William S, R. v [2004] EWCA Crim 443

Case No 03/3786/C1[2004] EWCA Crim 443
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 5 February 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE POTTER
MR JUSTICE HOOPER
MR JUSTICE ASTILL
Between
R E G I N ACrown-v-
Between
WILLIAM S
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS A HAUGSTAD appeared for APPELLANTMR CJ PRINCE appeared for CROWN
J U D G M E N T

LORD JUSTICE POTTER:

[1]On 11th June 2003 in the Crown Court at Durham before His Honour Judge Scott and a jury, following a retrial, the appellant was convicted by a majority verdict of 10-2 of indecency with a child. He appeals against conviction by leave of the single judge.[2]The complainant B was the appellant's granddaughter. She was aged between 10 and 11 when the act of indecency occurred. The prosecution case was that B was staying at the appellant's on her own and the appellant had, after his wife had gone to bed, exposed his penis and placed B's hand on it. The defence case was that the incident did not happen.[3]In the light of the single point taken on appeal, we do not think it is necessary to recite the facts of the case or the evidence on both sides to a greater extent than the short summary already given. The grounds of appeal do not contend that the summing-up by the judge was deficient in any way or take any other point by way of appeal than that there was a material irregularity in the trial in relation to the taking of the verdict in the following circumstances.[4]The judge summed up on the second day of the trial and the jury was sent out at 3.15 pm. They had not reached a verdict by 4.30, so the judge sent them home after one-and-a-quarter hours of deliberations. The next day they returned, and after one hour (thus producing a total deliberation period of two-and-a-quarter hours) they provided a note that they could not agree on a unanimous verdict. Upon their return to court, the foreman having so confirmed, the judge gave a majority direction, and the jury retired again at 12 pm. In their absence the judge informed counsel that he considered they should be allowed at least one hour before they were recalled, at which stage, if they had not reached a verdict, he would give a Watson direction, because by then they would have been deliberating for longer than the trial itself had taken and if there was no verdict there would not be a further retrial in the case.[5]Before that further hour had elapsed, however, the jury sent out a further question on the evidence in relation to which it was necessary for them to be recalled for explanation by the judge. They returned to court at 12.55 pm, and the judge dealt with the question, at which point the judge decided to give, and moved on to give, the Watson direction. The direction finished with the words:
"There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily, you cannot reach an agreement then you must say so."

The judge then said:

"So what I am going to do now, it is 3 minutes to 1, I am going to ask you to retire. Try to get 12-0. If you cannot, 10-2 or 11-1 guilty or not guilty will do. If you would like to go now. Anything else can I help you with while you are here? No? Thank you."
At that point a juror said in the form of a question "9-3 not guilty?", by which counsel infer, and we take it, that the juror she meant: if there is a verdict of 9-3 is it not guilty. The judge then indicated that the only verdict he could accept was 10-2 or 11-1. In relation to a 9-3 verdict, he went on:
"Cannot do that here. I would ask you to go away and consider what I have just said to you. Whether it has any effect or not I simply do not know, and we will see you later. Thank you very much."
[6]The jury then went out at 12.58 pm for the luncheon adjournment. As soon as they had gone out the judge observed to counsel, with reference to the juror question as to the effect of a 9-3 disagreement:
"That rather means there is scope for the Watson direction to have some effect. I am going to leave them for approximately an hour. It means they will have their lunch there, whatever, and we will come back at 2 o'clock, which is an hour from now, and see what happens, but I think by 2 o'clock, I think, quite frankly, that will be long enough..."
[7]Upon his return to court just after 2 pm

the judge said to counsel:

"Now then, it is just after 2. I reckon it is approximately four-and-three-quarters hours is all this, and the trial only took a couple of hours. I am going to ask them to come back. I rather suspect that they do not have a verdict. I will formally ask them whether, if I give them any more time and as long as they like, whether there is any prospect of a verdict 10-2. If they say no, that is it. Any comment about that?"
Counsel indicated that they had no observations.[8]We have been told by counsel, though it does not of course appear recorded in the transcript, that upon being called into court by the jury bailiff the jury asked for one further minute, whereupon a cheer emanated from the jury room, audible to the parties in the court because the jury room was alongside it.

The judge observed:

"An awful lot of noise has just emanated from the jury room. I rather suspect my interpretation of that is they have actually got a verdict after nearly five hours, but we will see."
The jury then returned and delivered a verdict of guilty by a majority of 10-2.[9]The single ground of appeal in this case is that, prior to giving the jury the Watson direction to which we have referred, as to the form of which there is no complaint, the judge did not first make any enquiry of the jury as to the prospect of their reaching a verdict. Relying on the decisions in Rose ([1982] WLR 694 and Wharton [1990] Crim LR 877, Miss Haugstad for the appellant submits that it is clear that, once a jury have received a majority direction and the lapse of time indicates that they may not be able to agree a verdict, the judge should send for the jury and in open court ask the foreman, without enquiring as to how the jury are divided, whether there is a chance of reaching an agreement. Then, according to the answer he receives and all the circumstances of the case, the judge will decide whether to discharge the jury at once or ask them to retire again in an effort to reach agreement: see per Lord Lane CJ, in Rose at page 620. Those observations were confirmed and applied in Wharton, a case shortly reported in the Criminal Law Review, from which it appears that after the jury had sent out a note saying that they had reached a verdict 9-3 the judge, without recalling them or making further enquiry, sent a message to them asking them to continue their deliberations, shortly following which the jury returned a verdict of guilty by a majority of 10-2. In the circumstances of that case, which are not fully set out in the report, the appeal was allowed on the basis that the judge had not asked the preliminary question of the jury before requiring them to continue their deliberations.[10]Miss Haugstad submits that the facts in Wharton were analogous to the circumstances to this case. She acknowledges that in the more recent decision in Payne, a decision of this court on 1st February 2001, unreported save in 3 Archbold News of that year, it was made clear that the authorities do not lay down an inflexible rule for the exercise of the judge's discretion in cases of this kind and that particular circumstances may require some flexibility of approach. However, she submits that in a situation where the jury, having deliberated for a long time in a short case, were assembled before the judge and expressing deadlock, he should have enquired as to the prospects of agreement and his failure to do so was a material irregularity.[11]We cannot agree with that submission. It is, of course, the case that the procedure recommended in Rose, and generally to be followed, is grounded in what was called the "starting point" in Watson (1988) 87 Cr App R 1 at 7:
"One starts from the proposition that a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so."
[12]Thus, where there is good reason to think that the jury may, through pressure or exhaustion rather than rational discussion, have reached a verdict on other than a true basis of satisfaction as to the guilt of the defendant, the verdict will be set aside. Because of the necessity for a verdict to be reached free of such taint it is plainly desirable, as stated in Rose, that before going to the final resort of a Watson direction the judge, by a question to the foreman of the jury, should get the 'feel' as is the likelihood that a verdict may be reached after further discussion. This is desirable in order to avoid not only a waste of further jury time, but so as to avoid the build-up of undue pressure to reach a verdict.[13]However, we do not consider that, in the circumstances of this case, the judge is open to any criticism or that any undue pressure on the jury has been demonstrated or should be inferred. We say "undue" because, in this context, we are concerned with pressure other than that which may arise simply from the kind of lively debate and process of extended argument which is inherent in the group discussions of a jury seeking to reach a collective decision in the manner anticipated by the terms of the Watson direction.[14]In this case, at the time when the Watson direction was given, the jury had returned to court to receive the answer to a question they had sent out at a point earlier than the expiry of the hour which the judge had indicated to counsel he would allow before recalling them for the purposes of a Watson direction. That question was one which plainly troubled the jury in their deliberations, and thus it was appropriate for them, having had their question answered, to have time to consider it before arriving at their verdict. Without further consultation, their foreman could not be expected to answer in open court the question whether or not they were still in a state of deadlock now that they had received the answer to their question. Equally, it was sensible for the judge to give them the Watson direction which he had already decided should be given for reasons which he had indicated to, and agreed with, counsel.[15]When following that direction and before sending the jury out, the judge learned from the juror's question that there might well be a division of opinion no greater than 9-3, the utility of a Watson direction was confirmed to him. There is simply no evidence of pressure on the jury from the judge, the passage of time or any other circumstance in this case. The judge had allowed 2 hours 46 minutes before giving a majority direction and no time limit was given during the Watson direction. Furthermore, the judge had told the jury that "if you cannot reach a verdict, so be it". No mention was made of the jury being discharged should they fail to reach a verdict, and the approach of the judge was throughout supported by counsel for both sides.[16]Nor is there reason to infer improper pressure on the juror who eventually, it may be thought, changed his position to join the majority in favour of conviction. The cheer from the jury room, as Miss Haugstad accepts, does not permit this court to cross the threshold and speculate as to what happened within. But in any event, the fact that the majority may have been elated at being able to reach a final decision in the case, does not reveal or imply that the change of view by the single juror was reached on the basis of anything other than rational persuasion and a true belief in the guilt of the defendant. In those circumstances, the appeal is dismissed.