R v Spencer (R v Smails)

A trial judge must warn the jury where the prosecution depends solely on a witness outside the established classes of suspect witness, but whose mental condition and criminal connections create analogous dangers. The warning must make the danger of conviction on uncorroborated evidence fully clear. No prescribed words or formula are required.

A conviction is unsafe where there is a real danger that juror misconduct prejudiced the accused. An appellate court cannot cure serious, unauthorised contact between a discharged, biased juror and serving jurors by speculation about whether the contact influenced their verdict.

These consolidated appeals arose from two trials of nursing staff at Rampton Hospital for ill-treating patients contrary to section 126 of the Mental Health Act 1959. The prosecution cases depended largely on the uncorroborated evidence of patients who had mental disorders and criminal records. The judge directed the juries to approach that evidence with great caution and explained the particular sources of possible unreliability.

The Court of Appeal (Criminal Division), in [1985] QB 771, dismissed both sets of appeals. The House considered whether the warning had to use the words “danger” or “dangerous”. In the Spencer appeal it also considered whether contact between a discharged, visibly biased juror and three remaining jurors rendered the convictions unsafe.

1. Disposition. The House unanimously allowed the appeals of Spencer, Ball and Mason, set aside the Court of Appeal’s orders and quashed their convictions. It unanimously dismissed the appeals of Smails, Ball and White and affirmed the orders concerning them.
2. Warning concerning suspect evidence. Per Lord Ackner, with the other Law Lords agreeing in the result and answer to the certified question, a warning was required where the sole Crown witness fell outside the three established classes of accomplices, complainants in sexual cases and children, but satisfied analogous criteria of unreliability. The warning had to bring home clearly the dangers of relying on the unconfirmed evidence. The judge did not have to use the words “danger” or “dangerous”. A summing up is not a legalistic ritual and must be tailored to the circumstances.
3. Judge Hopkin’s warning was adequate. He repeatedly required great caution and identified the complainants’ bad character, mental disorders and possible conspiracy to make false allegations. When dealing with individual counts, he described each complainant’s convictions, mental condition, hospital history and personality defects. Even if the cases had fallen within an established class requiring the full warning, the direction would have sufficed. Reg. v. Bagshaw [1984] 1 WLR 477 was wrongly decided. Reg. v. Beck [1982] 1 WLR 461 was rightly decided. Outside the established classes, any required treatment of potential corroboration depends on the particular facts, subject to the overriding duty to put the defence fairly and adequately.
4. Juror misconduct. Per Lord Hailsham LC, the trial judge misdirected himself when considering whether to discharge the remaining jury. The interests of justice and the accused’s right to receive, and be seen to receive, a fair trial were paramount. The inconvenience of a retrial and its effect on witnesses could not outweigh that necessity. The unauthorised discussion between the discharged, biased juror and three serving jurors, contrary to the judge’s express direction, was a serious breach of natural justice. The Court of Appeal lacked a sufficient basis for concluding that the discussion had not influenced the verdict.
5. Per Lord Ackner, the correct inquiry was whether there was a real danger that the accused had been prejudiced. The content and effect of the discussion could not safely be discounted. His resulting doubt whether justice had been done made the verdict unsafe. Lord Bridge agreed with Lord Hailsham’s reasons; Lords Brandon and Mackay agreed with Lord Ackner.

1. House of Lords: In [1987] AC 128, allowed the appeals of Spencer, Ball and Mason and quashed their convictions; dismissed the appeals of Smails, Ball and White.
2. Court of Appeal (Criminal Division): In [1985] QB 771, dismissed both sets of appeals and upheld the convictions.
3. Nottingham Crown Court: Convicted the appellants in two trials of ill-treating patients contrary to section 126 of the Mental Health Act 1959.