Date: May 23, 2026 Limits on Post‑Trial Inquiry into Jury Issues: No s.23A CCRC Investigation Where the Record Suffices and No “Complete Repudiation” Is Shown 1. Introduction In R v Sala [2026] EWCA Crim 735 (Court of Appeal (Criminal Division), 22 May 2026), the applicant sought leave to appeal against conviction following a multi-complainant trial involving allegations of rape, assault occasioning actual bodily harm, and encouraging or assisting offending. The Sexual Offences (Amendment) Act 1992 applied, requiring lifelong anonymity for complainants. The proposed appeal focused not on the merits of the evidence but on an asserted jury irregularity, relying on: (i) a report that one juror was not engaging and was allegedly listening to music and drawing; (ii) a jury note suggesting that “they” had decided a charge “purely” because it matched the applicant’s previous convictions; and (iii) an observation that a juror had used a puzzle book during deliberations. The defence argued the cumulative effect required discharge of the jury and rendered the convictions unsafe. The Court was also invited to consider whether to direct the Criminal Cases Review Commission (“CCRC”) to investigate and report under s.23A(1) Criminal Appeal Act 1968. 2. Summary of the Judgment Leave to appeal refused: the proposed ground of appeal based on jury irregularity was not arguable; the convictions were not unsafe. No s.23A(1) direction: the Court held an investigation could not be ordered because the issue could be resolved on the existing record, and any inquiry into deliberations would be impermissible. Discharge not “necessary”: the trial judge’s response—firm, tailored directions given in line with Crim PD 8.7 and agreed by counsel—fell well within discretion. 3. Analysis 3.1 Precedents Cited (a) R v Essa & Ors [2023] EWCA Crim 608 (and R v Mirza [2004] 1 AC 1188) The Court treated R v Essa & Ors [2023] EWCA Crim 608, drawing on the House of Lords in R v Mirza [2004] 1 AC 1188, as the controlling statement of principle on the confidentiality of jury deliberations. It reaffirmed the “long-established common law principle” that jury discussions are confidential and evidence of deliberations is inadmissible, subject only to two narrow exceptions: Complete repudiation of the jury’s oath (e.g., deciding by coin toss); or Extraneous material being introduced into deliberations (material not in evidence). Applying that framework, the Court held neither exception was engaged: there was no suggestion of extraneous material; and the record did not support any inference of “complete repudiation” of the jurors’ duty. (b) Winsor [1866] LR 1 QB 289 Winsor supplied the classic threshold for discharging a jury: discharge is permissible only where it is “necessary”, connoting a high degree of need. The Court applied this stringent standard to uphold the trial judge’s refusal to discharge. (c) R v Thompson & Ors [2010] EWCA Crim 1623 The Court relied on R v Thompson & Ors [2010] EWCA Crim 1623 to explain jurisdictional limits: once verdict and sentence have occurred, the Crown Court lacks jurisdiction to conduct investigations into alleged jury irregularities; post-trial investigation requires the consent/authority of the Court of Appeal. 3.2 Legal Reasoning (a) Why a s.23A(1) CCRC investigation was refused The Court accepted that a jury irregularity could, in principle, be a “matter” under s.23A(1) Criminal Appeal Act 1968. However, it refused to direct a CCRC investigation on two linked grounds: s.23A(1)(c) was not satisfied: the Court held the “documents and hearing transcripts” were “entirely sufficient” to decide arguability, so the matter was resolvable without a CCRC investigation. The Essa/Mirza deliberations bar: any meaningful inquiry into what jurors were thinking or how they reasoned would trespass into protected deliberations, and neither narrow exception applied. The effect is a clear procedural message: s.23A is not a route to “fish” for deliberative detail where the court can determine safety and arguability on the trial record and permissible evidence. (b) The “cumulative concerns” argument and the discharge decision The applicant relied on three strands of concern. The Court’s treatment was notably practical: concerns of engagement and compliance “arise in jury trials from time to time”; judges can address them with robust directions; and the applicant’s own reliance on “cumulative effect” implicitly recognised that no single incident crossed the threshold. Central to the Court’s reasoning were these features: Crim PD 8.7 compliance: the judge stated he was following the Criminal Practice Direction and warned against unlawful inquiry into deliberations; the Court found the concerns were dealt with “promptly” and in accordance with the Crim PD. Targeted corrective directions: the judge reminded jurors of proper deliberation, the burden and standard of proof, and the limited use of previous convictions; he also prohibited distractions (music devices; puzzle books). Party agreement at trial: all steps taken were agreed by counsel at the time, and no party sought to identify or isolate a particular juror. This did not create a waiver of appellate rights, but it reinforced that the trial judge’s chosen management response was a mainstream, defensible option. No “necessity” to discharge: given the remedial directions and the lack of concrete evidence of defiance, the “high degree of need” required by Winsor was not met. (c) Indicators the jury followed directions Two points reinforced the Court’s conclusion that there was no repudiation of duty and no unsafety: Absence of formal juror complaint to the judge (despite being told to raise concerns by note), beyond the generalised note about how to approach evidence. Discriminating verdicts: the jury convicted on some counts and acquitted on others (including one rape count), suggesting count-by-count engagement rather than a blanket reliance on previous convictions. 3.3 Impact The decision consolidates several practical propositions likely to matter in future jury-irregularity applications: Strong, repeated directions are the primary remedy for many mid-deliberation conduct concerns (inattention, misunderstandings of legal directions), and appellate courts will be slow to treat such episodes as making convictions unsafe where the judge acted promptly and proportionately. Discharge remains exceptional: even multiple concerns may not meet the “necessity” threshold where the court cannot properly inquire into deliberations and where the record does not demonstrate defiance of the oath. s.23A is tightly policed: the Court signalled that it will not deploy the CCRC to investigate matters that can be resolved from transcripts and permissible material, particularly where investigation would tend toward prohibited deliberation inquiry. Bad character directions matter: where previous convictions are before a jury, allegations that jurors misused them will often collide with the Mirza/Essa barrier, making careful trial-level directions—and their documentation on the record—decisive on appeal. 4. Complex Concepts Simplified “Jury deliberations are confidential” Courts generally cannot investigate what jurors said to each other or how they reasoned to their verdict. This protects the jury system from intimidation, second-guessing, and post-verdict fishing expeditions. Two exceptions (from R v Mirza as applied in R v Essa & Ors) Inquiry is permitted only if (1) jurors wholly abandoned their duty (e.g., deciding by chance), or (2) they used outside material not in evidence. “Necessity” to discharge a jury Discharge is not a convenience or a precautionary step; it requires a high level of need. If directions can cure the problem, discharge is usually not “necessary.” Crim PD 8.7 (jury irregularities procedure) A structured set of steps guiding the trial judge on containment (including possible isolation of jurors), consultation with advocates, establishing basic facts without probing deliberations, and deciding whether the trial can fairly continue. s.23A Criminal Appeal Act 1968 A power for the Court of Appeal to direct the CCRC to investigate and report on a matter relevant to determining an appeal (or leave application), but only where the court cannot resolve it without such an investigation. 5. Conclusion R v Sala [2026] EWCA Crim 735 confirms that alleged jury misbehaviour or misunderstanding, even when raised cumulatively, will rarely justify discharge or found an arguable safety challenge where the trial judge responds promptly under Crim PD 8.7 with firm, targeted directions, and where any deeper inquiry would trespass into protected deliberations. The Court also draws a clear boundary around s.23A: the CCRC will not be tasked to investigate a “jury irregularity” where the appellate court can determine arguability from the existing record and where investigation would, in substance, seek impermissible insight into deliberative reasoning.
Limits on Post‑Trial Inquiry into Jury Issues: No s.23A CCRC Investigation Where the Record Suffices and No “Complete Repudiation” Is Shown 1. Introduction In R v Sala [2026] EWCA Crim 735 (Court of Appeal (Criminal Division), 22 May 2026), the applicant sought leave to appeal against conviction following a multi-complainant trial involving allegations of rape, assault occasioning actual bodily harm, and encouraging or assisting offending. The Sexual Offences (Amendment) Act 1992 applied, requiring lifelong anonymity for complainants. The proposed appeal focused not on the merits of the evidence but on an asserted jury irregularity, relying on: (i) a report that one juror was not engaging and was allegedly listening to music and drawing; (ii) a jury note suggesting that “they” had decided a charge “purely” because it matched the applicant’s previous convictions; and (iii) an observation that a juror had used a puzzle book during deliberations. The defence argued the cumulative effect required discharge of the jury and rendered the convictions unsafe. The Court was also invited to consider whether to direct the Criminal Cases Review Commission (“CCRC”) to investigate and report under s.23A(1) Criminal Appeal Act 1968. 2. Summary of the Judgment Leave to appeal refused: the proposed ground of appeal based on jury irregularity was not arguable; the convictions were not unsafe. No s.23A(1) direction: the Court held an investigation could not be ordered because the issue could be resolved on the existing record, and any inquiry into deliberations would be impermissible. Discharge not “necessary”: the trial judge’s response—firm, tailored directions given in line with Crim PD 8.7 and agreed by counsel—fell well within discretion. 3. Analysis 3.1 Precedents Cited (a) R v Essa & Ors [2023] EWCA Crim 608 (and R v Mirza [2004] 1 AC 1188) The Court treated R v Essa & Ors [2023] EWCA Crim 608, drawing on the House of Lords in R v Mirza [2004] 1 AC 1188, as the controlling statement of principle on the confidentiality of jury deliberations. It reaffirmed the “long-established common law principle” that jury discussions are confidential and evidence of deliberations is inadmissible, subject only to two narrow exceptions: Complete repudiation of the jury’s oath (e.g., deciding by coin toss); or Extraneous material being introduced into deliberations (material not in evidence). Applying that framework, the Court held neither exception was engaged: there was no suggestion of extraneous material; and the record did not support any inference of “complete repudiation” of the jurors’ duty. (b) Winsor [1866] LR 1 QB 289 Winsor supplied the classic threshold for discharging a jury: discharge is permissible only where it is “necessary”, connoting a high degree of need. The Court applied this stringent standard to uphold the trial judge’s refusal to discharge. (c) R v Thompson & Ors [2010] EWCA Crim 1623 The Court relied on R v Thompson & Ors [2010] EWCA Crim 1623 to explain jurisdictional limits: once verdict and sentence have occurred, the Crown Court lacks jurisdiction to conduct investigations into alleged jury irregularities; post-trial investigation requires the consent/authority of the Court of Appeal. 3.2 Legal Reasoning (a) Why a s.23A(1) CCRC investigation was refused The Court accepted that a jury irregularity could, in principle, be a “matter” under s.23A(1) Criminal Appeal Act 1968. However, it refused to direct a CCRC investigation on two linked grounds: s.23A(1)(c) was not satisfied: the Court held the “documents and hearing transcripts” were “entirely sufficient” to decide arguability, so the matter was resolvable without a CCRC investigation. The Essa/Mirza deliberations bar: any meaningful inquiry into what jurors were thinking or how they reasoned would trespass into protected deliberations, and neither narrow exception applied. The effect is a clear procedural message: s.23A is not a route to “fish” for deliberative detail where the court can determine safety and arguability on the trial record and permissible evidence. (b) The “cumulative concerns” argument and the discharge decision The applicant relied on three strands of concern. The Court’s treatment was notably practical: concerns of engagement and compliance “arise in jury trials from time to time”; judges can address them with robust directions; and the applicant’s own reliance on “cumulative effect” implicitly recognised that no single incident crossed the threshold. Central to the Court’s reasoning were these features: Crim PD 8.7 compliance: the judge stated he was following the Criminal Practice Direction and warned against unlawful inquiry into deliberations; the Court found the concerns were dealt with “promptly” and in accordance with the Crim PD. Targeted corrective directions: the judge reminded jurors of proper deliberation, the burden and standard of proof, and the limited use of previous convictions; he also prohibited distractions (music devices; puzzle books). Party agreement at trial: all steps taken were agreed by counsel at the time, and no party sought to identify or isolate a particular juror. This did not create a waiver of appellate rights, but it reinforced that the trial judge’s chosen management response was a mainstream, defensible option. No “necessity” to discharge: given the remedial directions and the lack of concrete evidence of defiance, the “high degree of need” required by Winsor was not met. (c) Indicators the jury followed directions Two points reinforced the Court’s conclusion that there was no repudiation of duty and no unsafety: Absence of formal juror complaint to the judge (despite being told to raise concerns by note), beyond the generalised note about how to approach evidence. Discriminating verdicts: the jury convicted on some counts and acquitted on others (including one rape count), suggesting count-by-count engagement rather than a blanket reliance on previous convictions. 3.3 Impact The decision consolidates several practical propositions likely to matter in future jury-irregularity applications: Strong, repeated directions are the primary remedy for many mid-deliberation conduct concerns (inattention, misunderstandings of legal directions), and appellate courts will be slow to treat such episodes as making convictions unsafe where the judge acted promptly and proportionately. Discharge remains exceptional: even multiple concerns may not meet the “necessity” threshold where the court cannot properly inquire into deliberations and where the record does not demonstrate defiance of the oath. s.23A is tightly policed: the Court signalled that it will not deploy the CCRC to investigate matters that can be resolved from transcripts and permissible material, particularly where investigation would tend toward prohibited deliberation inquiry. Bad character directions matter: where previous convictions are before a jury, allegations that jurors misused them will often collide with the Mirza/Essa barrier, making careful trial-level directions—and their documentation on the record—decisive on appeal. 4. Complex Concepts Simplified “Jury deliberations are confidential” Courts generally cannot investigate what jurors said to each other or how they reasoned to their verdict. This protects the jury system from intimidation, second-guessing, and post-verdict fishing expeditions. Two exceptions (from R v Mirza as applied in R v Essa & Ors) Inquiry is permitted only if (1) jurors wholly abandoned their duty (e.g., deciding by chance), or (2) they used outside material not in evidence. “Necessity” to discharge a jury Discharge is not a convenience or a precautionary step; it requires a high level of need. If directions can cure the problem, discharge is usually not “necessary.” Crim PD 8.7 (jury irregularities procedure) A structured set of steps guiding the trial judge on containment (including possible isolation of jurors), consultation with advocates, establishing basic facts without probing deliberations, and deciding whether the trial can fairly continue. s.23A Criminal Appeal Act 1968 A power for the Court of Appeal to direct the CCRC to investigate and report on a matter relevant to determining an appeal (or leave application), but only where the court cannot resolve it without such an investigation. 5. Conclusion R v Sala [2026] EWCA Crim 735 confirms that alleged jury misbehaviour or misunderstanding, even when raised cumulatively, will rarely justify discharge or found an arguable safety challenge where the trial judge responds promptly under Crim PD 8.7 with firm, targeted directions, and where any deeper inquiry would trespass into protected deliberations. The Court also draws a clear boundary around s.23A: the CCRC will not be tasked to investigate a “jury irregularity” where the appellate court can determine arguability from the existing record and where investigation would, in substance, seek impermissible insight into deliberative reasoning.