James Watson v R

A category 1 abuse-of-process stay for missing evidence depends on whether the accused can have a fair trial, assessed by the actual effect of the missing material. Police or prosecution fault is relevant but is not a prerequisite, and exceptional circumstances is not a free-standing test. Bad character evidence may assist identification, rather than propensity, where the circumstances support the relevant inference. Under section 101(3) of the Criminal Justice Act 2003, probative value must be weighed against fairness. A trial judge has broad discretion when responding to a divided jury, with appellate intervention warranted only for obvious error. The appeal was dismissed.

James Watson was convicted of murder at the Central Criminal Court before Mrs Justice McGowan and sentenced to detention at His Majesty’s pleasure, with a minimum term of 15 years. He appealed against conviction with leave on three grounds: whether the loss or destruction of evidence made a fair trial impossible; whether bad character evidence was wrongly admitted; and whether the judge’s remarks to a divided jury placed improper pressure on jurors to reach a majority verdict.

The central issues were the proper approach to category 1 abuse of process, the use of bad character evidence for identification under the Criminal Justice Act 2003, and the scope of a trial judge’s discretion when a jury indicates difficulty reaching a verdict.

1. Disposition. The appeal against conviction was dismissed. Grounds 1, 2 and 4 were rejected.
2. Missing evidence. In a category 1 abuse-of-process application, the accused bears the burden of showing, on the balance of probabilities, that it is impossible to have a fair trial. The court must focus on the effect of the missing evidence on trial fairness. A stay is a remedy of last resort. Police or prosecutorial fault may be relevant, but is not a necessary prerequisite. The court considered DPP v Fell [2013] EWHC 562 (Admin), R v D [2013] EWCA Crim 1592 and R v PR [2019] 2 Cr App R 22. It rejected the duty-first approach in R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 All ER 831 and regarded the approach in Clay v South Cambridgeshire Justices [2015] RTR 1 as correct.
3. The reference to exceptional circumstances does not create a separate legal test. It reflects the rarity of cases in which missing material makes a fair trial impossible. Mere speculation about what testing might have shown was insufficient. The defence had effective safeguards, including cross-examination, submissions about the missing material and appropriate jury directions.
4. Bad character evidence. Under sections 101(1)(d) and 103(1) of the Criminal Justice Act 2003, evidence may be relevant to identification even where it is not advanced as propensity evidence. The jury could infer a sexual motive from the unusual stripping and positioning of the body. Evidence of a sexual interest in young boys, sexual strangulation and similar conduct involving a dead bird could therefore assist identification. The evidence was admissible, and its limited prejudicial effect did not outweigh its probative value under section 101(3).
5. Jury deliberations. A judge has discretion to decide how to respond to a note indicating division or deadlock, taking account of the note, the timing, counsel’s submissions and the judge’s observations of the jury. Appellate interference is rare absent obvious error. The principles concerning a Watson direction were explained by reference to R v Watson and others (1998) 87 Cr App R 1 and R v Logo [2015] 2 Cr. App. R. 17. The judge’s remarks were not a partial Watson direction and, read collectively, did not place jurors under pressure to compromise their oaths. The conviction was not unsafe.

• Court of Appeal (Criminal Division): appeal against conviction dismissed; the court rejected the challenges concerning missing evidence, bad character evidence and jury deliberations: [2023] EWCA Crim 1016.
• Central Criminal Court: following a trial before Mrs Justice McGowan, the appellant was convicted of murder on 21 April 2022 and sentenced to detention at His Majesty’s pleasure, with a minimum term of 15 years.