Beckingham, R. v

Where a criminal count is supported by several separately particularised alleged breaches, the jury must be directed that they must unanimously be sure of at least one identified particular before convicting. A direction that the jury need only find one or more particulars proved does not adequately secure unanimity if it does not require agreement on the particular or particulars proved.

Whether a verdict is unsafe turns on whether the appellate court can be sure that the jury reached the same verdict by a unanimous route. It cannot safely infer that conclusion from general directions or from the apparent strength of the prosecution evidence.

The appellant, an employee of Barrow Borough Council, was convicted at Preston Crown Court of failing to discharge her duty under section 7 of the Health and Safety at Work Act 1974. The count alleged that her acts or omissions concerning the maintenance arrangements for cooling towers exposed persons to the risk of Legionnaires’ disease.

The prosecution served ten particulars of alleged breach. The trial judge directed the jury that one or more particulars had to be made out, but did not expressly direct that they must unanimously agree on at least one particular. The appellant challenged the sufficiency of the evidence, the fairness of the summing-up and the absence of a unanimity direction.

The central issue was whether the directions made the conviction unsafe.

1. Appeal allowed. The conviction on count 9 was quashed because the jury had not been expressly directed that they must unanimously be sure of one or more of the ten particulars relied upon and that those particulars established a breach of duty under section 7 of the Health and Safety at Work Act 1974.

2. The requirement reflected in R v Brown 79 Cr App R 115 applied to this count. It was insufficient to tell the jury that any one particular could establish guilt without making clear that all jurors had to agree on the same particular, or the same combination of particulars. The several passages requiring the jury to be sure about an individual allegation did not cure that omission.

3. The court could not be sure that the verdict would necessarily have been the same. It was impossible to tell which route the jury had taken, or whether they had unanimously agreed on any one of the ten alleged acts or omissions. The strength of the prosecution evidence could not remove that uncertainty.

4. The other challenges failed. The evidence concerning the maintenance contract, the appellant’s role and the exclusion of water treatment was capable of supporting a case to answer. The jury were entitled to resolve conflicts in the evidence. The summing-up was generally fair and balanced, and the directions on reasonable care did not render the verdict unsafe.

5. The court directed that a new indictment including count 9 be preferred within 28 days and that a plea be taken within two months.

• Court of Appeal (Criminal Division): allowed the appeal against conviction, quashed the conviction on count 9 and directed a retrial: [2006] EWCA Crim 773.
• Preston Crown Court: following a ten-week trial before Poole J, the appellant was convicted unanimously on count 9 under section 7 of the Health and Safety at Work Act 1974. The jury did not agree on the manslaughter counts.