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Status: Mixed or Mildly Negative Judicial Treatment

*276 R. v Edward Reginald Mansfield

Court of Appeal
18 March 1977

(1977) 65 Cr. App. R. 276

Lord Justice Lawton , Mr. Justice Cusack and Mr. Justice Jupp
March 17, 18, 1977
Evidence—Similar Facts—Admissibility—Similarity of Opportunity, Location and Method.
If similar fact evidence cannot be explained away as coincidence, then only does the question of admitting it as
a method of proof come to be considered.
Test laid down by Lord Widgery C.J. in Rance and Herron (1975) 62 Cr.App.R. 118 , 121 applied .
Evidence—Submission of No Case to Answer—Whether Evidence so Unsafe as to Make Verdict Unsafe—Mere
Irregularity Insufficient.
Counsel for the defence may, at the end of the case for the prosecution, submit that the evidence so far adduced
is so unreliable as to make the jury's verdict unsafe if they relied upon it. But the case cannot be stopped merely
because the trial judge thinks that the prosecution witnesses are lying, provided there is evidence to establish the
facts of the crime charged. To justify the quashing of a verdict of the jury on appeal, it must be shown that the
refusal of the judge to allow a submission of no case resulted in not merely an irregularity but a material
irregularity in the course of the trial.
Young (1964) 48 Cr.App.R. 292; [1964] 1 W.L.R. 717 considered .
Dictum of Lord Widgery C.J. in Barker (1975) post, at p. 288 applied .
Evidence—Summing-up—Direction to Jury as to Approach on Similarity of Method on Three Counts of
Arson—Evidence to be Considered.
Where on an indictment containing three counts of arson it is established that all three hotel fires were
deliberately started by the same man, the jury can be allowed to consult a schedule of employees at the hotels
concerned and their evidence, which assumed that the fires had been started by a staff member, in order to
establish which staff member it was. Nevertheless, the modern practice of producing schedules for the
consideration of the jury has no magic quality about it, for a schedule by itself proves nothing, but is merely a
convenient way of summarising, on one or more sheets of paper, the effect of the evidence given by a number of
witnesses.
Harris v. Director of Public Prosecutions (1952) 36 Cr.App.R. 39; [1952] A.C. 694 distinguished .
Trial—Verdict—Direction to Jury as to Desirability for Unanimity on Re—Trial—Subsequent Direction as to
Majority Verdict.
Where a trial judge, in endeavouring to persuade a jury to reach a unanimous verdict on a re-trial, uses the
Walhein (1952) 36 Cr.App.R. 167*277 direction, that exhortation will not have a bearing on a subsequent
direction about a majority verdict. 1 However, in such a case, it is better not to refer to the public inconvenience
and expense of a disagreement where a second re-trial would in all probability not be ordered.
Appeal against conviction and sentence.
On November 12, 1975, at the Central Criminal Court (Cobb J.) the appellant, on a re-trial, was arraigned on an
indictment containing 10 counts, three (counts 1, 9 and 10) charging him with arson and seven (counts 2 to 8)
with murder. On December 1, 1975, he was convicted on counts 1, 9 and 10. On counts 2 to 8 he was convicted
of manslaughter. He was sentenced to life imprisonment concurrent on all 10 counts.
The following facts are taken from the judgment.
On the night of December 12, 1974, the appellant, who was a foreman kitchen porter employed at the Piccadilly
Hotel in the West End of London, was occupying a room numbered 106 at the Worsley Hotel in the Bayswater
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area. That hotel was used by the Grand Metropolitan Hotel Group of Companies as a hostel for employees of its
various hotels in the Central London area. On the night of December 12, 1974, about 180 employees of the
Grand Metropolitan Hotel Group were sleeping in the Worsley Hotel. Of those 180 employees nine were people
who worked at the Piccadilly Hotel. In the early hours of the morning a disastrous fire broke out in the Worsley
Hotel. As a result of that fire seven persons met their death. In counts 2–8 the appellant was accused of the
murder of those seven persons.
There were two seats of fire in the Worsley Hotel: one on the ground floor level and one on the second floor
level. When the alarm was given valiant efforts were made by the man who managed the Worsley Hotel to
arouse those who were sleeping there. When the fire appliances arrived further efforts were made by the firemen
to get as many people as possible out of the hotel. They succeeded in getting out a large number of people but of
course not all. Very soon after the alarm had been sounded the appellant was seen in the street outside the hotel
wearing trousers, a singlet and a three-quarter length coat. He was one of very few of the occupants of the
Worsley Hotel who had managed to get out wearing clothes other than night attire.
When inquiries started as to what had caused the fire the appellant answered a police questionnaire and said in
the course of answering it that he had been rescued by the firemen. At his trial he repeated this. That was almost
certainly a lie. His explanation for being dressed when nearly everyone else was in their night attire was that he
had slept in his singlet and pants and, when rescued by the firemen he had had time to put on his trousers and
pick up his coat before leaving his room.
The next fire occurred at the Piccadilly Hotel. That was in the evening of December 19, 1974. On that occasion
a fire broke out at about 7 p.m. in a corridor just outside the storeroom where the appellant did his work as a
foreman kitchen porter. That fire, fortunately, was quickly put out, but it was noticed that the appellant who had
had at the Worsley Hotel a terrifying experience, if he is right in his submission that he was in no way
concerned with the starting of the fire there, took no interest in this fire; he made no attempt to help put it out
and did not even go, as far as the evidence shows, to see what was happening. *278
The next day, when he was on duty, he again seemed to show no interest in this fire. Later, when he was seen by
the police, his explanation for not taking any interest in the fire on the evening when it broke out was that he
had been instructed by his superior on the kitchen staff to keep two swing doors open. That was a lie: he had not
been so instructed.
The last fire was also at the Piccadilly Hotel. That was during the night of December 28/29. That was a fire
which broke out in the very early hours of the morning.
There was evidence first that a waste paper bin which had come from his room was found near the seat of fire.
There was also evidence that the appellant, shortly before the fire broke out, had been in the vicinity of the seat
of fire. There was evidence that at about the time of the fire he was under the influence of drink. There was also
evidence that he was not truthful in his answers to the police when he was asked about this fire. The evidence
relating to the last fire can be summarised in this way. There was enough evidence showing opportunity to start
the fire and prevarication after the fire to have justified a jury in coming to the conclusion that he had started
that fire.
The grounds of appeal, inter alia , were as follows: (1) that the trial judge had erred in refusing separate trials
for each of the three fires; (2) that the trial judge erred in rejecting a submission that there was no case for the
appellant to answer; and (3) that the trial judge misdirected the jury when he invited them to ask themselves the
question whether they were sure that all three fires had been started by the same man, i.e. by implication
inviting them to disregard any other evidence than that of similarity.
The appeal was argued on March 17, 18, 1977.
Nigel Cockburn for the appellant. John Mathew and Clive Nicholls for the Crown.
Lawton L.J.:
On November 11, 1975, at the Central Criminal Court, the appellant was arraigned before Cobb J. on an
indictment containing 10 counts, three of which charged him with arson, counts 1, 9 and 10, and seven with
murder, counts 2–8 inclusive. On December 1, 1975, he was convicted of arson on counts 1, 9 and 10 and on
counts 2–8 he was convicted of manslaughter. He was sentenced to concurrent terms of life imprisonment on all
10 counts. He has now appealed against his conviction by leave of this Court. There had been a previous trial, at
the conclusion of which the jury were unable to agree.
[The learned Lord Justice stated the facts and continued.]
The prosecution decided to indict him on one indictment for all three fires and the seven alleged murders. The
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prosecution appreciated that unless they could satisfy the trial judge that the evidence relating to all three fires
was admissible in respect of each one of them then it would be a case for separate trials in relation to each fire.
Mr. Mathew, who conducted the case for the prosecution, had in mind some observations made by Lord Cross
in the course of his speech in Boardman v. Director of Public Prosecutions (1975) 60 Cr.App.R. 165; [1975]
A.C. 421 . Lord Cross had suggested that when problems of this kind arise it is advisable at the very outset of
the case for counsel for the Crown to seek the judge's view as to whether the indictment should be split. As a
result of Mr. Mathew acting on Lord Cross' suggestion and Mr. Cockburn, on behalf of the defence, submitting
that it was a proper case for the indictment to be split in relation to each of the three *279 fires, there was a long
argument, which took most of a day, as to whether this was an appropriate case for the three cases of arson to be
tried together. Mr. Mathew submitted that it was because there were features relating to these three fires which
made them so similar that the evidence of similarity could properly be regarded as evidence of the identity of
the arsonist. Mr. Cockburn submitted the contrary. He said that the alleged similarities were not sufficiently
striking, if they were similarities at all, to justify the learned judge admitting them in evidence in relation to all
three cases of arson.
The alleged similarities can be summarised in this way: The fires had all occurred in parts of premises in which
the staff of the Grand Metropolitan Hotel Group normally would have had access and normally no-one else
would; that two of the fires had occurred in the Piccadilly Hotel in the staff quarters and the Worsley Hotel fire
had occurred in premises to which nine members of the Piccadilly Hotel staff had access at the time of the fire
there. It was also said that the way in which the fires had started bore a striking similarity, one to another. All of
them, according to the expert evidence, had been started by sprinkling some inflammable liquid on to carpets
and then setting fire to the liquid. The inflammable liquid used had left no chemical traces behind. The
inflammable liquid commonly available to members of the public which leaves no chemical trace behind, if
burned completely, is methylated spirits; normally hydro-carbons, like petrol and paraffin, do leave some
chemical deposit behind although, if there is a very large fire, those chemical deposits may disappear. There was
some evidence that at some of the seats of fire there was a smell of a chemical known as pyridine which is used
to give methylated spirits their characteristic odour. One of the expert witnesses said that as far as he knew
pyridine was only used as an ingredient of methylated spirits.
In relation to the fire on December 29, the experts were all agreed that it had been started with the use of an
inflammable substance. There was evidence that what that inflammable substance contained was ethyl alcohol.
Nobody was able to say in relation to the last fire whether that ethyl alcohol had come from methylated spirits
but methylated spirits consist of 95 per cent. ethyl alcohol, 4.5 per cent. methyl alcohol and 0.5 per cent.
pyridine.
An argument was put forward on behalf of the appellant that the fire might very well have started as a result of
somebody spilling whisky on the floor, either deliberately or, alternatively, as a result of somebody's
carelessness. I mention that matter because one of Mr. Cockburn's submissions was that the evidence relating to
the use of an inflammable liquid did not necessarily establish that the inflammable liquid was methylated spirits.
What is clear beyond argument is that on the evidence each of these three fires had been started by pouring an
inflammable liquid on to a carpet and the evidence was consistent—we put it no higher than that—with the
inflammable liquid having been methylated spirits. Further in each of the cases the fire had been started in a
corridor in the part of two hotels used normally only by the staff.
The prosecution's case was that those various factors showed a degree of similarity between the fires which
could reasonably lead to a Court inferring that the same man had started each of them. Mr. Cockburn's answer
to that submission was that there was nothing striking about those similarities; there was nothing about them
which would lead any reasonable person to consider that they had been started by the same man. Mr. Cockburn
invited our attention in detail to the speeches of their Lordships in the case of Boardman v. D.P.P. ( supra ). In
those speeches picturesque examples were given by Lord Hailsham of St. Marylebone as to the kind of
similarities which could result in evidence being admitted *280 of a number of cases other than the one actually
charged. Lord Salmon, in the course of his speech, used the memorable phrase: “uniquely or strikingly similar.”
Lord Cross used the vivid expression: “other than an ultra cautious jury.”
As a result of the use of the illustrations which Lord Hailsham gave and the striking phrases which Lord Salmon
and Lord Cross used, Mr. Cockburn submitted that the points of similarity relied on by the prosecution lacked
the qualities which those examples and those phrases indicated were essential.
The Court queried this in the course of argument because similarity may depend upon pieces of evidence which
have no striking or unusual qualities about them at all; nevertheless they would be similarities for the purposes
of the rule of evidence. In the course of his final submissions Mr. Cockburn invited our attention to the decision
of this Court in Rance and Herron (1976) 62 Cr.App.R. 118 . He did so in order to establish that this Court had
accepted and acted upon the speech of Lord Cross as set out in Boardman v. D.P.P. ( supra ). No doubt through
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inadvertence he did not go on to invite our attention to a passage at p. 121 in which the Lord Chief Justice said:
“It seems to us that one must be careful not to attach too much importance to Lord Salmon's vivid phrase
‘uniquely or strikingly similar.’ The gist of what is being said both by Lord Cross and by Lord Salmon is that
evidence is admissible as similar fact evidence if, but only if, it goes beyond showing a tendency to commit
crimes of this kind and is positively probative in regard to the crime now charged. That, we think, is the test
which we have to apply on the question of the correctness or otherwise of the admission of the similar fact
evidence in this case.”
That is the test we have applied. I suggested to both counsel in the course of argument that another way of
putting the test is for the Court to ask itself whether the evidence can be explained away as coincidence, and
only if it cannot does the question of admitting it as a method of proof come to be considered at all. Both
counsel said they accepted that way of stating the test. Mr. Cockburn asked us to add, if we thought that was the
right test, the phrase: “The judge must approach the problem with caution.” It is manifest that the trial judge in
this case did approach the problem with caution.
We have decided that there was a sufficient degree of similarity between the three fires to justify the learned
judge doing as he did: admitting evidence of all three fires at the trial. It follows that we reject the first of Mr.
Cockburn's submissions.
His second submission raised an interesting point. At the end of the prosecution's case Mr. Cockburn submitted
to the judge that there was no case to answer and he did so, as he explained, on two grounds: first, that the
evidence did not establish the offences charged in the indictment and, secondly and alternatively that even if
there was evidence to establish the offences charged in the indictment the judge should withdraw the case from
the jury on the ground that on the prosecution's evidence it would be unsafe for any jury to convict. The learned
judge refused to allow Mr. Cockburn to make his submission on the second of these two grounds. The reason he
gave was that this Court in the case of Young (1964) 48 Cr.App.R. 292 , had disapproved of a submission of
that kind and, secondly, because of a decision of this Court in Barker ( post , p. 287) which was decided on
November 7, 1975.
The learned judge's recollection of the case of Young ( supra ) must have been *281 faulty because the point
dealt with in Young had nothing to do with the submission which Mr. Cockburn was seeking to make. So far as
the case of Barker ( supra ) is concerned, it does not deal with the problem whether counsel can make a
submission to the judge at the end of the prosecution's case that it would be unsafe to convict on the evidence
then before the court.
In order to deal with this point it is necessary to go back a few years. The rules applied in the criminal courts
about submissions of no case and the speeches of counsel are partly statutory and partly practice. The Criminal
Evidence Act 1865 , as amended by the Criminal Evidence Act 1898 and the Criminal Procedure (Right of
Reply) Act 1964 , regulates the final speeches of counsel. Those statutes have no bearing upon the problem
whether counsel can make a submission of no case. It has long been the practice of the courts to allow counsel
to do so. Up till the early sixties the practice seems to have been that counsel submitted on the basis that there
was no evidence upon which, if uncontradicted, a reasonable jury could convict. It is understandable why the
submissions of counsel up to the early sixties took that form because, under the Criminal Appeal Act 1907 , if
there was evidence upon which a reasonable jury could convict, the Court of Criminal Appeal would not
interfere to quash the conviction.
There grew up in the two or three decades before the early sixties, and probably for a short time after the early
sixties, a practice of inviting the jury to stop the case. This Court, in Young ( supra ), ruled that that practice
was bad and should stop. In 1966 the old Criminal Appeal Act of 1907 was repealed and a new one came into
existence in which the basis for allowing an appeal in a criminal case was changed. The Court was no longer to
be concerned with the problem whether there was evidence upon which a reasonable jury could convict but with
the question whether the verdict was unsafe or unsatisfactory. That change now finds its place in section 2 of the
Criminal Appeal Act 1968 .
Mr. Mathew's recollection is that about the time when the change came into existence, namely 1966, the
practice began at the Bar of inviting the judge at the end of the prosecution's case, to say that on the
prosecution's evidence it would be unsafe for the jury to convict and accordingly the judge ought to withdraw
the case from the jury. Mr. Cockburn submitted that that is now a well-established practice. That accords with
the trial experience of the three members of this Court.
Unfortunately since this practice started in the criminal courts there has, it seems, been a tendency for some
judges to take the view that if they think that the main witnesses for the prosecution are not telling the truth then
that by itself justifies them in withdrawing the case from the jury. The Lord Chief Justice in his judgment in
Barker (287 post ) pointed out that this was wrong and he did so in the following passage ( post , p. 288): “It
cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned
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primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not
been called. It is not the judge's job to weigh the evidence, decide who is telling the truth, and to stop the case
merely because he thinks the witness is lying. To do that is to usurp the function of the jury and would have
been quite wrong in the present case.”
Mr. Cockburn tells us, and of course we accept it, that he was not going to suggest to the learned judge that
some of the witnesses were lying and therefore their evidence was unreliable. That would have been a matter
solely for the jury. Mr. Cockburn intended to submit to the judge that some of the evidence was so conflicting as
to be unreliable and therefore if the jury did rely upon it the verdict would be unsafe. *282
In our judgment he was entitled to make that submission to the judge and the judge was not entitled to rule that
he could not. To that extent there has been an irregularity; there was a failure to follow what has now become
well-established practice. But it does not follow that because there has been an irregularity this Court should
quash the verdict. An irregularity does not begin to be a factor justifying a Court quashing a verdict unless it
was a material one. Even then the Court is entitled to ask the question: “Has there been a miscarriage of
justice?” It is manifest from the transcript that the learned judge did apply his mind to the question whether the
evidence was sufficiently strong to make it safe to allow the case to go on. We have looked carefully at the
prosecution's evidence and we have come to the conclusion that the judge could not reasonably have withdrawn
the case from the jury at that stage on the ground that there was not sufficient evidence to make a safe
conviction. It follows that on any view of this matter there has been no miscarriage of justice on this ground. We
are also of the opinion that the irregularity, which we adjudged there was, did not amount to a material
irregularity such as would bring into operation section 2 of the Criminal Appeal Act 1968 .
In coming to that conclusion we have not overlooked Mr. Cockburn's submission that the right to make a
submission of no case is an important one. It is important from the defence point of view; but much turns upon
the state of the evidence. Mr. Cockburn was allowed to make his submission that there was no evidence: it was
only on the second day that he was told he could not make his submission on the other ground. Even if he had
we are sure, on the evidence as it stood, that it would have been unsuccessful.
The next ground of appeal related to the way in which the learned judge directed the jury as to how they should
approach the evidence. Mr. Mathew had had in mind the observations of the House of Lords in the case of
Harris v. D.P.P. (1952) 36 Cr.App.R. 39; [1952] A.C. 694 . That was a case in which a police officer was
indicted on eight counts of theft. He was acquitted of seven and convicted of one—the last in date of the series.
Questions arose as to whether the trial judge had directed the jury correctly as to how they should approach the
evidence.
Viscount Simon, the then Lord Chancellor, delivered the leading opinion. It came to this. He said that as there
was no evidence except similarity of method against the appellant on the first seven counts of the indictment the
trial judge should have directed the jury to consider count 8 without any reference whatsoever to the evidence
on counts 1 to 7. That the trial judge had not done. Viscount Simon's opinion was that his failure to do so was a
fatal flaw in the conviction.
Lord Porter did not deliver an opinion himself; he contented himself with telling Viscount Simon that he agreed
with what he had said. That Viscount Simon duly reported to the House. Lord Oaksey delivered a dissenting
opinion.
The next speech was delivered by Lord Morton of Henryton and it is relevant, in our judgment, to look to see
what he said. I quote from p. 63 and p. 715 of the respective reports. Having said that he agreed with the speech
delivered by Viscount Simon, he went on: “I desire only to add that, in my view, evidence as to the thefts which
occurred on the first seven occasions was not admissible for the purpose of the trial of the appellant on the
eighth count,” and these are the important words, “because the appellant was not proved to have been near the
shop, or even in the market, at the time when these thefts occurred.” Lord Tucker also agreed with the speech of
Viscount Simon, but he went on to say at p. 64 and p. 715 of the respective reports: “I agree with my noble and
learned *283 friend, Lord Morton of Henryton, that the evidence with regard to the first seven occasions was
irrelevant to the charge on the eighth count, but was left to the jury as relevant.”
It follows therefore that both Lord Morton and Lord Tucker attached importance to the fact that with regard to
the first seven counts there was no evidence to show that the appellant had (and I quote from Lord Morton)
“been near the shop, or even in the market.”
Lord Oaksey's speech was to the effect that the evidence with regard to the first seven counts in the indictment
was relevant anyway to the eighth count. We are therefore in this position: two of their Lordships were of the
opinion that it was the absence of evidence showing any kind of connection between the place of the theft and
the appellant which made the evidence irrelevant.
Mr. Mathew, no doubt acting on the side of caution, decided not to distinguish the present case from Harris v.
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D.P.P. ( supra ) but to accept that the present case was on all fours with Harris v. D.P.P. We have grave doubts
as to whether it was because, in this case, there was overwhelming evidence that in relation to the first two fires
the appellant was not only in the vicinity but he had ample opportunity of starting those fires and, in relation to
each of them he behaved afterwards in a manner which aroused suspicion. Those elements were absent from the
evidence against the appellant in Harris v. D.P.P. ( supra ). Be that as it may, having taken the cautious line
which I have described, Mr. Mathew submitted to the judge that it would be prudent for him to direct the jury to
look at the count charging the last of the fires, count 10, before they went on to consider whether the evidence
was sufficient to show that the first two fires had been started by the man who started the last fire.
There was a good deal of discussion about this at the beginning of the case. It is manifest that the learned judge
was troubled by Mr. Mathew's suggested approach because he thought there might be a danger inherent in
taking that course; the danger being this, that it would be impossible for the jury, so he thought, to keep out of
their consideration the whole of the evidence and to concentrate solely on the evidence relating to count 10.
He suggested to learned counsel at the outset of the case that what he was minded to do was to ask the jury the
following questions. First: “Were they sure that all three fires had been started deliberately?” He did say that
when he came to sum up and no criticism of it has been made, there was overwhelming evidence that each of
the fires had been started deliberately. The learned judge went on to invite the jury to ask themselves the
question: “Were all three fires started by the same man?” If they were, then the jury could go on to consider
whether the appellant had been proved to have started the third fire. If he had, then they would have little
difficulty in deciding that he had started the other two.
The learned judge, in the course of discussion with counsel, pointed out that if the jury came to the conclusion
that the fires had not all been started by the same man there could be no question but that the verdict as to the
first two fires, would have to be not guilty and it would be doubtful whether they could come to a conclusion
that the appellant had started the third fire. That was accepted by counsel.
When the learned judge came to sum up, he followed the course which he had indicated to counsel he was going
to take. That course has itself been criticised by Mr. Cockburn on the ground that when he invited the jury to
ask themselves the question whether they were sure that all three fires had been started by the same *284 man
he, by necessary implication, invited them to disregard any evidence other than evidence of similarity.
We looked carefully at the transcript and, in our judgment, that submission is ill-founded. It is clear that he was
doing nothing of the kind. He invited the jury when considering their answer to the question whether the same
man had started all the fires, to look at all the evidence.
A more substantial point, however, arises with regard to the way the learned judge directed the jury about count
10. This can best be dealt with by reference to the transcript itself. I quote from p. 44: “In considering count 10
you must have regard to the evidence relating to count 10 only, …” He went on to make some further
observations about the evidence and continued: “The vital question, assuming that you are satisfied it was a
deliberate fire, is has it been proved that it was Mr. Mansfield who started that fire on the third floor at the
Piccadilly Hotel about 3 o'clock or shortly after three o'clock on the morning of Sunday, December 29, 1974. In
dealing with that question and assuming that you are satisfied, as I say, that they were all done by one man, you
can have regard to the schedule, exhibit 27, the schedule of employees, because if you are satisfied that they
were all committed by one man you are then entitled to go on and ask yourselves the question: were they all
committed by one man who was an employee of the Piccadilly Hotel? Mr. Mathew has said at the very outset of
this case that that schedule proceeded on the assumption that it was a staff member who started the fire.”
Having made those observations the learned judge then went on to warn the jury against the danger, when
considering count 10, of taking account of the unsatisfactory and suspicious behaviour of the appellant on the
occasions of the first and second fires.
Mr. Cockburn's submission came to this. He said that if the approach of Mr. Mathew based upon Harris v.
D.P.P. ( supra ) was right, then the learned judge should have confined his directions to the evidence relating to
count 10: he was wrong to invite the jury to consider the schedule, exhibit 27, in order to decide whether the
appellant was the man who had started the fire on the third occasion.
What the learned judge was doing by referring to the schedule, exhibit 27, was to invite the jury to bring into
account, in relation to count 10, all the rest of the evidence in the case. Mr. Cockburn said, with some force, that
that was the very thing which the majority in the House of Lords in Harris v. D.P.P. ( supra ) had said should
not be done.
It is pertinent for this Court to remind itself that the modern practice of producing schedules for the
consideration of the jury has no magic quality about it. A schedule, by itself, proves nothing; it is merely a
convenient way of summarising, on one or more sheets of paper, the effect of the evidence given by a number of
 Page 7

witnesses. That is what exhibit 27 did. It was a convenient summary of the evidence given by a large number of
witnesses and it was a summary given on certain assumptions. Those assumptions could only be tested in the
light of all the evidence. The totality of the evidence, said Mr. Cockburn, may have established that the
assumptions were ill-founded. The effect of referring to the schedule (exhibit 27) was, as I have already
indicated to bring in all the evidence. Mr. Cockburn said that was something the judge should not have done.
Mr. Mathew's reply to that was this. Before the jury came to consider count 10 in the circumstances of this case,
on the direction of the judge they would have made up their minds that all three fires had been started by the
same man. The circumstances were such that that man must have been a staff member. All *285 the judge was
asking the jury to do, submitted Mr. Mathew, was this. Once they were sure that the fire in count 10 had been
started deliberately, once they were sure that it had been started by a staff member they had to go on to ask
themselves: “Which staff member?” The evidence in the case showed that there were only two possible
suspects: a man called Marriot, who was a witness for the Crown, and the appellant. The jury were entitled to
make up their minds whether there was any possibility that Marriot might have started the fire. There was no
suggestion that he had. Therefore, submitted Mr. Mathews, the evidence relating to the other fires in the
circumstances of this case was relevant to establish the identity of the man who had started the third fire. This is
why the difference between Harris's case ( supra ) and this case is so important. There was ample evidence in
this case, as I have already recounted, to connect the appellant with the seat of the other fires.
Because of the differences between Harris's case ( supra ) and this case on the evidence we adjudge that the
judge was entitled to do what he did, namely invite the attention of the jury to the other evidence in the case in
order to establish the identity of the man who had started the last of the fires.
The last point raised by Mr. Cockburn is an unusual one. It came about in this way. The jury retired at 11.02
a.m. They returned into court at 2.26 p.m. They had sent a note asking for further help. The learned judge gave
them further directions. They went back to their room at 2.32 p.m. and came back into court at 4.50 p.m. By that
time they had been out five and three-quarter hours. The learned judge seems to have been anxious that there
should be, if possible, a unanimous verdict. It is easy to see why. This was a re-trial and a majority
verdict—whether for acquittal or conviction—would not have been satisfactory. He decided to make an effort to
bring home to the jury the importance of getting a unanimous verdict. He did so in these words: “Of course, you
must remain completely loyal to your oaths which you took now a long time ago; I would not suggest or imply
otherwise, but it is because of the utter desirability of reaching unanimous verdicts that I ask you to retire again.
See if you can achieve unanimity. If after a pause you have not done so I will invite you to come back into court
and I will have some other words to say to you, but I do not want to say them, at least at the moment.”
There was nothing wrong with that exhortation to the jury. They left court at 4.53 p.m. to come back again at
5.35 p.m. They were asked if they had agreed upon their verdict. The foreman of the jury said “no.” Thereupon
the judge decided to make one more effort to persuade them to reach an unanimous verdict and, if he was
unsuccessful, he seems to have thought that the time had come to give a direction about majority verdicts. His
final attempt to get them to reach a unanimous verdict took this form: “As I said before; it very very, important
for each one of you to remain loyal to the oath which you have taken, but that is not to say that within the
confines of the jury room you should not or could not give and take in the course of your deliberations. It makes
for great public inconvenience and expense if one of you will not or cannot listen to the arguments of the others.
I can say no more; I want to say no more.”
It is clear to this Court that what the learned judge was doing was reading out, presumably from Archbold's
Criminal Pleading, Evidence and Practice (39th ed., 1976) , para. 611 , a direction to the jury which had been
approved by the Court of Criminal Appeal in the case of Walhein (1952) 36 Cr.App.R. 167 . The case of
Walhein ( supra ) was decided before majority verdicts became *286 possible [ i.e. before 1967, and the
Practice Direction (1967) 51 Cr.App.R. 454; [1967] 1 W.L.R. 1198 ]. This Court has since said that the Walhein
direction to juries must be modified in the light of the present procedure relating to majority verdicts. That,
however, is not the basis of the complaint made by Mr. Cockburn on behalf of his client. His complaint is that
the learned judge exhorted the jury to have in mind the public inconvenience and expense there would be if
there was a disagreement. Mr. Cockburn submitted that in the circumstances of this case there was a high degree
of probability that there would be no public inconvenience or expense because the practice of the Crown in
recent times has been not to submit a case to a jury if two other juries have already disagreed.
In the recollection of Mr. Mathew and in the recollection of one member of this Court, in modern times there
has only been one case in which the Crown has asked a jury to try a case after two disagreements. Mr. Mathew
was prepared to accept that had the jury disagreed on this occasion there would not have been a third trial.
In those circumstances, submitted Mr. Cockburn, this jury were misled. They were given to understand that it
was important for them to reach a unanimous verdict on a consideration which did not exist, and they may, said
Mr. Cockburn, have felt themselves under some pressure to bring in a verdict which they would not have done
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had they known what was likely or almost certain to be the position.
Mr. Mathew pointed out that this exhortation was directed solely to try to persuade the jury to reach a
unanimous verdict and it had no bearing upon the direction which he later gave to the jury about a majority
verdict.
We have given anxious consideration to this point. It would have been better if the trial judge had omitted any
reference to public inconvenience and expense; on the other hand he did not in any way try to pressurise the
jury. He merely pointed out factors which might exist if they did not reach a unanimous verdict. We can see, in
our judgment, no irregularity, certainly no material irregularity which would justify this Court intervening. The
appeal is dismissed.
[ Counsel addressed the Court on sentence. ]
We are satisfied in this case, having regard to the circumstances in which the offences came to be committed
that on all counts of the indictment the sentences of life imprisonment were right in principle. Accordingly the
application for leave to appeal against sentence is refused. Before we part from this case, I would like to say on
behalf of all of us how grateful we have been to counsel on both sides for their help in elucidating a number of
problems which would have been much more difficult to deal with had we not had the help from the Bar which
we have had.

Representation

Solicitors: Registrar of Criminal Appeals , for the appellant. Director of Public Prosecutions , for the
Crown.

Appeal dismissed
*287

1. See Archbold (39th ed.), para. 611 .

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