England and Wales Court of Appeal (Criminal Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Crim/1983/4.html
Cite as: [1983] EWCA Crim 4, (1987) 78 Cr App R 276, [1987] 3 All ER 411, 78 Cr App R 276

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JISCBAILII_CASE_CRIME

		BAILII Citation Number: [1983] EWCA Crim 4
		BAILII Citation Number: [2002] EWCA Crim 483

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice,

28th 1983.

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
JUSTICE SKINNER
and
MR JUSTICE McCOWAN
____________________

	REGINA
	-v-
	GLADSTONE WILLIAMS

____________________

(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 36-38 Whitefriers Street,
Fleet Street, London, EC4Y 8BH. Telephone Number: 01-583 7635,
Shorthand Writers to the Court. )

____________________

MR D. FENNELL appeared on behalf of the Appellant. MR W. HOWARD, Q. C. and
MR. A. ISSARD-DAVIS appeared on behalf of the Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

(As approved by Judge)

THE LORD CHIEF JUSTICE: On 9th March this year Gladstone Williams appeared in the Inner London Crown Court charged with assault occasioning actual bodily harm. After a trial he was convicted and was given a conditional discharge for twelve months together with certain financial penalties.

He now appeals on a point of law against his conviction.

The facts were somewhat unusual and were as follows. On the day in question the alleged victim, a man called Mason, saw a black youth seizing the handbag belonging to a woman who was shopping. He caught up with the youth end held him, he said with a view to taking him to a nearby police station, but the youth brake free from his grip. Mason caught the youth again and knocked him to the ground, and he then twisted one of the youth's arm behind his back in order to immobilise him and to enable him, so he said, once again to take the youth to a police station. The youth was struggling and calling for help at this time, and no one disputed that fact.

Upon the scene then came the appellant who had only seen the latter stages of this incident. According to Mason he told the appellant first of all that he was arresting the youth for mugging the lady and secondly, that he, Mason, was a police officer. That was not true. He was asked for his warrant card, which obviously was not forthcoming, and thereupon something of a struggle ensued between Mason on the one band and the appellant and others on the other hand. In the course of these events Mason sustained injuries to his face, loosened teeth and bleeding gums.

The appellant put forward the following version of events. He said he was returning from work by bus, when he saw Mason dragging the youth along and striking him again and again. He was so concerned about the matter that he rapidly got off the bus and made his way to the scene and asked Mason what on earth he was doing. In short he said that he punched Mason because he thought if he did so he would save the youth from further beating and what he described as torture.

There was no doubt that none of these dramatis personae were known to each other beforehand.

That simple statement of affairs caused a great deal of difficulty for the unfortunate Recorder, with whom we have the utmost sympathy, because it raised issues of law which have been the subject of debate for more years than one likes to think about and the subject of more learned academic articles than one would care to read in an evening. Submissions were made to him as to the way in which he should direct the jury on the issue of possible mistake on the part of the appellant as to the circumstances in which he, the appellant, used violence upon Mason. The contention of the Crown was that the prosecution need only prove to the satisfaction of the jury that the defendant was not acting under a mistaken view of the facts. Their contention was that they did not have to go further and (given that there was a mistake) show that the mistake was an unreasonable one. The defendant on the other hand contended that the reasonableness or otherwise of the mistake was immaterial, and once the jury were satisfied that the appellant was labouring under a mistake and that on the mistaken facts as he believed them to be he would not have committed any offence, then the jury were not obliged to consider further the question of reasonableness.

The learned Recorder ruled that the prosecution's contentions as to the law were correct and rejected the submissions made by Mr. Perry on behalf of the defendant to the contrary.

Undoubtedly this question of the proper direction to the jury loomed very largely on the horizon so far as the Court was concerned, and understandably the Recorder had his attention directed primarily, if not exclusively, to the problem of whether the belief had to be reasonable in order to afford a defence, if one may put it in that way, Consequently certain fundamental matters to which the jury's attention should have been directed were unhappily overlooked. If one turns to the transcript, one finds first of all the Recorder giving the usual and perfectly correct direction to the jury as to the burden of proof being upon the prosecution.

He then at a later stage deals with the question of mistake and this is what he says: "If you come to the conclusion that the defendant, or if this applies to both of them Mr. Williams and Mr. Theodore, had a belief - had the honest and genuine belief - and one could use all sorts of adjectives before the word 'belief' but I am not sure they add very much - had the true belief and the reasonable belief, that is to say, the belief based on reasonable grounds that Mason was acting unlawfully, than their use of force would be excused provided again that it was in all the circumstances reasonable and directed to preventing crime, namely the assault upon the youth, and directed to no more than that in the way that I have explained. " That direction he repeats on the following page almost word for word in order to make it clear to the jury.

It is plain to this Court that those directions failed to make it clear to the jury that it is for the prosecution to eliminate the possibility that the appellant was acting under a genuine mistake of fact. The nearest that he ever got to such a direction is to be found at a stage where the jury returned to Court with a question to ask of the learned Recorder, and in the course of answering that question the learned Recorder says this; "If you think the position is, or the position may be, that the defendant Mr. Williams had such an honest and genuine belief based on reasonable grounds that Mason was acting unlawfully then you go on to ask yourselves: was Mr. Williams' use of force to be excused because - again in all the circumstances - it was a reasonable use of force and directed to no more than preventing the commission of crime?" We take the view that the words "or the position may be" does not cure the earlier defect.

If authority is required for the necessity of a careful direction in circumstances such as these, it is to be found in the decision of Abraham (1973) 57 Cr. App. R. 799, and the passage, which there is no necessity for me to read, is to be found at page 803. More recently a similar indication is to be found in the judgment of Lord Justice Lawton in the case of Kimber (to which it will be necessary for the Court to refer at a later stage in the judgment).

The answer is that this was a material misdirection. It was something at the very foundation of the case and that on its own would have been enough to require this Court to allow the appeal and quash the conviction. But the story does not end there. We have been addressed on the question of whether the learned Recorder was right in ruling against the submission by Mr. Perry with regard to the reasonableness of the defendant's belief.

Mr, Howard on behalf of the Crown has helpfully conceded before this Court first of all that the passage to which reference has already been made was indeed a material misdirection and that he cannot argue the contrary, and secondly he has made a further helpful concession that the case of Kimber on the question of reasonable belief not only is binding upon this Court, but answers the question contrary to the submissions of the Crown at the Court below. Against that background we turn to consider the second point.

One starts off with the meaning of the word "assault". "Assault" in the context of this case, that is to say using the word as a convenient abbreviation for assault and battery, is an act by which the defendant, intentionally or recklessly, applies unlawful force to the complainant. There are circumstances in which force may be applied to another lawfully. Taking a few examples: first, where the victim consents, as in lawful sports, the application of force to another will, generally speaking, not be unlawful. Secondly, where the defendant is acting in self-defence: the exercise of any necessary and reasonable force to protect himself from unlawful violence is not unlawful. Thirdly, by virtue of section 3 of the Criminal Law Act 1967, a person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of an offender or suspected offender or persons unlawfully at large. In each of those cases the defendant will be guilty if the jury are sure that first of all he applied force to the person of another, and secondly that he had the necessary mental element to constitute guilt.

The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim. We do not believe that the mental element can be substantiated by simply showing an intent to apply force and no more.

What then is the situation if the defendant is labouring under a mistake of fact as to the circumstances? What if he believes, but believes mistakenly, that the victim is consenting, or that it is necessary to defend himself, or that a crime is being committed which he intends to prevent? He must then be judged against the mistaken facts as he believes them to be. If judged against those facts or circumstances the prosecution fail to establish his guilt, then he is entitled to be acquitted.

The next question is, does it make any difference if the mistake of the defendant was one which, viewed objectively by a reasonable onlooker, was an unreasonable mistake? In other words should the jury be directed as follows:

"Even if the defendant may have genuinely believed that what he was doing to the victim was either with the victim's consent or in reasonable self-defence or to prevent the commission of crime, as the case may be, nevertheless if you, the jury, come to the conclusion that the mistaken belief was unreasonable, that is to say that the defendant as a reasonable man should have realised his mistake, then you should convict him. "

It is upon this point that the large volume of historical precedent with which Mr. Howard threatened us at an earlier stage is concerned. But in our judgment the answer is provided by the judgment of this Court in Kimber (1933) 1 W. L. R. 1118, by which, as already stated, we are bound. There is no need for me to rehearse the facts, save to say that that was a case of an alleged indecent assault upon a woman. Lord Justice Lawton deals first of all with the case of Albert v. Lavin (1932) A. C. 5A6. Reading from page 1122 of the report: "The application of the Morgan principle to offences other than indecent assault on a woman will have to be considered when such offences come before the courts. We do, however, think it necessary to consider two of them because of what was said in the judgment. The first is a decision of the Divisional Court in Albert v. Lavin (1982) A. C. 546. The offence charged was assaulting a police officer in the execution of his duty, contrary to section 51 of the Police Act 1964. The defendant in his defence contended, inter alia, that he had not believed the police officer to be such and in consequence had resisted arrest. His counsel analysed the offence in the same way as we have done and referred to the reasoning in Morgan. Mr. Justice Hodgson delivering the leading judgment, rejected this argument and in doing so said:

'But in my judgment Mr. Walker's ingenious argument fails at an earlier stage. It does not seem to me that the element of unlawfulness can properly be regarded as part of the definitional elements of the offence. In defining a criminal offence the word "unlawful" is surely tautologous and can add nothing to its essential ingredients… And no matter how strange it may seem that a defendant charged with assault can escape conviction if he shows that he mistakenly but unreasonably thought his victim was consenting but not if he was in the same state of mind as to whether his victim had a right to detain him, that in my judgement is the law.'

"We have found difficulty in agreeing with this reasoning" and I interpolate, so have we — "even though the judge seems to be accepting that belief in consent does entitle a defendant to an acquittal on a charge of assault. We cannot accept that the word 'unlawful' when used in a definition of an offence is to be regarded as 'tautologous' . In our judgment the word 'unlawful' does import an essential element into the offence. If it were not there social life would be unbearable, because every touching would amount to a battery unless there was an evidential basis for a defence. This case was considered by the House of Lords, The appeal was dismissed, but their Lordships declined to deal with the issue of belief."

That is the end of the citation from Kimber insofar as it is necessary for the second point. I read a further passage from page 1123 which sets out the proper direction to the jury, and is relevant to the first leg of the appellant's argument in this case. It reads as follows;

"In our judgment the recorder should have directed the jury that the prosecution had to make them sure that the appellant never had believed that Betty was consenting. As he did not do so, the jury never considered an important aspect of his defence."

We respectfully agree with what Lord Justice Lawton said there with regard both to the way in which defence should have been put and also with regard to his remarks as to the nature of the defence. The reasonableness or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Where it otherwise, the defender, would be convicted because he was negligent in failing to recognise that the victim was not consenting or that a crime was not being committed and so on. In other words the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant's actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a peaceful reason for coning to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.

We have read the recommendations of the Criminal Law Revision Committee, Part IX, paragraph 72(a), in which the following passage appears: "The common law defence of self-defence should be replaced by a statutory defence providing that a person may use such force as is reasonable in the circumstances as he believes them to be in the defence of himself or any other person. " In the view of this Court that represents the law as expressed in Morgan and in Kimber and we do not think that the decision of the Divisional Court in Albert v. Lavin from which we have cited can be supported.

For those reasons this appeal must be allowed and the conviction quashed.

MR. FENNELL: My Lord, I ask the appeal be allowed in those terms. There was an order in the Court below that the appellant should pay a contribution of £50.

THE LORD CHIEF JUSTICE: All the consequential financial provisions must disappear is it not?

MR. FENKEI.L: I think the difficulty about that is, the money having been paid it is not appealable. My submission would be, it could be met and covered by your Lordship saying there should be a compensatory order out of public funds to that extent-of £50 in his favour. I am told that it is not in fact appealable.

THE LORD CHIEF JUSTICE: What you want is an order for costs to cover this Court and the Court below?

MR. FENNELL: Yes.

THE LORD CHIEF JUSTICE: Any objection Mr. Howard?

MR. HOWARD: No.

THE LORD CHIEF JUSTICE: So be it.