R v Bruno Sala

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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 s.3 of the Act.

This application for leave to appeal against conviction has been referred to the full court by the Registrar, and we have been invited to consider whether to make an order under s.23A(1) of the Criminal Appeal Act 1968 requiring the Criminal Cases Review Commission to investigate a possible jury irregularity and report to the court.

The facts of the case were summarised by the applicant's counsel in terms which are agreed by the respondent. We reproduce that summary here, and for the purposes of this application it is not necessary to add to it.

All three complainants had intimate relationships with the applicant of varying lengths; all then alleged physical or sexual violence perpetrated by him during the course of those relationships.

The first complainant, "C1", began a relationship with the applicant in March 2019. By June 2019, she had already disclosed to a close friend that he had anally raped her (Count 1) and exhibited behaviours consistent with being controlling and coercive. A further vaginal rape (Count 2) was alleged to have taken place in December 2019. By this time it had been alleged that the applicant had isolated "C1" from all of her friends and introduced her to Class A drugs, to which she had subsequently become addicted. "C1" accepted that she had had sex with other men at his request. A final assault was said to have taken place on 12 January 2020 when "C1" alleged that the applicant grabbed her by the neck and threw her to the floor (Count 3).

Around April 2020, the applicant met and started casually dating "C2". Like "C1", "C2" also engaged in consensual sexual activity with other men at the applicant's request. She also thereafter alleged that he had anally raped her (Count 16).

The applicant commenced a relationship with "C3" in June 2020. She too was encouraged to have sex with other men by the applicant, and she consented to some of that activity. "C3" said however, that she did not consent to have sex with the applicant's co-accused, Edson Domingos. She alleged that the applicant punched her repeatedly (Count 5) to make her submit to having sex with Mr Domingos (Count 6). Mr Domingos then vaginally and anally raped her. "C3" made a series of further allegations against the applicant, including being anally raped whilst held out of a loft window (Count 9), being blindfolded and tied up by the applicant, then raped by three unknown males (Count 10), and thereafter being anally raped by the applicant himself (Count 11).

The applicant did not give evidence. His case as asserted in interview was that there had been no such assaults and that all sexual activity between himself and the complainants had been consensual.

The prosecution applied to adduce the applicant's previous convictions under s.101(1)(d) of the Criminal Justice Act 2003 ("CJA 2003"). After argument, the application was allowed and the jury were told of his convictions for rape (24 March 2022) and for actual bodily harm, sexual assault, rape and assault by penetration (13 April 2022). The judge refused to admit the underlying facts of those convictions, so the jury was told only that the complainant for all five offences had been in a relationship with the defendant and that before the rape on 13 April 2022 she had consented to being tied up. The present application does not contain any challenge to the judge's decision to admit the previous convictions.

At the conclusion of the prosecution case the Crown again applied to adduce the details of the applicant's previous convictions, now under s.1(1)(g) of the CJA 2003, on the basis that there had been an "attack on the character of prosecution witnesses", but the defence successfully resisted that application.

The following chronology of the subsequent events is not in dispute.

The judge commenced the factual summing-up at 11.27 on 31 July 2025. This continued on 1 August and resumed on 4 August 2025, with the jury retiring at 11.49 on that date. At about 2 pm on 4 August, the jury sent a note asking for clarification about the agreed facts relating to the co-defendant Edson Domingos. This was answered, and they retired again at 2.37. The jury was sent home at 4.05.

On 5 August 2025 the jury retired again at 10.20. Shortly before the short adjournment the jury sent a note asking to watch a further part of the body-worn video of an officer's interactions that had not been "captured on the USB". The judge informed them that they could not view it again but he would remind them of any parts of it if they wished. The jury retired before 1 pm and did not ask for any reminder from the judge. That afternoon the judge informed all parties that the jury had requested a break and/or an early finish as they had had a long day and he had asked them to put their request in a note. They requested that they ceased deliberation for the day and at 3.16 pm they were sent home.

On 6 August 2025, shortly before 10 am, all parties were made aware that information had been received from a member of court staff. The previous afternoon some of the jury had made remarks to the jury liaison officer. At the judge's request, the officer recorded the matters in the following note:

There was no note from the jury. The judge addressed the matter in open court in the presence of all counsel and both defendants and stated that he was following the steps set out in paragraph 8.7 of the Criminal Practice Direction ("Crim PD"). As that paragraph requires, he warned those present that it was an offence to disclose, solicit or obtain information about a jury's deliberations. He expressed a "provisional view" that, as the jury had not put anything in a note, it would be sufficient to give them a strongly worded direction, in terms which he read out, and he then adjourned to give the parties time to consider the position and make submissions. The judge explained that he did not consider that there should be any attempt to identify the individual juror because he was not aware of who the person complained of might be, there was therefore no one to "segregate", and asking the jury to name the person might cause more problems.

The prosecution did not dissent from the judge's proposal. Junior counsel for the applicant, Mr Robinson, suggested that there be a direction about general cohesion, which the judge ultimately adopted fully. Leading counsel for the applicant, Ms Akudolu KC, who was appearing remotely that day, made no observations as to identification or isolation of jurors, but the judge noted that both of the applicant’s counsel needed time to confer privately. Neither counsel at any stage suggested any attempt should be made to identify and/or isolate any juror. The court was then adjourned from 10.16 until 10.43. Then Ms Akudolu KC gave her agreement to the judge's proposal with Mr Robinson's suggestion as to cohesion. The further directions were given to the jury, who again retired at 10.50.

The jury had a break between 12.10 and 12.20. Sometime after that but before 12.55 a jury note was received. The note said:

Copies were given to counsel and the court reconvened. The judge added:

The judge read out the first and last sentences of the note in open court and then invited further submissions from all counsel as to which of the original directions the jury should now be reminded of. It was agreed that the judge would address the burden and standard of proof and how they should approach the applicant's previous convictions. The defence agreed with the proposed directions.

When the jury was brought back into court they had been asked to bring their written directions with them. The judge told them that the answers to their questions were in fact in those directions. He then gave them the repeated directions as discussed. Finally, he said:

The application to discharge the jury was made between 2.14 and 2.39. The defence submitted that the cumulative effect of the three incidents demonstrated that the jury were no longer following the judge's directions and that the applicant no longer had confidence that the jury were taking the matter seriously. This was opposed by the prosecution.

The judge refused the application to discharge the jury. He gave a detailed extempore ruling in which he reminded himself that the test for discharge was whether it was "necessary", that no verdicts had yet been given, and that any concerns had been fully addressed by the agreed directions which he had already given. The judge considered the matter carefully, both individually and in the round, and concluded that there was not sufficient material before him to conclude that the jury were deliberately disregarding his directions. There was then a discussion about when a majority direction might be given. The judge indicated that he would do so "at some stage tomorrow". The jury were sent home at 4 pm.

On 7 August 2025 the jury retired at 10.07. The judge indicated to all counsel that he intended to give a majority direction at about noon. It was agreed by all counsel that this was an appropriate time. The jury was called in at 12.08. They had not reached verdicts on all counts on which they were all agreed. They were given a majority direction and retired at 12.10. At 12.58 the jury sent a note indicating that they had reached verdicts. They had been in retirement for 4 hours 17 minutes before the majority direction and were in retirement for 5 hours 2 minutes in total.

The applicant was convicted by a majority on five counts of rape, two counts of assault occasioning actual bodily harm and two counts of encouraging or assisting the commission of an offence. He was acquitted on one count of rape, one count of assault occasioning actual bodily harm and one count of encouraging or assisting the commission of an offence. The applicant's co-accused was convicted on two counts of rape and was acquitted on two further counts of rape.

In their concise and focused grounds the applicant's counsel, Ms Akudolu KC and Mr Robinson, contend that the judge erred by not acceding to the defence application to discharge the jury and that the conviction is unsafe because of the combined effect of (1) the fact indicated by the staff member that the jury were "not getting on" and that one juror was not engaging; (2) the indication in the jury note that one or more fellow jurors were simply basing their decision on the applicant's previous convictions, in disregard of the judge's directions; and (3) the fact that one juror was seen looking at a puzzle book, in disregard of the judge's reiterated directions earlier the same day, those matters together amounting to a serious jury irregularity.

By the Respondent's Notice prosecution counsel, Ms Fairbairn, submits that those three matters did not amount to a serious jury irregularity; but that, even if they did, the judge dealt with it correctly and in accordance with Crim PD 8.7 and made directions that were agreed by counsel on both sides. She further submits that the judge was right to conclude that it was not necessary to discharge the jury and that the jury's not guilty verdicts against the applicant on three counts demonstrate that they did follow the judge's directions and did not simply base their decisions on the applicant's previous convictions.

We are grateful to all counsel, both for their written arguments and for their careful oral submissions in which those arguments were developed.

The starting point is that no enquiry may be made into jury deliberations unless one or two very narrow exceptions apply. In R v Essa & Ors [2023] EWCA Crim 608, Holroyde VP, citing the decision of the House of Lords in R v Mirza [2004] 1 AC 1188, said at [26]:

Jury irregularities may of course arise during a trial. When any irregularity arises the trial judge must deal with it following the procedure set out for that purpose in Crim PD at 8.7. We shall not lengthen this judgment by quoting it at length, but the procedure specifies seven steps to be followed:

A jury may be discharged by the judge without reaching a verdict if, and only if, there is a "necessity" to do so, meaning a high degree of need: see the case of Winsor [1866] LR 1 QB 289 at 390.

After verdict and sentence the Crown Court ceases to have jurisdiction and any investigation of any possible jury irregularity requires the consent of this court, as was explained in R v Thompson & Ors [2010] EWCA Crim 1623 at [2] per Lord Judge CJ.

Section 23A(1) of the Criminal Appeal Act 1968 provides:

We are grateful to the Registrar for referring the section 23A question to us. A jury irregularity is in principle one of the "matters" which could be investigated under subsection (1). Having considered the facts and the submissions, we have nevertheless concluded that no investigation can be ordered in this case because the documents and hearing transcripts before us are entirely sufficient for us to decide whether there is an arguable ground of appeal based on jury irregularity. It therefore cannot be said under section 23A(1)(c) that the proposed ground of appeal "cannot be resolved by the court" without an investigation by the CCRC. Moreover, any enquiry into the jury's deliberations would fall foul of the principle as stated in Essa (above). Neither of the exceptions to that principle can be said to apply. It is not suggested that any extraneous material was before the jury. As will become apparent, we also do not consider that there is any basis for suggesting that there was a "complete repudiation by the jury of their oath to try the case according to the evidence".

We turn to the merits of the proposed ground of appeal.

As we have said, Ms Akudolu KC relies on the cumulative effect of the initial indication that a juror was not engaging, a suggestion in the juror note that jurors might be simply basing their decision on the applicant's previous convictions and the observation by a member of court staff that a juror was looking at a puzzle book. The reliance on cumulative effects tends to suggest, realistically in our view, that none of these concerns by itself could have founded a ground of appeal. Such matters do of course give rise to concern, but concerns of that kind arise in jury trials from time to time and judges are well versed in dealing with them. Jurors do sometimes have to be reminded of the nature of their duties, sometimes in strong and forthright terms.

In the present case, each concern was dealt with promptly and in accordance with the procedures set out in the Crim PD, from which no departure has been alleged by the applicant and all of the steps taken were agreed by counsel at the time.

The solution adopted by the judge by agreement of giving the jury firm directions focused on the concerns which had been raised was, in our judgment, sufficient and satisfactory. The fact that some jurors may not have fully appreciated the directions of law when given for the first time does not mean that they could not be relied upon to understand and follow the reiterated directions. It follows that there was no necessity to discharge the jury and the judge's refusal to do so was well within the ambit of his discretion.

That conclusion is reinforced by two matters. First, the lack of concerns expressed by the jury to the judge. Other than the suggestion in the note that excessive reliance might be placed on previous convictions, no juror sent a note expressing concern about the conduct of any other juror, despite the judge's express direction that concerns should be raised in that way. Second, the positive evidence of proper engagement and decision making by the jury. During their retirement they sent two notes containing questions about the evidence, as we have said, and although they convicted the applicant on nine counts, they acquitted him on another three counts including one of the counts of rape, demonstrating that they were giving consideration to each count and not taking a blanket view of his guilt or innocence.

For all of these reasons we conclude, first, that the evidence in this case falls far short of indicating any "complete repudiation" of their oath by any of the jury and that any further enquiry into the jury's deliberations would therefore be impermissible; and second, that it is not arguable that any jury irregularity made the applicant's conviction on any of the counts unsafe.

We therefore refuse the application for leave to appeal