England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 16th March 2010

1. LORD JUSTICE JACKSON: This is an appeal against conviction essentially on the ground that the jury was put under undue pressure of time to reach its verdict. The appellant stood trial at the York Crown Court in April 2009 on two counts. Count 1 was sexual assault by penetration contrary to section 2 of the Sexual Offences Act 2003 and count 2 was false imprisonment. Both alleged offences were said to have taken place on 4 March 2008. The victim in respect of each count was L.
2. The facts giving rise to this prosecution, as they emerged from the evidence at trial, may be briefly summarised: in March 2008, the appellant, then aged 19 years and 11 months, was a student at Hull University. On the night of 3 to 4 March 2008 the appellant was out drinking with friends. They ended up at the Vivas Club in Hull. Once, there the appellant met a young woman called L. Both the appellant and L had been drinking heavily. As a result of the amount that they had drunk L only had a limited recollection of events that night, and the appellant had no recollection at all of the relevant events. However, other witnesses have helped to fill in the picture. It appears that the appellant and L had got on amiably with each other. They danced together and enjoyed some intimacy. At about 3 a.m. the appellant and L left the Vivas Club and went to the appellant's flat. Back at the appellant's flat, L has a recollection of being in a room from which she could not get out. She recalls telephoning on her mobile phone her friend called Emily. The friend Emily gave evidence at trial about the phone call. She had been with L earlier that night and her recollection was not so much affected by drink. The judge in his summing up summarised Emily's evidence including the following passage:
3. "Emily said it was [L's first name] and she sounded quite muffled and upset. 'Emily please, I need help, I need help'. I could hear a man's voice shouting very angrily, 'open the door, let me in'. She was telling him to fuck off, leave her alone, calling him a freak. Her tone of voice was terrified. She said the man was telling her to open the door. When I first started speaking she said 'I think he is coming to get me.' She thought there were people there. He would not let her leave. I told her to leave, and if she found out where she was, I would pick her up. She said she had already tried to leave and he had put her in the room..."
4. Returning to L's evidence, she recalls the appellant forcing his way into the room and pulling her trousers down. She recalls a struggle in which she resisted. Nevertheless the appellant succeeded in, she said, putting his fingers in her vagina. L subsequently left the flat and contacted the police.
5. Another student who lived in same block of flats, Jamie Dean, saw the appellant and L when they arrived and subsequently heard some angry exchanges between them. He recalls L leaving the flat and subsequently coming back to look for her mobile telephone.
6. The appellant for his part had no recollection of events between the time he was in the Vivas Club and when he was in the police station. However, he has asserted it would not have been his way to force his himself upon a female.
7. In addition to the factual evidence of witnesses who were present in the early hours of 4 March, at trial there was also expert evidence to assist the jury. First, a Dr Morgan examined both the appellant and L and gave written evidence about the marks which he found on their bodies. Secondly, there was DNA evidence. This confirmed that cellular material had passed between the appellant and L. That evidence would be consistent with a sexual assault, but it could also be explained in other ways. Thirdly, there was psychological evidence. The defence called a consultant psychologist, Miss Jennifer Cutler, who carried out an assessment of the appellant and found him to have Asperger's Syndrome. Miss Cutler gave evidence about the effect of that condition. The prosecution in response called its own psychologist, Dr Halim. Dr Halim said she had only done limited testing upon the appellant and was in no position to contradict Miss Cutler's evidence.
8. Let me now turn from the evidence called at trial to the procedure. The hearing began on Monday 6 April 2009, which was the Monday of Easter week. The evidence was concluded at the end of Wednesday morning. The judge began summing up for a few minutes before lunchtime on Wednesday, then he rose for the short adjournment. The judge delivered most of his summing up on the afternoon of the Wednesday. At 3:12pm on the Wednesday afternoon the jury retired to consider its verdicts. The jury deliberated until 4:50pm. That is 1 hour and 38 minutes. The judge then sent the jury home for the night.
9. The next morning the judge was concerned that time was limited because the court could not sit beyond midday, the day being Maundy Thursday. Apparently inquiries were made as to whether administratively it would be possible to keep the court open beyond about 12:30 that day, and the message came back that this would not be possible. The judge discussed with counsel what he should do. He pointed out that it would be a long hiatus if the jury failed to reach a verdict that day and then did not come back until Wednesday of the following week. Furthermore, this was the last day on which that jury were due to be serving and there must have been a probability that at least one of them would have difficulty in attending court the following week. The judge explored with counsel what he should say to the jury, and what course should be taken. The judge, after discussing the matter with counsel, said that what he proposed to do was this:

"What I am trying to do is to say whatever the constraints are we have to work within them. If you can conscientiously arrive at a verdict within that period all well and good. If you cannot, then you cannot."

10. Defence counsel Mr Rimmer responded to that proposal:

"I think as long as one keeps emphasising they are under no pressure of time, notwithstanding the reality of today in other words ..."

11. So, defence counsel agreed with the course which the judge proposed to adopt. The jury then came into court and the judge gave them the following direction before they retired:

"Tomorrow is good Friday. By reason of national arrangements which cannot be altered the courts obviously do not sit on good Friday, and indeed the courts do not sit today much beyond midday. Do you follow me? Obviously, after good Friday it is Saturday, Sunday and then the bank holidays and I cannot think in what has been a fairly short trial it would be appropriate to bring you back if necessary to continue deliberations, say on Wednesday of next week. Do you follow me? With a gap of the best part of a week, and so it follows that we face a certain constraint of time in that the court is not sitting much beyond midday. In the ordinary way the direction which I give to a jury is whatever time they require to deliberate is available to them, do you follow me? Whether it is much or whether it is little, whatever they need, they have got. Now, by reason of the circumstances which I have described to you in my opening remarks, that is not the case today, is it? And so my direction is this: if in the time available, which will be a little over two hours, if in that time, you are able, conscientiously to reach verdicts on the evidence, then obviously you will be able to reach verdicts. If within that time you cannot reach verdicts, obviously there is no more available time and so what I would be left to do is to discharge you from giving verdicts so the case can be retried on a later date, do you follow me? All I want you to know is this: you are not to feel under any pressure of time whatever. If you can reach your verdicts conscientiously within the time that is acceptable. If you cannot, I will simply discharge you, do you follow me? But don't you feel that time is a factor because it is not. Would you please now retire and carry on with your deliberations."

The jury retired at 10:10am on the morning of the Thursday to continue its deliberations. Two hours later at 12:09pm, the jury returned. The jury found the appellant not guilty on count 1, that is the charge of sexual assault. The jury found the appellant guilty on count 2, which is the charge of false imprisonment.

12. The appellant was aggrieved by his conviction on count 2. Accordingly he appealed to this court. The appellant initially put forward four different grounds of appeal as follows: first, the conviction for false imprisonment was inconsistent and illogical; secondly, the submission of no case made at half time ought to have succeeded; thirdly, the finding of not guilty to sexual assault but guilty of false imprisonment rendered the conviction unsafe; fourthly, the process by which the jury was invited if not directed to reach verdicts on 9 April 2009 was flawed and capably gave rise to a sense of injustice.
13. As far as the first three grounds are concerned, there is nothing in those grounds and the full court, like the single judge, has refused leave to appeal on those grounds. However, the full court has given the appellant leave to appeal on ground four, and that has been the subject of argument today. Mr Rimmer, who appeared as counsel at the trial for the appellant and who now appears for the appellant in this court, submits that the circumstances in which the jury was deliberating on the Thursday morning were circumstances which put undue pressure of time upon the jury. The jury would know that if it did not reach a verdict on both counts there was likely to be a retrial. That would involve stress on all the participants. Also there would be substantial costs involved. So these circumstances would put what Mr Rimmer in his oral submissions this morning described as "unconscious pressure" on the jury. We are not persuaded by that submission. The judge gave a very clear direction to the jury that they were not to feel under pressure of time; they were only to reach a verdict if they were conscientiously able to in the time available and if not they would be discharged. It is implicit in the argument advanced by Mr Rimmer that the jury must have disregarded that clear direction given to them by the judge. For our part we can see no possible basis for coming to that conclusion. When a judge gives a clear, intelligible direction of law to the jury there is every reason to believe that the jury would heed it and would abide by it. The judge made it clear at the start of the summing up that all matters of law and matters of this nature were for him and the facts were for the jury. This is a matter where the jury should and would abide by the judge's direction.
14. Mr Rimmer was asked by my Lord, Gross J, what course Mr Rimmer submits the judge should have adopted in the difficult circumstances which prevailed on the Thursday morning. Mr Rimmer did not criticise the judge for not seeking to bring the jury back on Wednesday of the following week. Instead, Mr Rimmer submitted that the judge fell into error. What he ought to have done was to say nothing at all to the jury about the pressures of time that morning. He should have sent them out to continue their deliberations. If at 12 o'clock or 12:15 no verdict had been received, then the judge should have had the jury back into court and should have discharged them. This would spring a surprise on the jury for which they would not have been in any way forewarned.
15. It is of course always easy to criticise a trial judge with the benefit of hindsight, which is a wonderous thing. It is also easy to criticise counsel with the benefit of hindsight. In this case defence counsel took precisely the same view as the trial judge as to the best way to proceed in the situation which had arisen. He did not dissent from the judge's proposed course of action, but helpfully defence counsel submitted that what the judge should do is "keep emphasising that they are under no pressure of time." The judge, wisely, heeded that submission of defence counsel and in the short direction which he gave to the jury he more than once emphasised that the jury should feel under no pressure of time. Mr Rimmer, in his submissions to us today, candidly says that he now resiles from the submission which he made to the judge and he now submits that the judge should have taken a different course of action.
16. It seems to us that the judge was put in a difficult position because of the administrative arrangements of the court that day. He did his best to see if the court could be kept open, but apparently that was not possible. In the circumstances the judge took the best course which was available. The jury had to be aware of the situation, and the judge gave a very clear direction that the jury should resume their deliberations without feeling under any pressure of time.
17. In his submissions today Mr Rimmer, who explored every possible way of putting the appellant's case, submitted that the jury probably spent a great deal of time deliberating on the issue of sexual assault, which involved a number of complications. There were issues about consent, the effect of Asperger's Syndrome and so forth. The jury would have had very little time to deliberate on the matter of false imprisonment, and therefore it is a reasonable inference that the jury rushed their decision on false imprisonment. It seems to us that those submissions are pure speculation. We do not know how the jury divided up its time in the jury room. We do not know how long the jury spent on each of the two counts. It is perfectly possible that the jury considered the sexual assault charge to involve more complex issues than the false imprisonment charge, and therefore that the jury found it necessary to spend less time on the false imprisonment charge. We simply do not know, and we do not enter into that realm of speculation.
18. Mr Rimmer also argued, (endorsing some observations made by this court when giving leave on the basis that ground four was arguable,) that the verdict reached may have been a compromise verdict reached under some pressure of time. Having heard this matter fully argued by both counsel we do not take that view. As Mr Kealey, counsel for the prosecution points out, the fact that different verdicts were reached on the two counts shows the jury were paying attention to the evidence and considering each count separately, as they had been directed to do.
19. Both counsel in the course of their submissions have drawn attention to the decision of the Court of Appeal in R v Baker 1998 Criminal Law Review 351-1, BAILII: [1997] EWCA Crim 2966 . In that case there was a short one day trial, which began in the morning. In the early afternoon the recorder told the jury that they would have to reach a verdict that afternoon, which was a Friday, because he would not be sitting the following week. Also, it was the last day that jury would be sitting. The jury returned quite rapidly at 3:33pm. In other words, they did not use up the full time available. At 3:33pm they delivered a unanimous verdict of guilty. The Court of Appeal dismissed the appellant's appeal. The court made the observation that it was quite improper to place pressure on a jury to reach a verdict because of shortage of time. However, every case turned on its own facts. That had been a short case. The jury had been able to reach a verdict well before 4:15pm, and the Court of Appeal concluded that the verdict in Baker was safe. Of course, there are many differences between Baker and the instant case, to which both counsel have drawn our attention. In Baker, the jury reached its verdict well before the final time, whereas in the present case the jury did not reach its verdict until shortly before the time when the court would close. Also, in Baker the trial was much shorter than the trial in the present case.
20. We do not derive great assistance from a minute comparison of the facts of Baker with the facts of the present case. Baker, as prosecution counsel points out, is an example of a case where some pressure of time was put on a jury, but nevertheless the verdict was regarded as being safe. In the present case it seems to us that the verdict is indeed safe. First of all it needs to be borne in mind that the jury retired for a total of just over three and a half hours and they did so at the end of what was a short trial which began on the Monday morning and which reached the judge's summing up at the end of the Wednesday morning. Secondly, the jury was given a very clear direction that if it could not reach a verdict conscientiously, with a reasonable time, the jury should say so and the jury would be discharged. The judge told them in absolutely clear terms that they should not feel under any pressure of time during the continuance of their deliberations. Of course we endorse the guidance which has been given by this court on previous occasions that jurors should be permitted to deliberate free from any pressure of time.
21. We are satisfied, having heard the submissions in this case, that the jury did indeed deliberate free from any pressure of time. This appeal is dismissed.