Regina v. Spencer and others (Appellants)
Regina v. Snails and others (Appellants)
(On Appeal from the Court of Appeal (Criminal Division))
(Consolidated Appeals)
JUDGMENT
Die Jovis 24° Julii 1986
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Spencer and others and
Regina against Smails and others, That the Committee had
heard Counsel on Monday the 23rd and Tuesday the 24th days of
June last upon the Petitions and Appeals of Alan Widdison
Spencer, of 9 Glover Close, South Leverton, Near Retford,
Nottinghamshire; Kenneth Ball, of 15 St. Martin’s Road, North
Leverton, Near Retford, Nottinghamshire, and Michael Dennis
Mason, of 56 Jubilee Road, Ordsall, Near Retford,
Nottinghamshire; and of George Glenville Smails, of 108
Ordsall Road, Retford, Nottinghamshire; Kenneth Ball, of 15
St. Martin’s Road, North Leverton, Near Retford,
Nottinghamshire, and Paul White, of 91 North Road, Retford,
Nottinghamshire, praying that the matter of the Orders set
forth in the Schedules thereto, namely Orders of Her Majesty’s
Court of Appeal of the 7th of November 1984, might be reviewed
before Her Majesty the Queen in Her Court of Parliament and
that the said Orders might be reversed, varied or altered or
that the Petitioners might have such other relief in the
premises .as to Her Majesty the Queen in Her Court of
Parliament might seem meet (which said Petitions were by an
Order of the House of the 6th day of December 1984
consolidated); and Counsel having been heard on behalf .of the
Director of Public Prosecutions (on behalf of Her Majesty) the
Respondent to the said Appeals; and due consideration had this
day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That in the cause of Regina against Spencer and
others the said Orders of Her Majesty’s Court of Appeal
(Criminal Division) of the 7th day of November 1984,
complained of in the said Appeals be, and the same are hereby,
Set Aside, and That the convictions by Nottingham Crown Court
of the 24th June 1984 be, and the same are hereby Quashed:
That in the cause of Regina against Smails and others the said
Orders of Her Majesty’s Court of Appeal (Criminal Division) of
the 7th day of November 1984 complained of in the said Appeals
be, and the same are hereby, Affirmed and that the said
Petitions and Appeals be, and the same are hereby, dismissed
this House; And it is further Ordered and Adjudged, That in
both causes the Certified Question be amended so as to read
“In a case where the evidence for the Crown is solely
that of a witness who is not in one of the accepted
categories of suspect witnesses, but who, by reason of
Judgment: 24.7.86
HOUSE OF LORDS
REGINA v. SPENCER AND OTHERS
(APPELLANTS)
REGINA v. SMAILS AND OTHERS
(APPELLANTS)
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL
DIVISION))
(CONSOLIDATED APPEALS)
Lord Chancellor
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Mackay of Clashfern
Lord Ackner
LORD CHANCELLOR
My Lords,
I agree with the disposal of the second appeal about to be
recommended by my noble and learned friend, Lord Ackner, whose
judgment on the merits I have had the advantage of reading in
draft, and which is now available in print. I also agree with his
proposed answer to the certified question.
As regards the first appeal, (that relating to Spencer and
others), I have no doubt that this appeal should be allowed on the
ground that owing to irregularities in the trial, in relation to a
particular juror, the verdict must be regarded as unsafe and
unsatisfactory. I do not believe that, in the rather special
circumstances of this case, the Court of Appeal were entitled to
speculate as to what may or may not have occurred after the jury
had retired or as to the circumstances which may or may not have
influenced their verdict of guilty by a majority of ten to one after
deliberating for five hours.
Without such speculation the following facts are clear
beyond peradventure.
(1) The first is that, just before the jury were about to retire,
and on an application by defending counsel to discharge the
jury, the judge learned of circumstances which, in his
opinion at least, made it unsafe to permit one juryman
(“P.”) to remain on the jury. The avowed reason when given
– 1 –
was that the juryman in question had, through his wife, a
somewhat tenuous connection with the institution at which
the accused were employed as nurses, but one is, I think,
entitled to assume that the judge considered it arguable
that, through his wife, the juryman might have been exposed
to gossip prejudicial to the accused about the merits of the
case. What is beyond doubt is that, even at this stage, and
apparently throughout the trial, the juryman in question had
unequivocally evinced a most unjudicial bias against the
defence and this may well have acted as an additional
factor in influencing the judge’s mind. However I believe in
these circumstances that the judge acted correctly in then
declining to discharge the whole jury.
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The second fact beyond dispute is that when, on the
following day, defence counsel renewed his application to
discharge the jury, in refusing the application, the judge
first of all misdirected himself as to the correct test to
apply and secondly took into account factors which should
have been disregarded in considering the result of the
application. In considering such an application, the interests
of justice should be paramount, and neither the
inconvenience of a second trial nor the necessity which
would have been involved in calling again as witnesses the
victims of the alleged assaults, possibly to their detriment,
should have outweighed the necessity of the accused
receiving, and being seen to receive, a fair trial. The
effect of these misdirections when the point was raised on
appeal was to free the Court of Appeal in the use of their
own discretion of any necessity to be guided by the judge’s
own use of his discretion. -
The third point which is beyond dispute is that, after
discharging P. from the jury, the judge permitted him to
remain behind in the precinct of the court in order to give
a lift in his own car to three of the remaining members of
the jury over a journey taking about half-an-hour. My own
view is that the judge was mistaken so to do, but, whether
this view be correct or not, the judge thought it imperative
specifically to warn the three jurors who were to avail
themselves of the lift not to discuss the case with P. when
they were with him in the car. What the judge did not
know on the renewal of the application on the following
day, but what, by the time they heard the appeal, the Court
of Appeal certainly did know, was that this warning had
been disregarded. I do not believe that the judge could
have exercised his discretion so as to refuse the defence
application when it was renewed the following day, at least
without diligent enquiry as to the nature of the discussion,
had he been aware that his specific warning had been
disregarded in this way.
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In the event, the Court of Appeal formed the view that
there was “no realistic chance” of the discussion in the car
(whatever it was), having influenced the verdict. Although
they had available to them the statement prepared by the
D.P.P. they seem to have made no additional enquiry as to
what had happened, and though, of course, it may be true
that nothing detrimental had taken place, I do not think
– 2 –
they had enough material on which to say that it had not.
This was a case of total want of corroboration, a majority
verdict of 10-1, and a wholly unauthorised and improper
conversation between a juror who had been sent off the jury
as not suited to remain there with three of the remaining
jurors in the absence of the other eight and in disregard of
an express warning by the judge against such conduct. In
my view this constituted a serious breach of natural justice
and the resulting verdict must be treated as unsafe and
unsatisfactory. In such a case as this there can be no
question of applying the proviso.
As regards the certified question, I am content to accept
what is about to fall from my noble and learned friend. But, in
view of certain parts of the judgment of the Court of Appeal,
there are certain additional comments I would wish to make. It is
notorious that the law of Scotland does not admit of a conviction
on the uncorroborated evidence of a single witness, but that the
law of England does. There are a certain number of statutory
exceptions to which I drew attention in Reg. v. Kilbourne [1973]
A.C. 729 at pp. 739-740. In addition there are certain categories
or classes of case which, by the time of the establishment of the
Court of Criminal Appeal in 1907, had already hardened into firm
rules of practice. In these, in the absence of a special warning
from the trial judge, a conviction will normally be set aside as
unsafe or unsatisfactory unless the court decides that it is safe to
apply the proviso. I referred to these at p. 740 of the report.
My reference to cases of alleged mistaken identity has now been
overtaken by events, viz. by the Devlin Report (Report to the
Secretary of State for the Home Department of the Departmental
Committee on Evidence of Identification in Criminal Cases (1976)
H.C. 338) and Reg. v. Turnbull [1977] Q.B. 224, and need not,
therefore, be referred to further, but there are also references to
what I said in Kilbourne, both in Archbold Criminal Pleading
Evidence & Practice 42nd ed. (1985) p. 1136 and in the judgment
of the Court of Appeal which, in my view at least, need
correction. In Reg. v. Hester [1973] A.C. 296, which shortly
preceded the hearing of Kilbourne, Lord Morris of Borth-y-Gest
had said, at p. 315:
“The weight of the evidence is for the jury … It is for
the jury to decide whether witnesses are creditworthy. If a
witness is not, then the testimony of the witness must be
rejected. The essence of corroborative evidence is that one
creditworthy witness confirms what another creditworthy
witness has said. Any risk of the conviction of an innocent
person is lessened if conviction is based upon the testimony
of more than one acceptable witness.”
When in Kilbourne I said at p. 746 “corroboration can only
be afforded to or by a witness who is otherwise to be believed.
If a witness’s testimony fails of its own inanition, the question of
his needing, or being capable of giving, corroboration does not
arise”, I was there expressly referring back to this passage in Lord
Morris’ speech in Hester, and the suggestion that this is an
alternative approach to that of Lord Reid at p. 750 would, I think,
have astonished Lord Morris and Lord Reid as much as it did me
when first I read it and I said as much in Reg. v. Boardman [1975]
A.C. 421, 454. The contrary view seems to me pure fantasy.
– 3 –
The other point on which I would wish to comment is the
Court of Appeal’s view on my reference in Kilbourne [1973] A.C.
729, 740 I added witnesses “of admittedly bad character” to the
number of cases where a warning of some kind was required as to
the danger of convicting without corroboration. I was, of course,
using the phrase in the technical sense of witnesses who have been
shown to be not of a character to make them worthy to be
believed on their oath. In this connexion I must say that even if
there were not authority to support this view, (and I believe there
is plenty), I would regard it as a matter of sheer common sense
that if a judge did not warn the jury of the possible danger of
convicting an innocent man if they convicted solely on the
disputed but uncorroborated testimony of such a person, his failure
to do so would, apart from the proviso, make a verdict unsafe and
unsatisfactory in the extreme. The fact is, I believe, that in the
instant appeal, the Court of Appeal, confronted with the contrary
decision in Reg. v. Bagshaw [1984] 1 W.L.R. 477 with which they
rightly disagreed, were haunted by the spectre of Young v. Bristol
Aeroplane Co. Ltd. [1944] KB 718. However this may be, your
Lordships were not troubled by this spectre, nor do I wish to
pursue it in the present case, since I am fully persuaded by my
noble and learned friend, that Bagshaw was wrongly decided and
that, even on the view most favourable to the appellants in
Bagshaw and in the instant appeals, Judge Hopkin gave a perfectly
adequate warning to the jury of the danger of convicting on the
uncorroborated testimony of the witnesses for the prosecution. He
not only advised them of the necessity of proceeding with extreme
caution, but warned them specifically of the dangers they would be
incurring if they did not do so.
The cases which were cited to the contrary, e.g. Reg. v.
Price (Herbert) [1969] 1 Q.B. 541, were, as it seems to me, cases
in which the particular dangers were not sufficiently spelled out in
detail as the trial judge did here.
The only other observation I would make on the certified
question is that the modern cases, quite correctly in my view, are
reluctant to insist on any magic formula or incantation, and stress
instead the need that each summing up should be tailor made to
suit the requirements of the individual case. c.f. per Lord Morris
of Borth-y-Gest in Reg. v. Hester [1973] A.C. 296 at p. 309, per
Lord Pearson at p. 321, and Lord Diplock at 325, 328. In
particular, when as here, it is agreed that no corroboration exists,
a disquisition on what can or could amount to such if
corroboration were needed is emphatically not required and greatly
to be discouraged (per Lord Diplock, loc.cit.) Speaking for myself,
I even dislike the expression “categories” as applied to the cases.
They are simply classes of case where the experience of the
courts has gradually hardened into rules of practice, owing, as my
noble and learned friend points out, partly to the inherent dangers
involved, and partly to the fact that the danger is not necessarily
obvious to a lay mind. The less juries are confused by superfluous
learning and the more their minds are directed to the particular
issues relevant to the case before them, the more likely they are,
in my view, to arrive at a just verdict.
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LORD BRIDGE OF HARWICH
My Lords,
I have had the advantage of reading in draft the speeches
of my noble and learned friends, the Lord Hailsham of St
Marylebone L.C. and Lord Ackner. In regard to the first appeal I
agree with the views expressed by my noble and learned friend on
the Woolsack and would allow the appeal for the reasons he has
given. I would dismiss the second appeal for the reasons given by
my noble and learned friend Lord Ackner and answer the certified
question as he proposes.
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Ackner. I agree
with it, and for the reasons which he gives I would allow the
appeals of Spencer, Ball and Mason, and dismiss those of Smails,
Ball and White.
LORD MACKAY OF CLASHFERN
My Lords,
I have had the privilege of reading in draft the speech
prepared by my noble and learned friend Lord Ackner. I agree
with it and with the orders he proposes in these appeals.
LORD ACKNER
My Lords,
The appellants in these consolidated appeals were members
of the nursing staff at Rampton Hospital, which is a secure
hospital catering for patients suffering from mental disorders. The
majority of such patients have been sent to Rampton as the result
of court orders made under the Mental Health Act 1959 or the
Mental Health Act 1983, by reason of their having been convicted
of serious crimes. A television programme was shown in 1979
which made a substantial number of allegations of ill-treatment to
patients by the nursing staff over a period of some years. This
led to police inquiries and resulted in fourteen separate trials at
the Crown Court at Nottingham. In five of those trials, the
defendants were convicted and your Lordships are concerned with
two of such trials. The first four of the fourteen trials were
presided over by High Court judges, and the remaining trials, with
– 5 –
the approval of the Presiding Judges of the Circuit, were presided
over by His Honour Judge Hopkin.
On 24 June 1983 in the Nottingham Crown Court, the three
appellants, Spencer, Ball and Mason, were convicted, as to Spencer
on six counts of ill-treating a patient contrary to section 126 of
the Mental Health Act 1959 and as to Ball and Mason, each on
one similar count. Spencer was sentenced to 12 months’
imprisonment on each count concurrent, suspended for two years.
Ball and Mason were each sentenced to six months’ imprisonment,
suspended for 18 months. On 12 October 1983 in the same Crown
Court, the appellants White, Smails and Ball again were each
convicted of one similar offence contrary to the provisions of the
same section of the Act of 1959. On 19 October 1983 they were
each sentenced to six months’ imprisonment suspended for 18
months. In both trials the convictions arose from substantially
similar facts and the appeals were the subject of a single
judgment in the Court of Appeal (Criminal Division) [1985] Q.B.
771. In each appeal the same question as to the adequacy of the
judge’s direction to the jury on the way in which they should treat
the evidence of the complainants was raised. Hence the order for
consolidation of the two appeals before your Lordships’ House.
In all the trials, the prosecution case against the nurses
depended very largely upon the uncorroborated evidence of a single
patient. I say, “very largely”, because there were apparently some
alleged incidents of violence which were witnessed by patients who
were themselves complainants to other incidents. Judge Hopkin
fully appreciated that in those circumstances very careful thought
had to be given as to how he should direct the jury to approach
the prosecution’s case. In one of the earlier, if not the earliest,
of the trials over which he presided, he informed counsel, in
advance of his summing up, of the warning which he proposed to
give to the jury. This warning was fully approved by leading
counsel Mr. J. R. Roberts Q.C. for the prosecution, who has
appeared before us on behalf of the Crown, and Mr. Wilfred Steer
Q.C. who appeared for the defence in all or the majority of the
trials, including the two the subject matter of this consolidated
appeal. It was further agreed between counsel and approved by
the judge, that for the greater protection of the accused, the
judge would inform the jury in his summing up, that one patient
could not be treated as supporting another, with the result that
the prosecution case depended entirely upon the uncorroborated
evidence of a single patient. This was but one example of the
care that was taken to ensure complete fairness to the accused.
The judge’s direction as to the way in which they should approach
the evidence of the complainants was in substance the same in
each case. At an early stage in his summing up he gave them a
general instruction. There is no real difference in what he said in
either of the two appeals and I therefore quote the language which
he used in the first of the two trials. He said:
“You must, ladies and gentlemen, approach the evidence of
Mr. Hosein, Mr. Firth, Mr. Evan Glyn Hughes, Mr. William
Hughes, Mr. Alldred, and Mr. Nugent with great caution.
Why? Weil for three reasons, Firstly, because they are all
persons of bad character. The law, in rules which are
formulated over many years, requires me to tell you even if
they were merely persons of bad character and nothing else,
– 6 –
that you must approach their evidence with great caution.
It goes further than that of course In this case. The second
reason is this, that at the time of these events they were
all persons suffering from some form of mental disorder.
Thirdly, they may of course have all conspired together to
make false allegations. People make false allegations as we
know for all sorts of reasons, some of which have been
suggested in this case, but apart from that your own
experience no doubt tells you that people do on occasions
make false allegations. So therefore I must tell you that as
far as all those patients are concerned you must approach
their evidence with great caution. You would be wise to
look for support for their evidence for those reasons. I tell
you at once, Mr. Steer is right, and Mr. Roberts does not
argue to the contrary, that there is no support for their
allegations at all because as far as they are concerned even
where you have two or three of them giving evidence upon
one particular count, one witness of this type cannot support
another. But, if, ladies and gentlemen, having seen them
and having heard them and borne in mind the warning which
I have given to you you come to the conclusion that you
are sure in all or any of their cases they are telling the
truth, then you may convict upon their evidence without
there being any support at all. It is, as I say, for you to
judge the facts. When I say the facts I mean also the
importance which you attach to any particular witness and
whether or not he is telling the truth.”
Having been given this warning, he then referred to the
three defendants, emphasising that they were all men of good
character, describing each in detail and referring to the
testimonials which witnesses at the trial had given to each of
them. He drew particular attention to the fact that the alleged
incidents had occurred some years ago, that Rampton was part a
prison and part a hospital, that in both parts there were outbreaks
of violence which had to be quelled, and that those who looked
after the patients had on occasions to resort to force. He
referred in some detail to the absence of complaints by the
patients, and the factors which the jury might consider taking into
consideration when considering the significance of this aspect of
the case. The judge, taking each count separately, then drew the
jury’s attention immediately to the character and characteristics of
the complainant. He dealt in detail with his previous convictions,
with his progress at Rampton, which had been the subject matter
of medical evidence, and to the views of the psychiatrist employed
at Rampton as to his personality defects, e.g. that he was prone
to fabricate without any conscience and to pursue wrong without
any feeling – he had a tendency to resentment against authority
and to fly into a mood which might involve considerable violence
(count one – Mr. Hosein).
In view of my earlier reference to the judge having sought
and obtained counsel’s agreement to his proposed direction to the
jury as to the way in which they should approach the evidence of
the complainants, the circumstances in which his direction came to
be criticised in the Court of Appeal is of some relevance. On 11
May 1982 Bagshaw, Holmes, and Starkey were found guilty at the
Crown Court at Nottingham of ill-treating patients contrary to
section 126 of the Act of 1959 and were sentenced by Judge
– 7 –
Hopkin. They applied to the Court of Appeal (Criminal Division)
[1984] 1 W.L.R. 477 for leave to appeal against these convictions
on the grounds that they were unsafe by reason of the inadequacy
of the evidence, asserting that it was uncorroborated and
unsupported in any material particular and that the patients who
gave the evidence were inherently unreliable. We were told that
in the application for leave to appeal it was stated In terms that:
“No criticism is or could be made of the summing up.” The Court
of Appeal apparently thought otherwise, and during the hearing
gave leave to the appellants to amend their grounds so as to
question the adequacy of the judge’s direction to the jury as to
the treatment of the evidence of the complainants. A short
adjournment was granted for this new approach to be considered,
and after hearing further submissions the Court of Appeal reserved
its judgment.
The warning given by Judge Hopkin in the Bagshaw case was
in similar, though perhaps stronger terms. O’Connor L.J., in giving
the judgment of the court, said at an early stage in the judgment
[1984] 1 W.L.R. 477, 479:
“We should like to say at once that the judge’s summing up
is a masterpiece of lucidity and fairness. He gave an
impecable direction to the jury that they should treat the
evidence of the complainants with the greatest caution.
The question is whether these witnesses were such that a
full warning was required, namely, that it was dangerous to
convict upon their unsupported evidence.”
The “full warning” to which O’Connor L.J. was referring is
the warning as to the danger of convicting upon uncorroborated
evidence, which by rule of practice has to be given if the
prosecution is relying upon the evidence of an accomplice, or the
victim of a sexual offence or the sworn evidence of a child.
Having considered the well known cases of Reg. v Kilbourne
[1973] A.C. 729 and Reg. v. Hester [1973] A.C. 296, the judgment
continued at [1984] 1 W.L.R. 477, 484:
“Patients in hospital under the Mental Health Act 1959 are
not a category like accomplices or complainants in sexual
cases, nor would we wish to make them into an additional
category. Patients detained in a special hospital after
conviction for an offence or offences, even if they are not
a category, may well fulfil to a very high degree the
criteria which justify the requirement of the full warning in
respect of witnesses within accepted categories. It seems
to us that in such cases nothing short of the full warning
that it is dangerous to convict on the uncorroborated
evidence of the witness will suffice.”
Thus, because Judge Hopkin had not used the words “it is
dangerous to convict” the Court of Appeal concluded that the
convictions were unsafe and they were therefore quashed. The
court, however, in the final paragraph of the judgment commented
in relation to the original grounds of appeal, that if they had
stood alone they might or might not have sufficed adding at p.
484:
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“We say that because we are conscious that in practice it
would mean that the protection afforded to patients by
section 126 of the Act of 1959 would be cut down to a
large extent. It would be tantamount to saying that a
conviction based on the uncorroborated evidence of such a
complainant could not be safe. That would be to step
outside the common law and usurp the function of
Parliament.”
When the appeals with which your Lordships are concerned
came to be heard by the Court of Appeal, differently constituted,
the first submission made on behalf of the appellants was that the
court was bound by the decision in Reg. v. Bagshaw, and since
that case could not be distinguished on its facts, the appeals
should be allowed. On behalf of the Crown, Mr. Roberts
submitted to the Court of Appeal that the court’s decision in the
Bagshaw case was reached per incuriam. In Bagshaw, Mr. Roberts
had not come prepared to deal with the amendment which was
made only at the suggestion of the court. Although following the
short adjournment he sought to deal with the new ground as
adequately as he could in his reply, he did not deal with the point
as fully as he would otherwise have done, and in particular the
court’s attention was not drawn to an earlier decision of the Court
of Appeal, namely, to Reg. v. Beck [1982] 1 W.L.R. 461. In that
case the main ground of appeal was that the judge wrongly failed
to direct the jury that it would be dangerous to act on the
uncorroborated evidence of three witnesses, none of whom could be
considered as participants or involved in the crime charged, but
who “had a purpose of their own to serve in giving evidence,
namely to cover up false representations made or acceded to by
them in the insurance claim.” In Beck’s case the appellant’s
counsel based his contention that such a warning should have been
given essentially upon the case of Reg. v. Prater [1960] 2 Q.B.
464. In that case a co-prisoner, who could have been considered
an accomplice, gave evidence. The Common Serjeant did not give
a warning in regard to his testimony and the danger of acting
upon it unless corroborated. Edmund-Davies J. in the course of
the judgment of the Court of Criminal Appeal said at p. 466:
“For the purposes of this present appeal, this court is
content to accept that whether the label to be attached to
Welham in this case was strictly that of an accomplice or
not, in practice it is desirable that a warning should be
given that the witness, whether he comes from the dock, as
in this case, or whether he be a Crown witness, may be a
witness with some purpose of his own to serve …. In
the circumstances of the present appeal it is sufficient for
this court to express the view that it is desirable that, in
cases where a person may be regarded as having some
purpose of his own to serve, the warning against
uncorroborated evidence should be given. But every case
must be looked at in the light of its own facts.”
The Court of Appeal in Reg. v. Beck [1982] 1 W.L.R. 461, 468
having considered subsequent decisions in which Prater’s case was
criticised, concluded that the phrase in Reg. v. Prater [1960] 2
Q.B. 464, 466 “it is desirable that in cases where a person may be
regarded as having some purpose of his own to serve, the warning
against uncorroborated evidence should be given” is confined to
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cases where witnesses may be participants or involved in the crime
charged. The Court of Appeal further observed at [1982] 1 W.L.R.
461, 469 that:
“While we in no way wish to detract from the obligation
upon a judge to advise a jury to proceed with caution where
there is material to suggest that a witness’s evidence may
be tainted by an improper motive, and the strength of that
advice must vary according to the facts of the case, we
cannot accept that there is any obligation to give the
accomplice warning with all that that entails, when it is
common ground that there is no basis for suggesting that
the witness is a participant or in any way involved in the
crime the subject matter of the trial.”
The phrase, “with all that that entails,” requires perhaps
further explanation. Where there is no corroboration, the rule of
practice merely requires that the jury should be warned of the
danger of relying upon the sole evidence of an accomplice or of
the complainant in the sexual case, or upon the evidence of a
child. The warning to be sufficient must explain why it is
dangerous so to act, since otherwise the warning will lack
significance. The jury are, of course, told that while as a general
rule it is dangerous so to act, they are at liberty to do so if they
feel sure that the uncorroborated witness is telling the truth.
Where, however, there is evidence before the jury which they can
properly consider to be corroborative evidence the position
becomes less simple. The trial judge has the added obligation of
identifying such material, and explaining to the jury that it is for
them to decide whether to treat such evidence as corroboration.
He should further warn them against treating as potential
corroborative evidence, that which may appear to them to be such,
but which is not so in law, e.g. evidence of a recent complaint in
a sexual offence. Moreover where the prosecution are relying, as
potential corroborative material, upon lies alleged to have been
told by the accused, a particularly careful direction is needed. A
special direction is also often needed where evidence of
complainant’s distress is relied upon by the prosecution in sexual
cases as potentially corroborative material. The trial judge has
further the additional obligation of directing the jury that
accomplices, who are parties to the same charge, cannot
corroborate each other.
The Court of Appeal was, in my judgment, fully entitled to
conclude that had the court in Reg. v. Bagshaw [1984] 1 W.L.R.
477 had the benefit of the full argument which they had had in
these two appeals, and, in particular, had their attention drawn to
Reg. v. Beck [1982] 1 W.L.R. 461, a different conclusion might
have been reached. They accordingly concluded they were not
bound by the decision in Bagshaw’s case. I consider that they
were entitled so to decide.
In the submissions before your Lordships’ House, there has
been little, if any dispute, as to the relevant law. Counsel for
the appellants has fully accepted the decision of the Court of
Appeal both in Bagshaw’s case and in these two appeals, that
patients in hospital under the Mental Health Acts are not in a
category like accomplices or complainants in sexual cases or young
children. To create from them such a new category would clearly
– 10 –
Involve considerable problems of definition. What sort of patients,
and patients with what sort of criminal records are to be
included? The submission of the appellants, In essence, Is that
without use of the word “danger”, in any case analogous to those
of the three established categories, and where the evidence of the
only or principal witness relied upon by the prosecution is
inherently unreliable, such a warning must be inadequate. I cannot
agree. It has been said both in the Court of Appeal and in your
Lordships’ House, that the obligation to warn a jury does not
involve some legalistic ritual to be automatically recited by the
judge, or that some particular form of words or incantation has to
be used and, if not used, the summing up is faulty and the
conviction must be quashed. (See Reg. v. Russell (1968) 52
Cr.App.R. 147, 150 per Diplock L.J.). There is no magic formula
which has to be used with regard to any warning which is given to
juries (Reg. v. Price (Herbert) [1969] 1 Q.B. 541, 546 per Sachs
L.J.). As this is no mere idle process it follows that there are no
set words which must be adopted to express the warning. Rather
must the good sense of the matter be expounded with clarity and
in the setting of a particular case. (Reg. v. Hester [1973] A.C.
296, 309 per Lord Morris of Borth-y-Gest). The summing up
should be tailored to suit the circumstances of the particular case.
(Reg. v. Kilbourne [1973] A.C. 729, 741 per Lord Hailsham of St.
Marylebone L.C.)
To my mind the question raised by these appeals is both
simple to define and simple to answer. Given that it is common
ground that a warning was required as to the way in which the
jury should treat the evidence of the complainants, the question is:
was that warning: sufficient? Did it in clear terms bring home to
the jury the danger of basing a conviction on the unconfirmed
evidence of the complainants?
In the three established categories where the “full warning”
is obligatory, the inherent unreliability of the witness may well not
be apparent to the jury. Hence the phrase often used in a
summing up – it is the experience of the courts accumulated over
many years etc. etc. Complainants of sexual assaults do on
occasions give false evidence for a variety of reasons, some of
which may not have occurred to a jury. Accomplices may have
hidden reasons for lying, and this possibility may again not be
apparent to a jury. Children who, although old enough to
understand the nature of an oath and thus competent to give
sworn evidence, may yet be so young that their comprehension of
events and of questions put to them, or their own powers of
expression, may be imperfect. All this needs properly to be spelt
out to the jury. Hence the well established rule of practice.
In other cases the potential unreliability of the sole or
principal witness for the prosecution is obvious for all to see.
These were such cases. The complainants were men of bad
character. They had been sent to Rampton rather than to an
ordinary prison, because they were mentally unbalanced. That they
were anti-authoritarian, prone to lie or exaggerate, and could well
have old scores which they were seeking to pay off, was not
disputed. Notwithstanding that the possibility of their evidence
being unreliable was patent, that it was clearly dangerous to
prefer their evidence to that of the defendants, all men of good
character on whose behalf witnesses had spoken in glowing terms,
– 11 –
the judge nevertheless told the jury In the clearest possible terms
and repeated himself, that they must approach the evidence of the
complainants with great caution. It is common ground that having
given that warning, he then identified the very dangers which
justified the exercise of great caution. He gave three reasons.
Firstly, they were ail persons of bad character; secondly, they
were all persons suffering from some form of mental disorder, and
thirdly, they may have all conspired together to make false
allegations. Thus the judge warned the jury of the dangers of
relying on the complainants’ testimony because, for the reasons
which he gave, such testimony could well be unreliable. The
judge, however, did not leave the matter there. As previously
stated he pointed out, when dealing with each count, the details
of the background of the complainant, his past criminal record, the
nature of his mental disturbance and his history in the hospital,
and perhaps most important of all, the hospital psychiatrist’s view
of the personality defects from which the patient suffered and of
which I have already given a typical example. I agree with the
Court of Appeal that he gave the emphatic warning which was
required to meet the justice of the case. Indeed had this been one
of the category of cases which required the “full warning” then
the judge’s direction would have been fully adequate.
The certified point of law is in these terms:
“In a case where the evidence for the Crown is solely that
of a witness who is not in one of the accepted categories
of suspect witnesses, but who, by reason of his particular
mental condition and criminal connection, fulfilled the same
criteria, must the judge warn the jury that it is dangerous
to convict on his uncorroborated evidence.”
I would amend the question by substituting for the words
“the same criteria” “analogous criteria.” I would then answer the
question in the affirmative, adding, for the sake of clarity, that
while it may often be convenient to use the words “danger” or
“dangerous,” the use of such words is not essential to an adequate
warning, so long as the jury are made fully aware of the dangers
of convicting on such evidence. Again, for the sake of clarity I
would further add that Reg. v. Beck [1982] 1 W.L.R. 461 was
rightly decided and that in a case which does not fall into the
three established categories and where there exists potential
corroborative material, the extent to which the trial judge should
make reference to that material depends upon the facts of each
case. The overriding rule is that he must put the defence fairly
and adequately.
On 18 December 1984 your Lordships’ House gave the
appellants, Spencer, Ball, and Mason, leave to appeal against the
decision of the Court of Appeal (Criminal Division) on an
additional ground, namely “on the question whether incidents
relating to the conduct of a member of the jury both before and
after the juror was discharged were of such serious proportions as
to render their convictions unsafe or unsatisfactory.” The facts
were these. During this trial it became clear both to the judge
and counsel that one male juror, a Mr. Peet, had early formed a
definite view of the case, which was hostile to the defendants, and
on occasions clearly showed that he was biased against the
defendants and in favour of the prosecution. For example, he
– 12 –
showed his impatience at having to listen to the cross-examination
of one or more of the complainants. Both the judge and counsel
were concerned at this situation, and after consultation, decided to
take no action.
However, a member of the jury informed a court usher that
Mr. Peet’s wife worked at the Eastdale Unit of Balderton Hospital,
another mental hospital which figured in the evidence in the trial.
It was an establishment to which some patients went as a half-way
house before their ultimate discharge. Mr. Peet’s wife apparently
worked there as a cleaner. The judge was given this information
during the short adjournment on the day before the trial ended and
after the judge had begun his summing-up. The trial was then on
its tenth day. The judge raised the matter with counsel in the
absence of the jury. He informed them that he would have the
jury back, seek from Mr. Peet confirmation of the facts which had
been communicated to him, and if they were accurate, discharge
him. He observed to counsel:
“It may well be that in the course of conversation with his
wife, he has heard things which it would be better if he had
not. I have considered whether in the circumstances it
would be necessary to discharge the whole of the jury but I
do not feel that It is such a case myself.”
When the jury returned to court, Mr. Peet confirmed, in answer to
the judge’s question that his wife did in fact work at the Eastdale
Unit. Mr. Peet asked the judge whether “it would be all right to
wait in the ante-room “because I have got three to take back to
Newark” – a half-an-hour journey from the court. The judge
agreed and Mr. Peet left court. To the remaining eleven jurors
the judge observed:
“Members of the jury, you realise of course, I am sure, how
very careful we have to be. Who he is giving a lift back
to Newark, I know not. If it is any of you I must enjoin
you, please do not discuss this case with Mr. Peet any
further.”
By next morning defence counsel had had an opportunity of
thinking rather more fully about what Mr. Peet had said the
previous day, and had also learned that Mr. Peet had been in the
habit of giving three of his fellow jurors a daily lift to and from
their homes in Newark, which was near where he himself lived. In
those circumstances the probabilities were that Mr. Peet would
have aired his anti-defence opinions during those car journeys and
possibly given his passengers other information prejudicial to the
three defendants. Application was therefore made to the judge for
the discharge of the remaining eleven jurors. The application was
resisted by the prosecution. It was pointed out that if there were
to be a retrial the witnesses would have to be recalled. Concern
had already been expressed by doctors and others about the effect
that the giving of evidence and the experience of being cross-
examined had had upon the Rampton patients involved. Mr.
Roberts submitted that the test which the judge should apply was
that the jury should not be discharged unless it could be shown
that there was “a very high risk” that the apparently biased juror
had influenced any of his fellow jurors.
– 13 –
Mr. Roberts accepted, both in the Court of Appeal and
before us, that he had expressed the test in terms which were too
strict. The correct test is the one stated in Reg. v. Sawyer
(1980) 71 Cr.App.R. 283, 285 namely, whether there was a “real
danger” that the appellants’ position had been prejudiced in the
circumstances which I have outlined. In the course of giving his
ruling, the judge said:
“This is an anxious matter. I bear in mind that this case is
now in its tenth day. I also bear in mind that so far as
these defendants are concerned, through no fault of their
own I hasten to add, through no fault of the prosecution,
years have passed since they were first seen about these
matters. I bear in mind also very much the interests of the
patients who come to this court and of necessity are cross-
examined about what no doubt to them, whatever be the
truth of this case, are painful matters and which must have
caused concern to those who have the medical care of
them.”
In the exercise of his discretion he refused to discharge the
remaining jurors.
Because of the manner in which Mr. Peet had conducted
himself in the jury box, it was very properly decided by the
Director of Public Prosecutions, following the conviction of the
appellants, that a statement should be taken from Mr. Peet as to
his involvement with the other three jurymen, in particular what
happened following his discharge. In a. written statement, which
was put before the Court of Appeal, Mr. Peet confirmed that
after his discharge he had given three members of the jury a lift
back to Newark, and that “during the journey we discussed the
case and also how it came to light about my wife working at
Balderton Hospital.” Mr. Peet returned the next day to
Nottingham, to take his wife and son shopping. Having left them,
he went to the court, arriving about 12.45 p.m. However, the
summing up had been concluded and the jury had retired at 10.35
a.m. He was told by a representative from Rampton that the jury
were unlikely to be back before half-past-two, and in the course
of the conversation he expressed the opinion that the defendants
would be found guilty. He returned to the court about quarter-to-
two, spoke to a lady who appears to have been a solicitor’s clerk,
and told her that he had been a bit upset at having been
discharged from the jury. He told her that in his view the
defendants would be found guilty. He stayed waiting in court until
about 4.00 p.m. but was told that the verdict would not be until
5.00 p.m. He went back to his car because he had told his son
that he would be in the car park at 4.30 p.m. He then returned
to the court at 5.00 p.m. and waited until the jury gave their
verdict at 5.17 p.m.
The Court of Appeal having read Mr. Peet’s statement
quoted the description of the discussion during the journey back to
Newark with the three members of the jury following Mr. Peet’s
discharge. May L.J. giving the judgment of the court then made
this comment at [1985] 1 Q.B. 771, 788:
“Other parts of this statement made it quite clear that Mr.
Peet had formed a clear view about the guilt of the
– 14 –
appellants but nothing to suggest that he had expressed this
view to the three juror passengers in his car when he was
giving them a lift home on that last occasion.
Nevertheless, on all the material that there is before us we
think we must conclude that In the course of that journey
he did do just that.”
It is common ground that the judge applied the wrong test
for the exercise of his discretion. Moreover he did not have the
information as to what in fact had happened on the journey back
to Newark which the Court of Appeal concluded, and in my
judgment rightly concluded, involved the discussion of the case
despite the judge’s injunction to the contrary. It fell to the Court
of Appeal, as it does to your Lordships, to ask themselves whether
in ail the circumstances they were satisfied that the verdict was
safe and satisfactory. The Court of Appeal were so satisfied, the
substance of their judgment on this point being expressed in these
terms at p.790:
“The three jurors to whom Mr. Peet gave the final lift
home had been specifically warned by the judge immediately
after Mr. Peet had been discharged that they should not
talk to him about the case, just as no doubt they had been
warned on earlier occasions. It is quite true that these
jurors did not comply with that warning and direction from
the judge and their failure to do so is to be deplored.
Nevertheless we do not think that in the circumstances
there is any realistic chance that those three jurors, or any
of them, carried with them into the deliberations of
themselves and their fellow jurors, when the judge finished
his summing up the following morning, any prejudice or bias
which they had acquired from Mr. Peet the afternoon
before. We do not forget that the convictions in this case
were by majority verdicts reached after the jury had been
out considering their verdicts for over 5 1/2 hours. We think
this is readily explicable by the nature of the evidence
which the jury had heard, and by the type of witness by
whom that evidence had been given, and about whom and
their evidence the judge had so fully warned the jury in the
course of his summing up.”
It may well be that Mr. Peet, who apparently during the
greater part of the trial had been expressing to his fellow jurors
and in particular the three jurors whom he drove to and from
court his firm view that the defendants were all guilty, did not in
the conversation in his car after his discharge, add any further
strength to the opinion which he had been expressing. However, in
the circumstances of this case I find myself unable totally to
discount the likelihood of such a possibility. Mr. Peet was clearly
very concerned that the defendants should be convicted. As the
trial judge appreciated, there was the real possibility that Mr.
Peet in the course of his conversations with his wife may have
heard things which it would be better if he had not. Mr. Peet
was clearly frustrated by being discharged from the jury, despite
the very courteous terms in which this was done by the judge.
Knowing that he would no longer be able to influence the decision
of the jury, he could well have used the journey home as the final
opportunity to achieve the outcome of the trial which he thought
was right. He may have done this in imparting information which
– 15 –
he had intended to reserve until the conclusion of the summing-
up and after the retirement of the jury when all would be present
or he might have only re-stated his views but with added
emphasis. What the three jurors were discussing, or being
subjected to, was the assertion by a biased, but an ex-fellow juror,
of the necessity to convict.
I therefore have a lurking doubt, that justice may not have
been done, which makes me conclude that the verdict was unsafe.
With some reluctance I find myself unable to agree with the Court
of Appeal on this particular aspect of the first of the appeals.
Accordingly, I would allow the appeal of Spencer, Ball, and Mason,
and dismiss the appeals of Smails, Ball, and White.
– 16 –
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