Atlan, R v

J U D G M E N T

1. LORD JUSTICE KEENE: This is an appeal against conviction. On 3rd March 2004 in the Crown Court at Harrow before Miss Recorder Mensah, this appellant was convicted of common assault contrary to section 39 of the Criminal Justice Act 1988. He was subsequently sentenced to two months' imprisonment.

2. Leave to appeal against conviction was granted by Crane J, who also referred the application for leave to appeal against sentence to the Full Court and granted bail.

3. There were four counts on the indictment: racially aggravated assault was count 1; then there were two counts of criminal damage; and a count of common assault, count 4, which was an alternative to count 1. The appellant was acquitted on counts 1, 2 and 3 by unanimous verdicts of the jury.

4. The facts of the fact are not complicated. At about midday on 12th June 2001 there was an altercation between a parking attendant in Wembley, Middlesex, and members of the public. The attendant, a parking warden, was assaulted. The issue was whether or not the appellant was one of his assailants.

5. The parking attendant gave evidence that he was about to issue a parking ticket when the appellant approached and told him to go away, calling him, amongst other things, "a black African". The attendant said that he ignored him, but the appellant seized his notebook and tore it up. He then seized the attendant, held him against a fence with one hand and punched him in the face with the other. About five other men then pulled the attendant away and kicked and punched him, but he managed to call for help on his radio. When his supervisor arrived, the men ran away. As a result of this assault his shirt was damaged. The damage to the notebook and the shirt formed the basis of counts 2 and 3 on the indictment.

6. The appellant denied assaulting the attendant, or damaging the notebook. He said that he had asked the traffic attendant why he was being given a ticket and the attendant was then abusive about Jews. There were three Jewish men nearby and one of those punched the attendant. His own shirt, said the appellant, was grabbed by the attendant, and in his struggles the attendant's shirt may have become damaged, but not deliberately by him. There was evidence before the court that the notebook had indeed been torn by somebody.

7. The jury retired at 1.07 p.m.. At 2.45 p.m. the court reconvened because there was a note from the jury. The note itself is not available to this Court, but according to defence counsel's note at the time, which the Crown accepts forms a reasonable representation of its contents, it stated as follows:

"We are unanimous on all counts except count 4 on which we cannot reach a verdict. We would ask the judge for some assistance."

8. The learned Recorder discussed this note with counsel. She said in the absence of the jury:

"I am not sure what further guidance I can give them. If they simply are undecided amongst themselves then they must go away and just try a bit harder with a bit of give and take because it is not yet time to give them a majority direction."

Defence counsel agreed. It was then agreed that it was too early for a majority direction and that the jury could be told that.

9. The jury returned to court at 2.50 p.m.. After some introductory remarks, the Recorder said this:

"I think the only assistance I can give you, if it's assistance at all, is to ask you to go away and try a bit harder. I'm afraid that the law doesn't allow me to take a majority verdict from you at this stage. All I can say is that whoever is your foreman or forewoman needs to perhaps direct the discussion so that you all have an opportunity of saying what you want to say, and there might have to be a bit of give and take in your deliberations and your thoughts. I am afraid I can give you no further guidance than that. I cannot accept a majority verdict from you at this stage. So could you go away and try a bit harder for a little bit longer."

10. The jury retired again at 2.51. At 3.40 p.m. they returned with not guilty verdicts on the first three counts and a guilty verdict on count 4, all those verdicts being unanimous.

11. The criticism made of the judge's directions to the jury focus on that reference to:

"... there might have to be a bit of give and take in your deliberations and your thoughts."

12. Miss Jones, who appears for the appellant, submits in her written argument that the Recorder fell into error by giving a modified Watson direction: see Watson [1988] QB 690 and 87 Cr App R 1. It was, it is submitted, inappropriate to do so at this stage. Moreover, the direction did not follow the wording set out in Watson, and the end result is that it may have put pressure on the jury to reach a verdict on count 4 with which some of them did not truly agree.

13. For the Crown Mr Keene submits that no improper pressure was put on the jury, as one can see from the fact that they deliberated for some time after this direction had been given. That does not suggest that they felt under any particular pressure. The Recorder had been careful to adopt throughout an approach which encouraged the jury to express their individual views. It is, however, conceded by the Crown that the direction to which we have referred was a loose paraphrase of the Watson direction. Neither counsel has known of such a direction in any form being given at this stage in a trial.

14. This Court has said before on a number of occasions that there is rarely any need for the Watson direction to be given. The danger is always that jurors may feel under pressure to reach a verdict which is not a true verdict in the terms of their oath. It is right that the Recorder here did not give a full blown Watson direction, but simply made reference to the need for "give and take". But that, in our view, does not avoid the danger.

15. As was said in Watson by the then Lord Chief Justice, Lord Lane:

"... a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so."

16. In the present case two aspects of the judge's direction trouble this Court in particular. First, when a Watson direction is given the jury is told that there must necessarily be "give and take within the scope of your oath." Those last six words are extremely important. They remind jurors that, while they listen to others and while there may have to be give and take, there are limits as to how far they should go. They must remain true to their oath. That phrase was omitted in the present case by the Recorder when she spoke of give and take. The problem with that is that the direction in that form suggests compromise without any reminder of the need to remain true to the oath which they have taken. It was said in the case of Buono95 Cr App R 338 by this Court that it is unwise for judges to add anything to the Watson wording. We would emphasise that it can be just as dangerous to omit part of it.

17. We are also concerned at the timing of the direction in the present case. Although the authorities indicate that a Watson direction can be given during the summing-up, or after a majority direction has been given, it is the experience of this Court that the latter is the more normal timing. But what is most unfortunate is to give some such direction after the jury has retired but before a majority direction can be given. That is what happened here. That timing is likely to add to the sense of pressure on jurors. We would say in clear terms that a Watson direction should not be given after the jurors' retirement, but before it becomes possible to give a majority verdict direction and such a direction has in fact been given.

18. Ultimately the test which we, of course, have to apply is whether this conviction is safe. It seems to us to be relevant that the jury appears to have been unanimous by the time of its note that the appellant should be acquitted on all three other charges which he faced. They were divided on count 4. Following this direction by the Recorder, they ultimately convicted on that charge. Moreover, they were unanimous in acquitting the appellant on charges on which, if the parking attendant were to be believed by them, the appellant was apparently guilty. The criminal damage to the notebook is an obvious example of that. Had it not been for this direction there might well not have been a conviction on the common assault charge.

19. In those circumstances, we can only conclude that the appellant's conviction is not safe. We order, therefore, that it be quashed. This appeal is allowed.

20. Mr Keene, is there any application?

21. MR KEENE: My Lord, there is no application.

22. LORD JUSTICE KEENE: Very well, thank you very much.