England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/05/2017

Lord Justice Gross :

INTRODUCTION

1. Pursuant to permission granted by King J, the Claimant, a prisoner serving a sentence of life imprisonment for murder, challenges the decision of the Criminal Cases Review Commission ("the CCRC"), dated 7^th April, 2016 ("the Decision") not to refer his conviction to the Court of Appeal (Criminal Division) ("CACD").
2. Established by the Criminal Appeal Act 1995 ("the 1995 Act"), the CCRC now forms an integral part of the protection available in this jurisdiction against the risk and consequences of wrongful conviction, exercising a residual jurisdiction.
3. By s.9(1)(a) of the 1995 Act, where a person has been convicted of an offence on indictment in England and Wales, the CCRC may refer the conviction to the CACD. By s.9(2) of the 1995 Act, such a reference shall be treated for all purposes as an appeal.
4. S. 13 of the 1995 Act provides the threshold conditions for the making of references under s.9:

" (1) A reference of a conviction ….shall not be made under any of sections 9….unless –

(a) the Commission consider that there is a real possibility that the conviction….would not be upheld were the reference to be made.

(b) the Commission so consider –

(i) in the case of a conviction….because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it….

(c) an appeal against the conviction….has been determined or leave to appeal against it has been refused."

5. The factual history may be briefly summarised:

i) On the 4^th April, 2012, the Claimant was involved in an incident at a London nightclub with Mr Phillip Sherriff. In the course of the incident, the Claimant struck Mr Sherriff in the neck with a bottle causing serious wounds and bleeding. On the 8^th April, Mr Sherriff died in hospital.

ii) In November 2012, the Claimant was tried for Mr Sherriff's murder at the Central Criminal Court, before HHJ Worsley and a jury. The Claimant's primary defence at trial was self-defence. If that defence was rejected, then the Claimant maintained that he never intended to cause really serious harm to Mr Sherriff, so that he was guilty of manslaughter rather than murder.

iii) On Friday 9^th November, 2012 and after lengthy jury deliberation, the Claimant was convicted of murder by a 11-1 majority. The Judge passed the mandatory sentence of life imprisonment with a minimum term of 14 years' imprisonment.

iv) The Claimant sought leave to appeal against conviction and sentence. The Single Judge refused leave to appeal against conviction and granted leave to appeal against sentence. On the 16^th December, 2013, the CACD dismissed the Claimant's renewed application for leave to appeal against conviction and dismissed his appeal against sentence. Giving the judgment of the Court, Jackson LJ observed that both the Claimant and Mr Sherriff ("the deceased") had been men of unblemished character, who had been strangers to one another until their chance meeting close to the bar at the nightclub. The whole incident had been a tragedy; the deceased lost his life and the Claimant had to serve the sentence imposed upon him.

v) Following an advice given by Mr Henry Blaxland QC, dated 21^st May, 2014 ("the Blaxland Advice"), on the 14^th December, 2014, the Claimant applied to the CCRC for his case to be referred to the CACD.

vi) As already recorded, on the 7^th April, 2016, the CCRC gave its Decision – refusing to refer the Claimant's case to the CACD.

vii) Thereafter, the CCRC treated the case as closed and further submissions from the Claimant were unavailing.

6. The Claimant challenges the Decision, contending that the CCRC acted unlawfully in deciding not to refer his case to the CACD. He contends that the CCRC misunderstood the law, first, on whether a submission of no case to answer should have been made at trial and would have been successful. Secondly, as to the proper legal approach to a Nedrick direction; no such direction was given at trial and the Claimant submits that it should have been given.
7. For his part, King J, giving permission on the basis that the Claimant's grounds were arguable, went on to add the following:

"These grounds raise also the arguable issue as to the approach of the court on a judicial review when a challenge is made to the Commission's decision not to refer, on the ground that it took a view of the substantive criminal law which was wrong. Does the court on a judicial review consider the legal position for itself or will it decline to interfere so long as the view taken by the Commission was a tenable one and not irrational?"

THE TRIAL AND THE APPEAL

8. For present purposes, various aspects of the trial merit noting. First, CCTV footage of the incident was played to the jury. We too have seen it and I deal later with the impression I formed from it.
9. Secondly, the Claimant placed considerable reliance on answers given in cross-examination by Dr Peter Jerreat, a forensic pathologist called by the Crown. On the footing that the bottle remained intact, the following question and answer are recorded:

" Q. ….. Is this fair, it is unlikely to cause a really serious injury if it is wielded against the face and it does not break?

A. Yes, I would agree."

If, however, the bottle was broken, it would require only fairly moderate force to cause the injury sustained by the deceased.

10. Thirdly, very experienced counsel then appearing for the Claimant, Mr Andrew Hall QC, did not advance a submission of no case to answer. He also did not seek a Nedrick direction.
11. Fourthly, I turn to the Summing-Up. Early on, the Judge stated that there was no dispute that the injury inflicted by the Claimant on the deceased caused his death. There was no suggestion that the blow had been accidental. The issue was:

"….whether at the time of the blow the defendant realised that he had the bottle in his hand which had in fact been broken? The defendant says he deliberately and instinctively swung his arm at Mr Sheriff, but says that he did not appreciate in that moment that he was holding the bottle, which seconds earlier he had grabbed from the hand of Mr Sheriff."

12. The Judge then dealt with the burden resting on the prosecution to prove that at the time of the attack, the Claimant intended to kill or to cause really serious harm to the deceased. The orthodox, simple direction was given.
13. There was no suggestion that the Claimant intended to kill the deceased; the Crown's case was that the Claimant had formed the intention to cause the deceased really serious harm. That was an intent sufficient for murder. The Claimant denied that he had any such intention.
14. The Judge went on to direct the jury in the following terms as to determining intention:

" Now a word about intent, how do you determine what is going on in a man's head, you cannot cut his head open and look inside?

You determine the defendant's intent by looking at all the surrounding circumstances as you find them to be, namely what the defendant did and said before, during and after that fatal blow, and what he reliably said to the police and the custody nurse later on.

And this is important in the context of this case; an intent does not have to be a long formed intent. It can be formed in a flash of temper or in a split second. It can immediately be regretted afterwards……"

15. Having reviewed the CCTV footage, the Judge turned to the "weapon" which caused the fatal injury by cutting the carotid artery. There was no dispute that the weapon was a Beck's bottle of beer:

"…which by the time it had struck Mr Sherriff's neck had been broken. No one has suggested precisely how it must have been broken, but you may think that it is common ground that by the time it went into his neck the bottle must have been broken in order to provide the very sharp jagged edge which in fact caused the injury….."

16. The Judge recorded the evidence of police officers who arrived at the nightclub, or to whom the Claimant spoke subsequently. PC Bradley handcuffed the Claimant and told him he was being arrested. The Claimant said to him:

" Yeah, I know. I bottled him. He retaliated me. I didn't mean to harm him. I'm sorry. Is he all right?"

The Claimant continued to talk about the incident as other officers arrived. PC Davies reminded the Claimant that he was under arrest and under caution but the Claimant continued, accepting responsibility and saying:

" I hit the guy with a glass. I felt intimidated so I just lashed out. I had a glass in my hand and it cut him, as I turned away he was bleeding from the head area. I no way intended to cause him that damage…."

The Claimant repeatedly expressed his regret and continued to ask about the deceased. PC Davies further recorded the Claimant saying this:

" ….the man had been pushing past him; he had spoken to him and asked him to stop. He moved away slightly, but then the man pretended to use his mobile phone, and whilst doing this he was basically 'taking the mick' out of Mr Charles. This intimidated Mr Charles even more and he, Mr Chales, remembered slashing out at him and seeing lots of blood…."

17. Summarising the Claimant's case, the Judge underlined the Defence contention that the Claimant had not been shown to have deliberately smashed the bottle he was holding. Coming to the Claimant's evidence, he spoke of being scared of the deceased and then described what followed:

" I saw the bottle in his hand. I panicked and took the bottle off him. I grabbed it by the neck of the bottle with my right hand and it came out of his hand. I moved backwards with my arm across me and I instinctively 'flapped' … a slapping motion. My arm went forward and it hit him. I wasn't conscious of the bottle coming in contact with anything. I wasn't conscious of having the bottle in my hand. I was slapping with my hand, that's what I thought."

18. In cross-examination, the Claimant accepted that he "slapped out" and that his arm must have been raised above his shoulder height in order to have hit the deceased in his neck (as the deceased was taller than him). The Claimant spoke of a "nothing kind of hit". He denied that he had lost his temper and had struck the deceased with a bottle, intending to cause him serious harm. In re-examination, he said that he had not known that the bottle was broken when he swung his arm back.
19. The Judge had given the jury a "Steps to Verdict" document and very carefully went through it with them.
20. In the course of the jury's deliberations, after they had retired, they sent a note ("the jury note") to the Judge, asking for clarification of "…the definition of really serious harm and how it differs to some harm….". The Judge discussed the jury note with counsel and then gave the jury the following answer:

" ….I do not know that I can give you much more help than to say that the words mean really what they say; so 'really serious harm' means really serious harm, 'some harm' is harm which is short of really serious harm. You set the standard. You decide what is really serious harm and what is serious harm. I do not think that I can help you any more than that, and I am sorry if that is not much help to you…."

21. Fifthly, passing sentence, the Judge, with the benefit of having conducted the trial, made (inter alia) the following observations:

" What you did was caught on CCTV. You had behaved responsibly throughout the evening. You had caused no trouble. You had drunk, but not excessively, but you clearly became annoyed at what you perceived was the conduct of Mr Sherriff, and lost your temper when he may have pushed against you at the bar.

I have seen, as the jury have, the CCTV footage which show you provoking him, and attempting to seize his mobile phone, which he was using. Then, having done that, you disarmed him by taking the bottle which he was holding in his left hand. You swung it back (it is accepted by the prosecution that you did not deliberately smash the bottle, but smashed it was) and with you holding the neck of that bottle, you brought it up into his neck. It was a lethal weapon.

The risk of his death by the use of a bottle by you was considerable."

22. The thrust of the grounds of appeal against conviction was that there was a real risk that the jury "might confuse outcome with intention". Counsel concentrated on the Judge's response to the jury note. Instead of giving the answer he did, the Judge should have furnished a "step by step analysis" along these lines:

" (a) firstly, to decide whether they were sure that he knew the bottle was in his hand when he struck the fatal blow.

(b) if so, secondly, to decide whether they were sure that he knew the bottle was broken.

(c) if not, to consider whether they could be sure that he intended to cause really serious injury with an unbroken bottle."

It was further submitted that, in considering (c), the jury should have been specifically reminded of the forensic pathologist's evidence, outlined above.

23. As already recorded, the CACD dismissed the Claimant's renewed application for leave to appeal conviction. In the course of his judgment, Jackson LJ observed (at [15]) that three matters had become clear from the expert evidence and the CCTV footage:

"(i) The beer bottle was intact when the appellant grabbed it from Mr Sherriff.

(ii) By the time the beer bottle struck Mr Sherriff's neck it was already broken.

(iii) That single blow from the broken beer bottle cut the carotid artery. This led to a massive blood loss and was the cause of death."

The prosecution did not allege that the Claimant had deliberately broken the bottle. The bottle must therefore have broken accidentally in a fraction of a second before the Claimant struck the fatal blow (at [31 (i)]).

24. Summarising Mr Hall's submissions on the appeal, Jackson LJ noted (at [31 (vi)]) that he did not go so far as to say that there was no case of murder to go to the jury; nonetheless, the case had required careful directions on the issue of intent, which the Judge had not given.
25. Jackson LJ went on to say this (at [32]):

" Mr Hall presents this renewed application for leave to appeal against conviction very clearly and very fairly. He did not make a submission of 'no case' to the judge at trial and in our view he was right not to do so. The judge correctly told the jury that the prosecution did not allege intention to kill. The jury could only convict the appellant of murder if they were sure that when he struck the fatal blow he intended to cause really serious harm. The judge went on to elaborate upon intent, using the phraseology suggested in the Judicial College Bench Book. None of that can be criticised. "

The real thrust of the application went to the response to the jury note. Mr Hall submitted that it was to be inferred from the jury note that they were grappling with the question whether the Claimant could have had the requisite intent for murder if he believed the bottle to be intact. Asked what direction the Judge should have given, Mr Hall essentially repeated the formulation contained in the Grounds of Appeal (set out above).

26. The CACD did not accept these submissions. Jackson LJ put the matter this way:

" 35. … First, it is pure speculation as to what conclusions the jury had reached when they sent their note to the judge. Secondly, the note only asked the judge to elucidate the phrase 'really serious harm'. It was not a request for any further guidance. The judge was quite correct not to deliver further guidance and Mr Hall was quite correct not to ask the judge to do so.

36. Thirdly, Dr Jerreat was an experienced pathologist…. What Dr Jerreat thought was likely was not the issue. The issue before the jury was what the appellant intended when he struck Mr Sherriff with a beer bottle on a vulnerable part of his body. The jury decided that the appellant intended to cause really serious harm.

37. ….on the evidence, the jury were fully entitled to reach that conclusion and they received all proper assistance from the judge…."

THE BLAXLAND ADVICE

27. The Blaxland Advice formed the foundation of the Claimant's application to the CCRC.
28. Submission of no case to answer: In Mr Blaxland's opinion it was arguable that there should have been a submission of no case to answer at trial, once the prosecution accepted that the Claimant had not deliberately broken the bottle. The upshot was that the case had been left on the basis that the Claimant did not know that the bottle was broken. On that footing and relying on Hedgecock [2007] EWCA 3486, at [21] and G and F [2012] EWCA Crim 1756, at [36], Mr Blaxland submitted that it was arguable:

"…that in those circumstances no jury could reject the realistic possibility that AC did not intend to cause really serious harm. Given the speed with which the incident happened, it was impossible for a jury to be sure that in hitting the deceased with a small unbroken bottle, he had formed the requisite intent."

29. The CACD had considered the question of a submission of no case to answer in passing. This was not therefore a new argument – but, because the point had not been taken by defence counsel at trial or on appeal "the relevant legal test was not drawn to the court's attention and the matter was, therefore, not argued." This constituted an "exceptional circumstance" entitling the CCRC to consider referring the case. If an appeal succeeded on this basis, a conviction for manslaughter would be substituted for the conviction of murder.
30. A Nedrick direction: If, per contra, there had been a case to answer on murder, then this was "plainly one of those comparatively rare cases in which proof of mens rea, the intention to cause really serious injury, was not straightforward". It was thus arguable that the Judge had been required to give the jury a Nedrick direction, i.e., R v Nedrick [1986] 1 WLR 1025, as approved in R v Woollin [1999] 1 AC 82. No consideration appeared to have been given to this question, either at trial or on appeal; Mr Hall's submissions on the appeal had been confined to the Judge giving the jury some further assistance on how to approach intent.
31. In Mr Blaxland's opinion:

" It is strongly arguable that a Nedrick direction was required in this case. The jury had to decide the critical question of what was in the defendant's mind in the split second that he hit out at the deceased, with what he believed was an unbroken bottle. His reactions in the aftermath of the incident indicated he was shocked about what had happened and had not foreseen the consequences. A simple direction to the jury that they had to be sure that he intended to cause really serious injury provided them with insufficient guidance on how to resolve this difficult issue. Most importantly, AC was entitled to the protection from wrongful conviction of a more developed direction, in order to ensure that the jury properly understood how to approach the issue of intent on the facts of this case. "

THE DECISION

32. As already noted, on the 7^th April, 2016, the CCRC conveyed to the Claimant's solicitors its decision that there were no grounds to refer the case to the CACD; in the CCRC's view, there was no real possibility that his conviction would be overturned by the CACD.
33. As to the submission of no case to answer, the CCRC's view was straightforward. First:

"15. …the jury was entitled to take into account all matters, including the expert opinion on the degree of force used, when deciding Mr Charles' intent when he struck Mr Sherriff. Given that it is possible (even if not likely) that a blow of moderate force with an unbroken bottle could cause really serious injury, it cannot be said that it was impossible for a jury to conclude that Mr Charles formed the intent to cause really serious harm."

The CCRC emphasised the distinction drawn by the CACD between what Dr Jerreat thought was likely and what the Claimant had intended.

34. Secondly, this matter was not new and there were no exceptional circumstances giving rise to a real possibility that the CACD would admit further argument on this issue.
35. As to the Nedrick direction, the CCRC was again commendably succinct:

"19. …. A Nedrick direction on foresight of consequences is required in cases of oblique intent. This arises where a defendant alleges that his actions were intended to achieve some result other than death or serious harm, but that death or serious harm occurred as a secondary consequence.

20. Mr Charles admitted 'deliberately and instinctively' swinging his arm at Mr Sherriff and claimed it was in self defence. Mr Charles did not allege that this aim or purpose was to achieve some other result. This was therefore a case of direct intent, i.e., Mr Charles' primary purpose or aim was to strike Mr Sherriff. Therefore the question as to whether he intended serious harm, or something less than that, was correctly put to the jury with the simple direction."

36. The CCRC noted that the CACD had addressed the lack of any detailed "foresight" directions, even though that had not been specifically raised on appeal, at [32] (set out above). No new evidence had been provided in relation to this issue and the CCRC had not identified any new information or argument that would give rise to a real possibility that the CACD would quash the conviction if it were referred on this issue.
37. The CCRC added this (at para. 50). The Claimant had never sought to deny that he intended to strike the deceased. The issue for the jury was therefore:

" the degree of harm Mr Chales intended, not the type of harm. The CCRC remains of the view that this does not give rise to the rare and exceptional case where the simple jury direction is not enough."

DISCUSSION

38. The Blaxland Advice constituted the cornerstone of the Claimant's challenge as presented by Mr Cragg QC before us. At the conclusion of his submissions, we indicated that we did not need to call on Mr Friedman QC for the CCRC, though we had of course taken into account his skeleton argument.
39. Without more ado, I turn to the principal issues before us, which fall conveniently under the following headings:

i) Issue I: The role of the CCRC and the role of the Court ("Roles");

ii) Issue II: Submission of no case to answer;

iii) Issue III: A Nedrick direction;

iv) Issue IV: The approach of the Court when the CCRC is said to have taken an erroneous view of the substantive criminal law ("The approach of the Court").

ISSUE I: ROLES

40. The distinction between the role of the CCRC and the role of the Court is well-settled in authority.
41. In R v Criminal Cases Review Commission, Ex parte Pearson [1999] 3 All ER 498, this Court rejected a challenge to the refusal by the CCRC to refer a case to the CACD based on fresh psychiatric evidence. Giving the judgment of the Court, Lord Bingham of Cornhill CJ (as he then was) said this (at p. 505):

"Thus the Commission's power to refer under s9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else……

The 'real possibility' test prescribed in s.13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.

The judgment required of the Commission is a very unusual one, because it inevitably involves a prediction of the view which another body (the Court of Appeal) may take…."

42. Lord Bingham went on to say (at p.521) that it was "not….appropriate to subject the Commission's reasons to a rigorous audit to establish that they were not open to legal criticism." The "real test" was to ask whether the CCRC's reasons "…betray, to a significant extent, any of the defects which entitle a court of review to interfere."
43. In R (Hunt) v Criminal Cases Review Commission [2001] QB 1108 (DC), the CCRC declined to refer a case to the CACD where the point raised was that a prosecution was a nullity because it had been conducted by the Inland Revenue but without the consent of the Attorney General, rather than by the Director of Public Prosecutions through the Crown Prosecution Service.
44. With reference to s.13(1) of the 1995 Act, Lord Woolf CJ (at [3]) observed that:

" The provision is worded in a manner which reserves a residual discretion to the Commission not to refer, albeit that the case is one where there is a real possibility the Court of Appeal would not uphold the conviction. The language of the section applies in the same way irrespective of whether the application is on a question of law or a question of fact."

45. Lord Woolf went on (at [16]) to express these views on challenges to decisions of the CCRC:

" ….it is important that this court restricts attempts to raise grounds for challenging the decision of the Commission unless a proper basis is established, justifying the consideration of the allegation by this court. It is to be remembered that the Commission only becomes involved after the exercise by an applicant to the Commission of his rights in the court below and, if he seeks this, on appeal. It is a residual, but a very important jurisdiction which the Commission exercises. It imposes a heavy burden on the Commission..…. It is a jurisdiction which requires the Commission carefully to exercise the discretion which it is given by Parliament. In these circumstances it is important that the courts should not in inappropriate cases allow the Commission to be sucked into judicial review proceedings which are bound to distract it from fulfilling its statutory role….. "

46. In R (Mills and Poole) v CCRC [2001] EWHC Admin 1153, Lord Woolf CJ underlined (at [10]) that the threshold conditions in s.13 of the 1995 Act were "the means by which Parliament has attempted to resolve the tension between the need for justice to be done and the requirement that there should be an end to litigation." It was (at [14]) important the Divisional Court did not "fall into the trap" of forming a view as to how the CACD would react "and then concluding that that is what the Commission should necessarily have concluded….". That would be "to usurp the Commission's function". Decisions of the CCRC could not be quashed merely because "a court on judicial review might have or indeed would have come to a different view of the significance of the material or the prospects of success."
47. Pulling the threads together from these authorities:

i) The CCRC exercises an important residual jurisdiction in the interests of justice.

ii) The decision whether or not a case satisfies the threshold conditions and is to be referred to the CACD is for the CCRC and not the Court; it is not for the Court to usurp the CCRC's function.

iii) The judgment required of the CCRC is unusual, carrying with it the predictive exercise as to the view the CACD might take.

iv) The threshold conditions serve as an important filter, not least in preventing the CACD from inundation with threadbare cases; they also assist in striking the right balance between the interests of justice on the one hand and those of finality on the other.

v) Even if the threshold conditions are satisfied, the CCRC retains a discretion not to refer a case to the CACD.

vi) Though the decisions of the CCRC, whether or not to refer cases to the CACD, clearly are subject to judicial review (see recently, R v Neuberg [2016] EWCA Crim 1927, at [52] – [53]): (1) the CCRC should not be vexed with inappropriate applications impacting on scarce resources; the Court's scrutiny at the permission stage is thus of importance; (2) on a judicial review, CCRC reasons should not be subjected to a "rigorous audit" to establish that they were not open to legal criticism.

ISSUE II: SUBMISSION OF NO CASE TO ANSWER

48. With the Court's and CCRC roles well in mind, I turn to the complaint that the CCRC misunderstood the law as to the failure to advance a submission of no case to answer at the trial and thus erred in not referring the case to the CACD on this ground.
49. To my mind, this contention is hopeless. The CCRC did not in any respect misunderstand the relevant law. The entire question revolved around the application of well-established law to the particular facts of the case. The CCRC's conclusion on this aspect of the case was one it was amply entitled to reach. If it matters, in my view, it was plainly right. Counsel was right not to make any such submission, as the CACD held. Still further, this was not a new point and there were no exceptional circumstances justifying referral of the case on this ground. My reasons follow.
50. First, the ultimate question for the jury was whether it could draw an adverse inference as to the Claimant's intention from the circumstances. The well-known test as to convicting on the basis of circumstantial evidence is set out in Archbold (2017), at para. 10-3, citing Lord Normand in in Teper v R [1952] AC 480, at p. 489 (PC)

" …It is …necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference…"

51. Secondly, at the stage of considering whether a case, involving the drawing of an inference from the surrounding circumstances, should be left to the jury, the test is again well-established and set out in Archbold, at 4-365:

" Where a key issue is whether there is sufficient evidence on which a reasonable jury would be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the question is whether a reasonable jury could, on one possible view of the evidence, reject all realistic possibilities consistent with innocence and so reach that adverse inference, not whether all reasonable juries would do so…."

The two authorities relied upon by Mr Blaxland (and Mr Cragg), Hedgecock and G and F, are amongst others cited in support of this passage of text. There is nothing new about it. The facts of Hedgecok and G and F, are, however, very far removed from the facts of the present case. Both decisions involved allegations of the most serious conspiracies to rape and, in the case of Hedgecock, to murder as well. The Crown relied on the exchanges between the alleged conspirators as proving the necessary intention; in both cases, the essential defence was that those exchanges were no more than the perverted fantasies of the alleged conspirators.

52. Thirdly, it will be recollected that the background to the CCRC's consideration of this Issue included the following:

i) After the incident, the Claimant spoke to various police officers of "bottling" the deceased, of "lashing out" and of doing so because the deceased had been "taking the mick" out of him.

ii) The Judge's simple direction as to determining intention had reminded the jury (in orthodox terms) that an intent did not have to be long formed; that it could be formed in a flash of temper or a split second; and that it could immediately be regretted thereafter.

iii) On the basis of the CCTV and as recorded in his sentencing observations, the Judge formed the view that the Claimant had lost his temper and struck the deceased. The "risk of death" from the Claimant's use of the bottle was "considerable".

iv) The CACD had, in terms, expressed its view that counsel at trial had been right not to make a submission of "no case" at trial. Moreover, the CACD had underlined the difference between the expert's view as to the likelihood of causing really serious injury with an unbroken bottle and the question of the Claimant's intention when he struck the blow.

53. Fourthly, against this background, no proper criticism can be made of the CCRC's conclusion at para. 15 of the Decision (set out above). It does not begin to suggest any misunderstanding of the law. It comprises instead a very succinct statement, applying the law to the facts of the incident. At the very least, the CCRC was entitled to conclude that there was no real possibility of the CACD not upholding the conviction on this ground.
54. Fifthly, to the extent that it is necessary or appropriate to go further, I agree with the Decision. On the footing that the Claimant did not know that the bottle was broken at the time he struck the deceased, there was, nonetheless, an ample factual basis for a reasonable jury, properly directed, on one possible view of the evidence, to reject the possibility that the Claimant did not intend to cause really serious injury – and thus be sure that he had the requisite intent for murder. In addition to the matters which influenced the Judge, the CACD and the CCRC, I too have viewed the CCTV and formed an impression based upon it. The picture to my mind is one of aggression on the part of the Claimant, not the deceased. It is in that context that the blow came to be struck. For my part, I would have been surprised if experienced counsel had advanced a submission of no case to answer on the facts as they appeared at the close of the prosecution case.
55. Sixthly, the CCRC was in any event fully entitled to conclude that this was not a new point – it had been considered by the CACD – and that there were no exceptional circumstances justifying a reference on this ground.
56. It follows that I would dismiss the Claimant's first ground of challenge to the Decision.

ISSUE III: A NEDRICK DIRECTION

57. The law here is not in doubt: save very exceptionally, a Judge directing a jury in a case of murder ought not to elaborate on what is meant by intent, leaving it to the jury's good sense to decide whether the Crown has made them sure that the defendant killed the victim with the necessary intent for murder. Exceptional cases appear from a line of authority, including R v Moloney [1985] AC 905, Nedrick and Woollin.
58. Both the general position in the overwhelming majority of cases and the exceptional situation where something more than the basic direction on intent is required, are helpfully summarised in the following passage in Archbold (at para. 17-35):

" (a) When a judge is directing a jury upon the mental element necessary in a crime of specific intent (such as murder), he should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent.

(b) Foresight of the consequences which it must be proved that the accused intended (in murder….), is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight of consequences may be a fact from which the jury may think it right to infer the necessary intent.

(c) The probability of the result is an important matter for the jury to consider and can be critical in their determining whether the result was intended. It will only be necessary to direct the jury by reference to foresight of consequences if the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation is necessary to avoid misunderstanding.

(d) Where, exceptionally, it is insufficient to give the jury the simple direction that it is for them to decide whether the defendant intended to kill or do serious bodily harm, they should be told that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case; they should always be told that the decision is theirs to be made on a consideration of the whole of the evidence.

(e) In appropriate cases, it will be necessary to explain to the jury that intent is something quite different from motive or desire."

59. It is unnecessary to delve significantly further into either the authorities or the context in which the more complex directions were developed (discussed in Woollin, at p.90). The facts of the present case are considerably more straightforward than those encountered in the authorities cited. Thus, in Moloney, the appeal was in any event to be allowed on the simple ground that the appellant's real defence had never been left to the jury; namely, in the most unusual circumstances of that case, it had never entered his head when pulling the trigger that the shotgun was pointing at his father: see, at pp. 912 and 917. In Nedrick, the defendant confessed to arson but denied any intention to kill; the direction to the jury had wrongly equated foresight and intention – a confusion of course addressed in a different context in R v Jogee [2016] UKSC 8; [2016] 2 WLR 681. In Woollin, the defendant had thrown his three-month-old son on to a hard surface, fracturing his skull. The Crown did not contend that the appellant desired to kill his son or to cause him serious injury; the issue was whether the appellant nevertheless intended to cause him serious injury: Lord Steyn, at p.87 F-G. It was against that very different background that, at p.95 E-F, Lord Steyn said this:

" ….It may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act."

However, as Lord Steyn immediately went on to add:

" But I accept the trial judge is best placed to decide what direction is required by the circumstances of the case. "

Even with this qualification, some care is needed in applying Lord Steyn's observation. First, it has never been suggested that a Nedrick direction is anything but exceptional and (with respect) I cannot imagine that Lord Steyn was of a different view. Secondly, it is of the first importance that desire – if different from intent – is judged at the moment the act is committed. As is hornbook law, remorse immediately after the incident is neither here nor there and is not to be confused with desire (or intent) at the relevant time.

60. I return to the facts of the present case, already sufficiently set out. Trial counsel, Mr Hall QC did not seek a Nedrick direction, either before the Judge or before the CACD. It will be recollected that the CACD rejected counsel's argument calling for nothing more than an amplification of the simple intention direction. In Woollin, significant store was placed on the trial Judge; again, he did not consider a Nedrick direction. There was no dispute that the Claimant had deliberately struck the deceased. As it seems to me, it cannot realistically be suggested that the CCRC, at paras. 19 – 20 of the Decision, misunderstood the law in this area. Moreover, it seems plain that the CCRC's application of the threshold conditions, together with its predictive judgment as to the likely reaction of the CACD on this issue, were, at the very least, tenable – and gave rise to conclusions the CCRC was amply entitled to reach.
61. Again, if necessary to go further, I think the CCRC was entirely right. First, the essential facts were clearly before the jury. The straightforward question for the jury was whether the prosecution had made them sure that when the Claimant deliberately struck the deceased, he intended to cause him really serious harm/injury. Secondly, Mr Blaxland's reference to the Claimant's shock as to what had happened, was in any event before the jury and encompassed in the Judge's simple direction. Thirdly, no further explanation of foresight of consequences was required to avoid misunderstanding. If anything on the facts of this case, a Nedrick direction would have caused confusion rather than producing clarity.
62. For completeness, though the distinction drawn by the CCRC between the degree and the type of harm (at para. 50 of the Decision) has a telling resonance on the facts of this case, I do not rest my decision on it and would be cautious before accepting that it is capable of more general application.
63. For these reasons, therefore, I would dismiss the Claimant's second ground of challenge.

ISSUE IV: THE APPROACH OF THE COURT

64. The origin of this suggested Issue lies in the observations of King J granting permission (set out above).
65. The question is not straightforward. First, as already seen, the exercise of the power to refer, including its predictive element, is a matter for the judgment of the CCRC, not the Court – and is not to be usurped by the Court. Secondly, the CCRC has a discretion not to refer, even when the threshold conditions are satisfied. Thirdly, in many cases (perhaps most but I do not know) the issue for the CCRC will not give rise to "bright-line" decisions on substantive criminal law at all; for instance, cases where a reference is sought on grounds of fresh evidence or an alleged failure to give proper disclosure. Fourthly, questions of some awkwardness could arise as to the role of this Court and that of the CACD were this Court purportedly to decide unsettled issues of substantive criminal law definitively for itself. All of this points towards the Court being slow to intervene where the CCRC has taken a tenable and not irrational view, whatever the Court's own view might be. That said, I would be unwilling to say that there could not be cases where the CCRC's decision was vitiated by an error of substantive law – though it may well be that in such a case the matter could simply be disposed of by the conclusion (ex hypothesi readily arrived at) that the CCRC's decision was not tenable.
66. Beyond this it is unnecessary to go and I express no concluded view. It suffices to say that, in my judgment, no arguable question arises in this case as to the CCRC erring on any point of the substantive criminal law; Issues II and III instead concern the application of well-established law to the facts. Moreover, my conclusion in respect of Issues II and III was that the Decision was both tenable and right. For present purposes, therefore, this Issue falls away and its resolution can best be left to a case where it is necessary to decide it.

Mr Justice Singh :

67. I agree.