R v Wayne Clements

For reasons that will become apparent below, it is unnecessary to refer to the details of the allegations against the applicant. However, for the avoidance of doubt, the provisions of the Sexual Offences (Amendment) Act 1992 apply to offences under consideration in this judgment. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as a victim of the offence. The prohibition will apply unless waived or lifted in accordance with section 3 of the Act. This judgment is also made subject to an order pursuant to section 4(2) of the Contempt of Court Act 1981, postponing publication of any report of these proceedings until the conclusion of the retrial or trial in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings.

On 30 January 2024, the applicant was unanimously convicted by a jury (who were 11 in number) of causing a child to watch a sexual act contrary to section 9(1) of the Sexual Offences Act 2003 and sexual communication with a child contrary to section 15A(1) of the Sexual Offences Act 2003. A majority direction was then given in relation to outstanding counts, in terms:

“…I’m going to ask you to retire again, and I want to see if you can reach unanimous verdicts. If you cannot, then I can accept a verdict upon which at least nine of you are agreed. So nine/two, or 10/one, all right. Thank you very much, please retire.”

Subsequently the jury purported to return a guilty verdict on count 1, which was sexual assault of a child under section 13, contrary to section 7(1) of the Sexual Offences Act 2003, by a majority stated of 9:2. No verdict was taken on an alternative count of sexual activity with a child, that being represented in count 2 on the indictment. The convictions concerned the same complainant. The jury returned a not guilty verdict in relation to an offence of sexual assault of another complainant under 13, and in accordance with the orthodox practice, they were not asked to indicate voting numbers.

The judge gave directions as to sentence. The court clerk then informed the judge that the common platform was rejecting the verdict. The judge then realised what had happened. He provided a written ruling on the verdicts and in relation to retrial, in which he stated that the verdict on count 1 was invalid and granting an application for retrial on count 2.

However, as the Registrar has rightly indicated in referring the resultant application for leave to appeal against conviction to the Full Court:

“Where a conviction has been recorded the appeal is before the CACD pursuant to s.2 of the Criminal Appeal Act 1968 and the court could set aside the conviction: O’Donnell (Paul Anthony) [1996] 1 Cr App R 286. I am not aware of any authority that would support the suggestion… of the [judge’s] ruling that there is any inherent jurisdiction for the Crown Court to set aside the verdict in these circumstances at least not where an unequivocal verdict has been delivered and the jury has dispersed.

(see RN [2020] EWCA Crim 937).

…The verdict recorded in this case does not comply with s.17 of the Juries Act 1974.”

Section 17(1) of the Juries Act 1974 provides:

“(1)

Subject to subsections (3) and (4) below, the verdict of a jury in proceedings in the Crown Court or the High Court need not be unanimous if—

R v Patten [2019] 1 WLR 5265 is authority for the proposition that a majority direction that is inconsistent with the requirements of section 17(1) of the Juries Act 1974, does not of itself invalidate the verdicts which follow unless the verdict is expressed to be by a majority which is insufficient to meet the requirements of that section, as is the case here. That is any verdict expressed to be by a majority of 9:2 would fall foul of section 17(1).

In this case, the appropriate course is to issue a writ of venire de novo annulling the convictions. The application for leave to appeal and any subsequent appeal are unopposed by the prosecution , albeit that they are represented, as is the appellant, in order to express their mortification for having omitted to draw the requirements of section 17(1) to the attention of the judge below.

The prosecution seek a retrial on count 1, with count 2 as the alternative. No verdict was taken on count 2. The prosecution also seek to try counts previously severed by the Recorder in the court below, namely counts 4 and 5.

We give leave to appeal as indicated. We issue a writ of venire de novo which annuls the conviction on count 1. The acquittal in relation to the other complainant remains.

The allegations which found count 1, counts 4 and 5 and the alternative (count 2) are serious and concern allegations of sexual assault in which the applicant targeted a young and vulnerable complainant. The complainant remains engaged in the process and we see no prejudice to the appellant in ordering a retrial on count 1. Any issues of joinder of counts 4 and 5 and admissibility of the evidence will be considered by the trial judge. We therefore grant permission for a retrial on count 1. Any matters relating to the location and the identity of the judge to be appointed to preside over this trial should be made by the presiding judge of the South Eastern Circuit.

Finally, we endorse the per curium comments of the then President of the Queen’s Bench Division (Sir Brian Leveson) at paragraph 29 of Patten:

“The giving of a majority direction and the taking of verdicts can very often be regarded as a formulaic exercise to which limited attention needs to be paid by the parties. The present case demonstrates how unwise that proposition is. The need for all parties to concentrate at all times on the directions being given and the taking of verdicts is paramount.”

Mr Clements will remain in custody.