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R v Turk (deceased)

A judge is not entitled to proceed with a trial after the death of a defendant and verdicts returned in such circumstances are a nullity

http://www.bailii.org/ew/cases/EWCA/Crim/2017/391.html

Mr Turk stood trial for one offence of rape, one offence of indecency with a child, thirteen offences of indecent assault on a male person and four offences of possessing indecent images of a child. After the jury retired to consider verdicts a note, not disclosed to Counsel, was sent to the judge indicating that the jury had reached unanimous verdicts on some counts. The judge decided not to take those verdicts and sent the jury home to resume deliberations, but the following day he was informed that Mr Turk had taken his life.

Defence Counsel submitted that the trial had been brought to an end on the death of the Defendant and the jury should be discharged, but the judge decided there was a public interest in the jury returning the verdicts it had already reached. The jury returned sixteen unanimous verdicts, three more than had been indicated in the note, suggesting that deliberations had continued after Mr Turk's death. The judge accepted guilty verdicts on several offences. Not guilty verdicts were returned in relation to others and the jury was discharged from giving verdicts on the remaining counts. The judge then ordered that the indictment be of no legal effect.

On appeal (the deceased's mother had sought leave to appeal under s.44A of the Criminal Appeal Act) Defence Counsel submitted that there is no basis either in statute or at common law for the prosecution or continued prosecution of a deceased person; that a criminal trial starts when the jury are sworn and continues until verdicts have been returned, or the jury is discharged. Additionally, verdicts must be delivered in open court, the note had no effect, and it is the verdict that constitutes the conviction. Therefore there was no subsisting verdict at the time of Mr Turk's death, and there was no basis for continuing after his death.

Counsel for the Crown submitted that the death of a Defendant did not extinguish the legal effect of the indictment, rather the indictment remains in force until the judge declares it of no legal effect which is done at the judge's discretion. Further, that the jury indicating reaching a number of verdicts, coupled with the fact that the Defendant's inability to participate in the proceedings had no bearing on the progression of the trial, there was nothing suggesting that the verdicts were unsafe.

Held

There was nothing suggesting the verdicts returned were unsafe, those reached whilst Mr Turk was still alive, or those reached after his death.

That said, there is no discretion as to the course to be followed after the death of a Defendant; the judge was not entitled to continue simply because he thought obtaining the verdicts from the jury justified the course. There must be a bright line rule that upon hearing of the death of a defendant the court takes no further action, other than obtaining proof of death and declaring the indictment of no further effect. These verdicts were wrongfully returned, and must be set aside as a nullity.

14 June 2017

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