Atlan, R v

A Watson direction is rarely necessary and must not place pressure on jurors to agree with a view they do not truly hold. Any invitation to engage in give and take must be expressly confined by the jurors’ oath. A judge should not give such a direction after the jury has retired but before a majority-verdict direction is both available and given. An unqualified exhortation at that stage may render a conviction unsafe where it may have induced agreement on a charge the jury had been unable to resolve.

The appellant was convicted at the Crown Court at Harrow of common assault contrary to section 39 of the Criminal Justice Act 1988 and sentenced to two months’ imprisonment. He had been acquitted unanimously of racially aggravated assault and two counts of criminal damage.

After the jury reported that it was unanimous on the first three counts but unable to reach a verdict on the alternative common-assault count, the Recorder told it to try harder and said there might need to be give and take. The jury later returned unanimous verdicts, including a guilty verdict on common assault. The appeal concerned whether that direction created impermissible pressure and made the conviction unsafe.

Decision

1. The appeal against conviction was allowed. The conviction for common assault was quashed because it was unsafe.

2. A jury must remain free to deliberate without pressure. Applying Watson [1988] QB 690, the court held that jurors must not be made to feel bound to agree with a view they do not truly hold merely because continued disagreement would be inconvenient, tiresome or expensive.

3. The Recorder’s reference to possible give and take was an impermissibly loose paraphrase of a Watson direction. It omitted the essential qualification that any give and take must be within the scope of the jurors’ oath. The omission suggested compromise without reminding jurors of the limit imposed by their duty. The court endorsed the warning in Buono 95 Cr App R 338 that judges should not add to the established wording, and held that omission could be equally dangerous.

4. The timing aggravated the risk. Although a Watson direction may be given in the summing-up or after a majority direction, it should not be given after retirement but before a majority-verdict direction is available and has been given. At that stage it is likely to increase jurors’ sense of pressure.

5. On the safety assessment, the jury had reported agreement on the other counts but division on common assault. It then convicted on that count after the flawed direction, despite acquitting on charges which the prosecution evidence might have supported. There was a real possibility that the direction produced the conviction.

• Court of Appeal (Criminal Division) — Allowed the appeal against conviction and quashed the conviction: [2004] EWCA Crim 1798.
• Crown Court at Harrow — The appellant was convicted of common assault and sentenced to two months’ imprisonment.