Morrison v Chief Constable of the West Midlands Police

1. LORD PHILLIPS, MR: Lord Justice Laws will give the first judgment.

2. LORD JUSTICE LAWS: This is an appeal with permission granted by Tuckey LJ on 11 November 2002 against the order made by His Honour Judge Taylor in the Birmingham County Court on 7 October 2002.

3. The proceedings consisted of an action brought by the respondent/claimant against the appellant/defendant, who was the Chief Constable of the West Midlands Police Force, for damages for unlawful arrest, assault and malicious prosecution. The claim arose out of events which took place on 22 November 1995.

4. The incident began with attempts by police officers to arrest a man called Silvera for an offence of attempting to obtain goods by deception. The respondent was witness to part of this and protested at the way the officers were treating Silvera. Her case was that she asked one of the officers several times for his number. He was dismissive and sarcastic. There was an altercation; she made to walk away; another officer pulled the hood of her jacket from behind, she lost her balance; she was told she was under arrest for swearing at a police officer. I read paragraph 2.21-2.23 of the Particulars of Claim:

"2.21: The arresting officer, PC 5244 Groves, told the Claimant that she was under arrest for swearing at a police officer. The Claimant asked him what he thought she had said. She told PC Groves 'that the most offensive word I had used were the words 'kiss my arse' and that this did not constitute swearing as it was not said directly to PC Gower and it was said in the context of the sentence described above.

2.22: PC Groves replied by saying that the Claimant had told PC Gower to 'piss off'. This, the Claimant denied. The Claimant was escorted into the police car where there was another police officer in attendance with PC Groves now known to be PC 4904 Peak.

2.23: The Claimant was arrested in view of a lot of people. Once in the car, PC Groves said something about public disorder. Again once in the car the Claimant asked him why she had been arrested and PC Groves said she had sworn at him and told him to 'piss off'. The Claimant informed PC Groves that she had not done so and the officer responded by stereotyping Black and Asian people by saying, 'you Asians and blacks in the area have a problem with the police'. The officer asked if the Claimant had been in trouble before with the police. The Claimant did not reply."

5. The respondent was charged with an offence of using threatening, abusive or insulting words or behaviour contrary to section 5 of the Public Order Act 1986. She was acquitted of that offence in the Birmingham Magistrates' Court on 30 September 1996.

6. The police account of the incident in September 1995 was very different. I read from paragraphs 6 and 7 of the defence:

"6. PC 5244 Groves and 4904 Peak attended the scene in response to a back up call. Both PC Groves and Peak saw the Claimant standing near to PC Gowers police vehicle. She was irate and shouting abuse in the direction of PC Gower. PC Groves requested that the Claimant desist from swearing and move away. The Claimant continued in the direction of PC Gower, [saying]

'It would be a different story if I bought a gun and stuck a bullet in your gut'.

PC Groves was alarmed by the Claimant's statement. He suggested that she calmed down otherwise she would be arrested for her conduct. The Claimant's response to PC Groves was.

'Stick it up your arse'.

PC Groves gold the Claimant to move away immediately. The Claimant responded

'Piss off'.

The Claimant was then arrested by PC Groves for an offence under the Public Order Act 1986 and the Claimant was cautioned. The Claimant made no reply. The Claimant was placed in the rear of PC Groves Police vehicle where that Officer requested the Claimant's details. The Claimant replied.

'I'm not telling you my name. Anyway I've been in trouble lots of times'."

7. The respondent in the action claimed substantial compensation. Its ascertainment would involve complex issues of causation and other issues requiring sophisticated expert testimony. At length the issue of liability was tried before His Honour Judge Taylor and a jury of eight in September 2002. As is usual in such cases, a series of questions was formulated for the jury. They were as follows:

"1. Have the Police satisfied you that it is more likely than not that Mrs Morrison used the words, 'It would be a different story if I bought a gun and stuck a bullet in your gut'?

2. Have the Police satisfied you that it is more likely than not that Mrs Morrison used the words, 'Stick it up your arse'?

3. Have the Police satisfied you that it is more likely than not that Mrs Morrison used the words, 'Piss off'?

4. Have the Police satisfied you that it is more likely than not that Mrs Morrison was warned by PC Groves to stop her behaviour before he arrested her?

5. Has Mrs Morrison satisfied you that it is more likely than not that her hood was pulled back by PC Groves causing her to lose her balance?

6. Has Mrs Morrison satisfied you that it is more likely than not that PC Groves did not honestly believe that she had committed the offence with which she was charged?"

8. There were to be five grounds of appeal put forward for the consideration of this court; but permission to appeal was granted by Tuckey LJ only on the first, which was to the effect that the jury's answers to questions 3 and 6 (which were adverse to the police and in the respondent's favour) may have been arrived at as a result of pressure from the judge.

9. The judge concluded his summing-up in the case at 11am on Friday 13 September 2002. The jury were sent out following the standard direction that at that stage they were to endeavour to arrive at unanimous answers to all six questions. The jury were recalled to court at 2.50pm. They were agreed on the answers to questions 1,2,4 and 5 as follows: question 1 - no; question 2 - no; question 4 - yes; question 5 - no. They were not agreed on questions 3 and 6 which were crucial to the result in the case. The judge gave a majority direction in relation to those, requiring the assent of at least seven of the eight jurors. As the transcript shows, there was agreement at the Bar that if there were no decision on questions 3 and 6 by 5 pm on that day, application would be made to discharge the jury. In the absence of the jury this exchange then took place:

"JUDGE TAYLOR: The reason why I thought of asking them to come in was I received a message to the effect that they had told the bailiff that--

MR THOMAS [counsel for the claimant]: Sorry, your Honour. I didn't catch what you said.

JUDGE TAYLOR: -- -- that they had told the bailiff that they were hopelessly deadlocked."

10. Both counsel indicated they did not know of that fact. The judge continued:

"JUDGE TAYLOR: Never mind, and what I was going to do, subject to the view you may have, is give them a direction which used to be given years ago to the effect that 'if at all possible we would like you to carry on. A lot of time and money is spent on these trials and there may have to be a second trial which costs a vast amount of money'. They must not fail to live up to their oath, but if there is some manner in which they can resolve the two outstanding matters by a majority of seven to one then they should do so. Of course you can get instructions to alter that seven to one if you wish, Mr Khangure."

11. Mr Khangure, for the defendant, replied:

"Your Honour, it is not within my, nor my instructing solicitor's remit to actually alter that."

12. The judge invited the jury to return to court at 4.15pm. These exchanges then took place. They are critical to the issue in the appeal:

"THE CLERK OF THE COURT: Will the Foreman please stand? Have you reached a finding on which seven of you are agreed to question 3?

THE FOREMAN: No.

THE CLERK OF THE COURT: Have you reached a finding on which at least seven of you are agreed to question 6?

THE FOREMAN: No.

JUDGE TAYLOR: Very well. Mr Foreman, the jury have now been deliberating since about 11 o'clock this morning. Plainly one appreciates that it is not easy always to achieve either unanimity or a majority of seven to one, but do you think that if you were given a little longer there is a prospect of achieving at least agreement by seven, because, as you know, these matters are expensive, these trials, and a lot is at stake, A lot rests at stake. You must not in any way fail to honour the oath which each one of you took, but if you thought that there was a prospect if you retired once more for half an hour or so then -- that word does not mean as a deadline -- but for a time, do you think there is a prospect that at least seven of you might be in agreement?

THE FOREMAN: No, your Honour.

JUDGE TAYLOR: And you feel that there is no point in going on?

THE FOREMAN: No.

JUDGE TAYLOR: It is a great pity of course. I don't like to see the trial finishing inconclusively because it means that there will have to be another one and that is not what we want, but if you feel that there is no prospect then we shall have to call it a day, as we say.

THE FOREMAN: May I just a question, please?

JUDGE TAYLOR: Yes.

THE FOREMAN: The majority verdict does have to be sort of seven to one, does it?

JUDGE TAYLOR: It does. I cannot enter into a discussion with you I am afraid. I can only deal with straightforward questions. I am not allowed to enter into any kind of discussion as to what may or may not happen or anything of that kind. But you can retire again if you wish to just consider the matter shortly.

THE FOREMAN: Excuse me, sir. I have just been requested by my fellow jurors that if we could have more time?

JUDGE TAYLOR: Yes, you can certainly have more time. Thank you."

13. So it was that the jury retired again at 4.17pm. They returned to court at 4.38pm and announced in answer to the Clerk's questions that at least seven of their number were agreed that question 3 should be answered "No" and question 6 "Yes". Those answers determined the issues of liability in the respondent/claimant's favour. In such civil trials in the county court the majority of seven to one may be reduced to a narrower majority, but only with the parties' agreement. We are told that it is the policy of the appellate Chief Constable not to agree any such narrower majority. Mr Thomas, for the respondent, who has much experience of these cases, indicated that this policy is not universal among police forces.

14. The appellants submit that once it was clear that the jury was deadlocked, the judge should have discharged them. He had already made one reference to expense. The Foreman said that he did not think there was a prospect of agreement by seven members of the jury and that there was no point in going on. But, far from discharging them, the judge said, and I repeat the short passage for convenience:

"It is a great pity of course. I don't like to see the trial finishing inconclusively because it means that there will have to be another one and that is not what we want, but if you feel that there is no prospect then we shall have to call it a day."

15. The passages which I have cited from the remarks made by the judge may be thought to reflect the direction that used to be given to juries in criminal cases pursuant to the decision of the Court of Appeal (Criminal Division) in Walhein (1952) 36 Cr App R 167. Mr Khangure, for the appellant, refers to the later and well known decision of that division of the Court of Appeal in Watson (1988) 87 Cr App R 1. Watson was a decision of a court of five judges, presided over by the then Lord Chief Justice. There had been divergent views in the Court of Appeal (Criminal Division) as to the appropriateness of the Walhein direction, which I need not go into at any length. In Watson the court indicated how a jury might be directed in the event of an apparent deadlock, given two public interests which tend to pull in opposite directions: (i) the imperative that a jury should be put under no pressure; and (ii) the desirability of avoiding the delay, expense and uncertainty which is bound to arise if there has to be a second trial after a jury disagreement. This is what the court said in Watson:

"In the judgment of this Court there is no reason why a jury should not be directed as follows:

'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 [10 of] you cannot reach agreement you must say so.'

It is a matter for the discretion of the judge as to whether he gives that direction t all and if so at what stage of the trial. There will usually be no need to do so. Individual variations which alter the sense of the direction, as can be seen from the particular appeals which we have heard, are often dangerous and should, if possible be avoided. Where the words are thought to be necessary or desirable, they are probably best included as part of the summing up or given or repeated after the jury have had time to consider the majority direction --

16. This represented a considerable move away from the Walhein direction, which used to be given to urge juries to reach a unanimous verdict. That direction included references to cost, expense and so forth. The Lord Chief Justice in Watson took the view that such directions appeared to put pressure on juries.

17. With deference to what was later said in Buono (1992) 95 Cr App R 338, it is to my mind tolerably clear from decisions of the Court of Appeal (Criminal Division) since Watson (Morgan, 26 March 1997 and Tarlock Singh, 4 June 1998) that any departure from a Watson direction will not necessarily make a jury verdict unsafe. The cases show that the judgment of the court, when an issue as to jury pressure arises, is always very sensitive to the facts of the particular case. That has some importance in the context of the present appeal.

18. There was some discussion between the Bench and the Bar in the course of argument upon the question whether the strictness of the Watson approach in crime is necessarily apt in the context of civil proceedings before a jury, to which The Civil Procedure Rules, not least Part 1, would apply. In light of the decision I have reached as to the merits of the matter, however, I do not feel it necessary to travel into that potential debate.

19. Mr Thomas, for the respondent, relies on the judgment of the Court of Appeal (Criminal Division) given by Waller LJ in Durrant, 6 March 1998. In that case, the Foreman of the jury effectively indicated that there was no reasonable prospect of the jury reaching an agreed verdict, but the judge interrupted saying that he would ask them to retire again for a while and read out verbatim the Watson direction. Then the trial judge said:

"With that therefore may I ask you to carry on for a little bit longer to see if you can reach the necessary degree of you unanimity, at least ten. Thank you very much."

On appeal, Waller LJ said:

"The only question is, as it seems to us, whether there is anything in Mr Taylor's argument that, because of the intervention of the foreman indicating that at that stage he did not think that there was a reasonable prospect of reaching a verdict, plus a reference to 'again retire for a little while' there was any pressure put on the jury.

We have to say that we simply do not follow how that can be so. The fact that the foreman is indicating that at that stage he does not think there was a reasonable prospect, as it seems to us, is no reason at all why the judge should not say to the jury, as in effect he was, 'I do want you to go out and consider the matter for some further time' and his reference to 'again for a little while' and 'for a little bit longer' and his acceptance that, if they cannot agree, then that would be accepted, as it seems to us is doing exactly what the direction is designed to do, ie indicate to the jury: 'Please think about it again, but, if you cannot agree, then that decision of yours will be accepted'. As we see it (in agreement, we should say, with the single judge) we do not think that there is any merit in the Watson direction point."

Mr Thomas submits that, although there are obvious differences, there are some similarities between the state of affairs in that case and in this case.

20. It seems to me, applying the approach of the Court of Appeal (Criminal Division) in Watson and later cases, that it is plain that the learned judge should have given a Watson direction and it is clear that he did not do so. One has to look however at what precisely took place. The judge made it plain that the jurors must honour their oath. He also made it plain that "If you feel there is no prospect, we shall have to call it a day". He did not require or invite the jury to retire again. The Foreman asked for confirmation of the majority required for a verdict. The judge said:

"[The jury] can retire again if you wish to just consider the matter shortly."

21. The Foreman then indicated that his fellow jurors were asking for more time. As I read the transcript, therefore, the further and final retirement of the jury was at the jury's own behest. That is a critical factor in the case. The jury chose to consider the matter further. One might say they came close to insisting they should do so. In those circumstances I do not see that there is any room for a reasonable apprehension of improper pressure being brought to bear on the jury such as might found a good appeal.

22. In those circumstances, and upon that view of the particular facts of the case, I would dismiss the appeal.

23. LORD JUSTICE BROOKE: I agree.

24. LORD PHILLIPS, MR: I also agree that this appeal should be dismissed for the reasons given by Lord Justice Laws. I wish to add one footnote. In this case the Foreman of the jury asked the judge to confirm that he could not accept a majority verdict unless the majority amounted to seven out of the eight jurors. It may well be that he thought such a requirement surprising. If he did, I am inclined to agree. The statutory provisions governing the right to a jury in civil proceedings in the county court appear in the Juries Act 1974. It is section 17(2) of that Act which provides that the jury need not be unanimous if seven of them agree on the verdict. That requirement is not, however, absolute. Section 17(5) provides:

"This section is without prejudice to any practice in civil proceedings by which a court may accept a majority verdict with the consent of the parties or by which the parties may agree to proceed in any case with an incomplete jury."

25. It is the practice of parties on occasions to agree to a narrower majority verdict than seven to one. Equally, it must be open to the parties to agree to proceed with a civil trial notwithstanding that one or more jurors have dropped out as a result of illness or some other cause.

26. The Juries Act 1974 long pre-dates the Woolf reforms. It seems to me that there is or may be a tension between a party's duty under CPR 1.3 to help the court to further the overriding objective, and a refusal to agree to a majority verdict of less than seven to one or to the continuance of a civil trial with less than the full complement of jurors. This is not, however, a matter we have needed to explore. It may be that the true tension lies between the overriding objective and some of the provisions of the Juries Act 1974 which relate to civil trials.

Order: Appeal dismissed. Appellant to pay the Respondent's costs in the sum of £4,722.60.

(Order does not form part of the approved judgment)