R v BJS

A Watson direction is not subject to a free-standing requirement of exceptional circumstances. It may be given, rarely, after a majority direction and further deliberation or a jury request for assistance, if the trial judge properly exercises discretion and avoids pressure on jurors to depart from their oaths.

The appellate court reviews whether the judge acted on a legal error or reached a decision no rational judge could reach. It does not substitute its own assessment. A judge need not ask expressly whether further time would assist where the jury has not said it cannot reach verdicts or that further deliberation would be futile.

The appellant was convicted at the Crown Court at Leeds of three counts of rape and one count of assault of a child under 13 by penetration, contrary to section 6 of the Sexual Offences Act 2003. He received concurrent special custodial sentences comprising 15 years’ custody and one year of extended licence.

After a majority direction and about 10 hours of deliberation, the jury sent a note giving voting figures and asking how it should proceed. The judge gave a standard Watson direction the next morning. Just over two hours later, the jury unanimously convicted on all counts.

On appeal against conviction, the appellant contended that the direction should not have been given, that the retrial context was an irrelevant consideration, and that the judge should first have asked whether more deliberation would help. The central issue was whether the convictions were unsafe because the judge wrongly exercised his discretion to give the direction.

1. Appeal dismissed. The convictions were safe. The trial judge did not err in giving a Watson direction, nor did he handle the trial improperly.

2. The governing principles were those restated in R v Logo [2015] 2 Cr.App.R 17. A direction will usually be unnecessary. It may be given after a majority direction and further time, or after the jury seeks further assistance, if the judge properly exercises discretion. The direction must preserve every juror’s duty to return a true verdict according to the evidence and must not exert undue pressure.

3. There is no separate exceptionality test. The description of such directions as exceptional is shorthand for their rarity; it is not an additional legal condition. The question is whether, in the circumstances of the particular trial, giving the direction fell within the proper ambit of judicial discretion.

4. The judge had correctly applied that approach. The jury had deliberated for about 10 hours, including about six hours after the majority direction. It had disclosed voting figures, reported difficulty in reaching verdicts and sought the court’s assistance, but had not said it was incapable of reaching verdicts. The judge reflected overnight, invited and received submissions, and used a standard direction which contained no improper pressure.

5. The Court of Appeal’s role was confined to deciding whether the judge had erred in legal principle or acted in a way no rational and reasonable judge could have acted. It was not appropriate to replace the judge’s discretionary assessment with its own. The judge’s remarks about the retrial did not materially influence his later decision to give the direction.

6. The judge was not required to ask the jury expressly whether further time would assist. Its note did not say that it could not reach verdicts or that more time would be futile. The court left open whether the desirability of avoiding re-litigation may be considered in the same way by a judge presiding over a retrial.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2024] EWCA Crim 1356.
• Crown Court at Leeds: On 15 December 2023, the appellant was convicted of three counts of rape and assault of a child under 13 by penetration contrary to section 6 of the Sexual Offences Act 2003. On 16 January 2024, he received concurrent special custodial sentences of 15 years’ custody and one year of extended licence.