R v Watson
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 09 March 1988 |
| Neutral Citation | [1988] EWCA Crim J0309-2 |
| Judgment citation (vLex) | [1988] EWCA Crim J0309-1 |
| Docket Number | Nos. 5103/A1/87, 3228/A2/87, 2898/F2/87, 2674/F1/87, 4981/F1/87, 4908/A2/87 and 4483/A2/87 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 March 1988 |
[1988] EWCA Crim J0309-1
The Lord Chief Justice of England (Lord Lane)
The President (Sir Stephen Brown)
Lord Justice Watkins
Lord Justice Russell
and
Lord Justice Taylor
Nos. 5103/A1/87, 3228/A2/87, 2898/F2/87, 2674/F1/87, 4981/F1/87, 4908/A2/87 and 4483/A2/87
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. D. JEFFREYS, Q.C. and MR. K.A. MITCHELL appeared on behalf of the Appellant Watson.
MR. N. PURNELL, Q.C. and MR. H. COLGAN appeared on behalf of the Crown.
MR. D. JEFFREYS, Q.C. and MR. A. GREENWOOD appeared on behalf of the Appellant Salmon.
MR. N. PURNELL, Q.C. and MR. G. GORDON appeared on behalf of the Crown.
MR. M.M. LAHIFFE appeared on behalf of the Appellant Beeston.
MR. M.H. LAWSON appeared on behalf of the Crown.
MISS R. WILLIS appeared on behalf of the Appellant Gyamfi.
MR. D. ELLIS appeared on behalf of the Crown.
MR. A. ROBERTSON appeared on behalf of the Appellant Jackson.
MR. F. MITCHELL appeared on behalf of the Crown.
MISS Y. COPPEL appeared on behalf of the Appellant Finn.
MR. R. MARKS appeared on behalf of the Crown.
MISS Y. COPPEL appeared on behalf of the Appellant Doyle.
MR. P. WHELON appeared on behalf of the Crown.
This is the Judgment of the Court. There have been divergent views expressed by different divisions of this Court on the appropriateness of the so-called Walhein direction. It was to enable us to deal with such differences that we had a number of appeals raising the problem in various forms listed before a five-Judge Court.
In Walhein (1952) 36 Cr. App. R. 167 itself, upon the Jury's return to court, one of their number told the Commissioner at the Central Criminal Court: "I cannot in my own mind find him guilty of the charge which prosecuting counsel have not proved." The Commissioner then said: "You are a body of 12 men. Each of you has taken an oath to return a true verdict according to the evidence, but, of course, you have a duty not only as individuals, but collectively. No one must be false to that oath, but in order to return a collective verdict, the verdict of you all, there must necessarily be argument, and a certain amoung of give and take and adjustment of views within the scope of the oath you have taken, and it makes for great public inconvenience and expense if Jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest. Having said that, I can say no more. If you disagree in your verdict in relation to one or other of these men, you must say so."
This direction was, it is said, based on an earlier direction in the case of Klein (1932) 23 Cr. App. R. 185, the words of which have not survived.
Lord Goddard, Chief Justice, at page 168 had this to say of the direction in Walhein: "In our opinion, that was a perfectly satisfactory direction. Jurors often have to be reminded that the case may be one in which some of them may start by taking one view and then, finding that the others are against them, may talk the matter over, subordinate their views to those of the majority and concur in the verdict…… The fact that Mr. Justice Finlay in Klein referred to 'grave inconvenience and expense', as did the Commissioner in the present case, was not a threat to the Jury, but merely pointed out to them the desirability of arriving at a verdict if they could. If they fail to agree, inconvenience and expense is caused not only to the prosecution, but also to the defendant, who will have to be tried a second time." The appeal was dismissed.
Firstly, this was a case where one Juror (Judging from his words and those of the Judge) was closing his ears to the arguments of the other eleven. The Judge accordingly invited him to change his attitude, listen to the other point of view and if he could then do so conscientiously, alter his view, thereby avoiding the expense and inconvenience of a retrial.
Secondly, this was at a time when unanimity was required of a Jury, and when, so we were told, there were suspicions that in some cases improper pressure was being put upon Jurors to disagree with their fellow Jurymen and so cause the trial to be aborted.
Up to 1967 that or a similar form of words continued to be used when Jurors announced that they had failed to reach unanimity.
In Creasy (1953) 37 Cr. App. R. 179, the words used were: "It is very desirable that you should come to a conclusion one way or the other ….. because it only means that some other Jury have got to do your work for you all over again, if you do not ….. and that is why it is highly essential that you should come to a definite conclusion. It is a hardship upon all concerned if you do not. The way that Juries arrive at a verdict is, of course, by a method of one member listening to what the other has to say and by a process of give and take. Of course, it is a verdict which you must all be agreed upon one way or the other…..".
The Jury convicted. That direction was held not to invalidate the conviction, though Lord Goddard did go so far as to say "Perhaps it might have been put a little differently." At page 181 of the report he distinguished another decision which had disapproved of a direction containing the words "It is essential that you should give a verdict." It was perhaps a fine distinction. Fine distinctions are inevitable in this type of situation.
With the benefit of hindsight it is possible, even at that early stage, to detect signs of danger. It will not have escaped notice that in Walhein itself Lord Goddard used the phrase "Jurors ….. may talk the matter over, subordinate their views to those of the majority and concur in the verdict". Taken literally that might be construed as an encouragement to the dissentient minority to fall in with the majority whilst continuing to disagree with their views.
The Court in Davey (1960) 45 Cr. App. R. 11, at page 20, had this to say about those words: "If the word' subordinate' means sink their own views and adopt a view which is contrary to the view they really hold in order to achieve unanimity, it seems to us that passage ….. runs contrary to previous decided cases ….. we think that the words 'subordinate their views' must mean come to a different conclusion after proper discussion, and not sink their views in order to achieve unanimity."
On 1st October 1967 the Criminal Justice Act 1967, section 13, came into force. Section 1 introduced into the English criminal law for the first time the concept of the majority verdict. Subsection (2) required the Foreman of the Jury to state in open court the number of Jurors who agree to and dissent from the verdict. Subsection (3) required the Jury to have had not less than two hours for deliberation before a majority verdict is permissible. On 31st July a Practice Direction was issued by Lord Parker, Chief Justice, setting out the procedure for the taking of majority verdicts.
It was not however until the decision in Isequilla (1975) 60 Cr. App. R. 52 that any consideration was given to the possible effect of the introduction of the majority verdict upon the Walhein direction. The matter was only raised so to speak by a side-wind, but this is what Lord Widgery, Chief Justice, had to say at page 57 of the report:
"I pause only to make one brief reference to another point upon which Mr. Blom-Cooper invited us to express an opinion if we thought fit. It is a procedural matter but not without importance, and it relates to the direction which the trial Judge gave to the Jury in this case when the Jury failed to produce a unanimous verdict. He, the trial Judge, had given them the proper instruction at the proper stage, that they could bring in a majority verdict if they wanted, and in respect of one count they brought in a majority verdict but remained in disagreement on the other two which were before them. At this stage the trial Judge gave the Jury a direction which has been given by trial Judges ever since 1951, which obtained the approval of the Court of Appeal, to the effect that Jurors should not be stubborn and stick to their own points of view, but should discuss the matter amongst themselves and see whether other Jurors' views were not worth looking at and proper to be adopted. Those are my words, and not the words of the direction, but that is the sense of it. This direction was given to the Jury at a stage when they had produced one majority verdict and were still in disagreement about the other two counts. Mr. Blom-Cooper says, correctly, that that direction was first approved when majority verdicts were unheard of. He says it is inappropriate to use such a direction now when majority verdicts are available, and particularly inappropriate to use such a direction when the Jury have already had a majority verdict direction and indeed have produced one such verdict.
"We do not think this is a case in which we should seek to lay down hard and fast rules, because we think them unnecessary. We think it obvious that if a trial Judge seeks to use the general direction to which I have referred after he has given a majority verdict direction, he ought to adapt the language to make it suitable for the new situation for which it was not originally designed.
"We also think that before giving such a general direction at that stage, the Judge ought to remember that to some extent the fact that majority verdicts are possible has taken away the mischief at which the original direction was aimed; but despite all that we are not...
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