Malcolm, R v [2014] EWCA Crim 2508

Case No 201404366/B4Neutral Citation Number:: [2014] EWCA Crim 2508
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 18th November 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE BEAN
MR JUSTICE STEWART
Venue RECORDER OF LEEDS
(HIS HONOUR JUDGE COLLIER QC)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
GEORGE MALCOLM
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss T Ayling QC appeared for AppellantMr J Bearman appeared for Crown
J U D G M E N T
[1]In September 2014 the appellant stood trial in the Crown Court at Wood Green before His Honour Judge Ader and a jury on an indictment containing four counts of alleged sexual offences against his stepson, who is entitled to anonymity and whom we will call "M". Neither the complainant nor his brother were aware, until the appellant's arrest, that he was not their biological father. The appellant was of previous good character and has been married for 43 years.[2]In about 1976, at the age of 12, M developed a problem with his foreskin which was tight and sore. The prosecution case was that during this period the appellant assumed responsibility for helping M with his problem and then began sexually abusing him, progressing from oral sex to digital and then penile penetration.[3]The four counts on the indictment and their particulars were count 1, indecent assault on a male aged under 16, consisting of the defendant performing oral sex on M on multiple occasions between September 1976 and September 1980. Count 2, indecent assault on a male aged under 16, consisting of digital penetration on multiple occasions during the same period. Count 3, gross indecency with a child aged under 14, consisting of the child performing oral sex on the defendant on multiple occasions between September 1976 and September 1978. Count 4, buggery committed by the appellant on the complainant on multiple occasions between 1976 and 1980 when M was under 16.[4]The defence case was that the complaints were fabricated. There had been a family argument in 2000, after which none of the family had spoken to the complainant again. The complainant was of course the principal witness for the prosecution. Statements were also read by the prosecution from a work colleague to whom M had complained in 2009 of his treatment by the appellant and also by M's wife whom had told about his being sexually abused by his father, again in 2009. The appellant gave evidence in his defence as did his wife and M's brother.[5]The trial began on Monday 1st September 2014. On Thursday 4th September the judge summed up and the jury retired at 2.29 pm. They were sent home at 4.22 pm. On Friday morning they retired to continue with their deliberations at 10.08 am.[6]Shortly before 2.00 pm on the Friday, by which time the jury had deliberated for some 5 hours excluding time for lunch, the judge suggested to counsel that "Perhaps we should give them the majority direction". Miss Tracy Ayling QC for the defendant and Mr Justin Bearman for the prosecution both said they had no objection and the usual majority direction was accordingly given at 2.00 pm.[7]At 3.37 pm the court resumed in the absence of the jury. The jury had sent the judge a note. Since it indicated their division of opinion at that stage, with figures, the judge did not show it to counsel although he indicated to them the nature of the note. Following the conclusion of the trial counsel on both sides have been informed of the full contents of the note and in those circumstances we set it out in full:
"Having carefully considered the evidence in front of all of us we are unable to find an agreement at this stage. We are in a 8 to 4 and would be grateful if you could guide us to the next step."
[8]The discussion which then took place in the absence of the jury included the following. Miss Ayling suggested that it might be appropriate to release the jury for the day and allow them to return on Monday.

The judge said:

"I am going to have to say something to them to try help them... I am not going to ask them what they want me to say because they obviously don't know... But I am looking exceptionally at the Watson direction. I know that is a rare thing. It is the direction about obviously having your own views but collective agreement and give or take."
The discussion proceeded: MISS AYLING: As I understand the Watson direction, it has variously been approved and disapproved and I believe more recently disapproved. JUDGE ADER: Well, do you want some time to think about that before I give the jury -- MISS AYLING: I would like time to think about that because I have something in the back of my mind that it has recently been disapproved but I think there was something to suggest it had been reapproved."[9]The judge said that maybe he should send the jury away. Mr Bearman, when asked for his view, agreed that the jury should be sent home and said:
"I think, although they have been at it sometime today, because of the nature of the case, we might be able to help them by giving them a little more time. Certainly, I think Monday would be the limit of a 'little bit more time' but I think a bit more time is what they need."
[10]The judge called the jury back into court and, after giving them a firm direction about not talking to each other or to anyone else about the case over the weekend, sent them away until 10.00 am on Monday.[11]When the court reconvened on Monday morning Miss Ayling drew the judge's attention to the decision of this court in R v Arthur [2013] EWCA Crim 1852, to which we shall return later. A calculation was made of the time for which the jury had deliberated since the majority direction, namely one and a half hours.

The judge said:

"Maybe I should just send them out. The only thing is that the note that they sent just before they were sent home said, 'Can you give us further guidance?' or, 'Guide us to the next step,' I think it was... So to that extent the jury are asking for help. And I don't know whether that counts as exceptional circumstances, may be coupling it with the length of time they have been in retirement, which his now quite a long time..."
[12]After some discussion about the fact that

the judge had (quite rightly) not given the figures in the note to counsel, the judge said:

"I think in the light of what you tell me from the authority of Arthur, if you were against the giving of such a Watson direction I would hesitate to do so and certainly not do it now but I think it's slightly unkind to the jury who were looking for help if I simply say, 'Go on and consider your verdict'. They are looking for me to say something."
[13]After a mistaken reference by the judge to the case of Walhein, which he immediately corrected, he said that the possibilities were a Watson direction or simply asking the jury to continue with their deliberations albeit on Friday he had told them:
"I have got something to say but I will say it on Monday"
. Miss Ayling replied: "If you are asking for a definite submission from me, it would be 'Please don't give them the Watson direction'".[14]Mr Bearman asked whether this ment that the Watson direction should not be given at all or not 'at this stage'. Miss Ayling replied: "At all". Mr Bearman continued: "It is a matter for your Honour's discretion. It is approved. It is still available to your Honour if you consider it is appropriate". Judge Ader said: "I haven't read the whole authority because I haven't had enough time but it doesn't surprise me that Pitchford LJ undertakes a careful analysis of all the authorities, that is entirely in keeping with what one has to expect of him, but it does kind of lead the bus hanging on the precipice as in the famous film as to whether you should give it or not. Exceptional circumstances -- every case is exceptional. There is no definition of what means."[15]Mr Bearman replied the jury had asked for help and that help was available to the judge to give them in the form of the Watson direction as set out in the Bench Book, although he pointed out that any departure from the words "used by Lord Lane CJ in Watson is very dangerous". The discussion continued with Judge Ader saying:
"I think the request for help is unusual. Whether it is exceptional, I suppose I can say for my own experience it is. They normally say, 'We can't agree'. They haven't said that, they have said, 'We aren't in agreement. Can you help us and take us to next it step?' ... I think I am inclined to try and avoid the consequences that we know of, just accepting a disagreement which nobody wants and to achieve that the only step that I can take to guide them at all is to give them the Watson direction. I think this case -- it's an exceptional case in terms of its evidence but then many cases are. Every case is unique and this is a very unusual case, even of its type and it seems to me that if the jury are asking for help and I do have something I can say then I am inclined to do it, in the exercise of my discretion."
[16]He then called the jury back into court and gave the Watson direction in full adding:
"That is as much as I am able to say to you by way of answer to your question and request for assistance."
[17]Just before 12.55 there was a discussion between the judge and counsel, in the absence of the jury, about whether it was time to call in the jury, ask them whether they had reached agreement and if not to discharge them. But, as it turns out, the jury returned to court at 12.55 and said that they were agreed on their verdicts. They returned the verdict of guilty on count 1 by a majority of 11 to 1 and verdicts of not guilty on counts 2, 3 and 4. We do not of course know whether the latter verdicts were unanimous or by majorities of 11 to 1 or 10 to 2. The appellant was subsequently sentenced to 4 years' imprisonment on count 1. He appeals against conviction by leave of the single judge.[18]The grounds of appeal argue that: (i) The learned judge erred in law in that the jury having sent a note they could not agree on the verdicts, the learned judge gave a Watson direction. Two-and-a-half hours later the jury delivered a guilty verdict on count 1 by a majority of 11 to 1, the verdict on the three other counts was not guilty. (ii)Given the evidence in the case such a finding by the jury was perverse and thus the conviction was unsafe.[19]We will take these in reverse order. The second is an argument that irrespective of the Watson direction the verdicts were inconsistent. Miss Ayling submits:
"It was obvious to everyone in the court that this was a case of who the jury believed. There was no compromise about the way the findings of fact could be made. The allegations by [M] were of a continuing course of conduct. The defendant denied them. The allegations of all forms of sexual activity crossed over the years of [M's] ages 12 to 16."
[20]Mr Bearman suggested to us that the reason why the jury were satisfied on count 1 might have been an admission by the defendant that he had on a few occasions washed the complainant's genitals in the bath; some of the acts of oral sex alleged by M and charged under count 1 were said to have taken place when he was in the bath. But the defendant was not charged with indecent touching and it seems to us an illogical basis for being sure of guilt on count 1 but not on any other count.[21]The test for inconsistent verdicts on more than one count against the same defendant is whether no reasonable jury applying their minds properly to the evidence could have arrived at the decisions which they reached. We have come to the conclusion that on the facts of this case that test is satisfied. We do not see how a jury who were not satisfied to the requisite standard of proof on counts 2, 3 or 4 could nevertheless be sure of guilt on count 1. Moreover, the divergence between the verdicts reinforces Miss Ayling's case on ground 1, the Watson direction, to which we now turn.[22]Arthur is now the leading case on the Watson direction. Pitchford LJ, giving the judgment of this court, made it clear at [43] that:
"….Once the jury is in retirement it is of the first importance that no individual juror should feel under any compulsion or pressure to conform with the views of the majority if to do so would compromise their conscience and, therefore, their oath. Furthermore, the jury as a whole, despite the heavy cost and inconvenience of a re-trial, should not feel under any pressure to return a verdict if, conscientiously, they are not unanimous or cannot reach the required majority.... Exceptional circumstances may arise that will require the trial judge to deal with the exigencies of the moment but, in general, there is no occasion to make exhortations to the jury to arrive at a verdict. This is why the Watson direction is rarely given by trial judges and, when it is, only as a last resort following a prolonged retirement after the majority verdict direction has been given."
[23]At [44] he continued:
"...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."
[24]As we read the decision in Arthur, there are cumulative tests which must be satisfied before a Watson direction can be given:(i) it requires exceptional circumstances, which is why it is rarely given; and even then(ii) it can only be given as a last resort where there has been a prolonged retirement following the giving of a majority direction.[25]Pitchford LJ did not define "exceptional circumstances" in Arthur and we shall not attempt to do so now. Suffice it to say that we do not consider that either the jury note or any other feature of this case made it exceptional: we do not understand the passage in the transcript where the judge appeared to indicate that it was. Nor could it be said that there had been a prolonged retirement following the majority direction. The note did not indicate irretrievable deadlock. This was nowhere near a situation of last resort. When the Watson direction was given the jury had been in retirement for less than two hours since the majority direction and less than six hours in all. The charges were serious. The judge's first instincts that he should not give the Watson direction (at any rate at that stage) were correct.[26]We accept that this is not a case where the Watson direction was given at the same time as the majority direction; nor one where, for example, it was given on a Friday afternoon with the jury returning a verdict just before the end of the court day; nor one where a member of the jury was on the verge of having to be discharged for personal reasons. So this was not a case of verdicts reached under pressure of time. But it may have been a case where the verdicts were reached under pressure to compromise.[27]The result reached by the jury in this case has the clear hallmarks of a compromise. We observe that the jury note sent at 3.37 pm on the Friday did not say that “we are in an 8 to 4 [situation]” on one count nor for that matter on three counts. There is a real possibility, if not a probability, that the disagreement indicated at that stage was on the case as a whole. We shall never know. If it was, then the Watson direction created a significant risk of pressure to compromise.[28]Putting Miss Ayling's two grounds together, the fact that in a case involving a complete confrontation on credibility the jury reached verdicts of guilty on one count and not guilty on the others after being given the Watson direction means that the verdict on count 1 must be regarded as unsafe. The appeal will be allowed and the conviction quashed.[29]MR BEARMAN: My Lord, may I just say for the record, I am instructed to seek a retrial; but in the light of your judgment that would seem not to be an application that this court would entertain.

LORD JUSTICE BEAN: Mr Bearman, we have discussed a possible application of this kind over the short adjournment. As you rightly anticipate, we take the view that it would not be appropriate. The defendant may be discharged from custody as soon as the necessary administration is carried out downstairs.

Cited in 2 later judgments