Neutral Citation Number: [2010] EWCA Crim 2000
Case No.  2010/01682/C1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  22  June  2010

B e f o r e:

LORD  JUSTICE  MOSES

MR  JUSTICE  HOLMAN

and

THE  RECORDER  OF  NOTTINGHAM
(His Honour Judge Michael Stokes QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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CHRISTOPHER  DAVID  PINCHES
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Mr T Evans appeared on behalf of the Appellant

Mr N Gedge appeared on behalf of the Crown
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J U D G M E N T

LORD JUSTICE MOSES:  

1.  The issue in this appeal against conviction, which is brought with the leave of the single judge, raises the hoary question of the propriety or otherwise of a judge nudging a jury to a conclusion by giving a Watson direction.  Those experienced in managing court cases, and in particular managing jurors, are familiar with this problem.  There are those strongly opposed to any such nudge and those who remain of the view that provided no "undue pressure" is placed upon a jury, there will be occasions on which it is appropriate for a judge to exercise his discretion to give such a direction.

2.  This was a case where there had already been a trial at which the jury had been unable to reach a conclusion.  On the retrial it was apparent that the jury again were having difficulty until such a time as the judge gave them a Watson direction.  Thereafter, after about fifteen minutes, the jury, which had hitherto appeared to be unable to agree upon a verdict, then reached a conclusion and convicted the appellant by a majority of 11:1.

3.  The retrial took place in February 2010 at Cardiff Crown Court before His Honour Judge Bidder and a jury.  The jury reached their verdict on Monday 22 February 2010, having started to deliberate at 11.15am on Friday 19 February.  Since the appeal relates to the management of the jury by the judge, it is unnecessary to detail the facts of the allegations made against the appellant.

4.  It suffices to say that the offence arose out of a dispute between the complainant and his friends who, on the afternoon of 9 June 2009, were drinking on a river bank at Bridgend alongside the Tesco car park.  The appellant arrived in his car with his brother in the passenger seat.  As a result of the altercation, the prosecution case was that the appellant had deliberately driven his car at the complainant, Daniel Norman, in order to cause him serious bodily harm.  In circumstances where the jury could not agree, the appellant was acquitted of that offence.  

5.  The second count alleged unlawful violence so as to cause the complainant to fear for his safety.

6.  The defence was that the complainant had started the altercation by punching the appellant in the face, throwing cans of beer at his car and shattering the car window, and that the appellant had done no more than defend himself and drive to get out of the way.

7.  The complainant's evidence was that he feared that the appellant's brother would get out of the car and punch the driver's window in such a way as to smash it, and that the car had then been driven by the appellant at him and had knocked him to the ground.  

8.  Other witnesses gave differing accounts, apportioning blame on the one hand to the complainant and on the other to the appellant.  The witnesses were inconsistent.  Independent witnesses had blamed the complainant for inciting the violence and suggesting that there should be a fight.  Small wonder, therefore, that the first jury could not agree and the second jury had great difficulty.

9.  As we have indicated, the jury retired on Friday 19 February after a trial which had lasted four days.  At 2.36pm they had indicated by note that they were unlikely to reach a verdict.  A majority direction was given at 3.10pm.  Twenty-five minutes later, the jury reported that they were still deadlocked and were unlikely to reach a verdict in relation to either of the counts.  The judge sent them home for the weekend.

10.  On Monday 22 February, at 11.25am, the jury sent a note.  The judge informed counsel of its effect, namely that in relation to the first count: 

		"The jury cannot come to a majority decision".

However, the jury also reported:

		"However, in relation to the second count we are closer to a decision but need confirmation if we can consider count 2 if no decision is made on count 1."

There was then some discussion which led to the jury being discharged in relation to count 1 after the question was asked:

		".... if I were to give you more time, do you consider that there is a realistic prospect that you might reach a verdict on count 1 upon which at least ten of you are agreed?"

The foreman replied: "No".

11.  Following a discussion, not all of which has been recorded due to the sophisticated digital recording system, the judge indicated that he proposed to give a Watson direction in relation to which Mr Evans, who appeared before us and who appeared for the appellant at trial, objected.  Mr Evans submitted that it was obvious that the jury were having difficulty and that it was obvious why they were having difficulty.  He suggested either that they should be left, or at best asked (although this was not recorded) whether there was any prospect of reaching a verdict.  

12.  The judge said that he proposed to wait until about 2.30pm.  However, at 2pm the jury sent another note.  It reads:

		"The jury have still not come to a majority decision on count 2.  It is still the same ratio now as it was when we commenced this morning."

The judge indicated that he proposed to give a Watson direction and Mr Evans repeated his earlier objection.  

13.  The judge then gave the Watson direction.  He used the words that judges are instructed to use if they should decide to give such a direction: see R v Watson [1988] QB 690, 87 Cr App R 1.  He said:

		"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, ten of you cannot reach agreement, you must say so."

Following that direction the jury again retired.  They took two or three minutes to reach the jury room.  At about 2.30pm (about fifteen minutes later) they returned with a verdict of 11:1.

14.  The question which arises is whether the verdict is unsafe as a result of undue pressure imposed upon the jury in consequence of that direction.

15.  It is difficult to identify from reported cases in which objection has been made to giving of a Watson direction, any principle by which judges managing juries who appear to be exhibiting difficulties in reaching a conclusion, as to when they should or should not give a Watson direction.   This is not surprising because it is a matter peculiarly left to the good management skills of the trial judge.  The trial judge is in the best position to asses whether or not to give such a direction.  Many judges nowadays will not do so.  However, the fact remains that there is no authority for the proposition that judges should never give a Watson direction.  It remains open to them to deploy that method of reminding the jury of their responsibilities, and in those cautious terms suggesting that by give and take they might reach a conclusion.  The terms must be cautious because the overriding principle is that pressure must not be placed upon a juror to reach a verdict contrary to that which their conscience and assessment of the evidence dictates.

16.  It is important, however, to note that in the cases to which we have been referred -- R v AB [2006] EWCA Crim 786, R v McCann [2009] EWCA Crim 819 and R v Dublin [2007] EWCA Crim 3240 -- it was plain, and there was recorded, the belief by the jury that they would be unable to reach a conclusion.  Notwithstanding that information, in those cases the judges gave a Watson directions.  In both Dublin and AB the decision of the judge to give such a direction was upheld, and in McCann it was not said that it was outwith the range of reasonable conclusion.

17.  We must stress that the trial judge is in the best position to decide whether or not to give such a direction.  This court cannot interfere with that assessment of what justice requires unless the trial judge's decision was outwith the range of reasonable conclusion.

18.  In McCann Scott Baker LJ observed that, notwithstanding the jury's indication that they could not reach a conclusion and the giving of the Watson direction, they deliberated for a further one hour and twenty-two minutes.  By way of contrast, Mr Evans points out that in this case the jury returned after scarcely any opportunity for further discussion.  They seem to have returned to their jury room and at least two of them appear to have changed their minds.  Although that causes some of the members of this court some disquiet, not sufficient disquiet to say that it was not open to the judge to give the Watson direction.  True it is that he was faced with a case in which the jury had plainly had difficulty, just as their predecessors had had difficulty in reaching a conclusion.  But their note did not suggest that there was no possibility of reaching a conclusion, namely that they had not shifted from a position which was described as being closer to reaching a conclusion on count 2.  

19.  In those circumstances we take the view that whilst Watson is good law and remains open to judges to deploy that method of persuading a jury to a conclusion, it cannot be said that this judge was plainly wrong in deciding to do so.  Accordingly, whilst the members of this court differ in their approach as to whether Watson should ever be deployed, it cannot be said that the judge was not entitled to give the direction he gave.  There is no basis for saying that it imposed what the Vice-President in AB at paragraph 22 described as "undue pressure" in the instant appeal.  AB was a very different case where there were specific grounds for suggesting the lack of safety of the verdict, particularly the heat in the Cardiff jury room on that day, coupled with further difficulties as to the failure of the judge to indicate that a note had been received from the jury.

20.  In those circumstances, whilst we wish to record the excellence of the submissions advanced by Mr Evans on behalf of the appellant, we dismiss the appeal.

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