Juror - Bias - Defendants conceiving of idea for ‘Lapland New Forest’ attraction

R v Mears and another: CA (Crim Div) (Lord Justice Moore-Bick, Mr Justice Butterfield, Mr Justice Irwin): 10 November 2011

The defendants, who were husband and wife, conceived the idea of promoting an attraction near Bournemouth called ‘Lapland New Forest’ (Lapland).

The concept, geared particularly at young people and at parents of young children, was to create, in a woodland area, scenery of a kind similar to that found in the northern Scandinavian countries, with heavy snow and log cabins and various attractions with a Christmas theme.

Lapland New Forest (the company), of which the husband was sole director, was incorporated to advertise the attraction, which was subsequently widely advertised in the local press and on the internet. Tickets were priced as £30 each or £25 for four. A total of 8,661 transactions were processed through the company’s website during September and December 2008, generating revenue from sale of tickets of a little over £1m.

A further 1,237 transactions, processed though the company’s ‘streamline’ facility generated £140,247.05. Lapland opened on 29 November 2008. The following Monday, a large number of complaints were received by Dorset Trading Standards Service that, in a number of respects, the experience provided did not match up to what had been advertised. Following an investigation by trading standards officers and bad press, Lapland closed on 4 December and the company went into liquidation.

The defendants were charged with misleading acts contrary to regulation 9, and misleading omissions contrary to regulation 10, of the Consumer Protection From Unfair Trading Regulations 2008, SI 2008/1277, which implemented Council Directive (EC) 2005/29 (on unfair practices directed by businesses at consumers). The charges alleged that the defendants had allowed the company to give descriptions of various features of the attraction in its advertising material that were either not present or which fell short of what was actually provided.

The alleged misleading descriptions included references in the advertising material to a ‘magical tunnel of light’ and ‘beautiful snow-covered log cabins’. At the trial, the defendants accepted that various aspects of the attraction had not lived up to the advertising but they relied on the defence under regulation 17 of the 2008 regulations, in essence blaming third parties for deliberately undermining the venture. After the judge had started his summing up, it was discovered that a member of the jury had been in mobile phone contact with her fiance, who had been sitting in the public gallery during a significant part of the trial and had observed proceedings which had taken place in the absence of the jury.

There was evidence that a number of texts had been exchanged between them during the trial and the juror admitted receiving texts while in the jury room. One text sent by the fiance to the jury during the judge’s summing up read ‘guilty’. The judge rejected an application to discharge the jury. The defendants were convicted of 13 offences under the 2008 regulations and they were sentenced to 13 months’ imprisonment. Other orders were made.

The defendants appealed against conviction.

They submitted, inter alia, that the conviction was unsafe in that there was apparent bias due to the fact that a member of the jury had been found to have been in mobile phone contact with her fiance, who had been sitting in the public gallery during a significant part of the trial and who had observed proceedings, including proceedings which had taken place in the absence of the jury. There was evidence that a number of texts had been exchanged between the juror and her fiance during the trial and the juror admitted receiving texts while in the jury room. It was submitted that, in those circumstances, the judge ought to have discharged the jury due to the risk of prejudice to the defendants.The appeal would be allowed.

It was settled law that the test for bias was whether a fair-minded, independent and informed observer would conclude that there was a real danger that the jury might be biased or whether it could nonetheless reach a verdict without taking into account, even subconsciously, what they had been told. The fair-minded, independent and informed observer, inter alia, was not unduly sensitive or suspicious, nor complacent, and knew that judges (and jurors) had to be, and be seen to be, unbiased. The independent observer had to reach his decision on the likelihood of bias by considering the facts in their context. He had to make his own assessment of the risk of bias based on all the available raw material (see [17-[18] of the ­judgment).

In the instant case, the fair-minded, independent and informed observer would have concluded that there was a real risk that the jury had received information from an extraneous source, which it could not put out of its mind, despite the further direction given by the judge at the close of his summing up, and which might have adversely affected its view of the defendants. The errant juror’s fiance had been sitting in court for a significant part of the trial, both when the jury had been in court and when they had been absent. There was therefore a significant risk that he had obtained information concerning the defendants or the proceedings to which the jury had not been intended to have access.

It was highly likely that the juror and her fiance had discussed the case and that information of some significance had been passed by the fiance to the juror. It followed that a fair-minded, independent and informed observer, knowing that jurors had to be, and had to be seen to be, unbiased, would have concluded that there was a real risk that, during the course of the trial, the jury had received information and views emanating from an extraneous source that it could not put out of its minds.

Although the judge had correctly identified the test to be applied, he had failed properly to apply it because he had substituted his own view of the facts for that of the fair-minded, independent and informed observer (see [18], [19], [21] of the judgment).

The convictions had to be quashed (see [21] of the judgment).

Geoffrey Robertson QC and Annabel Timan (instructed by Bishop & Light) for the first defendant; Rossano Scamardella (instructed by the Registrar of Criminal Appeals) for the second defendant; Malcolm Gibney (instructed by the Crown Prosecution Service) for the Crown; Paul Ozin (instructed by the Treasury Solicitor) for the intervening party.