Herbert, R. v

A juror’s expression of personal distress and doubt during deliberations does not, without more, show that the jury has misunderstood the burden or standard of proof. A judge may sufficiently respond by directing the jury back to the evidence and the legal directions already given.

The phrase “give and take” should not be used when encouraging deliberations except as part of the full, unaltered R v Watson direction, [1998] QB 690. Its isolated and unwise use will not make a conviction unsafe where the judge also stresses the evidence, the law and the absence of time pressure. Telling a jury that deliberations will resume on the next court day if necessary is not improper pressure where it merely states the practical position.

The appellant was convicted of robbery after a jury trial in the Crown Court at Wood Green. The prosecution relied on identification evidence and the recovery of the stolen computer at the appellant’s address. The defence case was mistaken identification.

After the jury retired, several jurors raised personal difficulties. One juror said that the responsibility of deciding the case was emotionally difficult and that he or she had doubts. The judge told the jury to discuss the case, use “give and take”, concentrate on the evidence and recall the legal directions, including those on burden and standard of proof. She also said that, if no verdict were reached by 1 pm, deliberations could continue on the following Monday.

The appellant appealed against conviction, contending that the jury required a full redirection and that the judge’s remarks exerted improper pressure.

1. Appeal dismissed. The conviction was safe. There was no procedural irregularity in the judge’s handling of the jury after retirement that affected its safety.

2. The note from the distressed juror did not show a failure to understand either the jury’s task or the directions on burden and standard of proof. It showed that the juror understood that a definite decision was required and found that responsibility difficult because of personal doubt. In those circumstances, it was sufficient to direct the jury to concentrate on the evidence and the legal directions already given. The judge’s express reference to burden and standard of proof made a fuller repetition unnecessary.

3. The judge should not have used “give and take” in isolation. That language belongs, if used at all, in the full and unaltered direction approved in R v Watson, [1998] QB 690. But the critical question was whether the remarks put improper pressure on jurors to reach a decision inconsistent with their oath. They did not. The judge stressed the need to consider the evidence and the law, and repeatedly stated that there was no pressure of time.

4. Stating that the jury would return on Monday if it had not reached a verdict by 1 pm was a statement of the obvious practical consequence of the court rising. It did not amount to a threat or pressure to agree before that time. The subsequent unanimous guilty verdict did not alter that conclusion.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and held that the conviction was safe.
• Crown Court at Wood Green — the appellant was convicted of robbery on 28 November 2008 following a jury trial.