England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21st February 2012

1. LADY JUSTICE HALLETT: On 25th May 2011, at the Crown Court at Wood Green before Miss Recorder R Jackson QC the appellant pleaded guilty to an offence of common assault upon his mother, the subject of count 1. On 14th July 2011, at the same court, he was convicted by a majority of ten to two of assault occasioning actual bodily harm on a police officer, count 2. On 4th August he was sentenced to a community order with a supervision requirement. He appeals against conviction with leave.
2. The facts are as follows. On 16th February 2011 the appellant's parents requested that the police attend their home following a disturbance, during which the appellant had smashed the rear window of his car and assaulted his mother by pulling her hair and pushing her. In an attempt to control him, PC O'Sullivan pushed the appellant in the chest, causing him to fall back onto a chair, and then placed him in handcuffs. The prosecution accepted at trial that he acted unlawfully in so doing, not having arrested the appellant first. Thereafter, therefore, the appellant was entitled to act with reasonable force to free himself. Whether or not the appellant was aware of his legal position is, not surprisingly, open to doubt.
3. A struggle ensued, the precise details of which varied from witness to witness. This too is unsurprising given it was, as described by the Recorder, "a fast moving and frightening incident".
4. Two of the witnesses called by the prosecution were the appellant's parents. However, by the time the matter came to trial their sympathies seemed to lay with the appellant, their son, rather than with the prosecution case, and one of them, the appellant's mother, was treated as hostile by the Crown.
5. The description and sequence of events therefore varied considerably. However, certain elements seemed to be clear. The officer dragged the appellant outside the property, where he used his right leg to sweep the appellant's legs from under him and control his fall to the ground. At some stage both men, O'Sullivan and the appellant, fell down some steps. The appellant, a large, strong man skilled in martial arts, got the better of the officer, according to the police witnesses. He pulled at the handcuffs, knocking the officer off balance. PC O'Sullivan said that he fell onto his back and the appellant straddled his body with his legs and pinned his arms down. Both he and colleague described the appellant's banging Mr Sullivan's head at least twice on the concrete steps and putting his hands around PC O'Sullivan's throat and squeezing tightly. The other officer was so fearful of her colleague's safety that she used her CS gas spray upon the appellant. Eventually the appellant was subdued, but not before he issued unpleasant threats to the officers concerned.
6. PC O'Sullivan attended hospital and was examined by a Dr Shehada. The officer himself described his injuries as a cut to the chin caused by the handcuffs where they came "across his chin when he was being strangled", a cut to the knee, a bruise to the back of the head and a bump on his head. He said he suffered neck and shoulders pains for a few days after the incident and saw his own GP. Dr Shehada's examination and the history that he took confirmed that the officer had: "Superficial lacerations to the chin and left knee, a bruise to the right arm." The lacerations did not require closure. AS the judge observed: "The impression was that the officer had sustained multiple superficial lacerations, soft tissue bruising and minor head injury".
7. The principal issue for the jury, therefore, was whether the appellant had gone beyond reasonable force to defend himself in relation to one part of the incident only, namely the "head banging and throttling part".
8. Defence counsel, Mr Blackford, made a submission of no case to answer at the close of the Crown's case. He relied upon the well-known authority of R v Galbraith 73 Cr App R 124, as interpreted by Turner J at first instance in Shippey [1988] Crim LR 67. We must therefore repeat what has been said many times. Reliance on Shippey as any kind of authority is misplaced. The decision in Shippey is but one example of how a trial judge approached an assessment of the evidence in the case before him. It laid down no new principle of law. Galbraith does not need interpreting. The words are clear and we quote:

"(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty - the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

9. There were two limbs to Mr Blackford's oral and written submissions at trial. His primary submission focused on the inconsistencies between the evidence of the appellant's parents and the evidence of the police officers and the internal inconsistencies in the evidence of the police officers. Mr Blackford emphasised that the injuries were not very serious and the difficulties facing the Crown in proving which injuries were caused when.
10. Initially he did not address the judge specifically on whether a superficial laceration or lacerations to the chin could amount to assault occasioning bodily harm. He appeared to concede at page 8 of the transcript that they did "just come within the definition". However, having heard Mr Richard Wood for the Crown in his reply concede there may be difficulties in establishing when the bump on the head was caused, Mr Blackford said this in relation to the sufficiency of evidence of actual bodily harm based solely on the laceration on the chin:

"Whether that comes within assault occasioning actual bodily harm itself we do not know, which is another way of saying there is no basis for saying that it does."

11. Before this court Mr Blackford did not rely upon his principal submission at trial that the case should be withdrawn from the jury on the basis of the inconsistencies in the evidence. He has relied essentially upon two grounds: first, that the evidence of a cut to the chin was insufficient to amount to evidence of actual bodily harm; and second, that the Crown was not in a position to prove to the appropriate standard that such an injury in any event had been caused by the unlawful use of excessive force.
12. Mr Blackford was anxious to remind us of the detail of the scuffle, which on any view involved the two men rolling down some steps. There were a number of occasions when their heads would have been close together, including the time when the officer had the appellant in a headlock. Mr Blackford reminded the court that the injury to the chin was described by the doctor as superficial, albeit consistent with the use of the handcuffs as alleged by the officer.
13. In summary, he suggested the use of force which results in a superficial injury cannot be described as unreasonable, a superficial laceration cannot be described as more than merely transient or trifling without more particularity, and the prosecution in any event could not prove the causation. Further, Mr Blackford criticised the Recorder for placing what he described as an over-emphasis on the nub of the case, namely the issue of self-defence, and an insufficient emphasis, as he would have it, upon the question of causation.
14. It is important to note that by the time the jury retired the issues in this case had been considerably narrowed so that the jury had to decide just three things: Did Mr Christou bang Mr O'Sullivan's head and try to throttle him as alleged?; If so, was he acting unreasonably with excessive force?; If so, did he thereby cause actual bodily harm?
15. Having considered the summing-up as a whole and in context, in our judgment those issues were left fully, fairly and squarely to the jury to decide. The Recorder directed the jury in terms that they must consider how the injuries relied upon were caused, when and whether they amounted to actual bodily harm. If the jury were satisfied to the appropriate standard that the answers to questions 1 and 2 were yes but not 3, she left to them the possibility of a verdict of common assault.
16. The force used in an assault may be excessive but cause only minor injury, for example a bruise or a cut, as Mr Blackford conceded during the course of his oral submissions. Thus, the jury may well have been satisfied that the force used in banging the officer's head on the ground and trying to throttle him went far beyond what was reasonable, yet the injuries were mercifully not serious. Further, what a doctor may describe as superficial may well amount to something more in the eyes of a laymen or laywoman. A cut may not break many layers of skin, but it is a cut nonetheless; if so, it is not transient. A jury may conclude it is not trifling either.
17. For all those reasons, therefore, we are satisfied that the Recorder was correct to leave the case to the jury. These were issues very much within the province of a jury and the directions to them were in appropriate terms.
18. For those reasons, this appeal must be dismissed.
19. MR BLACKFORD: My Lady, the instructions that I have had from the Criminal Appeal Office, there is reference to my putting before the court an estimate of costs where a defence costs order has been made. I am not aware that it is appropriate for me to do so, but if that is the usual procedure can I put myself in your Ladyship's hands and ask for an indication of whether it is necessary for me to do that.
20. LADY JUSTICE HALLETT: In the light of the fact that leave was given, we will not pursue the matter.
21. Thank you very much, Mr Blackford.