Regina v. Smith

I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Rodger of Earlsferry and Lord Carswell, with which I am in full agreement. For the reasons they give I would allow these appeals, make the orders which they propose and answer both certified questions in the negative.

LORD STEYN

My Lords,

For the reasons contained in paragraph 26 of the opinion of my noble and learned friend Lord Carswell, I would also allow the appeals, quash the convictions and remit the case to the Court of Appeal to decide whether to order a new trial.

My Lords,

On the morning of 29 May 2002 counsel for Mr Smith showed him an anonymised copy of a letter detailing the alleged failures of certain members of the jury to comply with the judge's directions. As counsel explained in his affidavit in the proceedings before the Court of Criminal Appeal, his own view was that, absent tactical considerations, he should apply to discharge the jury. From the point of view of Mr Smith, there were, however, certain tactical arguments in favour of simply having the judge give the jury further directions. From what was said in the letter, it seemed likely that, if the trial went ahead, the jury would convict him of the two lesser counts, 1 and 2, but acquit him of, or be unable to reach a verdict on, the charges of kidnapping and murder in counts 3 and 4. On the other hand, if the jury were discharged and a new trial ordered, Mr Smith would again face all the charges, including those of murder and kidnapping. Counsel explained this to Mr Smith who understood the position. The affidavit records:

It is abundantly clear that Mr Smith took a tactical decision which, on advice, he thought would work to his advantage. The decision was not to seek a discharge, but to proceed with the trial after further directions to the jury. His counsel addressed the judge on that basis. Mr Smith is entitled to say that he assumed that the directions would be appropriately rigorous. In the event, for the reasons given by my noble and learned friend, Lord Carswell, they did not meet the required standard. Mr Smith can legitimately complain on that score and I accordingly agree that his appeal should be allowed.

I would wish to reserve my opinion, however, on whether, if the directions had been satisfactory, Mr Smith could have appealed and contended that the jury should have been discharged. The point is one of considerable general importance which was not fully argued. There is, with respect,…

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