JUDGMENT

(Approved)

1. Mr Justice William Davis: On 31 October 2017 in the Crown Court at Stoke-on-Trent, Ralph Patten was convicted of one of offence of indecent assault, contrary to section 14 of the Sexual Offences Act 1956, two offences of indecency with a child, contrary to section 1 of the Indecency with Children Act 1960 and one offence of rape, contrary to section 1 of the Sexual Offences Act 1956. He was acquitted of three other counts of indecent assault and five other counts of rape.

2. On 16 February 2018 Patten was sentenced to a total of 15 years' imprisonment. For reasons which will become apparent shortly the makeup of these sentences is immaterial for our purposes.

3. On 21 August 2018 Patten applied for leave to appeal against the sentence imposed. His application was about 5 months' out of time. Upon receipt of the application, Mr Ian Dowty (a lawyer in the Criminal Appeal Office), realised that there had been an obvious irregularity at the trial, which, on the face of it, gave rise to a ground of appeal against conviction. Mr Dowty informed those representing Patten. As a result, on 19 September 2018 Patten applied for leave to appeal against his conviction, this application being some 10 months out of time. Both applications have been referred to the Full Court by the Registrar.

4. We shall grant leave to appeal against conviction and extend time accordingly.

5. It is unnecessary to rehearse the facts which gave rise to Patten's trial other than in outline. The issue which concerns us is the manner in which the jury returned their verdicts. The complainant in relation to the sexual misconduct said to have been committed by Patten was a girl (to whom we shall refer as “C”) whose family was friendly with Patten. He visited the family home regularly. From when C was aged about 12 (in around 1998), he had kissed her on the lips as part of a grooming process. This behaviour constituted the indecent assault. When C was aged 14 or 15 Patten had made her touch his penis over his clothing on occasions and had made her perform oral sex on him on at least three occasions. This activity was reflected by the two counts of indecency with a child. When C was 15 Patten had raped her. C became pregnant as a result. She gave birth to a baby boy in June 2003.

6. C first complained about Patten's sexual misconduct in October 2011 when she was aged 21. By this point Patten was in Thailand. He did not return to the UK until October 2014. When interviewed he denied any sexual assaults. When later it became apparent from DNA comparison that he was the father of C's child, Patten then admitted that he had had sexual intercourse with her but said that it had been consensual and that she had been 16 at the time. The counts in respect of which Patten was acquitted were other offences of indecency and rape alleged to have been committed from when C was aged 7 and counts of rape alleged to date after C's 16th birthday.

7. Patten's trial commenced on the afternoon of 24 October, after a false start the day before. On 26 October a juror fell ill and was unable to attend court. Because C by 3now had given evidence, the trial judge concluded that the trial should continue. The juror was discharged leaving a jury of 11. The judge directed the jury on the relevant law on the afternoon of Friday 27 October. On the morning of Monday 30 October, the judge summed up the evidence called in the trial. The jury retired to consider their verdicts at around 11.30 on that morning. One of the last directions given by the judge related to the requirement for unanimous verdicts. He said that this meant “12 to nothing in relation to each count one on the indictment”. Immediately after the jury left the courtroom counsel reminded the judge that there were in fact only 11 members of the jury. It was agreed that it was not necessary to say anything further at that point, counsel simply said that it would have to be borne in mind “if we have to come back to it”.

8. The jury remained in retirement for the rest of the day on 30 October, returning to court on two occasions for the judge to deal with questions raised by them. The jury resumed their deliberations just after 10.00 am on 31 October. Just before the lunch adjournment the judge told counsel that he intended to give a majority direction immediately after lunch. He invited comment. Neither counsel demurred from the course indicated by the judge.

9. At 2.12 pm on 31 October the judge said this to the jury:

10. The jury at this point had not been asked whether they had reached any unanimous verdicts. It does not appear from the material we have seen that the jury communicated anything to the judge about their progress (or lack of it) towards verdicts.

11. At 2.47 pm the jury returned to court. Six hours and 36 minutes had elapsed since their first retirement. This question was posed by the clerk:

12.

The foreman answered “Yes”. The clerk proceeded to take the verdicts. Where Patten was found not guilty, nothing was said in relation to the number of jurors who agreed with the verdict. This was in accordance with the Criminal Practice Direction Part VI paragraph 26Q.4. In relation to the verdicts of guilty, the clerk asked whether the verdict was “of you all or by a majority”. In the case of each verdict of guilty the foreman said that it was a majority verdict. The clerk then asked how many agreed 4and how many dissented. In each case the foreman replied 9: 2. This also followed the procedure as required in paragraph 26Q.4. The judge then adjourned sentence to a date to be fixed. Nothing was said at any point about the nature of the majority by which Patten had been found guilty.

13. We observe that although defence counsel who had conducted the trial was present throughout, prosecution counsel, who has appeared before us today, had been excused, doubtless for good reason on the Friday afternoon and so was not present during any part of the proceedings involving the giving of the majority direction or the taking of verdicts.

14. Section 17(1) of the Juries Act 1974 is in these terms:

15. Thus, where there are 11 members of the jury, at least 10 of them must agree on the verdict. Only if the jury has reduced in number to 10 can a valid verdict be returned where nine members of the jury agree.

16. In relation to the counts in respect of which Patten was convicted the verdicts were invalid. The convictions cannot stand.

17. The live issues are as follows. First, what order should we make in relation to the counts where Patten was convicted but invalid majority verdicts were returned? Second, what is the effect of the course of the events we have recounted on the acquittals?

18. Up to the point at which the verdicts were returned the proceedings were valid. The indictment on which Patten was tried was regular. The jury was properly constituted. The majority direction was given after the jury had been in retirement for around 6 hours i.e. well in excess of the period of 2 hours identified in section 17(4) of the 1974 Act. Before the majority direction was given, the jury were not asked whether they had reached any unanimous verdicts. This was contrary to the procedure set out in paragraph 26Q.3 of the Criminal Practice Direction. This however did not invalidate the proceedings. Nor was it a material irregularity. It should not be thought that we are condoning a failure to follow the Practice Direction. Rather, we are satisfied that, on the facts of this case, the failure to follow the procedure in paragraph 26Q.3 did not of itself affect the validity of the verdicts which followed.

19. The majority direction was a misdirection. Again, of itself, the misdirection did not invalidate the verdicts which followed. Had the jury convicted Patten unanimously or 5by a majority of 10: 1, their verdicts would have been valid and the convictions would have been unimpugnable. The verdicts would have satisfied the terms of section 17(1) of 1974 Act.

20. However, the result of the misdirection was that the jury returned verdicts of guilty that were invalid. Thus, the trial concluded without the jury ever having returned a valid verdict in relation to those counts in respect of which Patten was convicted. The appropriate course in those circumstances is for this court to issue a writ of venire de novo.

21. Mr Janner QC, who did not appear below but now appears on behalf of Patten, argues that such a writ should not be issued. His case is that the power to issue the writ of venire de novo arises where a trial is a nullity. Here there were invalid verdicts of guilty but the trial as a whole was not invalid. Thus the writ does not apply. We respectfully disagree. We do not intend to engage in a detailed consideration of the history of the writ of venire de novo or of its modern application. This court engaged in that exercise in R v Stromberg [2018] 2 Cr App R 5, in the course of which all of the relevant authorities were reviewed. The nub of the decision in Stromberg, is that the writ of venire de novo is a remedy available to this court, where a conviction is null and void. It is a remedy exercisable upon appeal to this court against conviction. This court will be concerned whether the conviction in question was valid. A conviction resulting from a verdict expressed to be by a majority insufficient to meet the requirements of section 17 of the 1974 Act is invalid. The fact that Patten was acquitted on other counts is of no relevance. In exercising our jurisdiction under Part 1 of the Criminal Appeal Act 1968, we are concerned only with the convictions. Each of the convictions in this instance was the result of an invalid verdict. It follows that we are entitled to apply the remedy of the issue of a writ of venire de novo.

22. In its modern form the issue of a writ of venire de novo serves simply to annul the convictions resulting from invalid verdicts. Whether a new trial also is ordered is a matter of discretion. Mr Janner invites us to exercise our discretion in favour of Patten and not to order a new trial. He argues that there were acquittals on the majority of the counts, that there was ambiguity in the evidence as to the age of C when she conceived the baby born in June 2003 and that Patten, a man of 58 and of effectively good character, has already served the equivalent of a sentence of 3 years' imprisonment. Mr Janner also argues that there was a lack of any independent support for the evidence of C, though the established paternity of C's child appears to us to defeat that argument. Nonetheless, we have no doubt that we should exercise our discretion to order a new trial on the counts in relation to which invalid verdicts of guilty were returned. On the prosecution case, Patten groomed a child over a period of years, culminating in rape which led to pregnancy. These allegations are serious and justice requires that they should be the subject of valid verdicts.

23. The second issue concerns the counts in respect of which Patten was acquitted. The Crown contends that the misdirection in relation to a majority verdict invalidated all of the verdicts returned by the jury. It is argued that the verdicts were not returned by a properly constituted jury. In those circumstances, it is said that all of the verdicts 6should be declared null and set aside. The order for a new trial should be an order requiring a new trial on all of the counts on the original indictment.

24. We do not accept these submissions. As we have said, the judge's misdirection of itself did not invalidate the subsequent verdicts. The invalidity of the verdicts of guilty arose at the point when the jury stated that those verdicts were by a majority of 9 to 2. Moreover, the jury was properly constituted. What renders the convictions null is the terms of those verdicts.

25. As we say, the Crown submits that all of the verdicts should be set aside and that a new trial should be ordered on all counts. This submission is unsustainable. First, the remedy of the writ of the venire de novo is a remedy exercisable on an appeal against conviction. It is intended to be used to set aside a conviction or convictions. It is not and never has been a remedy to set aside an acquittal. The Crown concedes there is no reported instance of a writ on venire de novo being issued in respect of an acquittal. That is because it is not available as a remedy for that purpose. Second, even if it were available the writ of venire de novo could not be issued in respect of these acquittals. The invalidity of the verdicts of guilty was apparent on the face of the record because the jury stated in open court that they had been convicted by a majority of 9: 2. The same cannot be said of the acquittals. We have noted that the provisions of the Criminal Practice Direction were followed and that no question was asked as to whether the verdicts of not guilty were unanimous or by a majority. The verdicts were regular on their face.

26. The Crown seeks to make good its submission by referring to what was said by Lord Diplock in R v Rose [1982] AC 822 in relation to the earlier authority of Crane v DPP [1921] 2 AC 299, where Lord Diplock said this:

27. The case of Crane involved a trial on an indictment which was invalid from the outset. It offended the rules in relation to a joint trial of separate indictments. Thus, Lord Diplock in citing the case of Crane was concerned with the case of a trial on indictment which did not exist, in which event there was no trial at all. This case is very different. It involves the validity of verdicts which came at the end of a trial which otherwise was regular in every respect.

28. It follows that the order we make is the issue of a writ of a venire de novo in respect of the four counts in respect of which Patten was convicted and we order a retrial in relation to each of those counts. This will be a trial of the extant counts on the existing indictment. The venue for that trial will be determined by a Presiding Judge of the 7Midland Circuit. In the circumstances we need say nothing about sentence and we see no need to extend time or to grant leave.

29. We cannot leave this appeal without observing the grave consequences which have followed the erroneous direction given by the judge. Mr Janner says, entirely accurately, that the initial error was the judge's error. But this error should have been obvious to all who heard it. The error led to unlawful and invalid verdicts being taken. The taking of the verdicts was a further opportunity to correct the error. The giving of a majority direction and the taking of verdicts can very often be regarded as a formulaic exercise to which limited attention needs to be paid by the parties. This case demonstrates how unwise that proposition is. The need for all parties to concentrate at all times on the directions being given and the taking of verdicts is paramount. Had those concerned with this case on that Monday afternoon done what they were supposed to do, none of this would have been necessary.

30. PRESIDENT OF THE QUEEN'S BENCH DIVISION: What is the appellant's position, Mr Janner?

31. MR JANNER: He is in custody.

32. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Can I suggest that if there is to be an application, and I am not saying there is or should be or should not be, that it be made to the Crown Court.

33. MR JANNER: That is what I assumed would be the case.

34. PRESIDENT OF THE QUEEN'S BENCH DIVISION: We direct that the appellant be held in custody on the basis that any application for bail should be made to the Crown Court.

35. We make an order under section 4(2) of the Contempt of Court Act restricting reporting of the proceedings until after the conclusion of the retrial or further order. We remind all parties that the provisions of the Sexual Offences (Amendment) Act apply and there is to be no identification of material which causes the identity of the victim to be known.