Davey, R. v

SIR JOHN SAUNDERS: Can we start by expressing our gratitude to Miss Morrish for the way she has conducted this appeal. She has done so persuasively and has answered all the very many questions we have asked her during the hearing.

On 3rd March 2017 the appellant was convicted at Lewes Crown Court of an offence of assault by penetration which was count 1 on an indictment containing two counts. He was acquitted by the jury of count 2, which was an offence of sexual assault. The appellant was subsequently sentenced on 15th May on count 1 to two years' imprisonment which was suspended for two years. There was an unpaid work requirement of 180 hours and a rehabilitation requirement of 35 days. There were other ancillary orders as to notification made by the judge.

The appellant appeals pursuant to a certificate from the trial judge that the case is fit for appeal. In addition to the ground on which the judge certified, the appellant argues that the conviction should be quashed as the verdicts were inconsistent one with the other.

The complainant was 17 at the time of trial and an order was made under section 45 of the Youth Justice and Criminal Evidence Act 1999 that no matter should be published which might lead to her identification. A similar order was made in relation to one of the witnesses who was also under 18 at the time the case was sent for trial. Those orders remain extant and apply to this hearing.

We will deal first with the ground on which the judge certified the case as fit for appeal. It is in our judgment a discrete matter which does not require any recitation of the facts. It is also important that we decide that issue before we come to the second ground of inconsistent verdicts because it is accepted by Miss Morrish that she needs to rely on that in order to support her second ground of appeal.

The trial was a relatively short one. It started on Monday 27th February 2017. The judge gave the customary directions to the jury before the trial started, including a direction that the jury should report to him any problems or concerns that they had during the trial, as once the trial was over,he was powerless to do anything about it. No complaint is made that his direction was not entirely adequate and in accordance with established practice following the House of Lords decision in Mirza and others.

At an early stage in the trial the judge had discharged one of the jurors for reasons which are not relevant to this appeal except that the numbers of jurors was thereafter reduced to 11.

The summing-up commenced on Thursday 2nd March but had not been completed before the court adjourned overnight. It was appreciated on the Thursday night that the jury might not have reached verdicts by the end of the court day on Friday so the judge enquired whether any member of the jury would be in difficulty in returning on the following Monday, if that was necessary. One member of the jury indicated to the usher that he would be in difficulty but he had resolved that difficulty by the time he returned to court on the Friday morning. So, as far as the judge knew, none of the jury had any difficulty in returning the following Monday morning. The judge made it clear to the jury that they were not to feel under any pressure of time to reach their verdicts.

The jury retired to consider their verdict at 11.27 on the Friday morning. The jury asked one question during their retirement which related to the possible relevance, if any, of consent. By agreement they were directed that this was not a relevant issue on the facts of the case. Although briefly relied on by Miss Morrish in the course of her submissions, the asking of that question has nothing to do whatever with the decision to be made by us in this case.

The jury returned their verdicts at 4.17 in the afternoon. The verdicts were unanimous and could not be otherwise as no majority direction had by that time been given. The jury had been deliberating for over four hours making allowance for the time taken to get to their room and for some breaks.

On the following Monday morning a phone call was received at the court from one of the jurors who complained that she had felt bullied into agreeing to the verdicts as other members of the jury did not want to return to court the following Monday. She also indicated that two other jurors felt the same way. One of those two telephoned the court later in the week and made a similar complaint. Neither of them or anyone else had made any complaint prior to the delivery of the verdicts.

On receipt of the message on the Monday from the first juror, the judge emailed both counsel to impart the effect of the message. The judge told counsel in the email, correctly, that there was nothing that he could do about the verdicts but said that he intended to "sign a certificate pursuant to section 1(2)(b) of the Criminal Appeals Act 1968 that the case is fit for appeal." Defence counsel responded by email inviting the judge to sign the certificate. We are not aware of any response from prosecuting counsel. The judge did sign the certificate without any discussion with counsel as to whether he was adopting the correct procedure.

In our judgment the procedure adopted by the judge was not correct. He should not have informed counsel of the communication from the juror, nor should he have certified that the case was fit for appeal. The correct procedure is set out in the Criminal Practice Directions 26M. 26M.46 reads as follows:

The Practice Direction is based on the guideline decision of this court in the case of R v Thompson and others [2010] EWCA Crim. 1623 in which the court presided over by Lord Judge considered a number of appeals and gave guidance as to how courts should deal with jury irregularities.

The court said, in accordance with the decision of the House of Lords in R v Mirza and another decision of the House of Lords, that there could be no investigation into jury deliberations except by the authority of the Court of Appeal which would only be permitted in a very limited number of situations. The exceptions are limited to cases where the jury have not deliberated at all, but have decided the case by other means such as tossing a coin, and cases where the jury are alleged to have been affected by extraneous influences. That means evidence other than evidence given within the court. As Lord Judge explained:

The facts of this case are similar to those in the case of Thompson itself where jurors complained about being put under pressure to agree verdicts as other members of the jury did not wish to return to continue their deliberations the following Monday. There were additional matters raised by the jurors in that case, but the Court of Appeal ruled that evidence of the juror's complaint was inadmissible and could not be relied on to support an appeal.

We have no doubt that the Registrar, had the matter been left to him to deal with as it should have been, would have decided either on his own or in consultation with a member of the Court of Appeal, that the matters complained of by the jurors in this case could not found a ground of appeal and would not have disclosed the contents of the communications to the parties. There are no grounds for referring the matter to any other agency to investigate.

Accordingly, in our judgment, this case is clearly not one which is fit for appeal as certified by the trial judge and is simply unarguable.

That decision is important to the outcome of this appeal because Miss Morrish has said to us that unless she can rely on the jurors’ complaint, she cannot succeed on the other part of her appeal.

We turn now to consider the second ground of appeal, which is the submission that the verdicts are inconsistent. In order to consider this ground of appeal it is necessary to set out a brief summary of the facts.

Both offences were said to have been committed at about the same time on 24th July 2015. The appellant, who is now 48, had gone with his wife and two children and another family to Spa in Belgium to watch a motor racing event. BH, who was then 15, went with the other family, as she was the girlfriend of one of that family's children. On the Saturday night, 24th July, the younger members of the party attended a live music event. The grown ups (as we refer to them to distinguish them from the younger members of the group) including the appellant, had attended the music event for a short time but then went to a restaurant close by. BH, while attending the music event, was drinking alcohol and became very drunk. As the amount of drink she consumed affected her behaviour, she was taken by her boyfriend to join the grown ups in the restaurant. There she continued to behave in a drunken fashion. At some stage BH said she needed to urinate and the appellant agreed to take her to the toilet as she clearly required assistance.

According to BH's evidence the appellant followed her into a cubicle. After she had urinated he touched her vagina, inserting two fingers and then, she alleged, touched her vagina with his tongue. The insertion of two fingers was count 1 on the indictment of which the jury convicted. The touching of her vagina with his tongue was count 2 on which the verdict was one of not guilty.

The appellant's case was that while he did help the complainant to the toilet because she needed assistance, he did not enter the cubicle at any stage when she was in a state of undress and he did not touch her sexually with his fingers or with his tongue.

There is and can be no complaint about the summing-up. The directions of law were provided to the jury in writing having been discussed with counsel. They were comprehensive and they were correct. Included in them was a direction to give separate consideration to each of the counts. The summary of the facts was fair, balanced and accurate.

In R v Fanning [2016] EWCA Crim. 550 a specially constituted Court of Appeal set out the test to be applied by the Court of Appeal when a ground of appeal of inconsistent verdicts is raised. The decision in Fanning is comprehensive and it seems to us it is unnecessary and probably undesirable to refer to any other decisions when considering the test for inconsistent verdicts other than that. The headnote reads as follows:

As I have indicated, the appellant seeks to pray in aid of his argument that the verdicts are inconsistent, the communications from the two jurors. As we have already ruled, those communications are inadmissible in evidence and he is not entitled to rely on them. In any event, we do not consider that they are relevant to the issue of inconsistent verdicts and accordingly the appeal has to be dismissed.