England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16 October 2013

1. MR JUSTICE BURNETT: This is a renewed application for permission to appeal against a conviction of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. The applicant was convicted on 18 October 2012 in the Crown Court at Birmingham. He had pleaded guilty to a number of other counts and was sentenced to a total of 6 years' imprisonment. Mr Laird QC has appeared this morning on behalf of the applicant and we are grateful for his submissions.
2. The short facts are that the applicant was at home with his wife on the night of 13 and 14 June 2012 when they were disturbed by a noise coming from a group of late night revelers who had been drinking in a nearby bar. The applicant had asked them to be quiet on a number of occasions without success. At about 5.30am the applicant went into the street armed with a 36-inch long metal bar and a kitchen knife. In the course of a confrontation with the group he struck one of them with the metal bar.
3. There were two distinct injuries: one to the upper body and another to the head causing a depressed fracture of the skull. It appears that the applicant also punched another member of the group and it was that act which founded another of the counts.
4. The applicant gave evidence at his trial. Mr Laird has explained to us that his case was that he intended to strike the complainant to the body and not the head, that there were only two blows and thus that he did not intend to cause him really serious injury. The second blow, on the account given by the applicant, struck the complainant's head but was in a loose sense accidental because the complainant was moving at speed in consequence of the first blow. He meant to hit his body.
5. There were three eyewitnesses to the attack on the complainant. One of them described three blows with the bar, one described a single blow to the head and another described two blows. That was to some extent consistent with the account given by the applicant.
6. In the course of cross-examination of the first eyewitness counsel for the applicant questioned him about a previous inconsistent statement made to the police. The point was a simple one: in his evidence the witness said that there were three blows, whilst in his police statement he had said that there were two. The purpose of the cross-examination was to establish that there had indeed been only two blows struck by the applicant. By virtue of section 119(1) of the Criminal Justice Act 2003 both what the witness said in evidence in court and also the content of his police statement were evidence before the jury.
7. There are two grounds of appeal. The first concerns the way in which the Judge explained to the jury that they should judge the defendant's evidence by the same fair standards as they considered any other evidence. It is submitted that because this observation did not appear in the section of the summing-up headed "Legal Directions", there was a material misdirection. The jury may not have appreciated that they were obliged to treat the applicant fairly.
8. Mr Laird has not pressed this submission with great vigour this morning and, in our judgment, rightly so. It is usual for Judges to say something of this sort to the jury in every summing-up. Many do it in an introductory passage, that is before getting to the section of the summing-up formally headed "Legal Directions"; some may include it as a legal direction; others make the observation when they come to describe the evidence of the defendant himself.
9. We would not consider it a misdirection to leave out that observation altogether because it is not really a legal direction at all. The jury have taken an oath, which amounts to a promise to try the defendant fairly and according to the evidence. They are reminded often in the course of a summing-up of the need to look at the evidence carefully and to make sound judgments about what they accept and what they reject.
10. Be that as it may, the Judge twice reminded the jury in this case of the need to approach the defendant's evidence fairly and in our judgment there can be no proper criticism of the way in which he dealt with it.
11. The second ground, and the ground upon which Mr Laird has concentrated his submissions, is that there was a material misdirection given by the Judge concerning the previous inconsistent statement. He submits that there is a similar failing as underlay the first ground, namely that the Judge failed to make it clear that the direction was a direction of law because he dealt with it as he touched upon the witness's evidence.
12. Furthermore, Mr Laird submits that the direction was insufficient in at least two respects: first, that there was no explanation of the significance of the discrepancy, and secondly, that it was not made clear that the discrepancy might itself affect the credibility of the witness. In particular, it is submitted that the Judge did not remind the jury that the passage of time between the date on which the police statement was made, and the date upon which evidence was given at the trial, might itself have clouded the witness's memory.
13. The Judge summarised both accounts given by the witness. Indeed, he read to the jury the account contained in the earlier witness statement. The explanation to the jury of what they should make of the two accounts was this:

"So in terms of what you heard from this witness, the taxi driver, clearly he gave an account in his oral evidence to you that there had been three blows, and in his statement he said that there were two. You need to appreciate that the account given in his statement also forms part of the evidence in the case. You are not bound to accept either account, but, if, in any respect, you conclude that his written statement is accurate and his oral evidence is not, then you may act upon the statement in preference to his oral evidence. It is a matter for you to assess."

15. The critical point explained by the Judge was the effect of section 119, namely that both accounts were evidence. We agree with the Single Judge's observation that there was no need explicitly to attach a label legal direction to this part of the summing-up because it was entirely obvious. Also we agree with the Single Judge that it could not have made any conceivable difference had that label been attached to this particular paragraph.
16. We accept that the Judge might have said that the inconsistency affected the general reliability of the witness, but, in our judgment, it is not a misdirection not to have done so. It is self-evident from the language used by the Judge and is clearly implicit in what he said. The Judge's summing-up on this point conveyed succinctly the matters arising from section 119 and the previous statement that the jury should be aware of: first, that the earlier account was in evidence itself; secondly, that the jury was not bound to accept either account; and thirdly, that if satisfied in any respect that either account was accurate the jury could act upon it. That language conveyed unambiguously the point that they may find both accounts wanting.
17. Finally, Mr Laird submits that the summing-up should not be analysed line by line with a view to concluding whether a particular sentence is sound or not. The task is to look at it in the round and to consider whether there is any arguable failure which could affect the soundness of the conviction. We agree with that approach. In our judgment, despite the careful submissions made by Mr Laird, there is nothing in the summing-up which gives rise to any legitimate complaint in this case.
18. In those circumstances this renewed application must be dismissed.