Scully, R. v [2013] EWCA Crim 2288

[2013] EWCA Crim 2288Case No 201302055 C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Guildford Crown Court
His Honour Judge Moss
T20127197
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 December 2013
Before
LORD JUSTICE FULFORDMRS JUSTICE COX DBEMRS JUSTICE SLADE DBE
Between
ReginaCrownMark Christopher ScullyDefendant
Mr David Lederman QC & Mr Peter Binder (instructed by Taylor Street Solicitors) for AppellantMiss Ruby Selva (instructed by the Crown Prosecution Service) for RespondentHearing Hearing date: 19 September 2013
JudgmentLord Justice Fulford :Introduction
[1]On 22nd March 2013 at the Crown Court in Guildford the appellant (who is now aged 38) was convicted by a majority of the jury (10 to 2) of the offence of assault by penetration of the vagina, contrary to section 2 Sexual Offences Act 2003 (count 2 on the indictment). He was acquitted of attempted rape (count 1) and a further count of assault by anal penetration (count 3).[2]On 19th April 2013, H.H.J. Moss sentenced the appellant to 5 years 4 months’ imprisonment.[3]He appeals against his conviction by leave of the single judge and, in the event that the conviction appeal is dismissed, he renews his application for leave to appeal against sentence following refusal by the single judge.

The Facts

[4]During the course of the evening of 26 July 2012, the complainant (“LC”) had been drinking heavily whilst out socialising with work colleagues, with the result that her blood alcohol level was likely to have been between 161 and 238 milligrams per 100 millilitres of blood. Thereafter, in the early hours of 27th July 2012 she boarded a train in order to return to her home in Weybridge. The appellant, who had also been drinking (his likely blood alcohol level was between 141 or 294 milligrams per 100 millilitres of blood), was travelling in the same railway carriage. LC fell asleep and other passengers in the carriage noticed she was slumped awkwardly and appeared to be drunk. She failed to alight at Weybridge, and after the train left the station, the appellant asked the other passengers if they were aware of LC’s destination. Attempts were made to talk to her and she was sick in the carriage. When the train arrived at Woking the appellant was heard to say he was going to help LC get off the train in order to assist her to find her a taxi back to Weybridge (the appellant denied he said this). Thereon, the appellant, who one witness described as appearing to be calm and caring in his attitude, left the train with LC and CCTV caught them passing through the station exit at 00.27am.[5]They walked away from the station and eventually reached an area of rough shrubbery away from the road. There was no dispute that the appellant digitally penetrated LC’s vagina during the events that followed, although otherwise there is little common ground between the prosecution and the defence as to what occurred.[6]In the course of her ABE (“Achieving Best Evidence”) interview, LC said she had fallen asleep on the train due to a combination of alcohol and exhaustion, which was possibly aggravated by her hay fever medication. She thought someone roused her at Woking and she felt disorientated. She got off the train and she could not recall exactly what happened at this stage, although she said she remembered “in great detail” the events of the alleged attack. There were no trains and she thought the appellant offered to help her find a taxi to get to Weybridge and she had a memory of walking to the taxi rank. The CCTV footage showed a number of taxis, which they did not approach, and LC could not recall if the appellant pushed or dragged her into a wooded area. He forced her down in some shrubbery and she recalled that he held her throat and told her not to struggle. She may have passed out. The appellant removed her pants whilst simultaneously strangling her. He unzipped his trousers but she did not think he achieved an erection, although his penis was close to her pubic area. Her instinct was that unless she allowed something to happen she was not going to survive. She was unsure if there was penile penetration (although “[…] he was moving around trying to obviously put it in […]”) but she believed digital penetration of the vagina and anus had occurred. Her scratches indicated that she had been trying to fight off the appellant and they had been rolling on the ground. She had the strength to get up and she ran to a house from where a telephone call was made to her partner at about 1.00 am, who in turn rang the police. She was scratched and bruised during the struggle, and an injury to her right eye may have been caused by the appellant’s fist. Items of her property were recovered from the scene.[7]Her evidence was that although she had not been in a fit state to make conscious decisions, she had not become uninhibited thereby leading her to kiss the appellant. She recalled fighting with him but she was unaware she had bitten his finger. She denied engaging in consensual sexual activity which she regretted because she was afraid of what her boyfriend might say.[8]Gerard Lewis gave evidence that LC knocked on his door and told him she had been raped. She appeared distressed and he saw she had scratches and what appeared to be a black eye. He dialled the 999 emergency telephone number.[9]PC Outhwaite described LC, when she arrived, as intoxicated but coherent. She gave the officer an account of the attack, which included a description of digital penetration of her vagina and anus; the man had lain on top of her, and he tried to penetrate her vagina with his penis; and he was masturbating as she fled. The officer recorded what LC said in her notebook.[10]Dr Bisazza examined the complainant. LC repeated that the appellant had digitally penetrated her vagina and anus but it was hard for the Doctor, in the course of the medical observation, to be sure whether or not there had been penile penetration (there had been no ejaculation). He recorded in his report that there had been no kissing; there had been violence or the threat of violence, but weapons had not been used. He suggested the absence of injuries to her genital areas neither supported nor undermined her account.[11]A taxi driver, Mr Rehman, gave evidence that when the appellant got into his cab at about 1.00am he said he had had problems getting a taxi near to the car park close to the industrial site in front of the railway station.[12]When arrested at his home, the appellant stated that he had met a woman on the train and they had got off at Woking. Something had happened between them in that they had shared a kiss. His account as given thereafter in interview accorded with his evidence at trial, to which we now turn.[13]At the time of these events the appellant was of good character. He said that he had been out drinking during the evening of 26 July 2012, and was very drunk as a result. On his way home (he was travelling to Brookwood) he had seen LC asleep on the train and became concerned that she might miss her stop. He asked the other passengers if they knew where she intended to get off. The appellant went to assist LC using his first aid training when she began vomiting having been awoken by others on the train. At Woking he decided, on the spur of the moment, to get off with LC who moved towards the exit although it was not his stop. He maintained he had not heard it suggested that she had missed her stop at Weybridge. They walked out of the station together, and his evidence was that she did not mention she needed a taxi to get to home. He said that if this had been mentioned he would have directed her to a taxi and he denied guiding her away from the cab rank. They walked unsteadily together, the appellant providing support for LC by placing his hand on her back. He denied there was a conversation about going to another taxi rank. He maintained that, having got within sight of what he took to be a block of flats, and before he was able to ask where she lived, she bumped into him, grabbed him around the ribs and began kissing him. He then fondled her through her clothing. She lay on the grass and he put his hand up her dress. He touched her vagina through her knickers. He did not feel a sanitary towel. He moved her knickers to one side and inserted a finger inside her and fondled her breasts with his other hand. He said she appeared to be enjoying what was happening and she allowed her legs to fall open. However, he was not sexually aroused. She grabbed his hips, and he fell across her body. He then realised that his zip was undone. He came to his senses and remembered that he needed to return home.[14]On the appellant’s account, LC told him she wanted to ride his cock. He made a “shushing” noise, which he reinforced by putting his fingers to her lips. She bit him. At first this seemed playful and he asked for “his finger back”. However, she stood up, keeping his finger in her mouth. He then made LC overbalance and they fell to the ground. He tried to pull his fingers out of her mouth, and told her that he meant her no harm and he attempted to reassure her. This succeeded and LC released him. He denied he had been masturbating but instead had been shaking his hands to relieve the pain. He retrieved her rucksack and told her that she needed to get a taxi home.[15]His evidence was that LC had wanted to have sex with him. Despite being drunk, he was in control of his actions and knew where he was and what he was doing. He had not assumed LC was drunk and he had no idea of her destination. He denied that she had run from the scene leaving her belongings behind. He said there had been no anal penetration and it had not occurred to him that she had not been consenting to the sexual activity that did occur. Finally, he called a number of character witnesses.

The issues and the cases for the prosecution and the defence

[16]The prosecution case on count 2 was that digital penetration of the vagina had taken place without LC’s consent after the appellant had removed her knickers and when the appellant had no reasonable belief that she was consenting. As regards count 1, it was alleged that the appellant had attempted to rape LC by inserting his penis into her vagina and for count 3 it was averred he had penetrated LC’s anus, again without her consent. The assault had stopped after LC bit the appellant’s fingers ‘to the bone’ causing him to roll away, and she was then able to seek help from a house about 150 yards away.[17]The defence case was that any sexual activity was initiated by LC and was consensual. This had resulted in the appellant touching her vagina with his fingers. He denied he had tried to have intercourse or that he penetrated her anus with his fingers. Any injuries to LC occurred in the struggle when LC held on to his finger with her teeth.[18]It follows the principal issue for the jury on counts 1 and 3 was whether or not the assaults occurred as alleged. On count 2 the issue was whether or not LC consented to the admitted activity.

Grounds of Appeal against Conviction

[19]The appellant advances two grounds of appeal against conviction: Ground 1: the conviction on count 2 is logically inconsistent with the acquittals on counts 1 and 3; and Ground 2: the verdict is unsafe because the judge gave a “Watson Direction” at the same time as the Majority Direction. Submissions and discussion Ground 1: inconsistent verdicts[20]The appellant emphasises that notwithstanding LC’s drunken state, she was sure the appellant had penetrated her vaginally and anally with his fingers, for about 2 minutes. She was unsure that penile penetration had occurred because, despite his attempts, she doubted whether his penis was erect. It is suggested that the overall effect of the appellant’s evidence was that she claimed clearly to recall what had happened, notwithstanding the alcohol she had consumed, and she was sure there had been anal penetration.[21]The appellant accepts that for an appeal to be based on an inconsistency between the verdicts on different counts, it is necessary to establish that no reasonable jury, applying its collective mind properly to the facts, could have convicted on the count in question having acquitted on one or more other counts. It is to be observed that in R v Durante [1972] 56 Cr. App. R. 708, this court expressed the approach to be adopted in these circumstances as follows:
“In the case of Hunt (1968) 52 Cr.App.R. 580, Lord Parker, the then Lord Chief Justice, cited from the unreported case of Stone which was tried in 1954 and quoted what he described as a useful passage from the judgment of Devlin J. in regard to the approach that the court should adopt in cases of inconsistent verdicts. This is how it reads: “When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that. We do not know whether the Court of Appeal has ever previously formally adopted the view expressed there by Devlin J., as he then was, that the burden is upon the appellant to show that verdicts upon different counts are not merely inconsistent, but are so inconsistent as to demand interference by an appellate court. Be that as it may, for our part we are satisfied that it is right and we now formally express our approval of that proposition and adopt it.”
[22]Thomas LJ in Chohan [2007] EWCA Crim 3175 cited approvingly at [7] from the unreported decision of WM (30 March 1999), in which latter case the judgment was given by Lord Bingham of Cornhill, who observed:
"... it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge's direction at its face value and gave effect to it. The cases to which we have referred in our view make quite plain the proper approach. In a case other than the Cilgram type of case (which is in a class of its own), it is ordinarily for an appellant to show a logical inconsistency between the verdicts criticised and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent inconsistency. The court will not interfere with the verdict of the jury unless those tests are satisfied."
[23]The appellant relies particularly on the fact that these events related to one sexual encounter about which, it is suggested, the appellant and the complainant both gave lucid and detailed accounts of what occurred. Against that background, it is argued the court should apply the approach that was taken in R v Dhillon (2011) 2 Cr. App. R. 10. In Dhillon the defendant was charged with a number of sexual offences, all of which were said to have occurred during the course of a single sexual encounter. Counts 1 – 4 alleged that he had assaulted the complainant by i) inserting his fingers into her vagina; ii) inserting his fingers into her anus; iii) touching her breasts; and iv) licking her vaginal area. The defendant admitted the conduct in counts 1, 3 and 4 but said they occurred with the complainant’s consent; he denied the activity charged in count 2. He was convicted on counts 1 and 3 and acquitted on the other two counts. He appealed on the basis of suggested logical inconsistency. The court accepted this submission, for the following reasons: 48 […] we have concluded that these verdicts are logically inconsistent. There is no satisfactory explanation of them which can render them consistent. […] we do not think that a fair-minded jury, having regard to the evidence before them, could reasonably have found both that the incidents in counts 1 and 3 did occur but that the oral sex covered by count 4 did not. We do not say that the jury were bound to find that any of these incidents occurred; plainly that was a matter for them, and in principle they could have been so unimpressed with the evidence from both complainant and appellant that they were not satisfied that they could be sure of anything. But having accepted as true and reliable the complainant's evidence that the incidents in counts 1 and 3 occurred, it would in our view have been perverse for them to reject her evidence that the incident in count 4 occurred, given that the appellant in an admission against interest corroborated her evidence by admitting that it did indeed occur. The perversity of such a finding would in our view cast sufficient doubt as to the jury's approach to the evidence as to render the convictions potentially unsafe. 49 […] In our view no reasonable jury could have concluded that the appellant had a reasonable belief that the complainant was consenting to the oral sex but not the touching of the breasts referred to in count 3. Again, there was no evidential basis for drawing a distinction in this regard between counts 3 and 4. It was not as if the evidence showed that the oral sex in count 4 had occurred some time after the breast touching in count 3. Had that been the case then it might just have been possible to justify an inference that the appellant's reasonable perception of whether the complainant was consenting could have changed in the meantime. But the evidence was that they occurred virtually at the same time. […][24]In this context, the court had earlier observed:
“42. […] Here the various alleged offences are simply different facets or acts in the course of a single sexual encounter. In these circumstances, if the jury are unsure of the complainant's evidence with respect to one count on the grounds that it may be unreliable or lacking credibility, it is likely to be more difficult than it would be with respect to chronologically separate encounters for a jury to be sure that the evidence on the other counts is reliable and credible.”
[25]It is suggested that the same reasoning applies in the instant case: one encounter, two acquittals and one conviction. It is argued the jury “must have had reasonable doubts regarding the veracity, or credibility, of the complainant’s evidence in respect of counts 1 and 3, and it is contended there is no “plausible” line of reasoning which they could have adopted, looking at the evidence as ‘fair-minded people’ (Dhillon at para.39) in order to acquit upon counts 1 and 3 but convict upon count 2”.[26]Furthermore, it is said that even if the jury concluded the complainant was “befuddled”, this would logically have applied to all three counts. The submission is put as follows:
“[…] if the jury did conclude she was “befuddled” to the extent that they could not rely upon her evidence re. counts 1 and 3, how could they safely rely upon her evidence re. count 2?”
It is argued that the appellant’s acceptance of “consensual vaginal foreplay” does not provide a logical basis for a conviction for an assault by digital penetration if the jury were unsure of the complainant’s allegation that there had been an assault by way of attempted rape and assault by anal penetration. In essence it is contended that if she was confused, her confusion applied to all three counts, which each contained violence as an essential element. Although reference is made by the appellant to certain observations of the judge on this issue when he passed sentence and when he declined to certify that the case was fit for appeal under section 1 Criminal Appeal Act 1968, this court is not being asked to review the judge’s decisions in this regard, and the court, instead, is required to assess the merits of the respective arguments of the parties. However, for reasons to which we now turn, we essentially agree with the analysis of the learned judge on the appellant’s contention that the verdicts were inexplicably inconsistent. Additionally, it is unnecessary for us to rehearse the arguments of the respondent because they are substantively reflected in our conclusions on this issue.[27]In our judgment, the jury would have been entitled – on the evidence – to reach two critical conclusions that are directly relevant to this ground of appeal. First, it would have been open to them to conclude that LC’s memory of the detail of what occurred on the piece of rough ground was insufficiently reliable to form the basis of a criminal conviction as regards any particular allegation of sexual assault (viz. attempted rape and digital penetration of the vagina and anus). She had consumed a considerable amount of alcohol and was visibly inebriated on the train, and she had no memory, for instance, of having severely bitten the appellant’s finger. Accordingly, given the allegations of anal penetration and attempted rape were entirely dependent on LC’s account, it would have been logical for the jury to conclude that the evidence was insufficient to found convictions on those counts (1 and 3). Second, notwithstanding the potential unreliability of LC’s recollection as to the detail of the events, there was sufficient material for the jury to have been sure that what happened was an assault by the appellant on the complainant. Her memory of what occurred (e.g. “I remember being held by my throat, told not to struggle. Obviously I was fighting back.”) was significantly supported by the injuries that she received: a swollen and bruised eye (“conjunctival haemorrhage … as if subject to some blow”), the scratches to her legs arms and shoulders and the red marks to her neck and throat (“a distinct linear mark to the neck”), as well as what she told Mr Lewis immediately afterwards (she said she had been raped), combined with her appearance and behaviour when she called at his house.[28]The distinguishing factor on count 2 is that the appellant accepted that digital penetration of LC’s vagina had occurred. The jury would have been entitled to act on that admission and to conclude as a result that the sexual activity reflected in that count formed part of an assault on LC. They were not bound by the appellant’s contention that what had occurred was consensual, particularly given the overall extent of the evidence that LC had been attacked. On analysis, therefore, this is not a Dhillon typecase in that there is a clear and sensible explanation that renders the verdicts consistent. Indeed, it is our view that the jury’s decision demonstrates a careful approach by them, in that they only convicted on the count for which there was evidence that materially supported the victim’s account as to the nature of the sexual activity, against the background of cogent independent evidence as to her lack of consent (such as her injuries and the appellant’s bitten finger).

Ground 2: the “Watson” and Majority Directions

[29]The jury retired at 14.11 on Wednesday 20 March 2013, having been given the usual directions that they were not under any pressure of time and that they should reach a unanimous verdict. They were sent home at 16.13 and they retired once more to continue their deliberations at 10.33 on Thursday 21 March 2013. The court received two notes from the jury during the latter part of the afternoon, one of which concerned the injury to the appellant’s hand and the other prompted the judge to direct the jury that when they returned the following day they should continue to strive to return a unanimous verdict (the jury were sent home at 15.50 pm). The jury retired again at 10.11 on Friday 22 March 2013, and the judge repeated that they should “strive, if you can, to reach unanimous verdicts”. However, it was generally agreed between the bench and the bar that if a verdict was not received within the next hour, the stage had been reached when it was appropriate for the judge to give the jury a majority direction. However, before 10.45 the jury sent a further note relating to the medical examination of the appellant and whether the police examined his clothes. The judge answered the questions and the jury retired again at 10.48. By 11.40 the jury had sent a further note, part of which the judge was able to reveal to counsel, as follows:
“We cannot come to a unanimous decision. Can we have advice on how to move forward? Will a majority decision be allowed?”
[30]The judge indicated to counsel that he was considering giving the jury a “Watson” direction, and he invited observations. Mr Binder (junior counsel for the appellant) responded:
“Your Honour probably has a better feel for why this is the right time for such a direction.”

The judge indicated:

“Well, I think it is the right time, I think it is the right time to give it now, looking at the tenor of the note” and Mr Binder rejoined: “So be it.”

The judge then gave the jury the following direction:

[31]Ladies and gentlemen, each of you have taken an oath to return a true verdict according to the evidence, and you must be absolutely true to your oath. That is the strength of the jury system – each of you takes into the jury box with you your individual experience and wisdom and your task is to pool that experience and wisdom, and you do that by giving your views and listening to the views of others. There must necessarily be discussion, argument, and give and take with[in] the scope of your oath, and in that way agreement is reached. If, unhappily, you cannot reach a unanimous verdict, I am now able to accept from you a majority verdict – that is a verdict with which at least ten of you are agreed. If, unhappily, ten of you cannot reach agreement, then you must say so. Thank you very much. I invite you to retire and strive to reach a unanimous verdict if you can. Thank you very much.[32]The jury retired again at 11.43 and at 12.15 they found the appellant guilty of count 2 by a majority of 10 to 2.[33]The appellant relies on the decision of R v Buono 95 Cr.App.R. 338. In that case the trial judge gave the jury the following direction: But can I just remind you of something that I said during the early stages of my summing up to you. Each of you has taken an oath to return a true verdict according to the evidence, and no one must be false to that oath. But you have a duty not only as individuals but collectively to reach verdicts in the case and that is the whole strength of the jury system. Each of you takes into the jury room your individual experience and wisdom, and your task is to pool that experience and wisdom and you do that by the airing of your views and listening to the views of others on the remaining counts with an open mind so that you can consider them, and there must necessarily be discussion and argument and give and take within the scope of that oath, and that is the only way on some occasions in which agreement can be reached. Now if, unhappily, at the end of the day, unsatisfactory though it will be from everyone's point of view, ten of you cannot reach verdicts on the remaining counts then, of course, you will have to say so, but it is my hope that you will, after further deliberation, be able to return verdicts on the strength of at least ten being in agreement.[34]In giving the judgment of the court, Watkins LJ observed: In Watson (1988) 87 Cr.App.R. 1, [1988] Q.B. 690, the direction known as the “ Walhein direction” was disapproved. In giving the judgment of the Court Lord Lane C.J. said at p. 7 and p. 700 respectively:
“… 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. Experience has shown that the Walhein direction [see (1952) 36 Cr.App.R. 167], sometimes in its original form, sometimes amended, may contravene that cardinal rule. In some cases the very short time required by the jury to reach a unanimous or majority decision after the Walhein direction shows the impact it must have had on a minority who up to that time had apparently been unmoved by argument. The mere exhortation to listen to the contrary views seems unlikely to have had such a dramatic effect. The suggestion of expense and inconvenience is doubtless a much more potent incentive to agree. Hints that it may be of benefit to the defendant if the jury can only sink their differences may be misleading if, as is usually the case, the minority are for an acquittal. Agreement will in those circumstances mean conviction, continued disagreement will mean at the worst a retrial with the consequent chance of acquittal. There are occasions when the circumstances will show that the Walhein direction did not impose any pressure on the jury, but the risk that it may do so has convinced us that the time has now come for judges to stop using it in its original form. If it is objectionable as imposing pressure on a jury, it is objectionable at whatever stage it is used, whether during the summing up proper or before or after any majority direction. In the judgment of this Court there is no reason why a jury should not be directed as follows: ‘Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of the others. 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 (10 of) you cannot reach agreement you must say so.’ It is a matter for the discretion of the judge as to whether he gives that direction at all and if so at what stage of the trial. There will usually be no need to do so. Individual variations which alter the sense of the direction as can be seen from the particular appeals which we have heard, are often dangerous and should, if possible, be avoided. Where the words are thought to be necessary or desirable, they are probably best included as part of the summing up or given or repeated after the jury have had time to consider the majority direction”
It is perfectly clear from that judgment and in our experience that there is rarely any need for the “ Watson direction” to be given and that when given it should be given either during the summing-up or after the jury have had a reasonable time to consider the majority direction. It should never be combined with the majority direction. Moreover, judges should confine themselves to the precise wording of the “ Watson direction” and not add anything to it (see Holt (unreported December 13, 1988)). However, having carefully considered the terms of the judge's direction in the present case, although obviously it should not have been given with the majority direction and the last sentence of it should have been omitted, we are not persuaded in all the circumstances that this direction would have caused the jury to feel under any kind of pressure. We note particularly the fact that the jury retired after the direction at 12.52 p.m. and did not return until 14.35 p.m. This ground of appeal […] fails. Accordingly this appeal is dismissed. ‘Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of the others. 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 (10 of) you cannot reach agreement you must say so.’ It is a matter for the discretion of the judge as to whether he gives that direction at all and if so at what stage of the trial. There will usually be no need to do so. Individual variations which alter the sense of the direction as can be seen from the particular appeals which we have heard, are often dangerous and should, if possible, be avoided. Where the words are thought to be necessary or desirable, they are probably best included as part of the summing up or given or repeated after the jury have had time to consider the majority direction”[35]In the present case it is observed that the jury returned a majority verdict half an hour after the mixed “Watson” and majority direction, and it is submitted that as a result they may have convicted on count 2 because they had been put under undue pressure to return a “compromise verdict”. Indeed, it is suggested the history set out above may explain the suggested inconsistency between the verdicts on counts 1 and 3, on the one hand, and count 2, on the other.[36]Although the jurisprudence on this issue is clear – namely that “Watson” and majority directions should not be given at the same time – whether or not a breach of this rule vitiates a conviction depends on an analysis of the circumstances of the case, as the decision in Buono demonstrates and has recently been confirmed in the case of Arthur [2013] EWCA Crim 1852. In the course of his judgment in the latter case, Pitchford LJ described the effect of the relevant authorities in this context (which the court extensively reviewed) as follows: 44. As the decisions to which we have referred demonstrate, if complaint is made about the trial judge’s words of explanation, encouragement or exhortation the question for this court is whether the words used were appropriate in the circumstances or carried with them the risk that jurors would feel undue pressure to reach a verdict. If the effect of the judge’s direction to the jury is to create a significant risk that the jury or individual jurors may have felt under pressure to compromise their oaths, the verdict is likely to be unsafe. No juror should feel required to compromise their oath in order to fall in with the majority and no jury should feel under pressure to reach a verdict if to do so would require any one of them to compromise their oath. The danger is that all jurors, particularly the minority, will feel pressure to return a verdict unanimously or by an acceptable majority at the expense of conscientious consideration of the evidence. The closer the jury is to unanimity or to an acceptable majority the greater is the pressure to which the minority may feel exposed. As these decisions demonstrate each case must be considered on its own particular facts.[37]In this instance, the jury in their note to the judge asked for assistance on the issue of a majority direction during the morning of Friday 22 March 2013; indeed, it is sufficiently clear from the comments of the judge in open court that the jury had first broached this subject during the afternoon of Thursday 21 March 2013. Therefore, this direction would not in any sense have taken the jurors by surprise or have been unexpected. Against that background, the need identified by Lord Lane in Watson for “the jury [to] have had time to consider the majority direction” has reduced force in this case, given the jury had been considering the possibility of a less than unanimous verdict for a significant period of time.Moreover, defence counsel did not object to a joint direction at this stage of the trial. The jury had been in retirement for a considerable period of time, and the questions they asked went, in the main, to a critical issue in the case, namely the injury inflicted to the appellant by LC (the bite to his finger) during an encounter that he maintained had been consensual in nature. The “Watson” direction contained one of the potentially important features in these circumstances, namely that the jurors must remain loyal to their oath to return a true verdict according to the evidence. It was only following that injunction that they were encouraged to listen to the views of others, to pool their experience, to discuss, to listen, to argue and to “give and take” within the confines of their oath.[38]Therefore, after a reasonably long retirement during which the jury had asked seemingly appropriate questions in the context of the issues in the case and after they had raised the issue of a majority direction with the judge, they convicted the appellant on one count and acquitted him of two counts half an hour after the combined “Watson” and majority directions had been delivered. There is no evidence to support the suggestion that they had been “pressured” into delivering “compromise” verdicts. Instead, as we have already described, they reached an entirely intelligible decision in which they convicted the appellant on the sole count for which there was independent evidence that the particular sexual activity described in the charge had taken place (viz. the appellant’s admission), against the background that there was strong evidence that it had occurred during the course of an assault on LC. Contrary to the suggestion that they acted under pressure, there is every indication that the jury took a measured and careful approach to their task, and we are unpersuaded that the conviction is vitiated as a result of the timing of the “Watson” and majority directions.

Conclusion on the appeal against conviction

[39]It follows that we dismiss the appeal against conviction on count 2. Sentence The sentencing remarks[40]As regards the renewed application for leave to appeal sentence, in passing sentence the judge indicated he was satisfied the appellant had noticed the complainant was either asleep or unwell and he was aware she had missed her stop at Weybridge. When she vomited, the applicant realised that she had been drinking. He said he intended to assist her and told the others that he would take care of her and ensure that she got home. He helped her off the train and all those present, including the complainant, had trusted him. Outside there were taxis pulling up and leaving, and there were no waiting passengers. The judge was satisfied from the applicant’s own evidence, along with the CCTV, that he had taken the lead in the walk.[41]The judge observed that the victim and the applicant had consumed a great deal of alcohol but the difference was that the applicant had retained his faculties. The judge was satisfied that the applicant had charmed her, reassured her and led her away from the comparative safety of the brightly lit station. Once in a secluded and bushy area, he had attacked her, forcing her to the ground and inserting his fingers into her vagina. Despite her befuddled state she had resisted and struggled as best she could despite their disparity in size and strength. She had suffered multiple injuries, the majority being scratches. She had bruising and reddening to one of her eyes suggesting a powerful blow to her face and there was an injury to her neck. The complainant remembered that the applicant restricted her breathing, leading her to black out. The judge was satisfied that the complainant had not removed her own underwear, which were left at the scene along with her shoes and some of her other belongings after the attack ended. The attack ended when the complainant bit his fingers so hard and deeply that he had rolled away in agony. Then she managed to run for help. The applicant walked away calmly and he went home by taxi, the last train having left. The judge noted the complainant had been traumatised by the incident, as revealed by her victim statement.[42]The judge took into account that the applicant was a family man of good character and a high-flying civil servant. He had destroyed his future. He had served in the Territorial Army and many people spoke highly of him. There would be a considerable reduction in his family’s circumstances as a result of his conviction. The judge observed this crime did not fall into the highest category of offending within the guideline but equally in his view the lowest category did not adequately reflect the criminality of the conduct.

Submissions and discussion

[43]It is submitted the judge made a number of unjustifiable findings of fact – in light of the jury’s verdicts – including particularly, first, the suggestion that the applicant had known that the complainant missed her stop and he led her away so that he could assault her; second, that her behaviour in passing through the station and ignoring waiting taxis could be accounted for by her befuddled state due to alcohol; third, that all her injuries were sustained in her struggle to resist and the attack stopped when she bit the applicant’s fingers; and, finally, that there was no inconsistency in the verdicts, and the acquittals could be explained by difficulties with the complainant’s recollection due to her intoxication.[44]Additionally, it is suggested the judge erred in finding that the lower range of sentence (1 – 4 years) as set out by the Sentence Guidelines Council was insufficient to meet the gravity of the offence, particularly given it is argued that bearing in mind the acquittals it would be incorrect to read any more into the guilty verdict than that there was a time when there was non-consensual digital penetration of the complainant’s vagina.[45]In our judgment the judge’s conclusions on the facts were entirely justified on the basis of the evidence called by the prosecution, and they were consistent with the jury’s verdicts. As we have already indicated, there was strong evidence that what occurred was an assault on the victim by the applicant, and the acquittals on counts 1 and 3 do not undermine the validity of the conclusion that this was a premeditated attack in the sense that the applicant deliberately left the train before his stop in order to abuse LC, who was clearly unable to look after herself. This was a particularly grave instance of the violent exploitation of a clearly inebriated young woman, in a deserted location to which the applicant led her. She was scratched, punched in the face and strangled to point at which she lost consciousness. The judge was entitled to reject the account of the applicant in its entirety. LC has set out clearly and credibly in her victim impact statement that she will never recover from what occurred. She was subjected to material physical harm, and accordingly the judge was entitled to conclude that this case comes above the lowest category identified by the Sentencing Guidelines Council. The applicant acted as a “good Samaritan” and thereby breached the trust the victim reposed in him and he led her to a place where he was able to restraint and attack her. We recognise that this applicant has lost his good character and an excellent job, and that the consequences for him and his family will be considerable, but the gravity of the crime means that it is unarguable that the sentence was manifestly excessive. In refusing leave, the single judge observed:
“As to sentence, the judge was entitled to form his own view on the evidence overall as to what happened between you and the complainant, consistent with the jury’s verdicts, and to conclude that this assault was much more serious than level 3 in the Sentencing Council guideline, with elements of level 1. It is not arguable that your sentence of 5 years 4 months was manifestly excessive. ”
[46]We agree. Conclusion on the appeal against

Sentence

[47]For the reasons set out above, the application for leave to appeal the sentence imposed by the judge is refused.