R v Pigg
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 05 February 1982 |
| Neutral Citation | [1982] EWCA Crim J0205-16 |
| Judgment citation (vLex) | [1982] EWCA Crim J0205-2 |
| Docket Number | No. 1340/A1/81 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 February 1982 |
[1982] EWCA Crim J0205-16
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Talbot
and
Mr. Justice McCowan
No. 1340/A1/81
MR. P. F. WORSLEY appeared for the Appellant.
MR. P. CHARLESWORTH appeared for the Crown.
On the 6th March, 1981, in the Crown Court at York, before Judge Bennett and a jury, this Appellant was convicted and sentenced on the following charges. On Count 1, for attempted rape of a girl called Beverley, he was sentenced to five years' imprisonment. On count 2, for attempted rape of a girl called Fiona, he was sentenced to five years' imprisonment. On count 7, for unlawful sexual intercourse with Beverley, he was sentenced to one year's imprisonment and on count 8, for indecent assault on Fiona, he was sentenced to one year's imprisonment. All those sentences were ordered to run concurrently. It should be pointed out that this was the second occasion on which these matters had been tried. Count 7, which was the unlawful sexual intercourse, was a conviction which was recorded at the earlier trial in January, 1981. The Appellant now appeals against conviction by leave of the single judge.
The facts of the case are, to say the least, nauseating and this court does not propose to go into them in any detail at all. Beverley was 15 years of age and Fiona was 17 years of age. They had been staying at a Butlin's Holiday Camp at Filey, Yorkshire. On the evening of the 16th September, 1980, they determined to leave the camp and go for a drink in a public house near by. They were reluctant to go round by the gate - apparently it involved a detour - so they climbed through a hole in the fence and made their way to the public house. They came back again. It was an unpleasant evening and they could not find the hole in the fence to return to their chalet.
At that time, the Appellant came on to the scene and initially he offered to help them, pretending that he was some sort of official to do with the Holiday Camp. The first thing untoward which happened was when the Appellant came up behind Beverley and, according to her, seized her round the neck with one of his arms and said: "I'm the Yorkshire Ripper." This was at a time before any arrest in that nortorious case had taken place.
The events that succeeded that incident were horrifying. On the Appellant's own statement and according to the police later on, it is apparent that the girls were subjected to a catalogue of almost every sexual indignity of which one can think. There is no doubt that there was ample evidence, if the jury took one view of the facts, on which they could come to the conclusion that the charges laid against this man, which were much lengthier and much more detailed than those of which he was found guilty, were substantiated. In the upshot, the jury came to the conclusion which we have already indicated.
The issue in the case was, practically speaking, one of consent or no consent. That is the basis of the appeal so far as the direction to the jury is concerned. We will return to that later, but the first ground of appeal is nothing to do with the merits of the case at all. It is a technical point on which it is necessary for us to pass judgment. It arises in this way. The powers of a jury to return a majority verdict are enshrined in the Juries Act, 1974. Section 17(1) of the Act reads as follows: "Subject to subsections (3) and (4) below, the verdict of a jury in proceedings in the Crown Court or the High Court need not be unanimous if (a) in a case where there are not less than 11 jurors, 10 of them agree on the verdict; and (b) in a case where there are 10 jurors, 9 of them agree on the verdict."
In this case, there was a full complement of 12 jurors. We need not read subsection (2). Subsection (3) is the important one. It reads as follows: "The Crown Court shall not accept a verdict of guilty by virtue of subsection (1) above unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict."
In the present case, what happened with regard to count 1 was this. Initially, count 1 was a charge of rape, not of attempted rape, and the jury were obviously having some difficulty in coming to their conclusion. After the requisite time had elapsed, the learned judge gave them a majority direction in impeccable terms. The jury then retired again and some 13 minutes later, they returned into court where the following interchange took place between the Clerk and the Foreman. "(The Clerk): Would the foreman please stand? Mr. Foreman, would you answer my question either yes or no only? Members of the Jury, have at least 10 of you agreed upon a verdict? (The Foreman): Yes. (The Clerk): On the charge of rape do you find the accused guilty or not guilty? (The Foreman): Not guilty. (The Clerk): On the charge of attempted rape do you find him guilty or not guilty? (The Foreman): Guilty. (The Clerk): Is that the verdict of you all, or by a majority? (The Foreman): By a majority. (The Clerk): How many of you agreed to the verdict and how many dissented?" Up to that point, everything had gone precisely as it should have done according to the practice direction given by the then Lord Chief Justice reported in (1967) 51 Cr.App.R. 454. It was the following question and answer to which objection is taken. "(The Foreman): 10 agreed. (The Clerk): 10 agreed to 2 of you." That was the end of the interchange.
One would have thought, applying common sense to the matter, that it was thereby made abundantly clear to every one that the foreman, on behalf of the jury, had said that 10 of the members of the jury had agreed that the prosecution had made out the offence of attempted rape and, therefore, arithmetically it followed that two of the jury were dissenting from that view. Unfortunately, this is apparently an area where common sense does not apply. It has been held in a number of previous cases that the wording in Section 17(3) of the Juries Act is mandatory and it requires what is set out there to be followed precisely. If it is not followed precisely, then the verdict is null and void and, if necessary, the trial has to start all over again.
It is necessary only to refer to two cases. The first one is the case of Regina v. Barry, reported in 61 Cr. App. R. 172. That was a case where the Clerk asked: "Do you find this defendant guilty or not guilty upon this indictment?" And the Foreman replied: "Guilty." The Clerk then said: "And that is the verdict of 10 of you?" to which the shorthand writer appended a question mark. If that statment was in the form of a question, it was not answered. That was a much stronger case than this one because the Foreman of the Jury had not expressed any view as to how many jurors had agreed and how many had dissented. It was held in that case that the conviction must be quashed.
There is a further decision of this court, R. v. Reynolds, which is reported in (1981) 3 All E.R. 849. The facts were indistinguishable from the facts of the present case. Everthing went correctly, as it did in this case, up to the point where the Clerk asked: "Is that the verdict of you all or by a majority?" (The Foreman): By a majority, (The Clerk): How many agreed and how many opposed? (The Foreman): Ten agreed."
The judgment of the court was delivered by Lord Justice Shaw. At page 851 G, he said this: "The requirement that where there is a majority verdict the foreman of a jury should state in open court how many dissented is neither more nor less imperative than stating how many agreed. It was argued in the present case that since the foreman had stated in open court that 10 agreed, it was superfluous to go further. The number who dissented became a matter of the simplest arithmetic. This is a fallacious argument. As has been said already, Section 17, like its precursor, is in peremptory and mandatory terms. Its insistence on requiring a statement in open court by the foreman of how many dissented is to preclude a verdict being accepted where 10 had agreed but one or both of the remaining jurors had not formed a final view at all. On hearing the foreman say that two dissented, that one or those two would have the opportunity of demurring publicly to the foreman's assertion. Otherwise, the verdict might operate against a defendant when only 10 of the jury had made up their minds one way or the other. The statutory requirements are plainly stated and they must be meticulously followed if a majority verdict is to be legitimately accepted. It is the duty of the presiding judge to see that they are followed. In the present case, Counsel very properly sought to alert the judge to the irregularity but his intervention was regrettably ignored." Accordingly, the conviction was quashed.
It seems to us, if we may respectfully say so, that the reasoning in that case was possibly open to a certain amount of doubt. It is said that the requirement of a statement being made in open court by the foreman of how many dissented is to preclude a verdict being accepted when 10 had agreed but one or both of the remaining jurors had not formed a final view at all. It seems to us that if one or two jurors have not formed a final view at all, they are of necessity dissenting from the view of the other 10 who have made up their minds. Perhaps that is a carping criticism but it occurs to this court that that must be the case, otherwise a jury could never return a majority verdict if one or two of their number refused to take part in the discussion at all or refused to express a view. That seems...
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