PETER CHILVERS v REGINA

A Brown direction is required only in comparatively rare cases. It is needed where jurors may rely on different factual bases, each capable of constituting an essential ingredient, or where distinct events or different means of commission attract different defences. It is unnecessary where the particulars merely illustrate one ingredient or a continuing course of conduct. Under the Serious Crime Act 2015, the relevant ingredient was repeated or continuous controlling or coercive behaviour. The jury therefore needed to agree that this ingredient was proved, but not on the particular forms of behaviour or evidential route establishing it.

The appellant was convicted at the Crown Court at Manchester of controlling or coercive behaviour, assault occasioning actual bodily harm and criminal damage. The appeal concerned the conviction for controlling or coercive behaviour under section 76 of the Serious Crime Act 2015. He sought an extension of time and leave to appeal, arguing that the conviction was unsafe because the trial judge had not given a Brown direction requiring unanimity as to the particular behaviour relied upon. The central issue was whether the particulars in the count constituted separate essential ingredients or examples of one actus reus.

The court granted an extension of time and leave to appeal, but dismissed the appeal against conviction.

1. Jury unanimity. The jury must agree that every essential ingredient of an offence is proved. A Brown direction is required only in comparatively rare cases. It is appropriate where there is an appreciable danger that jurors may rely on different factual bases, each individually coterminous with the relevant ingredient; where distinct events or incidents are each capable of constituting that ingredient; or where different means of commission may give rise to different defences. This reflected the principles in R v Brown (1984) 79 Cr App R 115 and the later authorities.
2. Scope of the direction. The jury need not agree on the evidential route by which an ingredient is established. Where particulars are examples of a continuing course of conduct, and are not themselves separate ingredients or alternative bases attracting different defences, the jury may assess the conduct cumulatively. The court applied the approach illustrated by R v Mitchell (1994) 26 HLR 394, R v Sinha [1995] Crim LR 68, R v Ibrahima [2005] EWCA Crim 1436 and R v Young (1993) 97 Cr App R 280.
3. Application. The actus reus under section 76 was repeated engagement in controlling or coercive behaviour. The nine particulars described how that behaviour was said to have been manifested. They were not individually alleged to constitute separate actus rei. There was no realistic danger of a verdict based on different essential ingredients, no distinct sequences requiring separate decisions, and no different defences. The jury therefore had to be unanimous that the applicant had repeatedly or continuously engaged in controlling or coercive behaviour, but did not have to agree which particular kinds had been proved. The summing-up was otherwise impeccable.

The appeal was dismissed.

1. Court of Appeal (Criminal Division) granted an extension of time and leave to appeal, then dismissed the appeal against conviction: [2021] EWCA Crim 1311.
2. Crown Court at Manchester convicted the appellant of controlling or coercive behaviour and other offences. The appeal concerned count 1 only.