England and Wales Court of Appeal (Criminal Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v Mowatt [1967] EWCA Crim 1 (20 June 1967)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1967/1.html
Cite as: 131 JP 463, [1969] 3 All ER 47, [1968] QB 421, [1967] 3 WLR 1192, [1968] 1 QB 421, [1967] EWCA Crim 1, 51 Cr App Rep 402

[New search] [Buy ICLR report: [1968] 1 QB 421] [Buy ICLR report: [1967] 3 WLR 1192] [Help]

JISCBAILII_CASE_CRIME

		BAILII Citation Number: [1967] EWCA Crim 1
		Case No.: 565/67

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice,

20th June 1967.

B e f o r e :

LORD JUSTICE DIPLOCK MR. JUSTICE BRABIN MR. JUSTICE WALLER
____________________

	R E G I N A
	-v-
	SIDNEY LINTON MOWATT

____________________

MR. J. BRIGGS appeared on behalf of the Appellant. MR. M. MAXWELL appeared on behalf of the Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

(Revised)

LORD JUSTICE DIPLOCK: The appellant was indicted at the Crown Court Liverpool upon two counts arising out of events which took place in the early hours of the morning on the 30th September 1966. The first count was robbery with violence. He was convicted of larceny from the person, and sentenced to eighteen months upon this count. His application for leave to appeal against conviction and sentence on this count was refused by the single Judge and has not been pursued. The second count was wounding with intent to do grievous bodily harm contrary to Section 18 of the Offences Against the Person Act, 1861. On this indictment it was open to the jury under Section 5 of the Prevention of Offences Act 1851 to find him guilty of unlawfully cutting, stabbing or wounding; and then the Section goes on: "and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misdemeanor of cutting, stabbing, or wounding". The misdemeanor there referred to was at that date the misdemeanor created by Section 4 of the same Act, which so far as is relevant provided that: "If any person shall unlawfully and maliciously ... cut, stab, or wound any other person, every such offender shall be guilty of a misdemeanor". That misdemeanor has now been substituted by the offence created by Section 20 of the Offences Against the Person Act, 1861; and in the view of this Court although there is in Section 5 of the Prevention of Offences Act, 1851 no express reference to "maliciously" as well as "unlawfully", the reference to "the misdemeanor" in which those adverbs appear together makes it clear that when the jury bring in an alternative verdict under Section 5 of the Offences Against the Person Act the ingredients of the offence of which they find the accused guilty are identical with those with which they would have to find him guilty under Section 20 of the Act of 1861.

The jury in this case did find the appellant guilty of unlawful wounding. The learned Judge in summing-up explained to the jury the meaning of "unlawfully" so far as was relevant to the defence put forward by the appellant, which was that the only blows which he had admitted were delivered in self-defence. But nowhere in the summing-up did the Judge mention the word "maliciously" or give the jury any directions as to its meaning. It was for this reason that the single Judge gave leave to appeal against the appellant's conviction for unlawful wounding so that this Court might be given an opportunity to consider to what extent it is necessary in a case of this kind to give to the jury express instructions upon the meaning of the word "maliciously" such as those as are discussed in R. v. Cunningham, (1957, 2 Q.B., 396). "Unlawfully and maliciously" was a fashionable phrase of Parliamentary draftsmen in 1861. It runs as a theme with minor variations throughout the Malicious Damage Act and the Offences Against the Person Act passed in that year.

R. v. Cunningham was a case under Section 23 of the Offences Against the Person Act, which provides:

"Whosoever shall unlawfully and maliciously administer to, or cause to be administered to or taken by any other person any poison, or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony."

The facts were very special. The appellant went to the cellar of a house and wrenched the gas meter from a gas pipe and stole it together with its contents, and gas seeped through the wall. The cellar was under a divided house, one part of which an elderly couple occupied, and one of them inhaled some gas and her life was endangered. He was indicted under Section 23 of the Act. No doubt upon the facts the jury should be instructed that they must be satisfied before convicting the accused that he was aware that physical harm to some human being was a possible consequence of his unlawful act in wrenching off the gas meter. In the words of the Court, "maliciously in a statutory crime postulates foresight of consequence", and upon this proposition we do not wish to cast any doubt. But the Court in that case also expressed approval obiter of a more general statement by Professor Kenny, which runs as follows:

"In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) Recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured".

This generalisation is not, in our view, appropriate to the specific alternative statutory offences described in Sections 18 and 20 of the Offences Against the Person Act 1861 and Section 5 of the Prevention of Offences Act 1851, and if used in that form in the summing-up is liable to bemuse the jury. In Section 18 the word "maliciously" adds nothing. The intent expressly required by that Section is more specific than such element of foresight of consequences as is implicit in the word "maliciously" and in directing a jury about an offence under this Section the word "maliciously" is best ignored.

In the offence under Section 20, and in the alternative verdict which may be given on a charge under Section 18, for neither of which is any specific intent required, the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person. That is what is meant by "the particular kind of harm" in the citation from Professor Kenny. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the Section, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.

In many cases in instructing a jury upon a charge under Section 20, or upon the alternative verdict which may be given under that Section when the accused is charged under Section 18, it may be unnecessary to refer specifically to the word "maliciously". The function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence. There may, of course, be cases where the accused's awareness of the possible consequences of his act is genuinely in issue. R. v. Cunningham is a good example. But where the evidence for the prosecution, if accepted, shows that the physical act of the accused which caused the injury to another person was a direct assault which any ordinary person would be bound to realise was likely to cause some physical harm to the other person (as, for instance, an assault with a weapon or the boot or violence with the hands) and the defence put forward on behalf of the accused is not that the assault was accidental or that he did not realise that it might cause some physical harm to the victim, but is some other defence such as that he did not do the alleged act or that he did it in self-defence, it is unnecessary to deal specifically in the summing-up with what is meant by the word "maliciously" in the Section. It can only confuse the jury to invite them in the summing-up to consider an improbability not previously put forward and to which no evidence has been directed, to wit - that the accused did not realise what any ordinary person would have realised was a likely consequence of his act, and to tell the jury that the onus lies, not upon the accused to establish, but upon the prosecution to negative that improbability and to go on to talk about presumptions. To a jury who are not jurisprudents that sounds like jargon. In the absence of any evidence that the accused did not realise that it was a possible consequence of his act that some physical harm might be caused to the victim, the prosecution satisfy the relevant onus by proving the commission by the accused of an act which any ordinary person would realise was likely to have that consequence. There is no issue here to which the jury need direct their minds and there is no need to give to them any specific directions about it.

In such a case, and these are the commonest of cases under Section 18, the real issues of fact on which the jury have to make up their minds are: (1) Are they satisfied that the accused did the act? (2) If so, are they satisfied that the act caused a wound or other serious physical injury? (3) If the defence of self-defence is raised or there is any evidence to support it, do they think that the accused may have done the act in self-defence? (4) If the answer to (1) and (2) is Yes and to (3), if raised, is No, are they satisfied that when he did the act he intended to cause a wound or other really serious physical injury? If (3), if raised, is answered No and (1) and (2) are answered Yes, the lesser offence under Section 20 is made out; and if (4) is also answered Yes the graver offence under Section 18 is made out.

In any case under Section 18 where the physical act of the accused was a direct assault which any ordinary person would have realised was likely to cause some physical harm to the victim and there is no evidence that the accused himself did not realise that it might do so, if those issues, which we have stated, are put fairly and squarely to the jury it is the view of this Court that the summing-up is not open to criticism. There is no need for any general dissertation about the meaning of the word "maliciously". The less said about it in such a case the better.

The only remaining issue is whether the present case is one of this kind. The relevant evidence for the prosecution was that of the complainant and the two Police Officers. The complainant, in the early hours of the morning of the 30th September, was returning home, according to his evidence, and was stopped in a street by two men, one of whom was the appellant. They asked him if there was a club anywhere about, and then one of them, not the appellant, snatched a £5 note from the complainant's breast pocket and ran off. The complainant said he chased him without success, returned to the appellant, grasped him by his lapels and demanded to know the whereabouts of his mate. The appellant then (and this was common ground) hit out at the complainant and knocked him down. That was the first assault. Two off-duty Police Officers then saw the appellant, according to their evidence, sitting astride the complainant, and they saw the appellant strike him several violent blows in the face with his fist and pull him to his feet, strike him again in the face, knocking him down and making him virtually unconscious. The appellant was, according to the Police, trying to pull up the complainant again when the Police arrested him. When the appellant was taken to the station, he was found to be concealing a £5 note in his hand.

The Judge directed the jury to acquit of robbery with violence, because the evidence showed no violence but a snatching. That left larceny from the person, of which the jury convicted him. As regards the count of wounding, in effect, the learned Judge directed the jury to acquit the appellant of any offence if they accepted that only the first blow, which he admitted, had been struck. He directed them that on the evidence there would be justification in self-defence for that. As regards the blows seen to be struck by the Police, the appellant sitting astride the complainant and raining a series of blows upon his face, lifting him up, casting him down again, the only issues before the jury was whether that happened at all and, if so, whether they were inflicted with intent to do grievous bodily harm. If the jury accepted that it did happen, then clearly any ordinary man would realise that some physical harm would be sustained by the victim, even though he might not have any specific intent to break the skin or amount to serious physical injury.

In the view of this Court, this was clearly a case where in relation to the lesser offence of which the appellant was convicted it was quite unnecessary for the learned Judge to give the jury any instructions upon the meaning of the word "maliciously".

Another point was raised by Mr. Briggs on behalf of the appellant, namely, that the directions as given by the learned Judge to the jury upon the issue of self-defence were inadequate. In the view of this Court, there is nothing in that contention; and this appeal is accordingly dismissed.