REGINA v Malcolm

Factual and Procedural Background

In September 2014, the Appellant stood trial in the Crown Court at Wood Green before Judge Ader and a jury on an indictment containing four counts of alleged sexual offences against his stepson, referred to as "M" to preserve anonymity. M and his brother had been unaware until the Appellant's arrest that he was not their biological father. The Appellant, of previous good character and married for 43 years, was accused of sexually abusing M between approximately 1976 and 1980, starting when M was about 12 years old and suffering from a foreskin problem.

The indictment included four counts: (1) indecent assault by oral sex on M under 16, (2) indecent assault by digital penetration, (3) gross indecency involving oral sex performed by M on the Appellant, and (4) buggery. The prosecution's case was that the abuse escalated over time. The defence contended the complaints were fabricated, citing a family argument in 2000 and lack of contact thereafter. Evidence included statements from a work colleague and M's wife, both referring to disclosures of abuse in 2009. The Appellant, his wife, and M's brother gave evidence in defence.

The trial began on 1 September 2014. After jury deliberations starting on Thursday 4 September, a majority direction was given with no objection from counsel. On Friday, after about five hours of deliberation, the jury sent a note indicating an 8 to 4 split and requested guidance. The judge considered giving a Watson direction, a rare judicial instruction aimed at encouraging a deadlocked jury to reach a verdict, but counsel requested time to consider its appropriateness. Ultimately, the jury was sent home over the weekend with instructions not to discuss the case.

On Monday, counsel referred to the Court of Appeal decision in R v Arthur regarding the Watson direction. After discussion, the judge gave the Watson direction in full. Shortly before 1 pm, the jury returned verdicts: guilty on count 1 by a majority of 11 to 1 and not guilty on counts 2, 3, and 4. The Appellant was sentenced to four years' imprisonment on count 1 and appealed against conviction.

Legal Issues Presented

1. Whether the trial judge erred in law by giving the Watson direction to the jury after they indicated they could not agree on verdicts.
2. Whether the jury's verdicts were perverse and thus unsafe, given the evidence in the case.

Arguments of the Parties

Appellant's Arguments

• The jury note indicated an inability to agree, yet the judge gave a Watson direction, which was inappropriate in the circumstances.
• The guilty verdict on count 1 was inconsistent and perverse given the acquittals on the other counts, all involving similar allegations over the same period.
• The case was essentially a credibility contest; the jury's division and verdicts suggested compromise rather than proper evaluation of evidence.
• The Watson direction should not have been given at any stage, as it risks pressuring jurors to compromise their conscience.

Respondent's Arguments

• The Watson direction was legally available and appropriate as the jury had requested help.
• The direction was given in the exercise of judicial discretion and was supported by the Bench Book guidance, albeit with caution as to wording.
• The jury's guilty verdict on count 1 could be explained by the Appellant's admission of washing the complainant's genitals, which related to some alleged acts under count 1 but not others.
• Despite the Appellant's appeal, a retrial was sought by the prosecution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Arthur [2013] EWCA Crim 1852	Clarification on the limited and exceptional use of the Watson direction; emphasis on avoiding undue pressure on jurors to reach verdicts.	The court applied the principles from R v Arthur to determine that the Watson direction should only be given in exceptional circumstances and as a last resort after a prolonged retirement. The court found these conditions were not met in this case, rendering the direction inappropriate.

Court's Reasoning and Analysis

The court analysed the circumstances under which the Watson direction was given, referencing the leading authority in R v Arthur. It emphasized that the Watson direction is rarely given and only appropriate in exceptional cases where the jury has been in prolonged retirement after a majority direction. The court found that neither the jury note nor the timing of the direction met these criteria. The jury had been deliberating for less than two hours since the majority direction, and the note did not indicate an irretrievable deadlock.

The court further considered the inconsistency of the verdicts, noting that no reasonable jury could have properly acquitted on counts 2, 3, and 4 while convicting on count 1 given the overlapping allegations and the nature of the evidence. This inconsistency suggested that the verdict on count 1 was unsafe and likely the result of a compromise induced by the Watson direction.

Ultimately, the court concluded that the Watson direction created a significant risk that jurors felt pressured to compromise their oaths, rendering the conviction unsafe. The court therefore allowed the appeal and quashed the conviction.

Holding and Implications

Appeal allowed; conviction quashed.

The court held that the trial judge erred in law by giving the Watson direction prematurely and without exceptional circumstances, leading to an unsafe verdict. The inconsistent verdicts further supported the conclusion that the conviction was unsafe. The direct effect is the quashing of the Appellant's conviction on count 1. No retrial was ordered, and no new precedent was established beyond the reaffirmation of the principles in R v Arthur.