England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 February 2009

1. LORD JUSTICE THOMAS: On 18th July 2007 the appellant was convicted of unlawful wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and subsequently sentenced to imprisonment for public protection with a minimum term of three years, less time on remand. Counsel who then appeared for the appellant, and who is not counsel who appears today, sought leave to appeal on various grounds. It is not necessary for us to refer to them. They were all refused by the single judge. The application was then renewed to the full court, comprising Maurice Kay LJ, King and Sweeney JJ. The court refused leave on the grounds put forward by counsel, but as is set out by Sweeney J in giving the judgment of the court at [2008] EWCA Crim. 2675, the full court itself and of its own motion granted permission on the basis there was an arguable misdirection in relation to the requisite intent for an offence under section 18 of the Offences Against the Person Act 1861. In their judgment they referred to two passage in the summing-up of the judge in relation to the requisite intent.
2. The judge who tried this matter, His Honour Judge Gilbart QC, said:

"The prosecution must prove that the defendant intended to cause grievous bodily harm or to cause a wound to Brown [Brown being the complainant]. Grievous bodily harm means really serious harm. A wound, of course, is as I have described it."

A few sentences earlier he had described a wound as "a wound means a break in the continuity of the skin." He continued:

"Now, if you are sure that Taylor (the appellant) attacked Brown, that the result of the attack was that Brown was wounded and that Taylor intended to cause grievous bodily harm or to cause a wound, then the elements of the offence are made out and if you are sure of those elements you must convict. If you are not sure you must acquit."

After giving the usual direction as to what a defendant intended, the judge continued:

"Patently, if you are not sure that any attack took place, you do not have to get as far as intention. The question does not arise. If you are sure that an attack took place then you have to consider intention but no one has suggested that someone who attacks someone else with a knife is not intending to cause them a wound. You may think that if you found that the attack took place and that it was an attack with a knife, that finding an intention to cause a wound is not going to take you very long.

Again, I remind you that you must not convict of this charge unless you are sure that the defendant intended to cause grievous bodily harm or to cause a wound."

3. Counsel who appears for the Crown today and who also appeared for the Crown at the trial concedes, as it seems to us was inevitable in the light of the authorities, that there was a misdirection in relation to the intent required; an intent to wound is insufficient. There must be an intent to cause really serious bodily injury. It is not necessary for us to set out why that was so because the statutory language is clear.
4. However, it is argued on behalf of the Crown that the conviction is nonetheless safe in all the circumstances. Before considering that argument we should point out that it is unfortunate that when counsel for the Crown was asked by the judge whether there was any direction of law which either he had not given or had given that the Crown considered should be corrected, no correction was made. We should also point out that we are told there was some discussion as to whether an alternative count under section 20 or an alternative verdict should be left to the jury. It was agreed none should be. That to an extent is relied on by the Crown but we cannot attach weight to it. The defence may have taken the view that it was better that it should be an all or nothing case on section 18, rather than having an alternative verdict left. Secondly, we cannot be sure and certainly we would have doubts as to whether counsel then representing the appellant had actually understood the difference in the offences under section 18 and under section 20. It is a comment we regret that we have to make, but in the light of the fact that nothing was said by defence counsel in relation to the summing-up, bearing in mind the seriousness of the conviction under section 18, we feel nonetheless compelled to make it.
5. We turn to consider safety and to consider the evidence relied on to prove the intent to cause really serious bodily injury. When we enquired first of all what was relied on, we were told that there were two matters: (a) what had happened in the flat and in particular the evidence of the complainant Mr Brown and (b) the medical evidence.
6. We turn first to the medical evidence. We need not set out the medical evidence in any detail because it is now accepted that the medical evidence helps not one iota in relation to whether there was an intention to cause really serious bodily injury. That is because the medical report does not set out the depth of the wound; it is also quite impossible for us to divine from the report whether any internal or other injuries were caused. There is certainly nothing on the face of the report that shows that. There is one passage about a CT thorax but that, on examination of the report, is inconclusive. In our judgment counsel for the Crown was right to accept that there was nothing in the medical evidence that assists an iota in relation to intention.
7. We therefore turn to look at the issue of intention by reference to the objective evidence of the knife. We have a photograph of the knife, but unfortunately at this stage there are no visible dimensions of the knife marked on it. No-one measured the knife. It is therefore impossible for us to work out from the information we have any possible extent of the depth of the wound from the width of the knife.
8. That being of no assistance, we are then driven back to consider the evidence of the complainant as to what happened. The problem of the evidence of the complainant is a simple one. The judge had, because of the background, to direct the jury to approach his evidence with caution. It is important for us to stress that the judge was right to give that particular direction. That is, however, of considerable significance, given the circumstances which we must now examine in relation to the remaining evidence before the jury, having discounted the medical evidence and having discounted the evidence in relation to the knife as helping on intention.
9. The evidence before the jury was that in the early hours of 22nd January 2007 the police were called to the flat of Mr Brown. The police were unable to obtain a coherent account of what had occurred. They further concluded that the blood visible on the complainant was old and therefore took no further action. The complainant subsequently alleged the appellant had assaulted him on this occasion. That formed a count on the indictment, but the jury acquitted on that count. It therefore underlines the view that the judge was plainly right in saying that the evidence of the complainant had to be approached with caution.
10. We therefore turn to the evidence, such as it was, in relation to the subsequent assault charged under section 18. That evidence can be summarised very, very briefly. On 23rd January police were again called to the same address. This time the complainant was found with scratches to his face and a stab wound to his back from which he was bleeding. The appellant was present outside the building and appeared to be solicitous for the complainant's welfare. The complainant initially told the police that he had been attacked by an unknown assailant. The person who treated his wounds at the hospital also noted the complainant said he did not know who the attacker was. However, the following day the complainant identified the appellant as the attacker.
11. The police found a broken knife in the street. We have already referred to the fact that that does not assist us. The police also recovered a fork from the flat which the complainant said had been used to cause scratches to the face. Again it is just a simple dinner fork.
12. Therefore we turn to the evidence that was given by the complainant which is the only other evidence that could be relied on. As set out in the judge's summing-up it was as follows. He said that the appellant came to the flat and pressed the buzzer. He thought the appellant wanted to chat. He let him in. He described the appellant as on edge. They sat on the couch together and chatted away. They were on a three seater under the window. He had not had anything to drink. He was getting ready to go and see Help the Homeless about a further flat. They had a conversation about having a drink. The appellant was agitated. The summary given by the judge continued:

"He kept reaching for his pocket. This went on for a while. As I leaned forward to get paperwork off the floor I felt what I thought was a punch in my back. I saw what I thought was a knife in his hand. I turned round and said, 'What the fuck?' After a couple of seconds I leaned against the settee in pain. He said, 'Does it hurt?' I couldn't answer. Some of the knife was on the settee. The defendant was trying to push the rest into my stomach. What I had felt was towards my left shoulder between the shoulder blade and the spine."

He then described seeing the knife, which was what was subsequently recovered. Then the complainant describes the second part of the incident in these terms. After saying that nothing further was done with the knife, he asked the appellant to get him an ambulance and he then saw the appellant go into the kitchen:

"I heard him rooting about. I thought, 'Goodbye everybody, this is it'. He came in with a fork. He tried taking my eyes out with it. I defended myself as much as I could. I had hold of his hands and wrists. He got me with the fork on the right and left cheeks. I would say it was intentional. He was digging it in. He said, 'Where does it hurt the most?"

We have photographs that show the scratch marks to the face. They are peripheral marks with a little dried blood on them, but they do not appear to be anything more than surface scratches. Then there is the evidence of the ambulance being called and the appellant being present when the ambulance came.

13. We are left therefore, when considering the safety of the conviction, with that evidence. The difficulty that we face is, first, the fact the jury were told to treat his evidence with caution; secondly, the fact that the jury plainly did do so; thirdly, the evidence that we have set out is equivocal as to whether there was an intention to cause really serious bodily injury. It has been submitted ably on behalf of the appellant that as there were lots of knives in the kitchen, if the appellant had really intended really serious bodily injury he would have come back with a knife and not with a fork and done something more than merely scratched the face. The real difficulty that in the end we face in this case in looking at all the pieces of evidence, is whether there is something upon which we could say the jury would have been satisfied there was an intention to cause really serious bodily injury. But as we have endeavoured to explain, there is no medical evidence that provides evidence of such an intention, the evidence in relation to the knife is inconclusive and, as is apparent from the passage in the evidence of the complainant which we have set out, bearing in mind the caution the jury were directed to place on that evidence, we cannot say that the jury would have been sure on that evidence of the requisite intent. They may have been, but on the other hand they may not. It seems to us therefore that we cannot conclude that the conviction under section 18 was safe in the light of the clear and accepted misdirection to the jury. For those reasons this appeal is allowed.

(There followed discussion as to whether the Crown wanted to pursue a retrial and the court adjourned over lunch for further instructions to be taken.)

14. MR LIVESEY: Thank you for giving me the opportunity to take further instructions over the short adjournment. My instructions are somewhat less bullish. The defence have been able to point out in particular the defects in the medical evidence --
15. LORD JUSTICE THOMAS: The consultant has no prospect whatsoever, and understandably no prospect whatsoever, of remembering a thing about this.
16. MR LIVESEY: Of course. The Crown would not seek a retrial.
17. LORD JUSTICE THOMAS: So we substitute a conviction. Yes.
18. MISS BEX: The offence of section 20 then is not one to which a sentence of imprisonment for public protection applies and so therefore the maximum sentence being five years, I appreciate clearly no credit--
19. LORD JUSTICE THOMAS: He has served the equivalent of how much?
20. MISS BEX: He has served the equivalent of four years. In my submission this is not the most serious section 20 that one would see. I do not put it any higher than that and therefore I would invite your Lordships to impose a sentence that would enable him to be released shortly.
21. LORD JUSTICE THOMAS: If we were to impose a sentence of four years when would he be released?
22. MISS BEX: I understand that if not immediately within the next couple of days.
23. MR JUSTICE BLAKE: He has served about 25 months. It would be a little difficult to turn days into months.
24. MISS BEX: I would only ascertain it was January.
25. LORD JUSTICE THOMAS: If it was three-and-a-half years he would be allowed to go immediately.
26. MISS BEX: Yes.
(Pause)
27. LORD JUSTICE THOMAS: What we have in mind is imposing a sentence of three-and-a-half years' imprisonment which would permit his immediate release. So what we will do is formally quash the conviction, as we have already done, and substitute a conviction under section 20 and impose a sentence of three-and-a-half years, less time on remand.