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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McCann, R v [2009] EWCA Crim 819 (6 April 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/819.html Cite as: [2009] EWCA Crim 819

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 6 April 2009

1. LORD JUSTICE SCOTT BAKER: The appellant appeals with the leave of the single judge against his conviction for murder on 21 April of last year before Judge Peter Thornton QC and a jury at the Central Criminal Court. The conviction was by a majority of ten to two. He was sentenced to life imprisonment with a minimum term to serve of 21 years less the 629 days that he had spent on remand.
2. The basic facts of the case are these. Shortly before 7 o'clock on the morning of Thursday 27 July 2006 the appellant forced his way into a ground floor flat in Albert Road, Twickenham, where Luke Lodge, the deceased, was staying. The deceased had spent the night there with his girlfriend, Anna Gray, and two friends, Lucy Buchan and James Chadwick. When the appellant arrived at the address he was wearing a ski mask, sunglasses and surgical gloves in an attempt to disguise himself. He had a burning dislike of the deceased, whom he regarded as a bully, and there had been an earlier dispute between the pair over a missing mobile telephone. The appellant was intent on revenge.
3. He pushed past Anna Gray, "Get her out of the way," and made straight for the bedroom where the deceased was asleep. The deceased, who had been woken by his arrival, tried to grapple with the appellant, but to no avail. The appellant refused to let go of a knife that he was carrying and was heard to shout, "I am going to kill you." During the course of the struggle the deceased sustained several stab wounds, the fatal wound being to the back, and various cuts to his hands which were consistent with being defence wounds.
4. Anna Gray tried to intervene, pulling the ski mask from the appellant's head. As soon as she did so, she recognised him and shouted out his name. As the appellant ran from the flat he passed Lucy Buchan, who also recognised him, and James Chadwick heard both women use his name when they shouted at him.
5. The appellant fled from the scene and went to the home of his girlfriend, where he arrived blood stained and injured. Although he did not tell his girlfriend what had happened, he told her mother that he had been in a fight and that "it may be bad."
6. From there he travelled to the flat of some friends where he had spent the previous night. Once there he received treatment for an injury to his face that he had sustained during his attack on the deceased. He said to one of his friends, "I've been round to Luke's and had a fight with Luke and I've stabbed him." He was also heard to say, "That will teach him to fuck about with me."
7. When he was subsequently stopped by the police a few hours later he gave a false name and address. When he was arrested he claimed he did not know what they were talking about and later denied even knowing who the deceased was.
8. At his trial he ran two alternative defences. The first was that he was not the attacker at all, that he was the victim of mistaken identity and possibly malicious identification, and that he had suffered from a black-out. The second line of defence was that of diminished responsibility.
9. The ground on which the single judge gave leave to appeal relates to the so-called Watson direction given by the judge to the jury. There was another ground of appeal which was raised in the grounds on which the judge did not give leave to appeal, but which Mr Rouch on the appellant's behalf has renewed before us today. That ground, which we shall deal with first, relates to self-defence. The complaint is that following two notes from the jury questioning self-defence, that the judge should have left self-defence to the jury and given them a direction about it.
10. As it was put by junior counsel at the time:

"The difficulty it seems is that the jury now twice have illustrated, it would appear by way of a note, that they have in their minds the concept of a fight."

11. When the judge gave written directions to the jury he had, first of all, raised with counsel in the appropriate way what his proposed directions should be and the terms in which they would be given. It was agreed on all sides that self-defence did not arise, and, indeed, the judge so directed the jury.
12. One can well understand why the judge reached this conclusion and one can well understand that it was very much in the interests of the defence that only those matters which arose on the evidence were put before the jury for their consideration. It is well settled that, despite the views of the defence, if self-defence arises on one view of the evidence the issue ought to be left to the jury and the jury should be appropriately directed about it.
13. Mr Rouch now submits before us that self-defence did indeed arise on the evidence in this case. He so submits on the following basis. First, he says that the appellant was not seen with the knife before going to the bedroom. Secondly, he says that there is evidence that the deceased had used a sharpened weapon during a previous confrontation when he had armed himself with a screwdriver. Thirdly, he said that a witness called Brooking said that the deceased had previously threatened him with a knife. Fourthly, there was evidence from the appellant that he had seen the girlfriend threaten the deceased with a knife on a previous occasion. Finally, there was a screwdriver in the bedroom and there was no reason why such a potential weapon should have been in the deceased's room.
14. Mr Glasgow for the Crown points out that the intruder, who the Crown of course say was the appellant, came into the premises disguised by a mask. He kicked open the front door and made a threat to kill the deceased which threat he indeed carried out. The plain inference was that he came into the premises armed with the knife that was used. There was no indication that the victim, the deceased, was lying awake, that this was anything other than a direct attack by the appellant and indeed the fatal wound is to be found in the deceased's back with defence wounds to the hands.
15. Mr Glasgow submits that an important function of the judge is to make sure that the jury is not side tracked into going into issues that do not in truth arise. In the event that it appears to him that the jury may be doing so, it is up to the judge to try and lead them back to the path from which they have strayed.
16. In our judgment the judge was absolutely correct in declining to give any direction to the jury on self-defence following the two notes. What he did was to explain quite simply to them that it was not an issue in the case and indeed never had been. Accordingly, we refuse the renewed application to grant leave on that ground.
17. As to the Watson direction, the jury retired to consider their verdict at about quarter past 2 on Tuesday 15 April. At quarter past 4 they were sent home for the night with the usual overnight direction. They returned and continued their deliberations the following day and shortly after 2 o'clock on Thursday 17 April they were given a majority direction.
18. On Friday 18 April they returned to court at about ten minutes past 2 with a further note to the judge. We would add that over the period of the trial the jury had been quite prolific in the notes that they had sent to the judge. The judge, entirely appropriately in our judgment, did not disclose the contents of the note to counsel or put it into the public domain. As is customary in these situations he pointed out to the jury that it was a matter that had to remain between him and them.
19. The judge did, of course, have counsel back into court and he said this:

"I have received a note from the jury. I cannot show it. I am considering giving a Watson direction which is not something that I do lightly and not something that I encourage. But plainly something needs to be said. Since I am only allowed to say the precise words of a Watson direction, then I turn to a Watson direction."

20. He had the jury back into the court and gave them a direction following very precisely the words approved by this court in Watson. What he said to the jury was this:

"Each of you has taken a oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your tasks is to pull that which is come domestic and experience. You do that by giving views and listening to the views of the others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If unhappily ten of you cannot reach agreement you must say to so."

21. That direction was given at 20 minutes to 3 on the Friday afternoon. We would add that it was given despite the reservations expressed by counsel.
22. The jury was allowed a little longer than they had been on previous days and at 4.36 they were asked if there was a possibility of a verdict if they were given more time. The foreman said that there was. They went home for the weekend at 4.37 and returned on the morning of Monday 21 April where they retired again for a further one hour and 22 minutes and then produced their verdict of guilty by the majority of ten to two.
23. Mr Rouch submits that in consequence of the Watson direction being given there is a very real risk that the jury were subjected to undue pressure and that this was not the free and voluntary verdict that would ordinarily be expected.
24. We observe, however, two points. First of all, that the jury had been in retirement for a very considerable period of time before they were given the Watson direction and, secondly, and more significantly in out judgment, this is not a case where they returned a verdict shortly after the direction was given to them. They deliberated for the remainder of the Friday afternoon and for a further one hour and 22 minutes on the Monday. We are not persuaded that there is any substance in that point advanced by Mr Rouch.
25. It is perfectly clear that it was the note that triggered the judge to give the direction. He said, having received the note, that "plainly something needs to be said". Judges are discouraged from routinely giving a Watson direction. The position is that they are only relatively rarely given, but when they are given they are given in the discretion of the judge and it is not suggested that in appropriate circumstances there is anything wrong in law about the giving of such a direction.
26. This was a case that had lasted for a number of days. There was more than one issue that the jury had to decide. First of all, whether the appellant was indeed the intruder and the assailant, whether he had blacked out, as he claimed, and the issue of diminished responsibility. We do not think that the judge can be faulted for exercising his discretion in this case to give a Watson direction. We do not think that the safety of the verdict is in any way threatened. Accordingly we dismiss the appeal against conviction.