Practice and Procedure


PUBLISHED July 8, 2003

Counsel was entitled, upon request, to see the notes sent from the jury to the judge. In the instant case, the judge had dealt adequately with the notes and the irregularities in relation to some of the notes did not begin to undermine the safety of the conviction.Appeal against conviction and sentence. The appellant ('H') was convicted of causing grievous bodily harm ('GBH') with intent and was sentenced to seven years' imprisonment. H was working at a hotel and used the master key to enter the hotel room of a 22-year-old woman. The victim alleged that H strangled her and that she could not breathe for between 10 and 30 seconds. Confronted with DNA evidence, H pleaded guilty to causing GBH contrary to s.20 Offences Against the Person Act 1861 but stated that he had entered the room with the intention of theft only. The single issue for the jury at trial was whether, when causing GBH, H had done so with intent to cause GBH contrary to s.18 Offences Against the Person Act 1861. The single issue in the appeal was the way in which the judge dealt with a total of 17 notes sent to him by the jury before their retirement. Each note was sent to the judge in full view of the court. The judge did not show all the notes to counsel but he usually read out the note he had received before dealing with it in the presence of the jury. On occasion he only summarised the note. On appeal H argued that the judge's summaries were inadequate and did not alert defence counsel to the fact that a note had something to do with H's case. After the jury had left court, counsel for the defence asked to see the notes but the judge took the view that, unless there was some authority to oblige him to do so, he would not. No authorities were drawn to his attention and no further application was made.HELD: (1) The principles on notes from the jury were in fact decided in R v Gorman (1987) 85 CAR 121. If the communication from the jury raised administrative issues unconnected with the trial, the judge could deal with them without referring to counsel. In almost every other case a judge should state in open court the nature and the content of the communication and, if he considered it helpful to do so, seek the assistance of counsel. The object of these procedures was to ensure that (a) there was no suspicion of any secret communication between the court and the jury and (b) to enable the judge to give proper and accurate assistance to the jury. (2) In this case, the notes were not treated as private communications between the judge and the jury. There was no requirement for them to be physically handed to counsel although if counsel asked to see them it was normal practice to do so. (3) The judge's failures were trivial and minor. The judge dealt adequately with the notes. The irregularities which took place did not begin to undermine the safety of this conviction. For these reasons the appeal against conviction would be dismissed. (4) With regard to the appeal against sentence, the assault was not prolonged and H did plead guilty. The sentence imposed would have been appropriate to reflect a greater degree of criminality and a greater degree of persistence than H showed. Seven years' imprisonment was excessive. A sentence of five years would be substituted.Appeal against conviction dismissed. Appeal against sentence allowed.

[2003] EWCA Crim 1974