Neutral Citation Number: [2013] EWCA Crim 795
Case No. 2013/01143/B1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  25  April  2013

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  ROYCE

and

MR  JUSTICE  GLOBE
__________________

R E G I N A

- v -

JESSICA  MARIE  HOPKINSON
__________________

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
__________________

Mr A McDonald QC appeared on behalf of the Appellant

Mr J N Goose QC appeared on behalf of the Crown
____________________
J U D G M E N T
THE LORD CHIEF JUSTICE:

1.  On 11 February 2013, following a trial in the Crown Court at Leeds which was unsatisfactory in a number of respects, the appellant (now aged 19) was convicted of causing or allowing the death of a child, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 ("the 2004 Act").  On the same date the jury also returned a special verdict: that she had unlawfully caused the injuries from which the child died.  Her co-accused was Lee Michael Davison.

2.  After the jury convicted the appellant a number of jury irregularities came to light.  The judge therefore discharged the jury from returning a verdict in relation to the co-accused.  He is due to be retried on 5 June 2013.

3.  The prosecution arose from the death of ababy, Kristal Davison.  She was born on 25 February 2012.  She was the daughter of both defendants.  At 2.50am on 13 April 2012, when she was not two months old, she was pronounced dead.  The cause of death was brain injury, probably the result of traumatic, violent shaking.  The post-mortem examination also revealed a number of older injuries.  These included multiple rib fractures, fractures above the left knee and of the left ankle, and multiple retinal injuries.  Only two people could have been responsible for the death of the child: either of the defendants, each acting alone, or possibly both defendants acting together.

4.  Each defendant blamed the other.  There was considerable evidence that, whichever one of them it may have been, the other was or ought to have been aware that the child was at a serious and significant risk of harm from the other.

5.  The Crown's position from the outset, and throughout the trial (and indeed in their closing submissions to the jury), was that there was no sensible way of knowing from the evidence which of the two defendants was responsible, and there was no way of proving that one or other of them had treated the child with the violence which resulted in death.  All that could be proved was that one or other of them inflicted the fatal injuries.  That is why they were both charged with the offence under section 5 of the 2004 Act, and neither was charged with murder or manslaughter.

6.  Given that there is to be a retrial of the co-accused, and the decision we have reached, we shall simply record for the purposes of this judgment that there seems to us to have been sufficient evidence against both defendants to justify leaving to the jury the charge of causing or allowing Kristal's death.  Further, the facts appeared to fit precisely into the ambit of section 5 of the 2004 Act.  The evidence was insufficient to justify the conclusion that one or other of the defendants was responsible for the physical injuries which resulted in Kristal's death.  Beyond that we need not further summarise the evidence which will be examined in full in open court in due course.

7.  At the early stages of the trial the issue of a possible special verdict was raised by the trial judge.  Plainly he had in mind some of the difficulties relating to sentencing if the jury returned verdicts of guilty against both defendants.  At that stage we understand that he was asked to postpone any decision relating to a possible special verdict, but the issue came to be reconsidered at the close of the evidence.  We are told that the proposal of the special verdict was supported on behalf of the appellant, but opposed on behalf of the co-accused and by the prosecution.  The prosecution remained of the clear view that there was no reliable evidence about which of the two defendants had caused the fatal injuries.  

8.  As there was insufficient evidence on which it would be safe to convict either or both defendants of murder, there was in the Crown's view insufficient evidence to enable a safe special verdict to be returned by the jury that one or other was responsible for the fatal injuries.

9.  The judge decided that he would seek a special verdict.  By now reduced to eleven in number, the jury was directed accordingly.

10.  Following the summing-up, the jury retired on Friday 8 February 2013 to consider their verdicts.  They were sent home at the end of that day.  They returned to court on Monday 11 February and retired to continue their deliberations.  At the end of the day the jury was asked if they had reached a verdict on the co-defendant.  They had not.  They were asked if they had reached a verdict on the appellant on which they were all agreed.  They said that they had.  The appellant was found guilty of causing or allowing Kristal's death contrary to section 5 of the 2004 Act.  They were then asked whether they were all agreed that she had unlawfully caused the injuries from which the child had died.  Again they answered that they were so agreed.  That was the end of the day and the jury left court.

11.  They resumed their deliberations on Tuesday 12 February.  After lunch the judge gave them the appropriate majority direction.  The jury again retired.  At the end of the day the court adjourned and the jury left in the usual way.

12.  The following morning the jury bailiff made the judge aware of a number of troublesome matters which had been drawn to her attention by one or more members of the jury.  The judge asked that the jury be brought into court.  He told them that they could not continue with their deliberations.  Instead he asked each of them individually to write on a piece of paper any "unhappy experiences" they had had.  He emphasised that he did not want "shared experiences, just your own experience only", and if there was nothing to be said then the individual juror should say so.

13.  In due course the responses were placed before the judge.  He summarised them publicly.  Some of the jury reported nothing.  Some had anxieties they wished to report, but individually they were not significant.  However, there were two responses which gave the judge "cause for concern".  We shall not read out the lengthy responses in full.  The evidence suggested some sort of improper interference with the jury.  One juror described a "sense of discomfort and intimidation".  The second felt "very threatened and very scared" and believed that he (or she) had been followed.  Both said that they were fearful.

14.  Counsel for the co-accused noted that the observations made by the jury referred to these anxieties going back for a period which spanned at least ten days or so, that is well before the conclusion of the summing-up.  Counsel for the appellant said that he was "deeply troubled" that it was clear that at least two of the jurors had suffered intimidation for some considerable time and that they had done so without drawing their concerns to the attention of the court as they had been instructed to do at the outset of the trial.

15.  The judge gave a short ruling in which he said:

		"Within the bounds of fairness to the first defendant [the co-accused] I had tried to emphasise to the jury .... the evidence against the second defendant [the appellant], certainly in relation to the second question as to whether they were satisfied that she personally was responsible for the unlawful killing and I was surprised to the level of near astonishment that a verdict of guilty on the special verdict was returned against her, and in an ordinary case, had she been the sole defendant, on a submission that she had no case to answer in respect of that second question I would have undoubtedly acceded to that application.  It was not an application that was made, nor could it be made, bearing in mind that a special verdict was being sought also in respect of the first defendant."

The judge expressed himself to be "deeply concerned" about the safety of the special verdict.  He then summarised the responses from the jury.  He declined to adopt the suggestion made on behalf of the co-accused that the jurors should be invited to consider whether they could continue with their deliberations and, if they were prepared to do so, then return a proper verdict in accordance with their oath.  The judge took the view that the damage had already been done and that it was "too late for them to approach their task properly".  He noted the concerns described by the jurors and "a feeling of intimidation" going back to the time before they delivered their verdict in the case of the appellant.  As the jury now included two jurors who felt "intimidated, threatened, scared and one of them felt as though he (or she) was being deliberately followed", he decided that the jury should be discharged; the co-accused would be retried before a jury which was not subjected to threats and did not feel scared or intimidated.

16.  The judge took the unusual step of certifying that the case was fit for appeal.  The certificate reads:

		"(i)  In this case I granted an application made on behalf of Jessica Davison (opposed by the First Defendant Lee Davison) for a special verdict.  In the event that the jury convicted a Defendant of the offence, they were to be asked 'Are you all agreed that (the defendant with whom you are dealing) unlawfully caused the injuries from which Kristal died?'  If, at the conclusion of the evidence I had been asked to rule if there was a case to go to the jury against Jessica Hopkinson on unlawful killing I would have ruled that there was not; the only evidence being that of the co-defendant Lee Davison, which was wholly unreliable.  The reason why the special verdict was left as an option for the jury was that (a) it had been requested by those who represented her and (b) it would have been impossible to leave the possibility of a special verdict for one defendant without the other; it would have appeared that the judge was favouring one defendant over the other.

		(ii)  After the jury had returned their verdict upon Jessica Hopkinson but were continuing their deliberations in respect of Lee Davison, I received reports that they had felt threatened and intimidated by persons in the public gallery; one juror had been followed and two said they were scared and did not want to continue.  I investigated these issues and discharged the jury.  On investigation it was clear that these pressures had been building with the jury from a time before they delivered this verdict."

17.  In the grounds of appeal it is submitted that there was no evidence on which the jury could have concluded that the appellant was responsible for the fatal injuries suffered by her daughter; on that basis the special verdict was unsafe.  The Crown agrees that there was no such evidence.  However, on the basis that the judge had concluded that it was not safe for the jury to continue to deliberate and return a verdict in the case of the co-accused, and in the light of the circumstances which led him to that conclusion and the fact that they had preceded the date when the jury convicted the appellant, it is submitted that the jury's verdict was as unsafe in her case as it would have been if they had convicted the co-accused.

18.  The Crown has not opposed this appeal against conviction.  It is accepted that, following a careful enquiry of the jury by the trial judge about complaints of intimidation, there was sufficient evidence to support his conclusion and his decision to discharge them from returning a verdict in the case of the co-accused was  justified.

19.  The Crown's position appears to be, and we agree with it, that it would not be logical or fair (and perhaps more important, safe) to seek to uphold the conviction of the appellant or the special verdict.  On the basis of the judge's findings of fact relating to jury intimidation and pressure, pre-dating the verdict against the appellant and indeed pre-dating the retirement of the jury, the conviction cannot be upheld.  If, on the basis of the material available to the judge, it was appropriate for the jury to be discharged before they returned any verdict relating to the co-accused, the verdict they returned in the case of the appellant should be regarded as similarly flawed and subject to the same problems.  In other words, for the reasons which led the judge to discharge the jury from continuing their deliberations in the case of the co-accused, the verdict of the jury was flawed: the jury process had failed.

20.  We shall order a new trial.  We shall make no further comment about the evidence.

21.  We must, however, add some words of caution.  The mere fact that the judge himself disagreed, even if profoundly, with the verdict of the jury does not of itself provide a ground for quashing the convictions.  Any such approach would undermine the essential constitutional principle that the responsibility for the verdict rests with the jury and that the jury verdict must be respected by the court.  Our conclusion that this conviction is unsafe is not based, because it cannot be based, on the personal views expressed by the judge about the jury verdict.

22.  This appeal also serves to highlight the problems of seeking special verdicts from juries.  There will be occasions (very rare) where in the context of a trial for murder, where the alternative defences include, for example, diminished responsibility, loss of control, and lack of the necessary intent, the judge may think it advisable to seek a special verdict.  But even in the context of a murder trial a special verdict should continue to be a rarity.

23.  Without suggesting that we are entitled in this court to abolish the special verdict procedure, we have offered a shorthand way of suggesting that we do not expect special verdicts to be sought in other cases; and, at least, that the taking of special verdicts has fallen into virtual desuetude.  In particular it is inappropriate for a special verdict to be sought in the context of the legislation in section 5 of the 2004 Act which was deliberately created just because of the inevitable difficulties of proving which of two defendants was responsible for the infliction of fatal injuries on a child when there are no other candidates, and neither defendant appears to be willing to tell the truth about the incident.

24.  In the new trial,the verdicts should be sought on the basis of the indictment without any reference whatever to any special verdicts.  The jury will make up their own minds whether the case against either of the defendants has been proved on the basis of the evidence that they will hear at the forthcoming trial.

25.  The appeal against conviction will be allowed and the conviction quashed.  The defendant will be retried on the original count in the indictment.  A fresh indictment will be served.  She will be re-arraigned on the fresh indictment within one month, Mr McDonald, if that is convenient to you?

MR McDONALD:  It can be arranged, my Lord, certainly.

THE LORD CHIEF JUSTICE:  We need to have everything in order so that the trial goes ahead on 5 June.

MR McDONALD:  Of course, my Lord.

THE LORD CHIEF JUSTICE:  So there should not be a problem.

MR McDONALD:  There is not, and there will be no bars to the trial proceeding on 5 June.

THE LORD CHIEF JUSTICE:  Any problem to you, Mr Goose, if we say one month?

MR GOOSE:  Not at all.

THE LORD CHIEF JUSTICE:  She will be re-arraigned on the fresh indictment within one month.  Now, the defendant has been on bail, has she not?

MR McDONALD:  She has, my Lord, yes.

THE LORD CHIEF JUSTICE:  We propose to continue her bail on the same terms as they currently exist.  We make an order under section 4(2) of the 1981 Act restricting reporting of these proceedings until after the conclusion of the retrial.

MR McDONALD:  Yes.

THE LORD CHIEF JUSTICE:  It will cease to have effect on the date when the jury in the next trial returns its verdicts.

MR McDONALD:  I am grateful, my Lord.

THE LORD CHIEF JUSTICE:  The specific purpose is obviously that we do not wish to prejudice the further trial.  There may be an interesting argument -- I have views about what the answer should be, but I will not comment on it -- about what effect, if any, should be attached to the decisions made in this trial.  No doubt, Mr McDonald, you will be armed to deal with the argument.

MR McDONALD:  Yes, my Lord.

THE LORD CHIEF JUSTICE:  Very well.  The trial will take place -- in strict theory it is for the presiding judge of the circuit -- at Leeds Crown Court on 5 June 2013.  As far as we are concerned, the appropriate order is for a joint trial, but that is subject to any submissions to the trial judge.

The original representation order does not cover a retrial, and now representations for a retrial have to be made elsewhere.

MR McDONALD:  Yes.

THE LORD CHIEF JUSTICE:  I am sorry that we cannot do that.  As far as we are concerned, Mr McDonald, the same representation would be appropriate.

MR McDONALD:  I am grateful.

THE LORD CHIEF JUSTICE:  But that is not for us to decide.  Very well.  Is there anything else?

MR McDONALD:  No, thank you very much.

MR GOOSE:  Thank you, my Lord.

THE LORD CHIEF JUSTICE:  As I said earlier, thank you both very much for your assistance.
	_____________________________