20.
recognition of misconduct on his own part or on the part of any other juror, let alone wilful disobedience of the trial judge's directions.
The evidence, such as it is, about juror B's response to juror X's disclosure on Monday, 19 October 2020, is equally telling. Juror B, like juror A, is the kind of person who was willing to answer the Sheriff's letter months after the events in question. It could not be doubted that juror B was conscientious in respect of complying with legal obligations. None of this supports an inference that juror B was engaged in wilful disobedience of the trial judge's directions. The proper inference is that juror B genuinely believed that his intervention (by telling the members of the jury that the decision could not be based on what they thought the sentence might be) had resolved the matter, making its occurrence "inconsequential".
As noted, the letters in response to the Sheriff's letter from jurors C and D do not refer to the internet research or subsequent discussions about it among the jury members. Nothing of relevance can be drawn from those responses. Juror E's response focused on juror X's announcement at the outset that he would not convict. The report records that juror E said there were "no issues after that". Accordingly, nothing can be drawn from juror E's response. Otherwise, the jurors did not respond to the Sheriff's letter. Again, silence is neutral.
The facts to be found on the balance of probabilities, extrinsic to the jury's actual deliberations about the verdicts to be reached, are that: (a) juror X did internet research about the definitions of and sentences for rape and unlawful carnal knowledge and told the other jury members about it; (b) at least some members of the jury discussed it and decided that juror X's view that sentences for unlawful carnal knowledge were lighter than for rape was not correct; (c) juror B told the jury as a whole "very explicitly '[i]t's not appropriate for you to base your decision on what you think the sentence will be – you can't do that'"; (d) juror B believed the issue was resolved on that basis and therefore was inconsequential; (e) before the verdicts were delivered, juror A did not consider that he had to or should inform the trial judge of any aspect of juror X's conduct; and (f) however, juror A remained concerned by juror X's conduct as a whole, prompting him to deliver the note to the trial judge the day after the verdicts were given.
No finding of fact on the balance of probabilities can be made that the conduct of any juror was in wilful disobedience of the trial judge's directions. In particular, it cannot be found on the balance of probabilities either that juror X acted in wilful disobedience of the trial judge's directions or that any other member of the jury acted in wilful disobedience of the trial judge's directions.
For these reasons, to the extent that the appellant's argument rested on the misconduct being in wilful disobedience of the trial judge's directions, no positive
