England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 14th March 2006

1. LORD JUSTICE MAURICE KAY: On 9th September 2005, in the Crown Court at Liverpool, this appellant was convicted of an offence of inflicting grievous bodily harm pursuant to section 20 of the Offences Against the Person Act 1861. On 4th October 2005 he was sentenced to 15 months' imprisonment.
2. He now appeals against conviction by leave of the single judge.
3. The incident which gave rise to the prosecution occurred in the early evening of Friday 23rd April 2004. Briefly, at about 6.30 p.m. both the appellant and Peter Wheatcroft, the complainant, were in the bar of the Dog and Partridge public house in Hindley, Wigan. It is common ground that, whatever gave rise to the incident, the appellant struck the complainant in the face on one or two occasions. The complainant fell to the ground and at some stage the complainant sustained a double fracture to his lower jaw.
4. The prosecution contended that whilst the complainant had been on the ground the appellant had kicked him in the head. The prosecution case was of a wholly unprovoked attack.
5. The defence case was that there was a background to the case which had resulted in the complainant harbouring ill-will towards the appellant and that in the bar the complainant had acted in such a way as to cause the appellant to believe that he was about to be attacked and that he, accordingly, had acted in self-defence. Moreover, it was the defence case that there had been no kick to the head of the complainant whilst he was lying on the ground.
6. It is necessary to summarise some of the evidence which gives a slightly greater understanding of the rival contentions.
7. The evidence of Mr Wheatcroft was that he had gone to the Dog and Partridge, having had a pint of lager in another public house. The Dog and Partridge was quiet at that time of the evening. There were only ten or a dozen people in the bar. He bought a pint of lager. He saw the appellant there. Mr Wheatcroft stated that he spoke to a woman with whom he was acquainted about some roofing felt that he had supplied. He then said to the appellant, "Are you all right?" which produced the response, "Get out of my fucking face". He said that the appellant was very aggressive, that he, the complainant, then went towards the bar and as he turned round the appellant was just behind him. The appellant punched him in the face. That was all that he, the complainant, could remember. He said he must have passed out. An ambulance came and he was taken to hospital.
8. The licensee of the Dog and Partridge was Mr Hanson. He was described by the prosecution as a sober and independent witness, a view with which it is difficult to disagree. He said that a point had come when he had heard a glass break. He added:

"I came round the bar to see what was going on. I saw Wheatcroft. I saw the defendant aim a kick at his head and that kick connected. The defendant's face, I saw it, was pure anger. It was vicious. It was meant to hurt. I said 'Pack it in'. He turned and left the pub."

9. The appellant's account was that he had had one pint of lager when the complainant came in and sat by him. The appellant's evidence was summed up by the judge as having taken this form:

"'I don't want any trouble, I would rather you didn't sit with me' and Wheatcroft said ... 'Come outside'. I said again: 'I want no trouble' but I walked to the bar. I couldn't see any reason for him to attack me. I punched him twice, a left hook and a right hook. I used minimal force. I have been told that he has a fractured jaw, I can't say how that happened, although he did fall against the bar."

A little later he said:

"'I did not kick Peter Wheatcroft in the face or kick him at all. I hit him twice but that was just a reflex, I'm an ex-boxer. I know how to defend myself, with the minimum of force'."

10. Another witness, Ryan McCarron, was called on behalf of the defence. He gave an account broadly consistent with that of the appellant, but was cross-examined to some effect about the fact that he had not made a statement until the morning of the trial. He gave evidence about the incident on the basis that it occurred on a different date and a different day of the week. It seems that there were some shortcomings in that evidence.
11. Finally, Karen Egglestone gave evidence. She it was who testified as to an alleged history of ill-will between the complainant and the appellant. She gave evidence which really amounted to a sustained attack on the character of the complainant, describing him as volatile, abusive and violent in his relationship with her, which, we infer, was in a difficult phase at the time.
12. Those then were the eye witnesses to what occurred. In addition to that, there was a small amount of medical evidence resulting from the complainant's hospitalisation. It took the form of a diagnosis of more than one fracture to both sides of the jaw, but it did not proffer a view as to causation.
13. As originally formulated the centrepiece of this appeal was to be in the form of a complaint that the judge was wrong to allow the prosecution to adduce evidence of the appellant's previous convictions as evidence of bad character and propensity under the Criminal Justice Act 2003. That complaint has now been wisely abandoned. Quite simply the points which counsel was hoping to make are not open to him, as he acknowledges, in the light of the decisions of this court in Hanson and others [2005] EWCA Crim 824 and Weir and others [2005] EWCA Crim 2866. However, concern about the way in which the evidence of the previous convictions was adduced remains as a ground of appeal.
14. The previous convictions were adduced before the jury by a police officer, Detective Sergeant Dale. He had no personal knowledge of any of the previous offences and what he was able to impart to the court came entirely from the Police National Computer. He referred to a conviction before the Wigan Magistrates in 1992 for common assault. He said that the print-out from the computer stated that the appellant had been asked to leave a shop and had punched a 22 year old to the face resulting in cuts and bruising. The second conviction was in 1995 at Abergavenny Magistrates' Court and according to Sergeant Dale concerned the use of a pool cue to hit the complainant. He then referred to a conviction in 1997 in the Wigan Magistrates' Court for threatening behaviour, adding that the facts were reported as being a punch by the defendant to an unknown male and abuse to police officers. The most recent conviction was in 2004, again in the Wigan Magistrates' Court, for common assault, the allegation being that the appellant had struck a 14 year old male in a shop.
15. It is apparent that, whilst the appellant did not dispute the fact that he had been convicted on the dates and in the places mentioned for the offences set out, albeit with one pedantic reservation which we ignore, he did not accept that what the Police National Computer disgorged by way of description was at all accurate. As we have said, it is common ground that Detective Sergeant Dale had no personal knowledge and was simply passing on what the computer provided.
16. We see from the summing-up that when the appellant gave evidence he did not accept that there was actual violence in 1992. He said that the 1995 conviction was in relation to a drug dealer who had been selling drugs and he disputed the pool cue. He said of the 2004 conviction, that there had been a gang of youths outside a shop throwing things at an elderly Asian shopkeeper and he had "pushed one of them out of the door".
17. It is apparent that the judge did not think much of the appellant's explanations of his previous convictions. As to his disputing that there had been physical violence in 1992, the judge said:

"That cannot be right, we know that is not right because he was convicted on his own plea apparently of common assault, which is the unlawful application of force, so there clearly was an assault."

He then made a similar point in criticism of the appellant's account in relation to the 2004 conviction.

18. Two points arise from this aspect of the case. The first is that where there is a dispute between the prosecution and the defence about the facts which supported previous convictions it is not enough for the prosecution simply to rely on the Police National Computer. This is apparent from the decision of this court in Humphries [2005] EWCA Crim 2030, in which the Lord Chief Justice said at paragraph 21:

"Before we leave this case we point out that it has a moral for other cases of this sort. First, it emphasises the importance of the Crown determining whether they need any more evidence than the actual previous conviction to achieve the purpose for which they want the evidence to be admitted. Second, it emphasises the importance of the Crown deciding that if they want more than the evidence of the conviction and the matters that can be formally established ... they must ensure that they have available the necessary evidence to support what they require. That will normally require the availability of either a statement by the complainant relating to the previous convictions in a sexual case or the complainant to be available to give first-hand evidence of what happened."

19. It is clear from that passage in Humphries that the way in which the alleged facts supporting the previous convictions were laid before the jury in the present case was inappropriate. It is to be hoped that, when there is a dispute about the facts supporting previous convictions, in almost all cases it should be possible for the matter to be dealt with in accordance with Humphries. However, one appreciates that there may be cases where the position is simply too complicated. Whatever the complainant may have said in a statement at the time of the earlier conviction, or may say now in evidence to the court, it may be that a current defendant was sentenced on a different basis as a result of a basis of plea proffered and accepted by the prosecution and by the judge. In other words, where these matters are in dispute there is a need for caution, there is a need to have regard to what was said in Humphries and there is a need to ensure that a current trial does not give rise to numerous satellite issues about what did or did not happen in some cases many years ago. It goes without saying that that is particularly to be avoided where what is taking place now is a relatively short trial on a simple issue.
20. The second point that arises is that, in our judgment, in the present case the judge went too far in promoting the versions contended for by the prosecution. We refer to the passages in which he was dismissing the accounts of the appellant on the basis that they could not be right having regard to his understanding of the meaning of common assault. As common assault can indeed be committed without the application of physical force, it can be seen that there was, to an extent, legal error in what he said. More significantly, the effect of what the judge said can only have been to promote disbelief of the account given by the appellant of his previous convictions and thus to undermine his credibility as a witness.
21. In our view, the two points which we have considered in relation to the evidence of the appellant's previous convictions are properly advanced as grounds of appeal.
22. There is another point related to the same issue. It is established by the recent authorities, see, for example, the words of the Vice President in Hanson paragraph 18, that:

"... the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions."

It is questionable whether the summing-up in the present case complied with that statement.

23. We now turn to a different aspect of the case and it centres upon the issue of self-defence which was the primary issue in the case. It is plain to us that even before the case was opened the judge had formed a particular view. It was that the appellant should be convicted if he had kicked the complainant in the face whilst the complainant was lying on the ground, but he should be acquitted if all that was proved was "a couple of punches". This is apparent from the transcript of the submissions and ruling concerning the adducing of the previous convictions of the appellant.
24. This is how the judge eventually left the issue to the jury. He said this:

"What is suggested here is that anticipating an attack Mr Ainscough, as he would be entitled to do, punched Mr Wheatcroft twice. If that is all he did then let us not worry about whether that is self-defence, of course he would not be guilty of the offence with which he is charged. What is truly alleged in this case is having knocked him to the ground, whether legitimately or not does not really matter because you may think that is not how he came by his injury, although it is entirely a matter for you, but if we are on the ground he quite deliberately kicked him in the face and that that kick in the face resulted in the serious bodily injury, that kick would be the offence with which the defendant is charged ..."

25. He added:

"... we will look at that in a little more detail tomorrow morning."

However, he did not revisit it in quite the way he had indicated that he intended.

26. We have no doubt that the judge was trying to simplify matters for the jury. We should be slow to criticise a trial judge for making such an attempt. It is, after all, one of his primary functions. However, simplification can sometimes become oversimplification. On behalf of the appellant it is submitted that that is what happened here.
27. Several criticisms are advanced of the summing-up in relation to self-defence, but, in our judgment, two of them are of particular relevance. The first is the complete absence from the summing-up of a direction that it is for the prosecution to disprove self-defence and not for the defendant to establish it. The judge did, of course, give a general direction on the burden and standard of proof at a different point in the summing-up, but he did not consider it specifically in the context of self-defence.
28. We think we understand how this came about. The judge had, as we have said, taken the view that if the kick was proved, the appellant was guilty. However, not least because of the next point we shall address, he ought not to have omitted the important specific and conventional direction as to the burden of proof in the context of self-defence.
29. The second point is really one of causation. We cannot interpret the summing-up other than as encouragement to conclude that, if the jury accepted Mr Hanson's evidence about the kick, the appellant was guilty. This is how we interpret what he said, even when every allowance is made for his reference to matters being "entirely for you". Again, we are sure that the judge was expressing himself quite deliberately, in good faith, and in an attempt to provide helpful simplification.
30. What the approach overlooked was whether the evidence did in fact establish that it was the kick that caused the jaw fractures. The medical evidence did not begin to establish that. It did not address the mechanism of the injury at all. Moreover, the appellant's evidence was that he, an ex-boxer, had punched the complainant to the face twice, with a right hook and a left hook. In addition, the complainant had impacted on the bar as he fell. We take the view that the jury might have been led to believe that the possibility that, even if they were satisfied about the kick, there was still a live issue as to causation as to the grievous bodily harm was being removed from them. It is significant to observe that the prosecution had not limited its case in opening, or at any stage, to causation being necessarily related to the kick as opposed to the attack as a whole.
31. It seems to us that on the evidence as disclosed by the summing-up the possibility of the jaw fractures having occurred from the punches, or an impact with the bar, is not simply a fanciful one. The judge encouraged the view that the kick suggested an absence of self-defence and the kick caused the injuries. In our judgment, whilst this was a well intentioned simplification, it did cross the boundary into oversimplification.
32. There is a third attack on the summing-up to the effect that, read as a whole, it fell short of the requirements of fairness and even-handedness which bind a trial judge. Reference is made to the case of Bryant [2005] EWCA Crim 2079 and the passage at paragraph 29 where Judge LJ said:

"What the judge's conduct of the case cannot do, and is wholly impermissible, is to allow the jury, who are the fact finders with the ultimate responsibility for returning the verdict in the individual case, to be left with the impression that he favours one side rather than another, and in particular the prosecution rather than defence, by conduct of the kind described in this case, and by the contrasting way in which he behaved in relation to the witnesses for the prosecution as opposed to the witnesses for the defence."

33. We say at once that we do not find in the present case anything comparable with the behaviour of the trial judge in Bryant. Moreover, it seems to us that whilst it may well be that the judge was suggesting a critical view of one or two of the defence witnesses, he was not adopting a position which favoured one side rather than the other. In particular, by the attempt at simplification he was seeking to provide an approach to the case which might have benefited either side. In one sense, it was a generous approach that the appellant should be found not guilty if all that he had done was to punch the complainant in the face twice. As we have said repeatedly, that approach was well intentioned, if, in the event, unfortunate on the facts of the case. It was not motivated by a lack of even-handedness, quite the contrary. Accordingly, we find nothing in that ground of appeal.
34. However, we do find the earlier grounds of appeal in relation to the way in which the previous convictions were treated and the approach of the judge to self-defence to be made out. In those circumstances, it is submitted on behalf of the prosecution that this was a short case, it was a straightforward case and a strong case and, in all the circumstances, we should not view the conviction as unsafe. We regret to say that we cannot accede to that submission. It seems to us that the matters that have been identified as sustained grounds of appeal related to important aspects of the case. We take the view that the case for the appellant was damaged by the errors to which we have referred and we do not feel able to say that the conviction is nevertheless, in all the circumstances, safe. Accordingly, we shall allow the appeal and quash the conviction.
35. We note that the appellant received a sentence of 15 months' imprisonment. We are told that he is presently on home detention curfew and has been for some weeks. In those circumstances, whilst no one at this stage has even suggested that there should be a retrial, we take the view that such a retrial would not be in the public interest.