England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURTS-MARTIAL
APPEAL COURT

		Royal Courts of Justice The Strand London WC2
		Tuesday 20th March 2001

1. THE VICE PRESIDENT: On 13th June 2000 at a General Court-Martial at Bulford, before Assistant Judge Advocate General Woollam, the appellants were both found guilty of causing grievous bodily harm with intent. Alden was sentenced to 2 years' detention and to be dismissed from the services; Jones was sentenced to 3 years' detention and to be dismissed from the services. Petitions to the reviewing authority by both appellants were refused.
2. They now appeal against conviction by leave of the Single Judge, and Jones renews his application for leave to appeal against sentence after refusal by the Single Judge.
3. In summary, the events which gave rise to these convictions occurred in the early hours of 12th November 1999, near a small car park, on the way to the accommodation block at Picton Barracks, Bulford. Lance Corporal Annis approached the two appellants, who were the worse for drink, and told them to go to bed. Jones took exception to that, and became aggressive and confronted Annis, and Alden egged on Jones to attack him. At that stage, there was merely some pushing and shoving between Jones and Annis, in the car park, and that part of the episode did not give rise to any charge.
4. Annis got away. But Jones pursued him, put him on the ground, outside Block 31, and kicked him in the body, he, Jones, wearing Army boots, and Alden came up and hit Annis in the face. In consequence, Annis sustained broken ribs and a punctured lung and he was in intensive care for a couple of days. Jones thereafter admitted that he had had an altercation with Annis, that there had been some pushing and shoving and he said he had hit Annis in the face because he himself had been hit. He denied kicking Annis, or doing anything to cause the injuries which we have summarised. Alden said that he had not egged on Jones to attack Annis. On the contrary, he was trying to break up the fight. Although he hit Annis after Jones' attack had ended, he only did so in self-defence.
5. Lance Corporal Annis gave evidence that there had been a boxing event. A lot of people had thereafter gone to the bar, and there was a good deal of drinking. At about 1.30 am, as Annis was walking towards the small car park, he saw two people, one of whom he recognised as Jones. He told them to go to bed. Jones took offence and said that Annis did not have any appropriate rank to tell him what to do. He was abusive. Annis said that he tried to calm down Jones and backed away. Jones tried to punch him and he, Annis, tried to push him away. Alden, according to Annis, was egging Jones on and telling him to fight. At that stage, another soldier, Signaller Leroy, came, took Jones off Annis and tried to calm him down.
6. Thereafter, as Annis walked towards the accommodation block, Alden was pushing him in the back and Annis said he was struck from behind. He lost consciousness and woke up with blood all over his face and a pain in his side. He had not seen who had struck him. But, at that stage, he saw Jones and Leroy running towards him and he accused Jones of hitting him and Jones said: "It was not me, I wouldn't do that to you" and helped him up.
7. When he was cross-examined, on behalf of Jones, Annis said that Jones had clearly not liked being told to go to bed. He was abusive and called Annis "a little prick" which did not appeal to Annis. He denied punching Jones in the face. He said Jones had taken at least two swings at him, but Annis could not recall if they had landed. Jones was angry and, when Leroy dragged Jones off him, Annis thought the incident was over. It was in those circumstances that he walked away towards the accommodation block. But the other man was pushing him and trying to get him to fight. He, Annis, did not see Jones kicking him.
8. When he was cross-examined on behalf of Alden, Annis said that, when he had told them both to go to bed, he directed his remarks to Jones because Jones was the one whom he knew. He denied that Alden had intervened to try to stop the altercation between himself and Jones. Indeed, he was trying to incite further fighting, not to break it up.
9. Mr Leroy gave evidence about seeing two people arguing on the grass and a third person on one side. He asked what the problem was. Annis told Jones it was time to go to bed and Jones got upset. Alden was then egging Jones on, saying things like: "Go on, just hit him". The men were wearing military uniforms and boots. Jones was bigger than Annis. Leroy said he was trying to calm the situation down. The time came when Annis started to run towards the accommodation block, Jones was calling after him to come back and then pursued him and caught him up: and the two of them ended up in a ruck on the floor. Leroy said he pulled Jones off Annis and stood between them. Alden was to his left and, at that stage, Alden struck Annis in the face, and Annis, who had offered no provocation, dropped to the floor. Jones thereupon attacked and kicked Annis viciously, as Leroy described it, to the left side of his ribs in a manner which made him, Leroy, cringe.
10. He was cross-examined on behalf of Jones and was quite firm in his evidence that it was Jones who had kicked Annis. When he was cross-examined on behalf of Alden, he said that, at the time that he, Annis, tried to separate Jones and Annis, there was no danger occurring from Annis. The danger was from Jones. The third man, who was Alden, appeared to get stirred up and hit Annis at a time when Annis was not in any way threatening towards him. Another soldier also gave evidence for the prosecution.
11. Jones gave evidence in his defence. He was 20 at the time and had been in the Army for three-and-a-half years. He had gone to the bar after the boxing and had four or five small bottles of lager. He said that Alden seemed quite drunk and happy and he, Jones, felt merry and happy. He described the stage at which, as he said, Annis put an arm on his chest and he told him to get off as he was "a little prick". Annis told him not to call him "a little prick" and the argument became more heated with pushing on both sides.
12. He said that Annis pushed him first. He had felt as though he had been hit by Annis on the side of the face. He reacted normally and hit him back on the left side of face and Annis went to the ground. Leroy grabbed Jones' arms and pulled him back. He, Jones, said he was very angry. Then he saw Annis walk towards the accommodation block, and eventually Jones, who said he had been on the ground, noticed, as he put it, "something" on the floor by block 31. This was Annis.
13. As he started to get up, Leroy was with him, but he did not see where Alden was. So he, Jones, ran over to see what had happened. When Annis asked him what he had done, he said that he had not done anything to Annis.
14. Alden, in evidence, said that he was drunk but not "out of it" and remembered more or less everything. He said that he had left the bar at about 1.00 am and met Jones outside. Annis had come up and said "Jones go to bed". The pushing had started but Alden could not say who had started it. Annis was hurt and had got up and run away towards the accommodation block, with Jones running after him, Leroy running after Jones and Alden following the two of them. Annis stopped and turned, according to Alden, and tried to protect himself but Jones grabbed him in a head lock and pulled him to the ground. They were rolling about on the ground, with Jones punching Annis, who was trying to cover himself up. Then Jones got up and started kicking Annis, with hard kicks in the back and left side. Leroy grabbed Jones and tried to calm him down. Alden said that he had pulled Annis, who was still angry, away and told him to go to bed because he was beaten up and thereupon Annis began to argue with him and lashed out at Alden in the chest, and Alden said he struck him on the left cheek to stop him hitting him and Annis fell to the floor and he, Alden, walked away. There were a number of other witnesses.
15. On behalf of the appellant Alden, Mr Tregilgas-Davey, who did not appear at the Court-Martial, advances five submissions on the basis of which he claims that the verdict in this case is unsafe. The first three submissions relate to the adequacy or, as he submits, inadequacy of the summing-up in relation to joint enterprise. First, he criticises the way in which the mental element for the offence was dealt with and, secondly, but closely interrelated, he criticises the way in which the Judge Advocate referred to "egging on" or "joining in" an attack as being apparently separate concepts: it was only to the latter of those concepts that the Judge Advocate gave the direction which she did in relation to the relevant mental element.
16. The direction given did not, submits Mr Tregilgas-Davey, say that there must be an intention to render assistance to Jones and, in that respect, he took us to NCB v Gamble [1959] 1 QB 11 and the judgment in that case at page 20 of Devlin J. Furthermore, Mr Tregilgas-Davey criticises the summing-up, on this part of the case, in that the direction was inadequate as to the nature of Jones' kick and the possibility that that might have been an act outside the scope of the agreement. Mr Tregilgas-Davey submits that, by reason of the way in which the learned Advocate General put the matter to the tribunal, they might very well have been left with the misleading impression that, if Alden had made himself a party to Jones' attack on Annis by encouragement, as opposed to actually physically joining the attack, there was no need for Alden to have realised that Jones might use force with intent to cause grievous bodily harm. Furthermore, the tribunal may have decided that, even if there was a common enterprise shared by Jones and Alden to attack Annis, the fierce kicking in Army boots, by Jones, on the prostrate and defenceless Annis, was not an act foreseen as a possibility by Alden. The Advocate General should have invited the tribunal to specifically focus upon whether or not that kick was within the course of the joint agreement.
17. In this respect, it is necessary to refer to the passage in the summing-up about which Mr Tregilgas-Davey specifically complains. But it is also necessary, because as Mr Mason, on behalf of the prosecution, reminds us, we must look at the summing-up as a whole, to refer to certain other passages as well.
18. The matter is first dealt with in the summing-up at page 68G, where appears the following:

"In a case where two or more people join in an attack on another person each person is responsible for the totality of the injuries. So if two people jointly attack another person, each is responsible for all the injuries which result from the joint attack. The Crown does not have to show which defendant actually caused which bruise or which cut. Even if a person does not actually join in in the sense that they physically join in, if a person deliberately eggs on an attacker he involves himself in that attack and he makes himself a party to the attack. This is what the Crown said happened in the case of Signaller Alden here. The Crown say that Signaller Alden deliberately egged Signaller Jones on from the start, that he intended to spur him on to a fight and that he wilfully took actions which did encourage Signaller Jones to attack Lance Corporal Annis. If you are sure that that is what he did then he made himself party to a joint enterprise with Signaller Jones. The fact that Signaller Jones said in evidence that he was not influenced one way or another by Signaller Alden egging him on is irrelevant. So long as Signaller Alden deliberately acted in a way intended to egg him on and incite him to attack Lance Corporal Annis, and Signaller Jones did in fact attack Lance Corporal Annis then that is enough.

It is also possible for somebody to join in an attack after it has begun, may be even halfway through the attack. If he does that he also makes himself party to the attack and part of a join enterprise. So if you are not sure that signaller Alden was egging Signaller Jones on from the start and making himself a party in this way, it would still be possible for you to find that he later joined in the attack on Lance Corporal Annis by hitting him. If you sure that Signaller Alden hit Lance Corporal Annis unlawfully outside block 31 that may mean at that point he had made himself a party to Signaller Jones' attack; he joined in Jones attack, even though he had not actually joined in from the start. In that case he would again be acting jointly with Jones."

19. Then at page 70, in a passage to which Mr Tregilgas-Davey drew attention, there appears the following just below E:

"In the case of Signaller Alden, before you convict him on the first charge you must be sure first of all, as I have already said, that he made himself a party to Signaller Jones' attack on Lance Corporal Annis either by deliberately egging him on to attack Lance Corporal Annis and/or by joining in the attack later on; so he must have been acting jointly with him. The mental element must also be proved against Signaller Alden. You must be sure that when Signaller Alden joined the attack he realised that in the course of it Signaller Jones might use force with intent to cause grievous bodily harm to Lance Corporal Annis, and Signaller Jones of course went on and did so. That is the mental element in the case of each defendant which has to be proved on that first charge."

20. Pausing there, it is apparent that, when that passage is read in the context of what had preceded it, starting at page 68G, the learned Judge Advocate was subdividing and attack into possible aspects of egging on and physically joining in.
21. The learned Judge Advocate, at page 76D, dealt with what elements must be proved against Jones, including, as a third element, that the jury must be sure that, when he delivered a kick, he intended to cause grievous bodily harm. Then, at page 77B, in relation to Alden, the Advocate General said this:

"Briefly, doing the same thing in the case of Signaller Alden, a fundamental point with him is are you sure he made himself party to Signaller Jones' attack on Lance Corporal Annis, either by deliberately egging him on to attack Lance Corporal Annis for the start or by later joining in. If you are sure he is not guilty of that then Signaller Alden is not guilty of either charge. If you sure that he did and you are sure that Signaller Jones caused the grievous bodily harm outside block 31, are you sure that when Signaller Alden joined in the attack on Lance Corporal Annis he realised that Signaller Jones may use force intending to cause grievous bodily harm to Lance Corporal Annis. If you are sure about this he is guilty of charge one. If you are not sure about that then he is not guilty of charge one move on to charge two. In the case of charge two you must be sure that when he joined the attack Signaller Alden realised that Signaller Jones' attack which he had joined in may cause some injury to Lance Corporal Annis but he joined in anyway. If that is what he did then he is guilty of charges. If you are not sure about that then he is not guilty of anything."

22. In our judgment, when those passages are read together the directions which the Judge Advocate gave to the tribunal were appropriate to this case. It is not possible to sustain any valid criticism of the directions which she gave with regard to joint enterprise. That criticism, therefore, fails.
23. Mr Tregilgas-Davey advances, as his final criticism, and we shall in a moment revert to his penultimate criticism, a suggestion that the solicitor advocate who represented Alden before the Court-Martial, so incompetently conducted the case that the verdict should be regarded as unsafe. The focus of this complaint is the unit statement which the appellant Alden wrote out in his own handwriting on the day after these events. The submission is made that, had objection been taken to the admissibility of that statement before the court-martial the objection would have succeeded, because the unit statement was not the consequence of any proper procedures in relation to cautioning or otherwise. It is said that Alden's specific instructions were not sought by the advocate then appearing for him as to whether or not objection should be taken to that statement. It said that such instructions ought to have been obtained and, if they had been obtained, the statement would probably have been excluded. If it had been excluded, so too, necessarily, would have been certain cross-examination based on the differences between that statement and certain answers given in the course of interview by Alden. So it is said that the incompetent decision not to challenge the admissibility of that statement has a deleterious effect upon the safety of this conviction.
24. In order to assess the strength of that submission, it is necessary to look at what the unit statement contains. It is correct, as is submitted on Alden's behalf, that there are, in some respects, details in that statement which differ from what Alden said in the course of interview. However, the thrust of what Alden claimed in interview was self-defence. That was what he said at trial and, when one looks at the unit statement, that is what he said more than once in the course of that statement.
25. It is necessary to read just two brief passages from the statement, the first coming from page 1:

"He then started to fight me, in self-defence and natural reaction I hit him back. I only hit him once because I was angry. I walked away before I would do anything more."

26. Then on the second page:

"...in self-defence I hit him once in the face. He fell to the floor, holding his head."

27. In our judgment, whatever precise formulation of the relevant test with regard to the performance of an advocate is adopted in this case, whether it is to be characterised, as some of the older authorities suggest, as flagrant incompetence or, whether it should be characterised as Wednesbury unreasonable, there is, as it seems to us, no possible basis for suggesting that the decision not to challenge the admissibility of the unit statement exhibited either flagrant incompetence or Wednesbury unreasonableness. It is, in our view, apparent that very many advocates would regard it as highly desirable that an untutored statement made by the appellant, on the day after these events, in which, in the clearest terms he advanced self-defence which was to form his defence in due course, was a document which should go before the jury, even if the risk of some cross-examination, by virtue of inconsistencies, was, in consequence, run.
28. Assuming it to be the case that no specific instructions were obtained by the solicitor advocate, on this aspect, that clearly was inappropriate. It was clearly the duty of the advocate to obtain his client's instructions on material matters. But the crucial question which then arises, if he failed to obtain such instructions, is whether, by reason of that failure, there was irreparable damage done to the defence or the defence was prejudiced by the adducing of the evidence in the unit statement so as to render the verdict unsafe.
29. For the reasons which we have given, we do not see that it can be said that the adducing of that statement was prejudicial to the defence. Therefore that ground fails.
30. There remains the criticism in which Mr Gritt, on behalf of the appellant, Jones, joins, of the summing-up with regard to alcohol and its effect upon intent. What the Judge Advocate said was this, at page 70H:

"We have heard in evidence that both the defendants had consumed alcoholic drinks before the incident so how does that affect the situation here in terms of their mental state? Of course it is something you have to bear in mind, but the fact that the defendants' minds were affected by drink so he acted in a way which he would not have done had he been sober, that does not assist him at all provided that he did have the necessary intention. A drunken intent is nevertheless an intent."

31. It is to be noted that that passage follows the directions in the judgment which we have already rehearsed as to the nature of joint participation and precedes the further summary of the matters which had to be proved against both Jones and Alden, before the tribunal could convict either of them. As we have said, those latter passages both refer to the need for the tribunal to be sure of an intention, on the part of Jones, to cause grievous bodily harm when he delivered the kick, and an intention, on the part of Alden, to encourage the infliction of grievous bodily harm with that intent.
32. What is said, first, by Mr Tregilgas-Davey is that the evidence in relation to alcohol was such as to require both parts of the direction in R v Sheehan & Moore 60 Cr App R 308, at page 312, where the judgment of the Court, given by Lord Justice Geoffrey Lane (as he then was) is in these terms:

"...where drunkenness and its possible effect upon the defendant's mens rea is an issue, (we stress those words) we think that the proper direction to a jury is, first, to warn them that the mere fact that the defendant's mind was affected by drink so that he acted in a way which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.

Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent."

33. Mr Tregilgas-Davey draws attention to the passage in the summing-up at page 70H, which we have already rehearsed. The evidence before the tribunal was from Annis, that Jones and Alden were drunk; from Leroy, that Alden was very hyped up and active and erratic; Jones said that Alden seemed quite happy and drunk and high; and Alden himself, in the passage to which we have already referred, said that he was drunk but not out of it and could remember more or less everything. He said he had drunk some six or seven bottles of lager, somewhat more than Jones claimed to have drunk, and that consumption appears to have taken place within the space of two-and-a-half to 3 hours.
34. In the light of that evidence, Mr Tregilgas-Davey submits that R v Bennett [1995] Crim LR 877 required a two part direction in accordance with Sheehan & Moore to be given. He submits that the recent Privy Council decision, in the case of Sooklal v The State [1999] 1 WLR 2011, can be distinguished on its facts because the consumption of alcohol in that case had been conspicuously less than the consumption of the appellant's in the present case and there was not, in that case, any evidence of the defendant being drunk, whereas, in the present case, there was such evidence. Mr Tregilgas-Davey also referred to an unreported decision of a differently constituted division of this Court in R v McKnight, Court of Appeal (Criminal Division) transcript of 19th April 2000. He submitted that the failure to give a two part Sheehan & Moore direction in this case renders the verdict unsafe. Mr Gritt advanced that submission on a somewhat bolder basis. He conceded that it had not been suggested, at trial, on behalf of the defendants, that there should be any further direction than that which was given in relation to alcohol and intent. But, he submitted, McKnight was wrongly decided. If it was rightly decided he accepted that he could have no ground of appeal. He submitted that McKnight cannot stand with Sheehan & Moore, and one of them must have been wrongly decided. He submitted that Bennett required, in the present case, a Sheehan & Moore direction to be given in full, and he submitted that Brown & Strattan [1998] Crim LR 485, which was not referred to in McKnight, is inconsistent with McKnight. For good measure he submitted that the Privy Council, in the form of the opinion given on behalf of the council by Lord Hope of Craighead, misunderstood the English law in relation to alcohol and intent. He drew attention to certain observations by Lord Hope, at page 2017D-F in support of this proposition. Before such a conclusion could be reached, it seems to us that it would be necessary to refer to a rather longer passage in the opinion of Lord Hope, culminating at page 2018B.
35. In our judgment, so far as the question of alcohol and specific intent are concerned, we do not take the view that there are two divergent, inconsistent, lines of authority. The crucial question in every case where there is evidence that a defendant has taken a substantial quantity of drink, is whether there is an issue as to the defendant's formation of specific intent by reason of the alcohol which he has taken. As the passage in the judgment of Lane LJ in Sheehan & Moore, makes clear, the necessary prerequisite to a direction of the kind identified in that case is that there must be an issue as to t he effect of drunkenness upon the defendant's state of mind.
36. If the Court of Appeal, in Bennett, was seeking to lay down a principle of wide general application (which we very much doubt) that would be inconsistent with what was said by Lane LJ in Sheehan & Moore. It would also be inconsistent with what appears in McKnight and in Sooklal. It is correct that Bennett was not apparently referred to in argument or in the opinion of their Lordships in Sooklal, although many other authorities were. Bennett was, however, referred to expressly in McKnight.
37. It is true that Brown & Strattan was not referred to in McKnight. But it seems to us that what was said by Henry LJ in paragraph 37 of the judgment of the Court in McKnight is correct. He said this:

"In our judgment, it follows from Sooklal that there must be a proper factual basis before the Sheehan and Moore direction is given. It certainly is not every case of drunkenness that would require it. There is no such factual basis here. It would be prudent in all cases involving drunkenness for the trial judge to discuss the issue with counsel at the close of evidence, or perhaps earlier in some cases."

38. It is to be noted that, in McKnight, the trial judge, of his own motion, decided that the evidence in that case did not require a Sheehan & Moore direction. It is also apparent that, in that case, there was evidence from the defendant describing, in a good deal of detail, as in the present case, what had happened in the course of a struggle. It is also apparent that she said in her evidence that she was not drunk, which she clarified by saying that she was not "leglessly drunk" at the time of the struggle. She also described being "affected" by the alcohol. But in cross-examination she said, in response to a specific question, that she was not saying that she was too drunk to know what she was doing.
39. As is apparent from paragraph 31 of the judgment in McKnight, nowhere in her evidence did the appellant claim either that she was incapable of forming the intention to kill or commit grievous bodily harm, or that she did not know what she was doing; she simply stated that she did not have the specific intention. It is apparent from what we have already said, in relation to the evidence given by the appellants in this case, that neither of them sought to say that they did not have the specific intention by reason of drink.
40. The consequence of these authorities, as it seems to us, is that they illustrate that the terms of a summing-up, in relation to alcohol as affecting intention, have to be addressed to the evidence in the particular case. If it is thought by either counsel in the case that a full Sheehan & Moore direction should be given, that is a matter which they should bring to the attention of the trial judge, and he, if he has doubt in his mind as to the propriety or otherwise of giving such a direction, should raise the matter with counsel. That was not done in the present case.
41. What was done was that a direction was given in the terms which we have rehearsed. It was given in the context of the other directions which we have rehearsed as to the need for the Court-Martial tribunal to be sure, in relation to each defendant, that he either (in the case of Jones) intended to cause grievous bodily harm or, (in the case of Alden) was party to a joint enterprise which contemplated such harm being caused with such intent.
42. In our judgment, therefore, the summing-up in the present case was appropriate to the circumstances of this particular case, and to the evidence which the tribunal had heard. It is not possible to say that there is any inadequacy in the direction which was given in relation to alcohol and intent, such as is capable of rendering the tribunal's verdicts unsafe. Accordingly, the appeals against convictions are dismissed.
43. With regard to the application in relation to sentence, Mr Gritt submits that 3 years was excessive for that which Jones did. He drew attention to Attorney-General's Reference No 33 of 1997 [1998] 1 Cr App R(S) 352. In the course of giving the judgment of the Court in that case, Lord Bingham CJ said that a sentence of the order of 3 years would have been appropriate, in relation to that young man of good character, in a section 18 case.
44. It is to be noted that the Court, on that occasion, proceeded on the basis that the defendant may well have been provoked in what he did. In the present case, as is apparent from the evidence which we have rehearsed, from the verdict of the jury and, more specifically, from the Advocate General's sentencing remarks, the question of provocation did not arise.
45. The Advocate General referred to the necessity to take a very serious view of what was done, bearing in mind that Army boots were worn, the victim was on the ground and severe injuries were caused.
46. The Advocate General accepted the mitigation by Mr Gritt that no knife or glass had been used, the attack was hot blooded rather than pre planned and that only one kick to the body, and none to the head, was administered. Taking those mitigating features into account, each of which Mr Gritt very properly stresses before us, we are unpersuaded that it is arguable that a sentence of 3 years, following a trial, was manifestly excessive. Accordingly the renewed application in relation to sentence, on behalf of Jones, is refused.
(Application to certify a question)

THE VICE PRESIDENT: No, Mr Gritt we do not certify either of these questions, of being public or general importance arising from this case. Thank you.