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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Spencer [1987] UKHL 2 (24 July 1987)
URL: http://www.bailii.org/uk/cases/UKHL/1987/2.html
Cite as: [1987] AC 128, [1986] 3 WLR 348, [1987] UKHL 2, [1986] 2 All ER 928, 83 Cr App Rep 277

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    Parliamentary Archives,
    HL/PO/JU/18/246

    Regina v. Spencer and others (Appellants)

    Regina v. Snails and others (Appellants)

    (On Appeal from the Court of Appeal (Criminal Division))

    (Consolidated Appeals)

    JUDGMENT

    Die Jovis 24° Julii 1986

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Spencer and others and
    Regina against Smails and others, That the Committee had
    heard Counsel on Monday the 23rd and Tuesday the 24th days of
    June last upon the Petitions and Appeals of Alan Widdison
    Spencer, of 9 Glover Close, South Leverton, Near Retford,
    Nottinghamshire; Kenneth Ball, of 15 St. Martin's Road, North
    Leverton, Near Retford, Nottinghamshire, and Michael Dennis
    Mason, of 56 Jubilee Road, Ordsall, Near Retford,
    Nottinghamshire; and of George Glenville Smails, of 108
    Ordsall Road, Retford, Nottinghamshire; Kenneth Ball, of 15
    St. Martin's Road, North Leverton, Near Retford,
    Nottinghamshire, and Paul White, of 91 North Road, Retford,
    Nottinghamshire, praying that the matter of the Orders set
    forth in the Schedules thereto, namely Orders of Her Majesty's
    Court of Appeal of the 7th of November 1984, might be reviewed
    before Her Majesty the Queen in Her Court of Parliament and
    that the said Orders might be reversed, varied or altered or
    that the Petitioners might have such other relief in the
    premises .as to Her Majesty the Queen in Her Court of
    Parliament might seem meet (which said Petitions were by an
    Order of the House of the 6th day of December 1984
    consolidated); and Counsel having been heard on behalf .of the
    Director of Public Prosecutions (on behalf of Her Majesty) the
    Respondent to the said Appeals; and due consideration had this
    day of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That in the cause of Regina against Spencer and
    others the said Orders of Her Majesty's Court of Appeal
    (Criminal Division) of the 7th day of November 1984,
    complained of in the said Appeals be, and the same are hereby,
    Set Aside, and That the convictions by Nottingham Crown Court
    of the 24th June 1984 be, and the same are hereby Quashed:
    That in the cause of Regina against Smails and others the said
    Orders of Her Majesty's Court of Appeal (Criminal Division) of
    the 7th day of November 1984 complained of in the said Appeals
    be, and the same are hereby, Affirmed and that the said
    Petitions and Appeals be, and the same are hereby, dismissed
    this House; And it is further Ordered and Adjudged, That in
    both causes the Certified Question be amended so as to read

    "In a case where the evidence for the Crown is solely
    that of a witness who is not in one of the accepted
    categories of suspect witnesses, but who, by reason of

    Judgment: 24.7.86

    HOUSE OF LORDS

    REGINA v. SPENCER AND OTHERS
    (APPELLANTS)

    REGINA v. SMAILS AND OTHERS
    (APPELLANTS)

    (ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

    DIVISION))

    (CONSOLIDATED APPEALS)

    Lord Chancellor
    Lord Bridge of Harwich
    Lord Brandon of Oakbrook
    Lord Mackay of Clashfern
    Lord Ackner


    LORD CHANCELLOR

    My Lords,

    I agree with the disposal of the second appeal about to be
    recommended by my noble and learned friend, Lord Ackner, whose
    judgment on the merits I have had the advantage of reading in
    draft, and which is now available in print. I also agree with his
    proposed answer to the certified question.

    As regards the first appeal, (that relating to Spencer and
    others), I have no doubt that this appeal should be allowed on the
    ground that owing to irregularities in the trial, in relation to a
    particular juror, the verdict must be regarded as unsafe and
    unsatisfactory. I do not believe that, in the rather special
    circumstances of this case, the Court of Appeal were entitled to
    speculate as to what may or may not have occurred after the jury
    had retired or as to the circumstances which may or may not have
    influenced their verdict of guilty by a majority of ten to one after
    deliberating for five hours.

    Without such speculation the following facts are clear
    beyond peradventure.

    (1) The first is that, just before the jury were about to retire,
    and on an application by defending counsel to discharge the
    jury, the judge learned of circumstances which, in his
    opinion at least, made it unsafe to permit one juryman
    ("P.") to remain on the jury. The avowed reason when given

    - 1 -

    was that the juryman in question had, through his wife, a
    somewhat tenuous connection with the institution at which
    the accused were employed as nurses, but one is, I think,
    entitled to assume that the judge considered it arguable
    that, through his wife, the juryman might have been exposed
    to gossip prejudicial to the accused about the merits of the
    case. What is beyond doubt is that, even at this stage, and
    apparently throughout the trial, the juryman in question had
    unequivocally evinced a most unjudicial bias against the
    defence and this may well have acted as an additional
    factor in influencing the judge's mind. However I believe in
    these circumstances that the judge acted correctly in then
    declining to discharge the whole jury.

    1. The second fact beyond dispute is that when, on the
      following day, defence counsel renewed his application to
      discharge the jury, in refusing the application, the judge
      first of all misdirected himself as to the correct test to
      apply and secondly took into account factors which should
      have been disregarded in considering the result of the
      application. In considering such an application, the interests
      of justice should be paramount, and neither the
      inconvenience of a second trial nor the necessity which
      would have been involved in calling again as witnesses the
      victims of the alleged assaults, possibly to their detriment,
      should have outweighed the necessity of the accused
      receiving, and being seen to receive, a fair trial. The
      effect of these misdirections when the point was raised on
      appeal was to free the Court of Appeal in the use of their
      own discretion of any necessity to be guided by the judge's
      own use of his discretion.

    2. The third point which is beyond dispute is that, after
      discharging P. from the jury, the judge permitted him to
      remain behind in the precinct of the court in order to give
      a lift in his own car to three of the remaining members of
      the jury over a journey taking about half-an-hour. My own
      view is that the judge was mistaken so to do, but, whether
      this view be correct or not, the judge thought it imperative
      specifically to warn the three jurors who were to avail
      themselves of the lift not to discuss the case with P. when
      they were with him in the car. What the judge did not
      know on the renewal of the application on the following
      day, but what, by the time they heard the appeal, the Court
      of Appeal certainly did know, was that this warning had
      been disregarded. I do not believe that the judge could
      have exercised his discretion so as to refuse the defence
      application when it was renewed the following day, at least
      without diligent enquiry as to the nature of the discussion,
      had he been aware that his specific warning had been
      disregarded in this way.

    In the event, the Court of Appeal formed the view that
    there was "no realistic chance" of the discussion in the car
    (whatever it was), having influenced the verdict. Although
    they had available to them the statement prepared by the
    D.P.P. they seem to have made no additional enquiry as to
    what had happened, and though, of course, it may be true
    that nothing detrimental had taken place, I do not think

    - 2 -

    they had enough material on which to say that it had not.
    This was a case of total want of corroboration, a majority
    verdict of 10-1, and a wholly unauthorised and improper
    conversation between a juror who had been sent off the jury
    as not suited to remain there with three of the remaining
    jurors in the absence of the other eight and in disregard of
    an express warning by the judge against such conduct. In
    my view this constituted a serious breach of natural justice
    and the resulting verdict must be treated as unsafe and
    unsatisfactory. In such a case as this there can be no
    question of applying the proviso.

    As regards the certified question, I am content to accept
    what is about to fall from my noble and learned friend. But, in
    view of certain parts of the judgment of the Court of Appeal,
    there are certain additional comments I would wish to make. It is
    notorious that the law of Scotland does not admit of a conviction
    on the uncorroborated evidence of a single witness, but that the
    law of England does. There are a certain number of statutory
    exceptions to which I drew attention in Reg. v. Kilbourne [1973]
    A.C. 729 at pp. 739-740. In addition there are certain categories
    or classes of case which, by the time of the establishment of the
    Court of Criminal Appeal in 1907, had already hardened into firm
    rules of practice. In these, in the absence of a special warning
    from the trial judge, a conviction will normally be set aside as
    unsafe or unsatisfactory unless the court decides that it is safe to
    apply the proviso. I referred to these at p. 740 of the report.
    My reference to cases of alleged mistaken identity has now been
    overtaken by events, viz. by the Devlin Report (Report to the
    Secretary of State for the Home Department of the Departmental
    Committee on Evidence of Identification in Criminal Cases (1976)
    H.C. 338) and Reg. v. Turnbull [1977] Q.B. 224, and need not,
    therefore, be referred to further, but there are also references to
    what I said in Kilbourne, both in Archbold Criminal Pleading
    Evidence & Practice
    42nd ed. (1985) p. 1136 and in the judgment
    of the Court of Appeal which, in my view at least, need
    correction. In Reg. v. Hester [1973] A.C. 296, which shortly
    preceded the hearing of Kilbourne, Lord Morris of Borth-y-Gest
    had said, at p. 315:

    "The weight of the evidence is for the jury ... It is for
    the jury to decide whether witnesses are creditworthy. If a
    witness is not, then the testimony of the witness must be
    rejected. The essence of corroborative evidence is that one
    creditworthy witness confirms what another creditworthy
    witness has said. Any risk of the conviction of an innocent
    person is lessened if conviction is based upon the testimony
    of more than one acceptable witness."

    When in Kilbourne I said at p. 746 "corroboration can only
    be afforded to or by a witness who is otherwise to be believed.
    If a witness's testimony fails of its own inanition, the question of
    his needing, or being capable of giving, corroboration does not
    arise", I was there expressly referring back to this passage in Lord
    Morris' speech in Hester, and the suggestion that this is an
    alternative approach to that of Lord Reid at p. 750 would, I think,
    have astonished Lord Morris and Lord Reid as much as it did me
    when first I read it and I said as much in Reg. v. Boardman [1975]
    A.C. 421, 454. The contrary view seems to me pure fantasy.

    - 3 -

    The other point on which I would wish to comment is the
    Court of Appeal's view on my reference in Kilbourne [1973] A.C.
    729, 740 I added witnesses "of admittedly bad character" to the
    number of cases where a warning of some kind was required as to
    the danger of convicting without corroboration. I was, of course,
    using the phrase in the technical sense of witnesses who have been
    shown to be not of a character to make them worthy to be
    believed on their oath. In this connexion I must say that even if
    there were not authority to support this view, (and I believe there
    is plenty), I would regard it as a matter of sheer common sense
    that if a judge did not warn the jury of the possible danger of
    convicting an innocent man if they convicted solely on the
    disputed but uncorroborated testimony of such a person, his failure
    to do so would, apart from the proviso, make a verdict unsafe and
    unsatisfactory in the extreme. The fact is, I believe, that in the
    instant appeal, the Court of Appeal, confronted with the contrary
    decision in Reg. v. Bagshaw [1984] 1 W.L.R. 477 with which they
    rightly disagreed, were haunted by the spectre of Young v. Bristol
    Aeroplane Co. Ltd.
    [1944] KB 718. However this may be, your
    Lordships were not troubled by this spectre, nor do I wish to
    pursue it in the present case, since I am fully persuaded by my
    noble and learned friend, that Bagshaw was wrongly decided and
    that, even on the view most favourable to the appellants in
    Bagshaw and in the instant appeals, Judge Hopkin gave a perfectly
    adequate warning to the jury of the danger of convicting on the
    uncorroborated testimony of the witnesses for the prosecution. He
    not only advised them of the necessity of proceeding with extreme
    caution, but warned them specifically of the dangers they would be
    incurring if they did not do so.

    The cases which were cited to the contrary, e.g. Reg. v.
    Price (Herbert)
    [1969] 1 Q.B. 541, were, as it seems to me, cases
    in which the particular dangers were not sufficiently spelled out in
    detail as the trial judge did here.

    The only other observation I would make on the certified
    question is that the modern cases, quite correctly in my view, are
    reluctant to insist on any magic formula or incantation, and stress
    instead the need that each summing up should be tailor made to
    suit the requirements of the individual case. c.f. per Lord Morris
    of Borth-y-Gest in Reg. v. Hester [1973] A.C. 296 at p. 309, per
    Lord Pearson at p. 321, and Lord Diplock at 325, 328. In
    particular, when as here, it is agreed that no corroboration exists,
    a disquisition on what can or could amount to such if
    corroboration were needed is emphatically not required and greatly
    to be discouraged (per Lord Diplock, loc.cit.) Speaking for myself,
    I even dislike the expression "categories" as applied to the cases.
    They are simply classes of case where the experience of the
    courts has gradually hardened into rules of practice, owing, as my
    noble and learned friend points out, partly to the inherent dangers
    involved, and partly to the fact that the danger is not necessarily
    obvious to a lay mind. The less juries are confused by superfluous
    learning and the more their minds are directed to the particular
    issues relevant to the case before them, the more likely they are,
    in my view, to arrive at a just verdict.

    - 4 -

    LORD BRIDGE OF HARWICH
    My Lords,

    I have had the advantage of reading in draft the speeches
    of my noble and learned friends, the Lord Hailsham of St
    Marylebone L.C. and Lord Ackner. In regard to the first appeal I
    agree with the views expressed by my noble and learned friend on
    the Woolsack and would allow the appeal for the reasons he has
    given. I would dismiss the second appeal for the reasons given by
    my noble and learned friend Lord Ackner and answer the certified
    question as he proposes.


    LORD BRANDON OF OAKBROOK

    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Ackner. I agree
    with it, and for the reasons which he gives I would allow the
    appeals of Spencer, Ball and Mason, and dismiss those of Smails,
    Ball and White.

    LORD MACKAY OF CLASHFERN

    My Lords,

    I have had the privilege of reading in draft the speech
    prepared by my noble and learned friend Lord Ackner. I agree
    with it and with the orders he proposes in these appeals.

    LORD ACKNER
    My Lords,

    The appellants in these consolidated appeals were members
    of the nursing staff at Rampton Hospital, which is a secure
    hospital catering for patients suffering from mental disorders. The
    majority of such patients have been sent to Rampton as the result
    of court orders made under the Mental Health Act 1959 or the
    Mental Health Act 1983, by reason of their having been convicted
    of serious crimes. A television programme was shown in 1979
    which made a substantial number of allegations of ill-treatment to
    patients by the nursing staff over a period of some years. This
    led to police inquiries and resulted in fourteen separate trials at
    the Crown Court at Nottingham. In five of those trials, the
    defendants were convicted and your Lordships are concerned with
    two of such trials. The first four of the fourteen trials were
    presided over by High Court judges, and the remaining trials, with

    - 5 -

    the approval of the Presiding Judges of the Circuit, were presided
    over by His Honour Judge Hopkin.

    On 24 June 1983 in the Nottingham Crown Court, the three
    appellants, Spencer, Ball and Mason, were convicted, as to Spencer
    on six counts of ill-treating a patient contrary to section 126 of
    the Mental Health Act 1959 and as to Ball and Mason, each on
    one similar count. Spencer was sentenced to 12 months'
    imprisonment on each count concurrent, suspended for two years.
    Ball and Mason were each sentenced to six months' imprisonment,
    suspended for 18 months. On 12 October 1983 in the same Crown
    Court, the appellants White, Smails and Ball again were each
    convicted of one similar offence contrary to the provisions of the
    same section of the Act of 1959. On 19 October 1983 they were
    each sentenced to six months' imprisonment suspended for 18
    months. In both trials the convictions arose from substantially
    similar facts and the appeals were the subject of a single
    judgment in the Court of Appeal (Criminal Division) [1985] Q.B.
    771. In each appeal the same question as to the adequacy of the
    judge's direction to the jury on the way in which they should treat
    the evidence of the complainants was raised. Hence the order for
    consolidation of the two appeals before your Lordships' House.

    In all the trials, the prosecution case against the nurses
    depended very largely upon the uncorroborated evidence of a single
    patient. I say, "very largely", because there were apparently some
    alleged incidents of violence which were witnessed by patients who
    were themselves complainants to other incidents. Judge Hopkin
    fully appreciated that in those circumstances very careful thought
    had to be given as to how he should direct the jury to approach
    the prosecution's case. In one of the earlier, if not the earliest,
    of the trials over which he presided, he informed counsel, in
    advance of his summing up, of the warning which he proposed to
    give to the jury. This warning was fully approved by leading
    counsel Mr. J. R. Roberts Q.C. for the prosecution, who has
    appeared before us on behalf of the Crown, and Mr. Wilfred Steer
    Q.C. who appeared for the defence in all or the majority of the
    trials, including the two the subject matter of this consolidated
    appeal. It was further agreed between counsel and approved by
    the judge, that for the greater protection of the accused, the
    judge would inform the jury in his summing up, that one patient
    could not be treated as supporting another, with the result that
    the prosecution case depended entirely upon the uncorroborated
    evidence of a single patient. This was but one example of the
    care that was taken to ensure complete fairness to the accused.
    The judge's direction as to the way in which they should approach
    the evidence of the complainants was in substance the same in
    each case. At an early stage in his summing up he gave them a
    general instruction. There is no real difference in what he said in
    either of the two appeals and I therefore quote the language which
    he used in the first of the two trials. He said:

    "You must, ladies and gentlemen, approach the evidence of
    Mr. Hosein, Mr. Firth, Mr. Evan Glyn Hughes, Mr. William
    Hughes, Mr. Alldred, and Mr. Nugent with great caution.
    Why? Weil for three reasons, Firstly, because they are all
    persons of bad character. The law, in rules which are
    formulated over many years, requires me to tell you even if
    they were merely persons of bad character and nothing else,

    - 6 -

    that you must approach their evidence with great caution.
    It goes further than that of course In this case. The second
    reason is this, that at the time of these events they were
    all persons suffering from some form of mental disorder.
    Thirdly, they may of course have all conspired together to
    make false allegations. People make false allegations as we
    know for all sorts of reasons, some of which have been
    suggested in this case, but apart from that your own
    experience no doubt tells you that people do on occasions
    make false allegations. So therefore I must tell you that as
    far as all those patients are concerned you must approach
    their evidence with great caution. You would be wise to
    look for support for their evidence for those reasons. I tell
    you at once, Mr. Steer is right, and Mr. Roberts does not
    argue to the contrary, that there is no support for their
    allegations at all because as far as they are concerned even
    where you have two or three of them giving evidence upon
    one particular count, one witness of this type cannot support
    another. But, if, ladies and gentlemen, having seen them
    and having heard them and borne in mind the warning which
    I have given to you you come to the conclusion that you
    are sure in all or any of their cases they are telling the
    truth, then you may convict upon their evidence without
    there being any support at all. It is, as I say, for you to
    judge the facts. When I say the facts I mean also the
    importance which you attach to any particular witness and
    whether or not he is telling the truth."

    Having been given this warning, he then referred to the
    three defendants, emphasising that they were all men of good
    character, describing each in detail and referring to the
    testimonials which witnesses at the trial had given to each of
    them. He drew particular attention to the fact that the alleged
    incidents had occurred some years ago, that Rampton was part a
    prison and part a hospital, that in both parts there were outbreaks
    of violence which had to be quelled, and that those who looked
    after the patients had on occasions to resort to force. He
    referred in some detail to the absence of complaints by the
    patients, and the factors which the jury might consider taking into
    consideration when considering the significance of this aspect of
    the case. The judge, taking each count separately, then drew the
    jury's attention immediately to the character and characteristics of
    the complainant. He dealt in detail with his previous convictions,
    with his progress at Rampton, which had been the subject matter
    of medical evidence, and to the views of the psychiatrist employed
    at Rampton as to his personality defects, e.g. that he was prone
    to fabricate without any conscience and to pursue wrong without
    any feeling - he had a tendency to resentment against authority
    and to fly into a mood which might involve considerable violence
    (count one - Mr. Hosein).

    In view of my earlier reference to the judge having sought
    and obtained counsel's agreement to his proposed direction to the
    jury as to the way in which they should approach the evidence of
    the complainants, the circumstances in which his direction came to
    be criticised in the Court of Appeal is of some relevance. On 11
    May 1982 Bagshaw, Holmes, and Starkey were found guilty at the
    Crown Court at Nottingham of ill-treating patients contrary to
    section 126 of the Act of 1959 and were sentenced by Judge

    - 7 -

    Hopkin. They applied to the Court of Appeal (Criminal Division)
    [1984] 1 W.L.R. 477 for leave to appeal against these convictions
    on the grounds that they were unsafe by reason of the inadequacy
    of the evidence, asserting that it was uncorroborated and
    unsupported in any material particular and that the patients who
    gave the evidence were inherently unreliable. We were told that
    in the application for leave to appeal it was stated In terms that:
    "No criticism is or could be made of the summing up." The Court
    of Appeal apparently thought otherwise, and during the hearing
    gave leave to the appellants to amend their grounds so as to
    question the adequacy of the judge's direction to the jury as to
    the treatment of the evidence of the complainants. A short
    adjournment was granted for this new approach to be considered,
    and after hearing further submissions the Court of Appeal reserved
    its judgment.

    The warning given by Judge Hopkin in the Bagshaw case was
    in similar, though perhaps stronger terms. O'Connor L.J., in giving
    the judgment of the court, said at an early stage in the judgment
    [1984] 1 W.L.R. 477, 479:

    "We should like to say at once that the judge's summing up
    is a masterpiece of lucidity and fairness. He gave an
    impecable direction to the jury that they should treat the
    evidence of the complainants with the greatest caution.
    The question is whether these witnesses were such that a
    full warning was required, namely, that it was dangerous to
    convict upon their unsupported evidence."

    The "full warning" to which O'Connor L.J. was referring is
    the warning as to the danger of convicting upon uncorroborated
    evidence, which by rule of practice has to be given if the
    prosecution is relying upon the evidence of an accomplice, or the
    victim of a sexual offence or the sworn evidence of a child.

    Having considered the well known cases of Reg. v Kilbourne
    [1973] A.C. 729 and Reg. v. Hester [1973] A.C. 296, the judgment
    continued at [1984] 1 W.L.R. 477, 484:

    "Patients in hospital under the Mental Health Act 1959 are
    not a category like accomplices or complainants in sexual
    cases, nor would we wish to make them into an additional
    category. Patients detained in a special hospital after
    conviction for an offence or offences, even if they are not
    a category, may well fulfil to a very high degree the
    criteria which justify the requirement of the full warning in
    respect of witnesses within accepted categories. It seems
    to us that in such cases nothing short of the full warning
    that it is dangerous to convict on the uncorroborated
    evidence of the witness will suffice."

    Thus, because Judge Hopkin had not used the words "it is
    dangerous to convict" the Court of Appeal concluded that the
    convictions were unsafe and they were therefore quashed. The
    court, however, in the final paragraph of the judgment commented
    in relation to the original grounds of appeal, that if they had
    stood alone they might or might not have sufficed adding at p.
    484:

    - 8 -

    "We say that because we are conscious that in practice it
    would mean that the protection afforded to patients by
    section 126 of the Act of 1959 would be cut down to a
    large extent. It would be tantamount to saying that a
    conviction based on the uncorroborated evidence of such a
    complainant could not be safe. That would be to step
    outside the common law and usurp the function of
    Parliament."

    When the appeals with which your Lordships are concerned
    came to be heard by the Court of Appeal, differently constituted,
    the first submission made on behalf of the appellants was that the
    court was bound by the decision in Reg. v. Bagshaw, and since
    that case could not be distinguished on its facts, the appeals
    should be allowed. On behalf of the Crown, Mr. Roberts
    submitted to the Court of Appeal that the court's decision in the
    Bagshaw case was reached per incuriam. In Bagshaw, Mr. Roberts
    had not come prepared to deal with the amendment which was
    made only at the suggestion of the court. Although following the
    short adjournment he sought to deal with the new ground as
    adequately as he could in his reply, he did not deal with the point
    as fully as he would otherwise have done, and in particular the
    court's attention was not drawn to an earlier decision of the Court
    of Appeal, namely, to Reg. v. Beck [1982] 1 W.L.R. 461. In that
    case the main ground of appeal was that the judge wrongly failed
    to direct the jury that it would be dangerous to act on the
    uncorroborated evidence of three witnesses, none of whom could be
    considered as participants or involved in the crime charged, but
    who "had a purpose of their own to serve in giving evidence,
    namely to cover up false representations made or acceded to by
    them in the insurance claim." In Beck's case the appellant's
    counsel based his contention that such a warning should have been
    given essentially upon the case of Reg. v. Prater [1960] 2 Q.B.
    464. In that case a co-prisoner, who could have been considered
    an accomplice, gave evidence. The Common Serjeant did not give
    a warning in regard to his testimony and the danger of acting
    upon it unless corroborated. Edmund-Davies J. in the course of
    the judgment of the Court of Criminal Appeal said at p. 466:

    "For the purposes of this present appeal, this court is
    content to accept that whether the label to be attached to
    Welham in this case was strictly that of an accomplice or
    not, in practice it is desirable that a warning should be
    given that the witness, whether he comes from the dock, as
    in this case, or whether he be a Crown witness, may be a
    witness with some purpose of his own to serve .... In
    the circumstances of the present appeal it is sufficient for
    this court to express the view that it is desirable that, in
    cases where a person may be regarded as having some
    purpose of his own to serve, the warning against
    uncorroborated evidence should be given. But every case
    must be looked at in the light of its own facts."

    The Court of Appeal in Reg. v. Beck [1982] 1 W.L.R. 461, 468
    having considered subsequent decisions in which Prater's case was
    criticised, concluded that the phrase in Reg. v. Prater [1960] 2
    Q.B. 464, 466 "it is desirable that in cases where a person may be
    regarded as having some purpose of his own to serve, the warning
    against uncorroborated evidence should be given" is confined to

    - 9 -

    cases where witnesses may be participants or involved in the crime
    charged. The Court of Appeal further observed at [1982] 1 W.L.R.
    461, 469 that:

    "While we in no way wish to detract from the obligation
    upon a judge to advise a jury to proceed with caution where
    there is material to suggest that a witness's evidence may
    be tainted by an improper motive, and the strength of that
    advice must vary according to the facts of the case, we
    cannot accept that there is any obligation to give the
    accomplice warning with all that that entails, when it is
    common ground that there is no basis for suggesting that
    the witness is a participant or in any way involved in the
    crime the subject matter of the trial."

    The phrase, "with all that that entails," requires perhaps
    further explanation. Where there is no corroboration, the rule of
    practice merely requires that the jury should be warned of the
    danger of relying upon the sole evidence of an accomplice or of
    the complainant in the sexual case, or upon the evidence of a
    child. The warning to be sufficient must explain why it is
    dangerous so to act, since otherwise the warning will lack
    significance. The jury are, of course, told that while as a general
    rule it is dangerous so to act, they are at liberty to do so if they
    feel sure that the uncorroborated witness is telling the truth.
    Where, however, there is evidence before the jury which they can
    properly consider to be corroborative evidence the position
    becomes less simple. The trial judge has the added obligation of
    identifying such material, and explaining to the jury that it is for
    them to decide whether to treat such evidence as corroboration.
    He should further warn them against treating as potential
    corroborative evidence, that which may appear to them to be such,
    but which is not so in law, e.g. evidence of a recent complaint in
    a sexual offence. Moreover where the prosecution are relying, as
    potential corroborative material, upon lies alleged to have been
    told by the accused, a particularly careful direction is needed. A
    special direction is also often needed where evidence of
    complainant's distress is relied upon by the prosecution in sexual
    cases as potentially corroborative material. The trial judge has
    further the additional obligation of directing the jury that
    accomplices, who are parties to the same charge, cannot
    corroborate each other.

    The Court of Appeal was, in my judgment, fully entitled to
    conclude that had the court in Reg. v. Bagshaw [1984] 1 W.L.R.
    477 had the benefit of the full argument which they had had in
    these two appeals, and, in particular, had their attention drawn to
    Reg. v. Beck [1982] 1 W.L.R. 461, a different conclusion might
    have been reached. They accordingly concluded they were not
    bound by the decision in Bagshaw's case. I consider that they
    were entitled so to decide.

    In the submissions before your Lordships' House, there has
    been little, if any dispute, as to the relevant law. Counsel for
    the appellants has fully accepted the decision of the Court of
    Appeal both in Bagshaw's case and in these two appeals, that
    patients in hospital under the Mental Health Acts are not in a
    category like accomplices or complainants in sexual cases or young
    children. To create from them such a new category would clearly

    - 10 -

    Involve considerable problems of definition. What sort of patients,
    and patients with what sort of criminal records are to be
    included? The submission of the appellants, In essence, Is that
    without use of the word "danger", in any case analogous to those
    of the three established categories, and where the evidence of the
    only or principal witness relied upon by the prosecution is
    inherently unreliable, such a warning must be inadequate. I cannot
    agree. It has been said both in the Court of Appeal and in your
    Lordships' House, that the obligation to warn a jury does not
    involve some legalistic ritual to be automatically recited by the
    judge, or that some particular form of words or incantation has to
    be used and, if not used, the summing up is faulty and the
    conviction must be quashed. (See Reg. v. Russell (1968) 52
    Cr.App.R. 147, 150 per Diplock L.J.). There is no magic formula
    which has to be used with regard to any warning which is given to
    juries (Reg. v. Price (Herbert) [1969] 1 Q.B. 541, 546 per Sachs
    L.J.). As this is no mere idle process it follows that there are no
    set words which must be adopted to express the warning. Rather
    must the good sense of the matter be expounded with clarity and
    in the setting of a particular case. (Reg. v. Hester [1973] A.C.
    296, 309 per Lord Morris of Borth-y-Gest). The summing up
    should be tailored to suit the circumstances of the particular case.
    (Reg. v. Kilbourne [1973] A.C. 729, 741 per Lord Hailsham of St.
    Marylebone L.C.)

    To my mind the question raised by these appeals is both
    simple to define and simple to answer. Given that it is common
    ground that a warning was required as to the way in which the
    jury should treat the evidence of the complainants, the question is:
    was that warning: sufficient? Did it in clear terms bring home to
    the jury the danger of basing a conviction on the unconfirmed
    evidence of the complainants?

    In the three established categories where the "full warning"
    is obligatory, the inherent unreliability of the witness may well not
    be apparent to the jury. Hence the phrase often used in a
    summing up - it is the experience of the courts accumulated over
    many years etc. etc. Complainants of sexual assaults do on
    occasions give false evidence for a variety of reasons, some of
    which may not have occurred to a jury. Accomplices may have
    hidden reasons for lying, and this possibility may again not be
    apparent to a jury. Children who, although old enough to
    understand the nature of an oath and thus competent to give
    sworn evidence, may yet be so young that their comprehension of
    events and of questions put to them, or their own powers of
    expression, may be imperfect. All this needs properly to be spelt
    out to the jury. Hence the well established rule of practice.

    In other cases the potential unreliability of the sole or
    principal witness for the prosecution is obvious for all to see.
    These were such cases. The complainants were men of bad
    character. They had been sent to Rampton rather than to an
    ordinary prison, because they were mentally unbalanced. That they
    were anti-authoritarian, prone to lie or exaggerate, and could well
    have old scores which they were seeking to pay off, was not
    disputed. Notwithstanding that the possibility of their evidence
    being unreliable was patent, that it was clearly dangerous to
    prefer their evidence to that of the defendants, all men of good
    character on whose behalf witnesses had spoken in glowing terms,

    - 11 -

    the judge nevertheless told the jury In the clearest possible terms
    and repeated himself, that they must approach the evidence of the
    complainants with great caution. It is common ground that having
    given that warning, he then identified the very dangers which
    justified the exercise of great caution. He gave three reasons.
    Firstly, they were ail persons of bad character; secondly, they
    were all persons suffering from some form of mental disorder, and
    thirdly, they may have all conspired together to make false
    allegations. Thus the judge warned the jury of the dangers of
    relying on the complainants' testimony because, for the reasons
    which he gave, such testimony could well be unreliable. The
    judge, however, did not leave the matter there. As previously
    stated he pointed out, when dealing with each count, the details
    of the background of the complainant, his past criminal record, the
    nature of his mental disturbance and his history in the hospital,
    and perhaps most important of all, the hospital psychiatrist's view
    of the personality defects from which the patient suffered and of
    which I have already given a typical example. I agree with the
    Court of Appeal that he gave the emphatic warning which was
    required to meet the justice of the case. Indeed had this been one
    of the category of cases which required the "full warning" then
    the judge's direction would have been fully adequate.

    The certified point of law is in these terms:

    "In a case where the evidence for the Crown is solely that
    of a witness who is not in one of the accepted categories
    of suspect witnesses, but who, by reason of his particular
    mental condition and criminal connection, fulfilled the same
    criteria, must the judge warn the jury that it is dangerous
    to convict on his uncorroborated evidence."

    I would amend the question by substituting for the words
    "the same criteria" "analogous criteria." I would then answer the
    question in the affirmative, adding, for the sake of clarity, that
    while it may often be convenient to use the words "danger" or
    "dangerous," the use of such words is not essential to an adequate
    warning, so long as the jury are made fully aware of the dangers
    of convicting on such evidence. Again, for the sake of clarity I
    would further add that Reg. v. Beck [1982] 1 W.L.R. 461 was
    rightly decided and that in a case which does not fall into the
    three established categories and where there exists potential
    corroborative material, the extent to which the trial judge should
    make reference to that material depends upon the facts of each
    case. The overriding rule is that he must put the defence fairly
    and adequately.

    On 18 December 1984 your Lordships' House gave the
    appellants, Spencer, Ball, and Mason, leave to appeal against the
    decision of the Court of Appeal (Criminal Division) on an
    additional ground, namely "on the question whether incidents
    relating to the conduct of a member of the jury both before and
    after the juror was discharged were of such serious proportions as
    to render their convictions unsafe or unsatisfactory." The facts
    were these. During this trial it became clear both to the judge
    and counsel that one male juror, a Mr. Peet, had early formed a
    definite view of the case, which was hostile to the defendants, and
    on occasions clearly showed that he was biased against the
    defendants and in favour of the prosecution. For example, he

    - 12 -

    showed his impatience at having to listen to the cross-examination
    of one or more of the complainants. Both the judge and counsel
    were concerned at this situation, and after consultation, decided to
    take no action.

    However, a member of the jury informed a court usher that
    Mr. Peet's wife worked at the Eastdale Unit of Balderton Hospital,
    another mental hospital which figured in the evidence in the trial.
    It was an establishment to which some patients went as a half-way
    house before their ultimate discharge. Mr. Peet's wife apparently
    worked there as a cleaner. The judge was given this information
    during the short adjournment on the day before the trial ended and
    after the judge had begun his summing-up. The trial was then on
    its tenth day. The judge raised the matter with counsel in the
    absence of the jury. He informed them that he would have the
    jury back, seek from Mr. Peet confirmation of the facts which had
    been communicated to him, and if they were accurate, discharge
    him. He observed to counsel:

    "It may well be that in the course of conversation with his
    wife, he has heard things which it would be better if he had
    not. I have considered whether in the circumstances it
    would be necessary to discharge the whole of the jury but I
    do not feel that It is such a case myself."

    When the jury returned to court, Mr. Peet confirmed, in answer to
    the judge's question that his wife did in fact work at the Eastdale
    Unit. Mr. Peet asked the judge whether "it would be all right to
    wait in the ante-room "because I have got three to take back to
    Newark" - a half-an-hour journey from the court. The judge
    agreed and Mr. Peet left court. To the remaining eleven jurors
    the judge observed:

    "Members of the jury, you realise of course, I am sure, how
    very careful we have to be. Who he is giving a lift back
    to Newark, I know not. If it is any of you I must enjoin
    you, please do not discuss this case with Mr. Peet any
    further."

    By next morning defence counsel had had an opportunity of
    thinking rather more fully about what Mr. Peet had said the
    previous day, and had also learned that Mr. Peet had been in the
    habit of giving three of his fellow jurors a daily lift to and from
    their homes in Newark, which was near where he himself lived. In
    those circumstances the probabilities were that Mr. Peet would
    have aired his anti-defence opinions during those car journeys and
    possibly given his passengers other information prejudicial to the
    three defendants. Application was therefore made to the judge for
    the discharge of the remaining eleven jurors. The application was
    resisted by the prosecution. It was pointed out that if there were
    to be a retrial the witnesses would have to be recalled. Concern
    had already been expressed by doctors and others about the effect
    that the giving of evidence and the experience of being cross-
    examined had had upon the Rampton patients involved. Mr.
    Roberts submitted that the test which the judge should apply was
    that the jury should not be discharged unless it could be shown
    that there was "a very high risk" that the apparently biased juror
    had influenced any of his fellow jurors.

    - 13 -

    Mr. Roberts accepted, both in the Court of Appeal and
    before us, that he had expressed the test in terms which were too
    strict. The correct test is the one stated in Reg. v. Sawyer
    (1980) 71 Cr.App.R. 283, 285 namely, whether there was a "real
    danger" that the appellants' position had been prejudiced in the
    circumstances which I have outlined. In the course of giving his
    ruling, the judge said:

    "This is an anxious matter. I bear in mind that this case is
    now in its tenth day. I also bear in mind that so far as
    these defendants are concerned, through no fault of their
    own I hasten to add, through no fault of the prosecution,
    years have passed since they were first seen about these
    matters. I bear in mind also very much the interests of the
    patients who come to this court and of necessity are cross-
    examined about what no doubt to them, whatever be the
    truth of this case, are painful matters and which must have
    caused concern to those who have the medical care of
    them."

    In the exercise of his discretion he refused to discharge the
    remaining jurors.

    Because of the manner in which Mr. Peet had conducted
    himself in the jury box, it was very properly decided by the
    Director of Public Prosecutions, following the conviction of the
    appellants, that a statement should be taken from Mr. Peet as to
    his involvement with the other three jurymen, in particular what
    happened following his discharge. In a. written statement, which
    was put before the Court of Appeal, Mr. Peet confirmed that
    after his discharge he had given three members of the jury a lift
    back to Newark, and that "during the journey we discussed the
    case and also how it came to light about my wife working at
    Balderton Hospital." Mr. Peet returned the next day to
    Nottingham, to take his wife and son shopping. Having left them,
    he went to the court, arriving about 12.45 p.m. However, the
    summing up had been concluded and the jury had retired at 10.35
    a.m. He was told by a representative from Rampton that the jury
    were unlikely to be back before half-past-two, and in the course
    of the conversation he expressed the opinion that the defendants
    would be found guilty. He returned to the court about quarter-to-
    two, spoke to a lady who appears to have been a solicitor's clerk,
    and told her that he had been a bit upset at having been
    discharged from the jury. He told her that in his view the
    defendants would be found guilty. He stayed waiting in court until
    about 4.00 p.m. but was told that the verdict would not be until
    5.00 p.m. He went back to his car because he had told his son
    that he would be in the car park at 4.30 p.m. He then returned
    to the court at 5.00 p.m. and waited until the jury gave their
    verdict at 5.17 p.m.

    The Court of Appeal having read Mr. Peet's statement
    quoted the description of the discussion during the journey back to
    Newark with the three members of the jury following Mr. Peet's
    discharge. May L.J. giving the judgment of the court then made
    this comment at [1985] 1 Q.B. 771, 788:

    "Other parts of this statement made it quite clear that Mr.
    Peet had formed a clear view about the guilt of the

    - 14 -

    appellants but nothing to suggest that he had expressed this
    view to the three juror passengers in his car when he was
    giving them a lift home on that last occasion.
    Nevertheless, on all the material that there is before us we
    think we must conclude that In the course of that journey
    he did do just that."

    It is common ground that the judge applied the wrong test
    for the exercise of his discretion. Moreover he did not have the
    information as to what in fact had happened on the journey back
    to Newark which the Court of Appeal concluded, and in my
    judgment rightly concluded, involved the discussion of the case
    despite the judge's injunction to the contrary. It fell to the Court
    of Appeal, as it does to your Lordships, to ask themselves whether
    in ail the circumstances they were satisfied that the verdict was
    safe and satisfactory. The Court of Appeal were so satisfied, the
    substance of their judgment on this point being expressed in these
    terms at p.790:

    "The three jurors to whom Mr. Peet gave the final lift
    home had been specifically warned by the judge immediately
    after Mr. Peet had been discharged that they should not
    talk to him about the case, just as no doubt they had been
    warned on earlier occasions. It is quite true that these
    jurors did not comply with that warning and direction from
    the judge and their failure to do so is to be deplored.
    Nevertheless we do not think that in the circumstances
    there is any realistic chance that those three jurors, or any
    of them, carried with them into the deliberations of
    themselves and their fellow jurors, when the judge finished
    his summing up the following morning, any prejudice or bias
    which they had acquired from Mr. Peet the afternoon
    before. We do not forget that the convictions in this case
    were by majority verdicts reached after the jury had been
    out considering their verdicts for over 5 1/2 hours. We think
    this is readily explicable by the nature of the evidence
    which the jury had heard, and by the type of witness by
    whom that evidence had been given, and about whom and
    their evidence the judge had so fully warned the jury in the
    course of his summing up."

    It may well be that Mr. Peet, who apparently during the
    greater part of the trial had been expressing to his fellow jurors
    and in particular the three jurors whom he drove to and from
    court his firm view that the defendants were all guilty, did not in
    the conversation in his car after his discharge, add any further
    strength to the opinion which he had been expressing. However, in
    the circumstances of this case I find myself unable totally to
    discount the likelihood of such a possibility. Mr. Peet was clearly
    very concerned that the defendants should be convicted. As the
    trial judge appreciated, there was the real possibility that Mr.
    Peet in the course of his conversations with his wife may have
    heard things which it would be better if he had not. Mr. Peet
    was clearly frustrated by being discharged from the jury, despite
    the very courteous terms in which this was done by the judge.
    Knowing that he would no longer be able to influence the decision
    of the jury, he could well have used the journey home as the final
    opportunity to achieve the outcome of the trial which he thought
    was right. He may have done this in imparting information which

    - 15 -

    he had intended to reserve until the conclusion of the summing-
    up and after the retirement of the jury when all would be present
    or he might have only re-stated his views but with added
    emphasis. What the three jurors were discussing, or being
    subjected to, was the assertion by a biased, but an ex-fellow juror,
    of the necessity to convict.

    I therefore have a lurking doubt, that justice may not have
    been done, which makes me conclude that the verdict was unsafe.
    With some reluctance I find myself unable to agree with the Court
    of Appeal on this particular aspect of the first of the appeals.
    Accordingly, I would allow the appeal of Spencer, Ball, and Mason,
    and dismiss the appeals of Smails, Ball, and White.

    - 16 -


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