Law Report: Jury agreement on guilty verdict: Regina v Mitchell - Court of Appeal (Criminal Division) (Lord Justice Simon Brown, Mr Justice McCullough and Mr Justice Swinton Thomas), 28 May 1993

Where a number of different acts were alleged in a single count of an indictment, each of which was enough to found a guilty verdict, and there was a realistic risk that the jury might think that, so long as all 12 agreed the defendant had committed one of the acts alleged, even though they did not all agree as to which, they could and should convict, then the judge should direct them that they must be unanimous as to proof of the particular act relied on to found their verdict of guilty.

The Court of Appeal (Criminal Division) allowed an appeal by Emmerson Mitchell and quashed his conviction, in the Crown Court on 8 November 1991, before Mr Recorder Heggs, for an offence of unlawful harassment of an occupier, contrary to section 1(3)(a) of the Protection from Eviction Act 1977.

The count upon which he was convicted alleged that he 'on various dates between 17 April 1990 and 31 December 1991, did acts likely to interfere with the peace and comfort of Mr Hans Kohlbacher, the residential occupier . . . namely threatened (him) with violence and eviction and assaulted him, commenced building works in the said premises but never completed the same and changed the locks to the premises, knowing or having reasonable cause to believe that such conduct was likely to cause (the occupier) to give up occupation of the said premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the said premises'.

Jeremy Ornstin (assigned by the Registrar of Criminal Appeals) for the appellant; Alison Gulliver (Solicitor, Lambeth London Borough Council) for the prosecutor.

MR JUSTICE SWINTON THOMAS, giving the court's judgment, said it was clear a number of separate and different acts were alleged against the appellant, each amounting to unlawful harassment. It was a case in which the jury were entitled to find one or more or the acts proved and others not proved.

The appellant contended that the recorder did not direct the jury that, to reach a unanimous verdict, they must all be satisfied that a particular act complained of was proved, ie, that all 12 jurors were sure in respect of that particular act.

The principles to be applied in such cases were as follows:

(1) Where a number of different matters were set out in a single count, the judge should consider whether to give the jury a direction that they must all be agreed on the particular ingredient which they relied on to find the defendant guilty of the offence charged: see Brown (1984) 79 Cr App R 115.

(2) Such a direction would be necessary only in comparatively rare cases. In the great majority of cases, particularly cases alleging dishonesty or where the allegations stood or fell together, it would not be necessary.

It was of first importance that directions to the jury should not be overburdened with unnecessary warnings and directions which only served to confuse them: see Price (1991) Crim LR 465 and More (1988) Cr App R 234.

(3) However, in an appropriate case, where there was a realistic danger that the jury might not appreciate that they must all be agreed on the particular ingredient on which they relied to found their verdict of guilty on the count, and might return a guilty verdict on the basis that some had found one ingredient proved and others another, so they were not unanimous as to the ingredient which proved the offence, a direction should be given that they must be unanimous as to the proof of that ingredient: see ) More, per Lord Ackner at 252.

In the present case, there was a real risk that, unless otherwise directed, the jury might have thought that so long as all 12 were agreed the defendant had committed one of the acts alleged, even though they were not all agreed as to which act, they could and should convict.

The recorder should have directed the jury that they should be unanimous as to proof of the particular ingredient relied upon to found their verdict of guilty. No such direction was given.

The conviction must therefore be quashed.

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