Herbert, R. v

LORD JUSTICE AIKENS: This is an appeal against conviction with leave of the single judge.

The appellant, who is now aged 22, was convicted on Friday 28th November 2008 of a single count of robbery, after a five-day trial before Her Honour Judge Harris and a jury in the Crown Court at Wood Green. After a period of nearly 3 months the appellant was sentenced to 6 months' imprisonment suspended for 12 months. There was a co-accused who failed to attend the trial.

The issue that arises on the appeal is not concerned with the facts giving rise to the charge, so that we can state those very briefly. In the early hours of 19th November 2007 Mr Jamil Choudhury was sitting in his minicab and waiting for his shift to begin. He was attacked by four men who threatened and assaulted him. He was robbed of his watch, an XDA computer and £17. Subsequently he saw a group of three men in the vicinity of the robbery and he identified the appellant as one of those who took part in that robbery. The XDA computer was discovered at the appellant's address.

At the trial the prosecution relied on the identification and the fact that the computer was found in the appellant's home. The defence was that the identification was mistaken. The appellant did not give evidence.

There is no complaint about the conduct of the trial as such or the terms of the summing-up.

The simple ground of appeal relate to what happened after the summing up was completed. The judge finished her summing-up at the midday break on Thursday 27th November 2008. The jury then retired to consider its verdict. Almost immediately there were notes from the jury and difficulties began. In the afternoon of 27th November there was very lengthy discussion between the judge and counsel about what to do about a juror who insisted on making a phone call regarding his business whilst the jury was deliberating. There were two other notes from the jury. Nothing specific turns on those notes now, although Miss Levinson relies on them as background. Eventually the judge sent the jury home for the night, telling them not discuss the case and they would continue their deliberations at 10.00 am the following day which was a Friday.

The single ground of appeal arises on what happened on Friday 28th November 2008. We take the summary of what occurred that morning from the advice on appeal prepared by Miss Levinson, counsel for the appellant at the trial and counsel for the appellant on this appeal.

Upon the jury's arrival at court two problems were apparent. A juror, whom we shall call juror 1, had written a note stating that he was of the Jewish faith and could not sit at all on a Friday. The juror said: "I would have anxiety about the length of the proceedings and would not be able to focus properly on the case."

Another juror, whom we shall call juror 2, had telephoned the court. The message apparently conveyed to the count was that the juror was on her way but her son had been taken to hospital.

After some discussion between the judge and counsel, it was decided that, in relation to juror 1, he should be reassured that he would not have to be in court in the afternoon and that if that allayed his concern then proceedings could continue. In relation to juror 2, more information was needed but it was likely that she may need to be released.

When juror 2 arrived she was invited into court. She stated that it was not her son but it was her sister, who was her son's carer, who had been taken into hospital. As a result juror 2 would have to collect her son from his special needs school at 3.00 pm, something her sister would normally do. Juror 2 said she felt unable to continue in the jury unless she was able to leave at that time. She indicated that she wanted to do her duty as a juror and to continue if possible.

Juror 1 was then invited into court. He explained he would normally leave work at 1.00 pm on a Friday and was anxious. After discussion he confirmed he would be able to continue, with the assurance that he would be able to leave by 1.00 pm.

As these matters were being dealt, with it became apparent there was a problem with another juror. A note was received from this juror, whom we shall call juror 3. The note read: "I am sorry for the emotional breakdown, but I did not realise that making a decision about one person's life would have this impact. I am finding it hard to come to a concrete decision as there are doubts inside me. This is not what I wanted."

At this stage the judge indicated to counsel (in the jury's absence) that she might have to discharge the jury. However the matter was put back for consideration by counsel and instructions to be taken. All parties then returned to court. The judge indicated (in the jury's absence) that, on reflection, she did not think it necessary to discharge the jury. She proposed that she tell the jury they would not be sitting in the afternoon because some of their numbers had difficulties and that if necessary they could continue on Monday. In relation to the final note (of juror 3) the judge proposed that she would tell the jury she had received a note indicating that one juror was finding the process difficult. She would tell the jury globally that discussions can be difficult but "you should listen to one and another, given and take and make a decision."

The defence submitted that the last note potentially indicated that the juror had misunderstood the directions on the burden and standard of proof. The defence submitted, first, that when dealing with the last note the judge ought to remind the juror of those directions. The judge seemed to agree. Secondly, it was submitted by the defence that, in the light of the way in which the judge proposed to address the jury, she ought to remind them that in the event of irreconcilable differences it was their duty to say so. The defence raised a concern over the mention that the judge made of the phrase "give and take".

The prosecution, at that stage, submitted that the jury should be discharged.

The jury was then called back in. The judge addressed the jury in the terms set out in the transcript at page 64G to page 66B:

After the judge had addressed the jury, Miss Levinson stated that she was still concerned. The jury was sent out. Miss Levinson submitted that the judge ought to have actually reminded the jury, in terms, of the direction on the burden and standard of proof. The judge considered that what she had said was sufficient and declined to direct the jury in any fuller terms. The jury were taken to their room to continue deliberating at 11.30 am. It was agreed in the absence of the jury that the judge would give a majority direction to the jury at 12.15 pm.

However, at 12.15 pm, before the jury could be called into court for any majority direction to be given, the jury indicated that it had reached a verdict. The jury was called in. It gave its verdict. The verdict was guilty. It was obviously, in the circumstances, a unanimous verdict.

In support of the appeal Miss Levinson makes two submissions. The first is that the note from the juror that we have called juror 3 was an indication that the jury had misunderstood what his or her task was and/or had not understood the directions that the judge had given on the burden and standard of proof. So Miss Levinson submits that the judge should have responded to this note by giving the jury a full redirection on the burden and standard of proof, reminding the jury that if they were unsure on the evidence, then it was their duty to acquit.

Miss Levinson's second submission concerns the wording of the judge's actual remarks to the jury, in particular in relation to two passages. The first is the passage in which the judge said: "We know it is a difficult and stressful task but you do it by discussion between yourselves, by give and take, by concentrating on the evidence and reminding yourselves of the directions of law I have given you." The second passage which Miss Levinson highlights is that part earlier in the judge's remarks where she says that if the jury had not reached a verdict by 1 o'clock that day, then they can come back on Monday fresh and continue their deliberations; saying also that there was absolutely no pressure of time.

Miss Levinson points out that the reference to "give and take" is part of the so-called Watson direction (R v Watson [1998] QB 690). That case had disapproved a previous decision of the Court of Appeal (Criminal division) in R v Walheim (1952) 36 Cr App 167 and the suggested direction given in that earlier case which had been used when it appeared the jury were having difficulty with their discussions.

In Watson, in which Lord Lane CJ, gave the judgment of a five judge court, this court stated that there might be occasions when the judge had to direct the jury on the way that they should conduct their deliberations. Lord Lane set out a form of words for an approved direction at page 700F to G of the report. However, as Lord Lane emphasised in that case and as has been many times repeated by this court, the direction is only rarely necessary and individual variations of the form of the direction are often dangerous and are best avoided.

Miss Levinson's submission is that the judge did use a form of individual variation and that it was dangerous because it omitted two vital things. First, it omitted the words "within the scope of your oath" after the reference "to the need for argument and give and take". Secondly, it failed to make any reference to the fact that there are some occasions when juries cannot reach agreement.

It is suggested that these omissions would have encouraged the jury to reach an agreement on a verdict, even if it was not in accordance with their oath. It is also said that they were not properly reminded of the possibility of not agreeing at all.

Miss Levinson's second argument is that the judge should not have informed the jury when she did that, if they had not reached a verdict by 1 o'clock that day, then they would go home and come back and recontinue their deliberations on Monday. Miss Levinson submits that this would or might have been seen as a threat, given the context of an apparently difficult, not to say fractious, jury. In this context she points to the fact that in a previous note one juror had said at an early stage of the deliberations that it would not be possible to reach agreement on the verdict.

Miss Levinson submits that the statement of the judge about coming back on Monday, either did or might have put pressure on the jury to reach a verdict. She submits this is borne out by the fact that, even before the time the judge had appointed for giving a majority verdict had arrived, the jury returned with a unanimous verdict of guilty.

In his written submissions to the court Mr Cranston-Morris, for the Crown, submits these criticism are ill-founded and that the verdict of the jury is safe.

On Miss Levinson's first point, it seems to us that the note from juror 3 has two elements to it. First, it mentions the impact of "making a decision about one person's life". That has nothing to do with what the juror's task is. It refers simply to the fact that that task has an impact, presumably quite considerable on that juror personally. In short, he or she was finding the process difficult.

The second part of the note indicates that the reason for this impact is that the juror finds it hard to make "a concrete decision" because there are "doubts inside me". That indicates two things. First, the juror appreciated that a concrete decision had to be made. Secondly, the juror appreciated that it is hard, to make that concrete decision because the juror has doubts. In our view, that note does not reveal that the juror had not appreciated the task ahead or had forgotten what had to be done in terms of the directions of the judge on the burden and standard of proof. It seems to us that the opposite is the case. The juror realised what the task was and was finding the task difficult. In our view, it is quite sufficient, subject to Miss Levinson's second argument, to remind the jury that they should concentrate on the evidence and on the directions of law given by the judge. The judge's specific reference to her direction on the burden and standard of proof was, in our view, quite sufficient. No further details of those directions needed to be restated to the jury in the circumstances.

On Miss Levinson's second argument we deal first with the judge's reference to "give and take". In our view that phrase should not have been used by the judge. If it is going to be used at all in this context, then it should be used in the context of the full, unaltered, Watson direction. But the question here, as in the cases reviewed in Watson, is whether the use of those words put pressure on the jury to come to a decision, almost any decision, even if it was not one in which all the jurors really believed and was in accordance with their oath. We are quite certain that it did not do so. The judge not only went on to emphasise the need to concentrate on the evidence and the directions of law, but she emphasised that there was no pressure on them. The mere fact that the words, "give and take" were used, although unwise and unfortunate, cannot in our view, by themselves mean that pressure of an improper kind was put on the jury.

As for Miss Levinson's second point, concerning the reference to coming back on Monday, we think there is nothing in it. It must have been obvious to the jury that if they could not reach a verdict before 1 o'clock when the court was to rise, then they would have to come back on Monday. That was a fact as things stood at that stage. By stating what was obvious, at that stage of the proceedings, it cannot be said the judge put pressure on the jury to reach a verdict before 1 o'clock on the Friday.

We are satisfied that there were no procedural irregularities with the way the judge dealt with the jury after they had retired which affect the safety of the conviction of this appellant. The appeal is therefore dismissed.