Malcolm, R v

A Watson direction should be given only in exceptional circumstances and as a last resort after a prolonged retirement following the majority direction. A jury’s request for guidance, without an irretrievable deadlock, does not itself satisfy those conditions. A conviction is unsafe where the direction creates a significant risk that jurors compromised their consciences or oaths to reach a verdict. In assessing allegedly inconsistent verdicts, the question is whether any reasonable jury properly applying its mind to the evidence could have reached them.

The appellant was tried at Wood Green Crown Court on four historical sexual-offence counts concerning his stepson. The prosecution relied principally on the complainant’s evidence; the defence alleged fabrication following a family dispute.

After about five hours of deliberation, and about one and a half hours after a majority direction, the jury reported an 8–4 division and asked for guidance. On the following Monday the judge gave a Watson direction. The jury convicted the appellant by an 11–1 majority on one count and acquitted him on the other three.

He appealed against conviction, contending that the direction was wrongly given and that the differing verdicts were inconsistent. The central issues were whether the direction made the conviction unsafe and whether no reasonable jury could have returned the combination of verdicts.

1. Appeal allowed. The conviction was unsafe and was quashed. A retrial would not be appropriate.

2. The test for inconsistent verdicts on multiple counts is whether no reasonable jury, properly applying its mind to the evidence, could have reached the verdicts returned. This was a credibility case involving a continuing course of alleged conduct. The jury could not rationally be sure of guilt on the oral-sex count while not being sure on the other allegations. The suggested explanation based on the appellant’s admitted washing of the complainant’s genitals did not provide a logical basis for the distinction.

3. R v Arthur [2013] EWCA Crim 1852 was the leading authority on a Watson direction. It established cumulative safeguards: exceptional circumstances must exist, and the direction must be a last resort after a prolonged post-majority retirement. The appellate question is whether the judge’s words created a significant risk that jurors felt undue pressure to compromise their consciences and oaths.

4. Neither safeguard was met. The jury note sought assistance but did not show irretrievable deadlock. The jury had deliberated for less than two hours after the majority direction and less than six hours in total. This was not a last-resort situation.

5. The eventual conviction on one count and acquittals on the others had the hallmarks of compromise. The 8–4 division may have concerned the case as a whole. In those circumstances the direction created a significant risk of pressure to compromise, reinforcing the inconsistency of the verdicts and rendering the conviction unsafe.

• Court of Appeal (Criminal Division): allowed the appeal against conviction, quashed the conviction and declined a retrial: [2014] EWCA Crim 2508.
• Crown Court at Wood Green: convicted the appellant by an 11–1 majority on one count of indecent assault and acquitted him on three other counts; sentenced him to four years’ imprisonment.