Dealing with the risk that a jury was “poisoned” (so to speak) [1]) by misbehaviour was the topic considered in Campbell v R (No 2) (Jamaica) [2024] UKPC 6.
The difficulty for the trial judge in this case was that at the closing stage of a lengthy and complex (and necessarily expensive) trial a concern was raised that attempts had been made by one juror to bribe others - the number was not clear - to acquit the defendants. Could this risk be avoided by judicial management?
The Board held that the measures taken here had not been sufficient [44]-[45]. The defendants’ fundamental right to a fair trial by an independent and impartial court had been infringed. The judge’s duty was
“to ensure a fair trial. In order to maintain public confidence in the administration of justice it is necessary to do justice to both prosecution and defence so that the guilty may be convicted and the innocent acquitted.” [47]
So the party that may have been prejudiced (the prosecution) could not waive the misconduct.
The judge should have considered whether there was “a real risk” that jurors may have been consciously or unconsciously prejudiced for or against one or more of the defendants [48]-[53].
Here the verdicts were returned by a jury that was not a fair and impartial tribunal of fact, so there was no room for application of the proviso. [55]
It was for the local courts to decide whether a retrial should be ordered [63]-[64].
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[1] Borrowing at [48]-[51] the language of Bingham LJ in R v Putnam (1991) 93 Cr App R 281, 286-287.
