R v Spencer

JurisdictionUK Non-devolved
JudgeLord Chancellor,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Mackay of Clashfern,Lord Ackner
Judgment Date24 July 1986
Judgment citation (vLex)[1986] UKHL J0724-1
Date24 July 1986
CourtHouse of Lords
Regina
and
Spencer and Others
(Appellants)
Regina
and
Smails and Others
(Appellants)
(on Appeal from the Court of Appeal (Criminal Division))
(Consolidated Appeals)

[1986] UKHL J0724-1

Lord Chancellor

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Mackay of Clashfern

Lord Ackner

House of Lords

Lord Chancellor

My Lords,

1

I agree with the disposal of the second appeal about to be recommended by my noble and learned friend, Lord Ackner, whose judgment on the merits I have had the advantage of reading in draft, and which is now available in print. I also agree with his proposed answer to the certified question.

2

As regards the first appeal, (that relating to Spencer and others), I have no doubt that this appeal should be allowed on the ground that owing to irregularities in the trial, in relation to a particular juror, the verdict must be regarded as unsafe and unsatisfactory. I do not believe that, in the rather special circumstances of this case, the Court of Appeal were entitled to speculate as to what may or may not have occurred after the jury had retired or as to the circumstances which may or may not have influenced their verdict of guilty by a majority of ten to one after deliberating for five hours.

3

Without such speculation the following facts are clear beyond peradventure.

  • (1) The first is that, just before the jury were about to retire, and on an application by defending counsel to discharge the jury, the judge learned of circumstances which, in his opinion at least, made it unsafe to permit one juryman ("P.") to remain on the jury. The avowed reason when given was that the juryman in question had, through his wife, a somewhat tenuous connection with the institution at which the accused were employed as nurses, but one is, I think, entitled to assume that the judge considered it arguable that, through his wife, the juryman might have been exposed to gossip prejudicial to the accused about the merits of the case. What is beyond doubt is that, even at this stage, and apparently throughout the trial, the juryman in question had unequivocally evinced a most unjudicial bias against the defence and this may well have acted as an additional factor in influencing the judge's mind. However I believe in these circumstances that the judge acted correctly in then declining to discharge the whole jury.

  • (2) The second fact beyond dispute is that when, on the following day, defence counsel renewed his application to discharge the jury, in refusing the application, the judge first of all misdirected himself as to the correct test to apply and secondly took into account factors which should have been disregarded in considering the result of the application. In considering such an application, the interests of justice should be paramount, and neither the inconvenience of a second trial nor the necessity which would have been involved in calling again as witnesses the victims of the alleged assaults, possibly to their detriment, should have outweighed the necessity of the accused receiving, and being seen to receive, a fair trial. The effect of these misdirections when the point was raised on appeal was to free the Court of Appeal in the use of their own discretion of any necessity to be guided by the judge's own use of his discretion.

  • (3) The third point which is beyond dispute is that, after discharging P. from the jury, the judge permitted him to remain behind in the precinct of the court in order to give a lift in his own car to three of the remaining members of the jury over a journey taking about half-an-hour. My own view is that the judge was mistaken so to do, but, whether this view be correct or not, the judge thought it imperative specifically to warn the three jurors who were to avail themselves of the lift not to discuss the case with P. when they were with him in the car. What the judge did not know on the renewal of the application on the following day, but what, by the time they heard the appeal, the Court of Appeal certainly did know, was that this warning had been disregarded. I do not believe that the judge could have exercised his discretion so as to refuse the defence application when it was renewed the following day, at least without diligent enquiry as to the nature of the discussion, had he been aware that his specific warning had been disregarded in this way.

  • (4) In the event, the Court of Appeal formed the view that there was "no realistic chance" of the discussion in the car (whatever it was), having influenced the verdict. Although they had available to them the statement prepared by the D.P.P. they seem to have made no additional enquiry as to what had happened, and though, of course, it may be true that nothing detrimental had taken place, I do not think they had enough material on which to say that it had not. This was a case of total want of corroboration, a majority verdict of 10-1, and a wholly unauthorised and improper conversation between a juror who had been sent off the jury as not suited to remain there with three of the remaining jurors in the absence of the other eight and in disregard of an express warning by the judge against such conduct. In my view this constituted a serious breach of natural justice and the resulting verdict must be treated as unsafe and unsatisfactory. In such a case as this there can be no question of applying the proviso.

4

As regards the certified question, I am content to accept what is about to fall from my noble and learned friend. But, in view of certain parts of the judgment of the Court of Appeal, there are certain additional comments I would wish to make. It is notorious that the law of Scotland does not admit of a conviction on the uncorroborated evidence of a single witness, but that the law of England does. There are a certain number of statutory exceptions to which I drew attention in Reg. v. Kilbourne [1973] A.C. 729 at pp. 739-740. In addition there are certain categories or classes of case which, by the time of the establishment of the Court of Criminal Appeal in 1907, had already hardened into firm rules of practice. In these, in the absence of a special warning from the trial judge, a conviction will normally be set aside as unsafe or unsatisfactory unless the court decides that it is safe to apply the proviso. I referred to these at p. 740 of the report. My reference to cases of alleged mistaken identity has now been overtaken by events, viz. by the Devlin Report (Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976) H.C. 338) and Reg. v. Turnbull [1977] Q.B. 224, and need not, therefore, be referred to further, but there are also references to what I said in Kilbourne, both in Archbold Criminal Pleading Evidence & Practice 42nd ed. (1985) p. 1136 and in the judgment of the Court of Appeal which, in my view at least, need correction. In Reg. v. Hester [1973] A.C. 296, which shortly preceded the hearing of Kilbourne, Lord Morris of Borth-y-Gest had said, at p. 315:

"The weight of the evidence is for the jury … It is for the jury to decide whether witnesses are creditworthy. If a witness is not, then the testimony of the witness must be rejected. The essence of corroborative evidence is that one creditworthy witness confirms what another creditworthy witness has said. Any risk of the conviction of an innocent person is lessened if conviction is based upon the testimony of more than one acceptable witness."

5

When in Kilbourne I said at p. 746 "corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness's testimony falls of its own inanition, the question of his needing, or being capable of giving, corroboration does not arise", I was there expressly referring back to this passage in Lord Morris' speech in Hester, and the suggestion that this is an alternative approach to that of Lord Reid at p. 750 would, I think, have astonished Lord Morris and Lord Reid as much as it did me when first I read it and I said as much in Reg. v. Boardman [1975] A.C. 421, 454. The contrary view seems to me pure fantasy.

6

The other point on which I would wish to comment is the Court of Appeal's view on my reference in Kilbourne [1973] A.C. 729, 740 I added witnesses "of admittedly bad character" to the number of cases where a warning of some kind was required as to the danger of convicting without corroboration. I was, of course, using the phrase in the technical sense of witnesses who have been shown to be not of a character to make them worthy to be believed on their oath. In this connexion I must say that even if there were not authority to support this view, (and I believe there is plenty), I would regard it as a matter of sheer common sense that if a judge did not warn the jury of the possible danger of convicting an innocent man if they convicted solely on the disputed but uncorroborated testimony of such a person, his failure to do so would, apart from the proviso, make a verdict unsafe and unsatisfactory in the extreme. The fact is, I believe, that in the instant appeal, the Court of Appeal, confronted with the contrary decision in Reg. v. Bagshaw [1984] 1 W.L.R. 477 with which they rightly disagreed, were haunted by the spectre of Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718. However this may be, your Lordships were not troubled by this spectre, nor do I wish to pursue it in the present case, since I am fully persuaded by my noble and learned friend, that Bagshaw was wrongly decided and that, even on the view most favourable to the appellants in Bagshaw and in the instant appeals, Judge Hopkin gave a perfectly adequate warning to the jury of the danger of convicting on the uncorroborated testimony of the witnesses for the prosecution. He not only advised them of the necessity of proceeding with extreme...

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