R v Mardan [2025] EWCA Crim 1469 – Flexible Application of Criminal Practice Direction 26M in Low‑Grade Jury Intimidation

1. Introduction

The decision in R v Mardan [2025] EWCA Crim 1469 concerns a renewed application for leave to appeal against conviction in a serious sexual offences case, where the sole ground was not about the substantive evidence, but about how the trial judge handled a jury note alleging intimidation by men in the public gallery and outside court.

The Court of Appeal (Criminal Division), constituted by Bryan J, was asked to decide whether:

the trial judge’s response to a jury note complaining of intimidating behaviour by men in the public gallery and outside the court building,
and the failure formally to follow the seven‑step process in paragraph 26M of the Criminal Practice Direction 2015 (CPD),

rendered the convictions unsafe. The applicant had been convicted of:

Sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 (four counts); and
Doing an act tending and intended to pervert the course of public justice (one count), arising from an attempt, via a co‑accused (“X”), to induce the complainant not to give evidence.

The case is anonymised in accordance with the Sexual Offences (Amendment) Act 1992, which prohibits publication of identifying information about the complainant (“C”).

This judgment is important not because it revisits the law on sexual offences as such, but because it clarifies the approach to jury irregularities and alleged intimidation. In particular, it addresses:

how strictly trial judges must follow the structured seven‑step scheme in CPD 26M;
when a “least said, soonest mended” approach is appropriate in response to low‑level concerns;
how appellate courts assess whether such handling may have prejudiced the defendant; and
the relationship between tactical decisions made by trial counsel and later attempts to appeal.

In the end, the Court of Appeal dismissed the renewed application for leave to appeal and refused the very substantial extension of time, holding that the convictions were not arguably unsafe. However, the judgment lays down useful guidance on the practical application and flexibility of CPD 26M.

2. Summary of the Judgment

2.1 Procedural posture

On 14 April 2023, at Bradford Crown Court, the applicant (then aged 36) was convicted by a jury of four counts of sexual activity with a child (C, then aged 14–15 at the material time), and one count of doing an act tending and intended to pervert the course of justice (involving an attempt to “buy off” C’s evidence via X). On 28 April 2023, he received:

10 years’ imprisonment on Count 1;
10 years concurrent on Counts 2–4;
1 year consecutive on Count 5;

making a total of 11 years’ imprisonment. The co‑accused X pleaded guilty on a basis to Count 5 and received 12 months.

The applicant sought to renew, out of time by 574 days, his application for leave to appeal against conviction, after a Single Judge had refused leave.

2.2 The single ground of appeal

The sole ground of appeal related to the handling of a jury note on 13 April 2023:

“Yesterday, after leaving, the men in the gallery were stood outside at the entrance, appearing to watch the door as we all came out. It was really intimidating and concerning.”

The complaint was that:

the trial judge’s response to this note was incomplete and inadequate;
the judge did not sufficiently investigate or neutralise any prejudice to the applicant;
the jury might have inferred that the men were acting on the applicant’s behalf, possibly linking this to the perverting the course of justice count;
and that this created a real risk of unfairness rendering the convictions unsafe.

2.3 The trial judge’s response

After short discussions with counsel, the judge addressed the jury the next morning:

“Can I reassure you that appropriate measures have been taken in response to that note and you do not need to be concerned about the matters that you have raised in your note. In addition, we have the police officer who is involved in the case sitting in the public gallery in order to avoid any further issues arising. Needless to say, should you have any further concerns, please do share them with me…”

No juror raised any further issue. In his summing‑up the judge repeated his earlier direction that they must:

“…put such emotions to one side and consider all the evidence in the case fairly, carefully, dispassionately in order to achieve just verdicts…”

He had also, at the outset of the trial, told the jury that any attempt by anyone to speak to them about the case must be reported to him, and stressed their collective responsibility to ensure that all jurors discharged their duties properly.

2.4 The Court of Appeal’s conclusions

The Court of Appeal held, in essence, that:

Although the seven‑step process in paragraph 26M of the Criminal Practice Direction 2015 was not formally followed, on the facts of this case:
- the complaint was “relatively low grade”;
- the note did not refer to, or implicate, the applicant; and
- there was no reason to think the jury had any concerns about the applicant’s own conduct.
A more elaborate inquiry or direction – for example:
- isolating individual jurors, or
- explicitly directing that the observers’ behaviour was not the applicant’s responsibility –
might have highlighted or created a prejudice that was not previously in the jurors’ minds, especially given the perverting-the-course-of-justice count.
The trial judge’s approach – reassuring the jury that steps had been taken, providing a police presence in the gallery, and reminding them to raise any further concerns – was a proportionate and appropriate response.
The earlier and repeated directions to decide the case on the evidence, to put emotions aside, and to report any problems, were sufficient safeguards. The absence of any further complaint was significant.
There was therefore no misdirection, no unfairness and no realistic possibility that the jury’s verdicts had been improperly influenced. The convictions were not arguably unsafe.
In any event, there was no good reason to justify a 574‑day delay in applying for leave, given that all relevant facts about the jury note and the judge’s response were known at the time.

Accordingly, the Court of Appeal:

Refused the application for an extension of time; and
Dismissed the renewed application for leave to appeal against conviction.

3. Factual and Procedural Background

3.1 The underlying offending

The complainant, “C”, disclosed in June 2019 that, when she was aged 14–15, the applicant – then around 28 – had supplied her with alcohol and cigarettes and engaged in sexual activity with her over several months. The prosecution case was that:

The applicant befriended C and one of her friends (“A”), knowing that C was only 14.
He would collect them (including once in a white Mercedes) and take them to different houses or to the basement of his shop.
He groomed them with alcohol and cigarettes, then pressured C to have sex.
Over about eight months, he engaged in vaginal and oral sexual activity with C (Counts 1–4).
He used threats to ensure her continued compliance and treated her “like a prostitute”.

C eventually stopped seeing him, deleted social media, and changed her phone number. In summer 2019, her friend “B” received Instagram messages soliciting paid sex with C; the prosecution case was that these came from the applicant. When B told C about these messages, C disclosed the abuse to her mother, who contacted the police.

Following police investigation and ABE (Achieving Best Evidence) interviews in 2019 and 2023, the applicant was arrested and interviewed. Meanwhile, the prosecution alleged that he later attempted to interfere with the course of justice: knowing that C was to give pre‑recorded evidence under

28 of the Youth Justice and Criminal Evidence Act 1999

, he arranged for X to offer money to C not to attend court. X contacted C’s boyfriend, M, asking, “what price do you want not to attend court?”.

3.2 The defence case

The applicant accepted that sexual intercourse took place, but maintained that:

he reasonably believed C was over 16, in fact 19;
he did not give her cigarettes; and
he was not involved in any approach by X and had nothing to do with the alleged attempt to pervert the course of justice.

He denied having a white Mercedes at the relevant period; accepted that he had met up with C and her friend, and that he had sex with C on multiple occasions, but insisted that he believed her to be an adult.

3.3 The jury issues

On the sexual counts (Counts 1–4) the key questions for the jury were:

Was C under 16 at the material time?
If so, did the applicant not have a reasonable belief that she was 16 or over?

On Count 5 (perverting the course of justice), the key question was whether the applicant acted together with X in the attempt to deter C from giving evidence.

4. The Jury Note and the Trial Judge’s Response

4.1 The jury note

During the trial, on 13 April 2023, the jury sent the following note:

“Yesterday, after leaving, the men in the gallery were stood outside at the entrance, appearing to watch the door as we all came out. It was really intimidating and concerning.”

The note:

was said to reflect the sentiment of more than one juror;
described the behaviour of “the men in the gallery”, not of the applicant; and
complained that those men appeared to be observing the jurors as they left court, which was experienced as intimidating.

4.2 Trial counsel’s knowledge

In his later response (6 November 2024) to the fresh grounds of appeal, trial counsel explained that:

He knew the men to be friends/associates of the defendant, as they had been present on most days and had attended at least one conference with the defendant.
He was confident he had taken instructions from the defendant about whether to seek the jury’s discharge, and that the defendant had chosen not to do so.
He saw rational reasons not to seek a discharge:
- the complainant’s evidence was clear and would inevitably be repeated in any retrial;
- the trial had gone about as well as it realistically could for the defence;
- a retrial would have entailed many months’ delay, with the defendant remaining in custody and bail unlikely; and
- highlighting the matter further might exacerbate any negative impressions.
He had spoken “in strong terms” to the men concerned, and there was no recurrence of the conduct complained of.
He saw the judge’s reassurance that “appropriate measures have been taken”, coupled with the later reminder to decide the case on the evidence, as effectively a direction to ignore the incident.

4.3 The judge’s handling

After a short discussion with counsel, the judge:

did not isolate any jurors for questioning;
did not enquire on the record into their ability to be impartial; and
did not explicitly say the men were (or were not) connected to the applicant.

Instead, he:

reassured the jury that “appropriate measures” had been taken and they need not be concerned about the incident;
arranged for the police officer involved in the case to sit in the public gallery “in order to avoid any further issues arising”; and
invited the jury to raise any further concerns directly with him.

There were no further complaints. The judge ultimately reminded the jury, in summing up, of their duty to put emotions aside and reach verdicts solely on the evidence.

5. Legal Framework and Reasoning

5.1 The Criminal Practice Direction 2015 – paragraph 26M

The key formal instrument the Court refers to is paragraph 26M of the Criminal Practice Direction 2015, which set out a structured approach to dealing with jury irregularities. The 2023 CPD was not yet in force at the time of trial. Paragraph 26M advised a seven‑step process:

Consider isolating the juror(s) involved;
Consult with advocates;
Consider provisional measures to address the irregularity;
Seek to establish the basic facts of the irregularity;
Further consult with advocates;
Decide what to do in relation to the conduct of the trial (e.g., directions; discharge of a juror or jury);
Consider ancillary matters (e.g., reporting, security measures).

The Court of Appeal acknowledged:

“This structured approach should have been followed, and offers valuable benefits in reaching a reasoned conclusion as to what to do and what to tell the jury.”

However, the Court’s key point is that failure rigidly to apply every step does not automatically render a conviction unsafe. What matters is whether, on the facts, the approach:

was reasonably informed;
protected the integrity of the jury’s decision‑making; and
did not leave any real risk of prejudice to the defendant.

5.2 Assessment of the particular irregularity

The Court classed the complaint as “relatively low grade”:

It did not involve a direct approach, speech, or contact with jurors.
The note was about the men in the gallery standing and “appearing to watch” the exit.
There was no allegation of threats or violence.

Crucially, the note did not mention the applicant at all. It related to observers in the public gallery and outside the court entrance. The Court emphasised:

“The jury note did not make any reference to the Applicant. It referred to men in the public gallery… There is no basis to suggest that the jury had any concerns about the Applicant's behaviour or any reason for them to hold the observers' actions against him.”

Accordingly:

There was no evidence that the jury linked the behaviour to the defendant.
The judge knew (from counsel) that the men were associates of the defendant, but there was no indication that the jurors knew or assumed this.

5.3 Why more intervention might have been harmful

The Court considered whether, in an ideal world, more steps should have been taken. It noted that a more detailed discussion with counsel might have raised options such as:

directing the jury that the men’s actions were not the responsibility of the defendant; or
asking jurors to confirm that they could remain true to their oath.

But the Court was clear that this might have been counter‑productive:

Explicitly stressing that the men were not acting on behalf of the defendant risks planting the idea that they might have been, when that may not have been in any juror’s mind.
Given the existence of Count 5 (perverting the course of justice), any indication that “associates” of the defendant might be involved in questionable behaviour could easily have suggested a pattern of intimidation consistent with that charge.

The Court observed:

“…in the context of Count 5 it could have made a link to that Count in circumstances where no such link was in the mind of the jurors.”

This is a critical aspect of the Court’s reasoning: in some situations, over‑explanation may be more dangerous to fairness than a limited, neutral reassurance.

5.4 The “least said, soonest mended” approach

The Court explicitly endorsed what it called a “least said, soonest mended” approach in the circumstances:

“It is understandable why the Applicant did not wish to seek the discharge of the jury, and in such circumstances a ‘least said, soonest mended’ approach was required.”

What that meant in this case:

Reassure jurors that the issue had been addressed.
Visibly take steps (police presence in the gallery, counsel speaking to the individuals concerned).
Invite further concerns to be reported to the judge.
Allow the trial to continue without inflating the perceived seriousness of the episode.

The Court was satisfied that:

the judge did precisely that; and
the absence of further complaints, together with the summing‑up directions, meant the risk of continuing prejudice was effectively eliminated.

5.5 Jurors’ oath, prior directions, and collective responsibility

The Court attached weight to what the judge had said at the outset (“homily”) and in summing up:

Jurors had been instructed to decide the case on the evidence alone, setting aside emotion.
They were told that any failure by a juror to comply with directions should be reported to the judge, because each juror carried responsibility for the integrity of the whole panel.
They were expressly told to report any attempt by anyone to speak to them about the case, as that would be “a fundamental wrong”.

In that context, the Court reasoned:

“…we have no doubt that had any jurors had any residual concern they would, as directed, have shared them with the Judge, including in the context of collective responsibility…”

Since no further concerns were raised, and the previous directions had been clear, the Court saw no reason to doubt the jurors’ continued ability and willingness to abide by their oath.

5.6 Tactical decisions by trial counsel

An important part of the Court’s reasoning concerned the role of trial counsel’s judgment. The fresh grounds criticised counsel for:

allegedly responding “without reflection or instructions”; and
failing to seek the jury’s discharge or seek a more explicit direction.

Trial counsel’s detailed written response made clear that:

he had taken instructions;
the defendant did not wish to seek a discharge;
counsel had rational, articulated reasons for that decision (including the practical realities of a retrial); and
he had taken steps to ensure no repetition of the behaviour by speaking directly to those concerned.

The Court accepted this rationale as sensible and noted that even if an application for discharge had been made, it would not have succeeded on these facts. This underscores a broader appellate principle:

Where trials involve reasonable tactical decisions by experienced counsel, the appellate court is slow to characterise those decisions as giving rise to unfairness or unsafety, absent clear prejudice.

5.7 Extension of time and “unsafe conviction”

The application was 574 days out of time. The Court noted:

All the material facts (the jury note, the judge’s words, the limited discussion with counsel) were known when the trial concluded.
There had been a change of solicitors, but that in itself does not justify nearly 18 months of delay.
No “good reason” was shown to explain why an appeal on this ground was not pursued within time.

The Court’s operative conclusion was:

“We do not consider that good reasons have been made out for the extension of time sought in any event, [and] the convictions are not arguably unsafe…”

Under section 2 of the Criminal Appeal Act 1968, an appeal against conviction will only be allowed if the conviction is unsafe. The Court’s finding that the conviction was “not arguably unsafe” was sufficient in itself to dispose of the renewed application; the absence of good reasons for delay reinforced that conclusion.

6. Precedents and Normative Framework

6.1 Explicit references in the judgment

Interestingly, the judgment does not cite specific previous case law on jury irregularities or intimidation. The only structured legal reference is to:

Criminal Practice Direction 2015, paragraph 26M (seven‑step approach to jury irregularities); and
a passing note that the 2023 Criminal Practice Direction was not yet in force at the time of trial.

Nonetheless, the Court’s reasoning is clearly grounded in established principles, especially:

the requirement that convictions be safe under the Criminal Appeal Act 1968;
the long‑standing recognition that juries may encounter irregularities, and that judges must take practical steps to manage them; and
the understanding that CPDs are guidance on best practice rather than rigid codes whose breach automatically undermines fairness.

6.2 Broader case law context (not explicitly cited)

Although not named in the judgment, this decision sits within a line of authorities on:

Jury irregularities and intimidation, where appellate courts examine:
- the nature and seriousness of the alleged misconduct;
- the steps taken by the judge; and
- whether any real risk of prejudice to the defendant remains.
“Substance over form” in relation to procedural directions: so long as the judge’s response adequately protects fairness and juror impartiality, a failure to follow prescribed steps to the letter is not necessarily fatal.

R v Mardan therefore consolidates, rather than overturns, existing jurisprudence, by clarifying how the seven‑step CPD framework should be applied in low‑level situations involving observers in the gallery rather than direct targeting of jurors or overt threats.

7. Complex Concepts Explained in Plain Terms

7.1 “Unsafe conviction”

A conviction is “unsafe” where the appellate court concludes there is a real possibility that the conviction is wrong or that something occurred at trial which seriously undermined the fairness of the proceedings or the reliability of the verdict.

In this case, the question was:

Could the way the jury note was handled (or mishandled) realistically have led the jury to decide the case unfairly against the applicant?

The Court’s answer was: no. The incident was low‑grade, properly contained, not clearly linked to the defendant, and the judge’s directions were sufficient.

7.2 Jury irregularity and intimidation

A jury irregularity arises when something happens that may affect the jury’s ability to decide the case impartially – for example:

a juror sees something they should not have seen;
someone tries to speak to them about the case;
they conduct their own research; or
they feel threatened or intimidated by a person connected with the trial.

The law does not assume that every irregularity mandates a retrial. Rather, the judge must:

assess how serious it is;
take steps to ensure the jury can remain fair; and
decide whether the trial can safely continue, possibly with directions or changes (or whether the jury must be discharged).

7.3 Sexual activity with a child – section 9(1) Sexual Offences Act 2003

Section 9(1) of the Sexual Offences Act 2003 criminalises sexual activity with a person under 16. Key elements:

The complainant is under 16.
The defendant intentionally touches the complainant in a sexual way or causes the complainant to touch them.
The defendant does not reasonably believe the complainant is 16 or over.

In this case, the applicant accepted sexual activity but disputed C’s age and/or asserted a reasonable belief that she was 19.

7.4 Perverting the course of justice

“Perverting the course of justice” is a common law offence covering conduct that seriously interferes with the justice system, e.g.:

destroying or fabricating evidence;
making false allegations; or
bribing or threatening witnesses to prevent them from giving truthful evidence.

Here, Count 5 alleged that the applicant arranged for X to offer C money not to attend court to give evidence. If proved, this is a classic example of perverting the course of justice.

7.5 Section 28 YJCEA – pre‑recorded evidence

Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows vulnerable or intimidated witnesses to give their evidence‑in‑chief and cross‑examination in advance of trial, on video. This is known as “section 28 evidence”.

C was due to give such pre‑recorded evidence. The alleged attempt to buy off her testimony occurred just before a re‑scheduled section 28 hearing, demonstrating why she qualified for this special measure and why the perverting count was so serious.

7.6 Sexual offences anonymity

Under the Sexual Offences (Amendment) Act 1992, where a person alleges a sexual offence has been committed against them:

no matter likely to lead to their identification may be published during their lifetime;
unless anonymity is waived by the complainant or lifted by a court in specific circumstances.

Hence the use of initials and anonymisation (“C”, “A”, “B”, “M”, “X”) throughout the judgment.

8. Impact and Significance

8.1 On trial practice: handling low‑grade intimidation

The judgment is particularly relevant to Crown Court judges handling complaints about juror discomfort or perceived intimidation. It indicates that:

The seven‑step CPD framework should be followed and is “valuable”, but:
- a failure to tick every box in a formal way will not automatically render a conviction unsafe;
- the response must be proportionate to the seriousness and nature of the irregularity.
Where the irregularity is:
- low‑level;
- not clearly connected to the defendant; and
- capable of being addressed by reassurance and practical steps (e.g. police presence) –
then a limited, carefully framed response may be preferable to detailed probing or explicit directions that could themselves create prejudice.
Judges should still:
- consult with counsel and consider options; and
- record their reasoning as far as is practical;
but they retain a margin of judgment in how to proceed.

8.2 For defence and prosecution counsel

The case underscores the importance for counsel of:

Taking and recording instructions about whether to seek discharge of a jury or request particular directions.
Recognising that appellate courts will look at whether decisions were rational and tactical, given:
- the state of the evidence;
- the likely consequences of retrial;
- and the realistic prospects of a discharge application succeeding.

A defendant who, at the time, prefers to continue with the existing jury for rational reasons will face an uphill task later in portraying that decision as undermining the safety of the conviction.

8.3 On appeals and procedural irregularities

The judgment sends a clear message on appeal strategy:

Delays of the order of 18 months in raising a point known at trial require cogent justification.
Even where a procedural misstep is identified (here, the incomplete application of CPD 26M):
- the appellate focus remains on substance: did the irregularity create a real risk of unfairness or prejudice to the defendant?
- if not, the conviction will not be unsafe, and an out‑of‑time application is especially unlikely to succeed.

8.4 Intersection with witness intimidation and perverting justice

The case also highlights the sensitivities arising where a defendant faces both:

substantive offences (here, sexual offences), and
a count of perverting the course of justice via alleged attempts to interfere with the complainant’s evidence.

In that context, any suggestion that associates of the defendant are behaving in a way the jury might perceive as intimidating carries obvious dangers. R v Mardan illustrates that:

a measured approach by the judge is sometimes required precisely to protect the defendant from speculative inferences that might otherwise be drawn from the behaviour of supporters in the gallery.

9. Conclusion: Key Takeaways

R v Mardan is not a landmark redefinition of substantive criminal law, but it is a significant and practically important authority on the handling of low‑level jury intimidation and the flexible use of Criminal Practice Direction 26M. The key points can be distilled as follows:

CPD 26M is a structured guide, not a rigid code.
Judges should aim to follow its seven‑step approach to jury irregularities, but a failure to do so in a formally complete way does not, without more, render a conviction unsafe.
Context is everything.
The seriousness of the irregularity, whether it implicates the defendant, and the risk of prejudice all inform what steps are necessary. A note about men “watching” the jury as they leave, without more, was a relatively low‑grade complaint here.
Sometimes, “least said, soonest mended” protects fairness.
Where there is no evidence that jurors link observers’ behaviour to the defendant, over‑elaborate directions can actually create prejudice by suggesting connections that had not occurred to the jury, especially in cases involving a perverting-the-course-of-justice count.
Reassurance, visible measures, and clear directions suffice in low‑grade cases.
Telling the jury the issue has been dealt with, providing a police presence, and reminding them to raise further concerns and to decide the case only on the evidence can be enough where there is no suggestion of direct interference with jurors.
Trial counsel’s strategic decisions matter on appeal.
Decisions not to seek jury discharge or further directions, when based on rational tactical factors and taken on instructions, will rarely found a successful appeal, particularly long out of time.
Delay without justification undermines renewed applications.
Where all relevant facts were known at the time of trial, substantial delay in pursuing an appeal will count heavily against the applicant, especially absent any arguable unsafety in the conviction itself.

Overall, R v Mardan provides clear confirmation that the appellate court will focus on practical fairness and the real risk of prejudice, not on technical departures from best‑practice guidance where the judge’s approach was sensible, proportionate, and – crucially – did not operate to the defendant’s disadvantage.