. That is how they would approach the represented appellants’ cases, because their counsel would not make an allegation of dishonesty without being on sure ground, and had not done so. She plainly felt that the self-representing defendants should not have an advantage in this respect, and was concerned to correct it. That was a course which was properly open to her and it was an area where the trial judge has a decisive advantage over this court in that she had heard the trial, and the speeches, and was able to sense the mood of the court and what was required.

In summing up Ms Davidson’s evidence the judge included this passage:-

“And we were arrested at the fence and we did have mass press coverage. There is media interest in cases like this. The action had the perfect outcome. There was no disruption and there was lots of media attention.”

It appears therefore that the point which Ms Davidson wished to make in her closing speech about the media coverage was supported by the evidence which she had given. She emphasised it powerfully in her speech and the jury will have had it well in mind.

The direction given by the judge about how to treat allegations of dishonesty against Mr Jarvis was not given directly in the context of this point made by Ms Davidson. It was not a direction that the point had no merit, or that the jury must accept the submission which Mr Jarvis had made about it. On the contrary, she told the jury that they could reject any comment made by him. The point he was inviting the jury to consider may perhaps have been overstated, in that the publicity about the incident clearly did amount to more than “a side-bar in the Daily Mail”. It is not unknown for counsel to exaggerate the weakness of the other side’s case when commenting on the evidence before the jury. However, it was perfectly valid for Mr Jarvis to submit for the consideration of the jury that that publicity would have been even greater if more actual disruption had been caused.

The attack in this ground is on the judge’s direction. In our judgment there was nothing arguably wrong with that for the reasons we have given.

Ground 6 submits that the judge directed the jury to ignore agreed facts. These were in these terms:-

“1.

On 17 December 2020 Her Majesty's Treasury published the New Zero Interim Report which states 'Climate change is an existential threat to humanity. Without global action to limit greenhouse gas emissions, the climate will change catastrophically with almost unimaginable consequences for societies across the world'. In recognition of the risks the UK became, in 2019, the first major economy to implement a legally binding net zero target.

2.

Scientific consensus is that beyond 1.5 degrees Celsius warming above pre-industrial levels risks catastrophic consequences for humanity which will be irreversible.

3.

Over the past five years the global average temperature rise since pre-industrial times has averaged just under 1.3 degrees Celsius. For the 12 months to June 2024 it averaged 1.63 degrees Celsius and is estimated to top 1.5 degrees permanently before 2030.”

4.

In October 2022 the UK Government opened the 33rd licensing round to allow oil and gas companies to explore for more fossil fuels in the North Sea.”

Soon after the start of the first part of the Summing Up the judge said this to the jury:-

“Action undertaken as a result of a belief in the need for change which you believe as an individual to be of the utmost importance is not a defence to a criminal charge. The right to freedom of expression and from this the right to protest against government policy or against the actions of a private corporation does not in this case provide a defence to the charge, no matter how strong one’s beliefs or concerns about the level of climate emergency, no matter even how right you are. Being right about a concern, including one of the utmost importance, does not make all actions taken in the name of that concern lawful or right. You, the Jury, may agree there is an acute climate emergency and society needs to change. You may not. We are not here to decide that important topic. Your verdict will say nothing of your views on climate change or the climate emergency.”

That direction is consistent with a point which appears at the end of Ms Davidson’s document for her closing speech:-

“Even if you personally don’t like our action, disagree with our methods or think what we did was wrong, that is, for this case, irrelevant.”

The point the judge was making at the end of the direction we have just set out was similar in its intent. Some of the jurors may agree strongly with Just Stop Oil that it is necessary to stop using fossil fuels urgently in order to address climate change. Others may not accept that there is any need for that. People disagree about things like that, and sometimes not everyone takes positions which are rationally based on the evidence. If any jurors disagreed with the Just Stop Oil position on this, it was important that they should be directed that this was not relevant. That is what the judge was doing.

The agreed facts set out the views of the Government and the “scientific consensus”, and this was fairly put before the jury. The judge did not direct them that they were free to reject them. Rather, she was directing the jury that their opinions, one way or another, on these questions were irrelevant. The agreed facts were before the jury because they were relevant to the truthfulness of the appellants’ evidence that they held beliefs about climate change in support of which they were taking action. Their truthfulness was important because they asserted that they did not intend to cause serious disruption and did not think they would be able to even if they did. The agreed facts had this limited relevance to the verdicts and the judge’s direction did not tell the jury to ignore them.

For the reasons given above we refuse leave to appeal against conviction on Grounds 2, 3, 5, and 6.

We think it necessary and expedient to receive the fresh evidence concerning the behaviour of Juror 5 and other members of the jury. This evidence is largely agreed now, as we shall explain. In those circumstances there is no reason to direct any further formal statements exhibiting documents or the relevant download from Juror 5’s phone. All the material has either been volunteered by Juror 4 before the police investigation, or has been collected in the course of that investigation. Its provenance is not suspect.

In reaching that decision, we have had regard to the factors in section 23(2) of the Criminal Appeal Act 1968. The evidence is capable of belief: it is largely agreed. It may afford a ground for allowing the appeal because it reveals juror misconduct during the course of the deliberations of the jury. This is the basis on which we will approach the evidence. Juror 5 gave a “No Comment” interview to the police and a decision on whether to charge them with an offence under the Juries Act 1974 is awaited. Our approach is limited to the way in which we will deal with this appeal and has no implications for the way in which Juror 5 should be treated. The evidence was not adduced at trial for obvious reasons and would not have been admissible then.

The jury started deliberating at about midday on 17 March 2025 and deliberated until 4pm. Having resumed deliberations the next morning, at about 1040am on 18 March 2025, the judge received a note from a jury member which was not disclosed to the parties. On receiving the note, the judge said:-

“At this stage I will simply remind you of the oath or affirmation that you took, which is to consider the evidence and apply what your conclusions are on the evidence to the legal directions that I have given you. That is the oath or affirmation that you took.

I am going to ask you to retire again to continue with your deliberations and I will let you know if there is any further direction that I can give you. Thank you very much.”

The Judge then addressed the parties and informed them that there was no part of the note that she could share with the parties as it disclosed details of deliberations, but she said that it suggested:-

“There is one juror who is not being true to their oath but has not been from day one, has expressed a view from day one and appears not to be following the directions or the evidence. I cannot really say much more than that because it will disclose where they are and what they have said and what they are saying, which are details of their deliberations. I think all I can do is remind them of their oath or affirmation, what that requires, and that is what I have done. And I know where they are in their deliberations and I can see they are making progress and working through the case in a logical and methodical way. I am going to leave them for certainly the whole of the morning and then at some point this afternoon then hear submissions as to when I should give them a majority direction. I do not think there is much more I can say to them or to you at the moment…”

We have seen the note which has still not been disclosed to the parties because it contains voting figures, see Gorman (1987) 85 Cr App R 121. It did contain an indication to the judge that, as she said, one juror was causing difficulty. We shall reveal, in the light of what is now known, that the note said that this juror took the view that all defendants were not guilty, and that he was in a minority of 1 or sometimes 2. The note said that they had some verdicts on which other jurors could agree, but that one juror was inflexible. They were working through the cases of the nine defendants, and had reached this position in relation to 6 of them. No majority direction had yet been given and no verdicts were taken at this stage. The complaint about the one juror by the majority was that he had made up his mind that there should be not guilty verdicts from day one, and he would not listen to argument. The judge summarised that as a complaint that this juror was not being true to their oath. Having formed a firm view about the case is not necessarily a disqualification from continuing on a jury. The oath requires the juror to swear to “faithfully try the defendants and give a true verdict according to the evidence”. Forming a fixed and final view of that verdict before hearing all, or perhaps even any, of the evidence may be a breach of that oath, and that is what the judge had in mind. It now appears certain that the juror about whom the complaint was made was Juror 4.

At about 1156am, the judge informed the parties that she had received another note from the jury and said:-

“Again, it goes into some detail so far as the discussions and deliberations that they are having so I cannot disclose it to you in full. However, they are asking for help on point four of the route to verdict and, specifically, intent: what is the meaning of intent?”

Discussion then took place about ‘intent’ and the further direction to be given. Junior counsel for the prosecution, Ms Fielding, then raised whether the earlier jury note should be treated as a jury irregularity and should be investigated. The judge replied that whilst the content of the jury note could not be disclosed, it was not a note that led her to conclude they were:-

“anywhere near the necessity or desirability for an investigation into a jury irregularity”.

The jury was sent home just after 4pm on 18 March. On the following day at 1115am the jury sent a further note. The substance of this note, but not apparently its text, was disclosed to the parties. Given the extent to which the jury deliberations in this case have now been revealed there is no need for any further sensitivity about this note. It said:-

“We have got to a point in deliberation where we can’t go any further. We are not able to all agree on 8 of the defendants. We need further instruction to move forward from this point as we are going around in circles.”

They were brought back into court and returned a unanimous not guilty verdict in the case of Julia Mercer. They were given a majority direction then and were sent home for the night at the end of the afternoon. The jury did not send out any further note that day which might amount to having “written [their] verdicts” as one juror is said to have said in Juror 4’s email and statement, see [47] below.

That night, Juror 5 carried out some research on his phone. The download shows that between 1950pm and 1956pm he carried out 7 Google searches on “rory wilson” or “rory wilson just stop oil” and visited a number of websites which he had no doubt identified through those searches. As we have said, Rory Wilson was indicted along with the nine defendants who were on trial but had pleaded guilty and was awaiting sentence. That guilty plea had been put in evidence before the jury. The websites were those of Just Stop Oil, BBC News, the Standard, Rebels in Prison, and the Daily Mail. The articles on those websites concerned other proceedings arising from Just Stop Oil activity, and also news reports of the present case. The article on the Rebels in Prison website provides contact details for Rory Wilson in prison. Under heading "Stretches in prison", it states "246 days at HMP Wormwood Scrubs". More detail of the material is contained in a Table attached to this judgment. Potentially relevant searches found on the phone before 19 March 2025 date back to 5 and 6 March when Juror 5 searched for publicly available information about Mr Jarvis, leading counsel for the Crown. The relevant searches after the 19 March all post-date the verdicts and the discharge of the jury. At that stage Juror 5 was free to search whatever he wished. It is in that later period that Juror 5 carries out searches about the judge. In addition to the official websites and Who’s Who, he accessed a website called Legal Cheek where he discovered that at the time of her appointment HHJ Duncan was believed to be the youngest woman ever to be appointed to the Circuit Bench.

Juror 5 discovered nothing of interest in the present context by searching about Mr Jarvis on 5 and 6 March. The post-discharge searches are not directly relevant. The focus, then, is on the searches on the 19 March, described above which feature in the attached Table. We shall return to these later.

The jury returned its verdicts at approximately 11.52am on 20March 2025. The judge adjourned the case for sentencing.

Later on 20 March 2025, Hodge Jones and Allen, Solicitors for Ms Hicks and Ms Schafer, received a message from a caller via a pager service at 2257pm stating he had been a member of the jury and “...one of the people in the jury was in contempt of court. Please call to discuss.” Mr Chada from the Solicitors did not respond but rightly informed the trial judge of the communication by email on 21March 2025. At 1403pm the same day, the judge responded by saying the matter had already been referred to the Attorney-General.

In the meantime, Juror 4 had called the Crown Court Jury Office at about 0915am on 21 March 2025 and said there had been a contempt of court in the jury room. The Crown Court member of staff who took the call informed the juror that she was unable to discuss the matter further as she was unable to talk about discussions that took place in jury retirement and said she would get back to the juror with instructions. Having received further instructions from the trial judge who had in turn contacted the Registrar of Criminal Appeals, the Crown Court advised Juror 4 that whilst intentionally disclosing information about jury deliberations or soliciting such information was an offence, such information could be disclosed to the Registrar of Criminal Appeals for the purpose of an investigation into whether an offence had been committed by or in relation to a juror. Juror 4 was invited to provide more details in writing directly to the Registrar.

Juror 4 emailed the Registrar on 24^th March 2025 at 16.36 with further details as follows (the text is set out as it was, and not corrected for spelling and grammar).

“Subject: contempt of court

I was a juror on a 7 week trial which involved just stop oil. During our last day Juror A started by saying he had Googled chardah (one of the defence barristers). That chardah was successful in getting Rory (one of the 10 but had pleaded guilty so was not in court) a reduced sentence. Had some other great juicy information, but he will say when they go for a burger after. ( i was not invited )

Was a case at Southark crown court involving just stop oil. 6 not guilty 2 guilty. Googled your honour. Youngest woman judge. Jurors B and C piped in about the judge. Googled lead prosecution, Mr. jarvis. No details were given.

At some point, juror D had come in the room from the bathroom. She heard Juror A talking about going online.. She said she didn't want to hear. At which point juror C said it doesn't matter now as we had already written our verdicts the day before. So it was alright to do so. ( we had not submitted to the judge at the time thos took place)

Juror A justiculated typing on a keyboard and doing more research.

Mentioned the things he had found again and would reveal later. Juror E sits almost directly opposite me. Maybe he saw my reaction. At which point he must have put his fingers to his lips, making a gesture to hush towards juror A trying to look inconspicuous. I saw this as i looked up. Juror A didn't seem concerned but then moved on. Mentioned that Roger hallam the co founder was in prison. Which juror C joined in with knowing about.

It wasn't brought up again as far as I can remember.

I am unable to recall much more as it was a very stressful day.

Jurors A , F, G , C and H always together.

That morning juror I had swapped places with juror F so juror I was the closest to him along with me , juror J, on the other side.

If there is anything else I can assist you with please do not hesitate in contacting me

Regards

Name omitted”

The Registrar, Master Beldam KC, contacted the Private Office of the DPP via the Attorney-General’s Office so that they could consider a police investigation. The appeals followed shortly, and a police investigation began.

A police investigation was commenced into the conduct of the juror(s), in particular whether any criminal offences had been committed under the Juries Act 1974. This included the taking of a statement from Juror 4 which is substantially similar to his email above, and which we will not set out in full.

The prosecution informed the court and applicants that Juror 5 (the juror who undertook the research and informed the other jurors about it) was arrested at his home address on 14 May 2025. He made no significant comments on arrest. Four electronic devices were seized from his home on arrest, namely 2 mobile phones, a laptop and an iPad. He was interviewed the next day, 15 May 2025, including being asked to provide his PINs for the devices. He answered no comment to all questions.

An update provided by the CPS on the police investigation (in March 2026) stated that the police reviewed the case on 8^th March 2026 and the position was assessed as “evidence currently insufficient” and that outstanding actions required were “Digital downloads remain outstanding. Consider renewed attempts to obtain device access if technology allows.” The update further stated that the two phones had by then been sent to a different forensic laboratory on a 28 day turnaround.

From that update and a further update contained in an email from the CPS dated 16 March 2026, it was confirmed by the police that only two of the four devices had been submitted for interrogation and that was because the forensics laboratory would only accept two devices. The police therefore made the decision to submit the two phones “as these were most likely to contain relevant information. The iPad belonged to the juror’s daughter, and the laptop was his work computer. The police decided that it was not proportionate to deprive the juror of his work laptop, and to deprive his daughter of her iPad.” The iPad and laptop were thereafter returned to the juror without examination.

In addition to arresting and interviewing Juror 5, the police also contacted a number of other jurors to obtain their accounts of what Juror 5 did or did not say to them before the verdicts were returned.

A statement was taken from Juror 7 which stated that he did not recall any jury members speaking about research and that he thought Juror 4 appeared to “support the group [on trial]” and that a note had been passed to the judge during the trial to bring this to her attention. All other jurors contacted denied hearing anything.

The Crown provided a bundle of ‘Additional Disclosure dated 23 April 2026’ with a disclosure update at pages 2-4. The Additional Disclosure includes a ‘Schedule of Internet Searches’ found on examination of one of the four devices seized from Juror 5, cross-referenced to the stage of the trial the search was made. The police were unable to access the other mobile phone and as stated above, the laptop and iPad had already been returned. This Schedule is the origin of the information summarised above and in the Table attached to this judgment.

Ms Scott KC has developed the appellants’ case on Ground 1 orally and in writing and has been supported in that respect by Mr Beard who dealt with this issue on behalf of the self-representing appellants.

Ms Scott identifies what is, for the purposes of these proceedings, accepted to be a breach by Juror 5 of his obligations as a juror. We will not set out all the ways in which that duty was made plain to him, but will summarise by explaining that, as is usual in any criminal trial, the judge made the duty clear in her “homily” to jurors right at the start of the trial. The jurors were all given the standard document “Your Legal Responsibilities as a Juror”. This says, beside a picture of a prison gate:-

It then says:-

The judge repeated warnings about this subject regularly throughout the trial.

In her summing up, the judge said:-

“There have been several references in the case to people at other protests being arrested for a variety of reasons, for example criminal damage, and being sent to prison. Some of these cases you may have heard about in the media before jury service. Remember you must not look anything up online or do any research into anything related to this case and that includes other protest cases. I am raising this now because it was raised in evidence in the trial. Each case is different. Each turns on its own facts. The appropriate sentence, should someone be found guilty of an offence, is for the judge who heard the case to decide. It is not part of the role of the jury. It is, therefore, not something that you will have to decide and it is not something that you should even think about. I am sure no Defendant was trying to influence you in this way by anything they would have said but it is right that I remind you of the importance of your role. You remember your affirmation or oath to try the case on the evidence. You apply the law as I have set it out in the legal directions, applying your conclusions on the evidence that you have heard. The potential consequences of a guilty verdict, if that is what you reach, are not for you to consider and that must not influence your verdicts.”

Ms Scott says that the significance of this misconduct should be evaluated in two ways, which she calls Limb 1 and Limb 2. Limb 1 asserts that even if the court is satisfied that the Table attached to this judgment identifies the full extent of Juror 5’s misconduct it was enough to render the convictions unsafe. Limb 2 relies on the submission that we should find that we are not satisfied that the police have identified the extent of the misconduct and that there is a clear risk that Juror 5 used other devices to conduct other research and may therefore have accessed more prejudicial material than he found on 19 March 2025.

The Limb 2 submission that there are “Known Unknowns” is factually a little complex and we will need to set out a little detail.

The police arrested Juror 5 at his home and carried out a search which identified 4 devices as we have described above. Only one of these was ever examined. The other phone was found to be inaccessible and the iPad and laptop were returned to Juror 5 when his solicitor asked for their return. Different reasons have been given at different times for this return and Ms Scott and Mr Beard are strongly critical of it. Ms Davidson in her submissions drew a contrast between the vigour with which their actions were investigated and prosecuted and the failure of the police to recover and examine all devices to which Juror 5 may have had access during the relevant period. We are invited to take an approach similar to that in Armory v Delamirie (1721) 93 ER 66 where a misappropriated diamond was valued in civil litigation as if it was of the highest quality because it was the fault of the defendant that it was not available to be examined. This case has not (we were told) been cited in criminal proceedings before but we were invited to apply by analogy the approach based upon it taken in Dudley v Phillips [2022] EWHC 930 (QB) (a defamation action) where the court decided (at para 25) that, to the extent that there were gaps in the evidence, the defendant should not benefit from his own failure to engage or provide disclosure.

Moreover, it is now clear that Juror 4 was telling the truth when he made his allegations about Juror 5’s conduct. There are some parts of his statement which are not explained by the researches of which we now know. An inference should be drawn, it is said, that there must have been other researches of which we do not know. He told the other jurors that he had discovered by using Google that the Judge had been the youngest female. He did do searches which produced that information, but not until after the jury had been discharged and these searches cannot have been the basis upon which he said that to the other jurors. Further, when he said it, it appeared that other jurors already knew it. This may mean that he was not the only one who had been breaking the rule about juror research. Juror 5 is recorded as saying that he had Googled Mr Chada, the name of Rory Wilson’s solicitor. If he did, there is no search on that name on the phone the police examined. In fact, as we have shown, the only Google search he did on that phone on 19 March was on “rory wilson”. He also said that he had other “juicy information” which he did not share at that stage. It is not obvious from any of the searches and the results identified on the phone that he discovered anything which could sensibly be so described. Finally, the “gesticulation” by Juror 5 described typing on a keyboard from which it might be inferred that had also been using a laptop or iPad to make some searches.

The appellants also invite us to consider the fact that although it is now clear that a conversation took place as described by Juror 4, none of the other jurors complained about it at the time or confirmed it when the police were investigating what had happened.

Our attention is drawn to the history of what is known from their notes about the relationships between jurors, seen alongside Juror 4’s statement that 5 of the jurors (including Juror 5) were “always together”. This would allow the results of searches to be shared without Juror 4’s knowledge on other occasions prior to the verdicts.

Ms Scott addresses the possibility that we may find that what was communicated to the other jurors by Juror 5 could not have prejudiced them in any way, by submitting that it would be enough to render the verdicts unsafe if Juror 5 alone had been prejudiced by material which he had seen even if he had not shared it any more widely. She cites R v Karakaya [2005] EWCA Crim 346 where Judge LJ said:-

“The downloading of this material, and its use by not less than one member of the jury after the jury had retired, contravened very well-established principles.”

We were also referred to R v Smith [2023] EWCA Crim 1256 at [14]:-

“Although there is no evidence that this information was shared, it may at least have influenced Dawes.”

Mr Jarvis on behalf of the prosecution invites us to consider the time at which the conversation took place in which Juror 5 revealed that he had been Googling about the case. According to Juror 4 “juror C said it doesn't matter now as we had already written our verdicts the day before”. That is consistent with the Notes described at [35] and [40]. The jury was sent out on 19 March 2025 at 1023am, and the majority direction was given at 1134am. This followed immediately after the unanimous acquittal of Julia Mercer. The jury then deliberated through the rest of that day. That night, Juror 5 did the searches that we know about. On the following morning it appears that the jury was in retirement for about an hour before informing the court that they had verdicts by a note timed at 1110am. It seems likely that the conversation about the Googling took place during that hour because the juror said that they had written the verdicts the previous day, not that they had told the court that they were ready with their verdicts. They were then kept waiting for about half an hour before they could deliver them because, it would seem, one of the counsel in the case was in another court. It is possible that the conversation took place then because the note at 1110am was the first time at which they had actually written verdicts in a note on all 9 remaining defendants. It is possible, perhaps even likely, that Juror 4 has misremembered the precise words used. Nothing in his email or statement suggests in terms that the jury was still undecided when the conversation took place, or that Juror 5 said anything suggest that he was attempting to use the information to influence the outcome. In respect of the “juicy information” he was clearly not doing so because he did not intend to reveal that until some of the jury went for a burger after they had been discharged. In respect of the age of the Judge, he could not have thought that it might change anyone’s decision about the verdict. Mr Jarvis cannot submit that the Googling was certainly not revealed until after the verdicts had all been agreed, but he can and does submit that on any view it was very late in the process, and long after the notes referred to at [36] and [40].

In Karakaya the court reviewed the rules about the provision of evidence or information to a jury after it has retired to consider its verdict. The court said this at [24]:-

“If material is obtained or used by the jury privately, whether before or after retirement, two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law, are contravened. The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision-making body; so indeed should everyone with a responsibility for the outcome of the trial, including counsel and the judge and, in an appropriate case, the Court of Appeal, Criminal Division. This leads to the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict. Such an opportunity is essential to our concept of a fair trial. These principles are too basic to require elaboration. Occasionally, however, we need to remind ourselves of them.”

In R v Thompson [2010] EWCA Crim 1623 the court restated the rule that evidence about jury deliberations is inadmissible subject to two exceptions. The first exception was where there has been a complete repudiation of the jury oath. The court continued:-

“The second exception arises in cases where extraneous material has been introduced into the jury deliberations. The verdict must be reached, according to the jury oath, in accordance with the evidence. For this purpose each juror brings to the decision-making process his or her own experience of life and general knowledge of the way things work in the real world; that is part of the stock in trade of the jury process, and the combination of the experience of a randomly selected group of 12 individuals, exercising their civic responsibility as a collective body, provides an essential strength of the system. However, the introduction of extraneous material, that is non-evidential material, constitutes an irregularity. Examples are provided by earlier decisions of this court. They include telephone calls into or out of the jury room, papers mistakenly included in the jury bundle, discussions between jurors and relatives or friends about the case, and in recent years, information derived by one or more jurors from the Internet. All this is familiar territory, and no citation of authority is needed. Where the complaint is made that the jury has considered non-evidential material, the court is entitled to examine the evidence ( possibly after investigation by the Criminal Cases Review Commission) to ascertain the facts. If extraneous material has been introduced into the decision-making process, the conviction may be quashed.”

At [11] in Thompson the court said this:-

“11 The use of the Internet has expanded rapidly in recent years and it is to be expected that many, perhaps most, jurors, will be experienced in its use and will make habitual reference to it in daily life. It has already impacted on the court in cases such as R v Karakaya [2005] 2 Cr App R 77; R v Marshall and Crump [2007] Crim LR 562 and R v Thakrar [2009] Crim LR 357; see also the experience in New Zealand, R v B [2008] NZCA 130. 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: R v Karakaya. If the material does not affect the safety of the conviction, the appeal will fail.”

These statements make it clear that the rules under consideration are not simply based on a technical rule that a conviction must always be quashed if any new material has gone to a jury by any means after their retirement. This may be tested by the statement in Karakaya at [24] that the principled objection to extraneous material being considered by the jury is the same “whether [it is received] before or after retirement”.

We accept the submission that it is not necessary to prove that at least one juror was in fact prejudiced by extraneous material before the risk that this has happened is material. In so far as the concern is a concern about bias, the test was stated by Lord Hope of Craighead, with whom the rest of the judges agreed on this issue, in Porter v Magill [2002] 2 AC 357 at [103]:-

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

As stated by Lord Phillips of Worth Matravers in Medicaments in a passage quoted substantially with approval by Lord Hope, “the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased”. In carrying out that exercise it is helpful to bear in mind this passage from Shagang Shipping Co Ltd (in liquidation) v HNA Group Co Ltd (Liberty intervening)[2020] UKSC 34:-

“96 It is of course true that, as Lord Hoffmann observed in In re B, if a legal rule requires a fact to be proved, the law operates a binary system. So where it is necessary to prove a fact for the purpose of a rule governing the admissibility of evidence, there are only two possibilities: either the evidence is admissible or it is not, which depends on whether the fact has been proved or not. There is no room for a finding that the fact might have happened. But not all legal rules do require relevant facts to be proved in this binary way. In particular, the rule governing the assessment of the weight to be given to hearsay evidence in civil proceedings does not. It requires the court to have regard to “any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence”: see section 4(1) of the Civil Evidence Act 1995. Such circumstances are not limited to facts which have been proved to the civil standard of proof.”

Since the hearing, the self-representing appellants referred us to R v Stuttle [2025] EWCA Crim 256 as an example of a case where a conviction was quashed because a jury received new evidence while in retirement. They asked to see a rucksack which belonged to the offender. The defendant, Stuttle, denied being the offender and denied that it was his rucksack. When it was examined by the jury, they found a credit card in the same of Stuttle’s partner. No-one else had ever found that and Stuttle had not had an opportunity to deal with it in evidence or submissions. This decision does not establish an absolute rule that whenever some new information comes to the jury in retirement any conviction will be quashed. The passage from Thompson we have cited at [71] above, was referred to and applied. That is where the law is stated, and we also will apply it. We mention Stuttle only so that the self-representing appellants will know that we have considered it.

It is clear that Juror 5 was well aware of the strict rule against research, the reason for it, and the consequences of breaking it. No failure on the part of the judge was to blame for his breaches of the rule. She did everything required of her.

The phone which was accessed showed that he began to breach the rule on 5 and 6 March, but did not find anything of significance then. The renewed breaches on the evening of the 19 March did result in his finding material which he should not have had, and which is said to be of significance.

We accept that there is force in the submission that the evidence shows that there is a real possibility that Juror 5 used one or more other devices to search the internet to research the case before the verdicts were returned. This is because in the key conversation shortly before that happened, he said that he had Googled the judge and Mr Chada. He did know that it was said that the judge was the youngest female judge to be appointed and that is discoverable on the internet. He did not discover that by using the phone which the police examined. He did not Google Mr Chada on that phone either. He did Google Mr Jarvis on that phone on 5 and 6 March, and so the same point cannot be made in relation to that. This possibility is supported by the gesticulation of typing on a keyboard with which he illustrated his conversation.

We also accept that the thoroughness of the police investigation is unsatisfactory. The police evidence shows that they did not actually search Juror 5’s bedroom, because it says only that when they allowed him to change his clothing there they did not see any “obvious devices”. It is not usual in the course of a criminal investigation to return an electronic device to a suspect simply because their solicitor says, on instructions, that there is nothing of evidential value on it. Ms Scott is probably right to say that such an assertion is more likely to attract attention to a particular device rather than deflect it. The police have also said that some devices could not be accessed, but this does not entirely answer the point because we do not know why. The offence under consideration was not, in terms of the likely punishment on conviction, at the most serious end of criminal offending, but its potential for undermining this important trial meant that it required a properly resourced and determined investigation. The integrity of the criminal justice system has an important public value beyond this particular case.

However we do not accept that there is any analogy between Armory v Delamirie and the current situation. The liability of the police for wrongdoing is not in issue in this case. We have to take account of the fact that there is a real possibility that Juror 5 has carried out other searches in deciding whether the verdicts are safe, and that the police investigation has failed to show otherwise.

Ultimately though the fact that Juror 4 has proved to be a truthful and reliable witness cuts both ways. It means that we have a reliable and accurate account of what Juror 5 said about his internet research. What he said does not, in our judgment, reveal that he knew anything as a result of that research which would tend to undermine his own ability to decide the case on the evidence. He was speaking then in an unguarded way, no doubt because the case was very nearly over and it was quite clear what the verdicts were going to be. It seems likely that that had been clear from the time when the majority direction was given during the previous morning. There is no reason to suppose that he withheld anything.

We do not accept Ms Scott’s “Limb 1” argument that the known searches and results should lead us to conclude that the verdicts were unsafe. These revealed some information about Rory Wilson whose guilty plea had been adduced in evidence before the jury during the trial. Actually, the website “Rebels in Prison” simply showed that showed that he was in HMP Wormwood Scrubs and had been there for 246 days. Somehow, Juror 5 appears to have understood this to mean that he had been sentenced (he had not) and that he had received a “reduced sentence” because of something that Mr Chada had done. Sentencing is a matter for the judge and sentences of other people convicted of offences for which defendants are being tried are not put in evidence for this reason. There may be a risk that people will be wrongly acquitted if the jury thinks that the sentencing will be, in their view, harsh. It is less likely that anyone might be wrongly convicted because the jury thinks that the sentencing will be lenient. The prejudicial impact of learning that Rory Wilson’s sentence was “reduced” is not obvious. The jury also knew of the sentencing of Roger Hallam for another Just Stop Oil protest of a quite different kind. According to Juror 4, Juror 5 said he was “in prison” and another juror also knew this. The articles viewed by Juror 5 on 19 March 2025 said that Mr Hallam had been sentenced to 5 years and that Chris Packham thought that this was “bonkers”. In her direction at [60] above the Judge told the jury how they should approach evidence given by defendants during the trial that other people had been involved in protests and sent to prison. No doubt the appellants gave that evidence because they thought it was helpful to them. We have not seen anything in any of the articles beyond this about other protests which is capable of prejudicing any appellant.

The articles about the Heathrow incident were actually helpful to the point which Ms Davidson, and no doubt others, wanted to make about their reasons for their action. She complains that she was not allowed to put such material before the jury. The articles taken together show that no serious disruption occurred at Heathrow in contrast to other actions in Germany and Spain where “millions of families planning well-earned getaways across the continent” were targeted. Just Stop Oil is quoted as saying this was part of an “international uprising” across ten countries. That is entirely consistent with what the appellants had said about their purpose in the course of their evidence. It was also more than a “side-bar in the Daily Mail”.

We therefore do not accept Ms Scott’s “Limb 1” argument. Whatever Juror 5 was looking for on the evening of 19 March 2025, he did not find anything in the material about which we know which gives rise to a real possibility that he was biased as a result of it. His motives are not clear, but his interest appears to have been limited to finding out what happened to Rory Wilson, since the only searches he did included his name.

Ms Scott’s “Limb 2” argument about the “Known Unknowns” is perhaps more troubling. If Juror 5 used other devices, and there is a real possibility that he did, then we do not know what he discovered. He does appear to have discovered the age of the judge and he may also have searched on the name of Mr Chada. He may have done other things besides. However, this is not a case where, for example, a previous conviction of a defendant is discoverable on the internet but has not been put in evidence. The appellants gave evidence about their previous convictions at the trial. We have dealt above with the convictions of other people for other protests. There was evidence about that, and the Judge directed the jury about it. The aims, conduct and methods of Just Stop Oil were the subject of extensive evidence at trial from both the prosecution and the defence. The jury will have known that many people strongly support that organisation and also that many other people equally strongly do not. They will not have been surprised, if they learnt of it, that someone writing in the Daily Mail described them as “Eco-Clowns”. The disruption to “millions of families” occurred in other protests in other countries. The same article quotes a “Heathrow spokesman” thanking “swift action from police and airport colleagues” for there being no disruption to passenger journeys. The appellants’ defence was that this was exactly what they expected and intended would happen.

The “known unknowns” do not exist entirely in a vacuum. We know what Juror 5 said about his state of knowledge to the jury on 20 March 2025. This does not reveal anything of concern for the reasons we have given when dealing with the “Limb 1” argument. It seems very likely that if he had known anything of any real importance he would have said it then. This would be particularly so if (as seems not to have been the case) the verdicts had not been decided at the time of this conversation. We do not understand the expression “juicy information” as implying anything which might sway a juror one way or another in their decision. It seems more likely that he had found out something he thought was amusing or entertaining in some way. We have no idea what might have been, but he did not share it with the rest of the jury at that stage.

We are not prepared to infer from the statement by Juror 4 that “Jurors A , F, G, C and H [were] always together” that they were sharing information from the internet in conversations from which he was excluded. That would be mere speculation. It is clear that this jury was split from quite an early stage in their deliberations. The first note we deal with at [37] made that clear, and said that Juror 4 was inflexibly determined that all defendants were not guilty and that a majority of the jury disagreed. This had been his position from “Day 1”. In that situation it is not altogether surprising that some of the jurors had conversations when he was not there, but this does not mean that they concerned the case, or that the deliberations did not take place when all jurors were together. Two things follow from that:-

It really does seem from the jury notes that the verdicts were largely settled by the time that the not guilty verdict was entered in respect of Julia Mercer and the majority direction was given, 1134am on 19 March. At that point the jury note said that they were “going round in circles” and required “further instruction”. This followed the earlier note to which we have referred which described the approach of the juror we now know to be Juror 4. This was before the research of the evening of 19 March, and Juror 4 does not say that he was aware of any inappropriate material being taken into account by anyone in the 11 hours and 11 minutes of deliberation which had taken place up to that point.

For all these reasons we have applied paragraph [11] of Thompson and concluded that the material of which we know does not affect the safety of the conviction, and we are not satisfied that there was any other material in the possession of Juror 5 which would have had any different effect. To find otherwise would require speculation. The approach described in Shagang Shipping at [77] above does not require proof, but it does not permit speculation either.

We therefore receive the fresh evidence under section 23 of the Criminal Evidence Act 1968 because it “may” afford a ground for allowing an appeal, and give leave to appeal. Having carried the exercise described above we conclude that the fresh evidence does not in the result afford a ground for allowing the appeal and dismiss Ground 1. This means that all these applications and this appeal are dismissed.