No: 2004/04720/D2
Neutral Citation Number: [2005] EWCA Crim 2847
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday, 12 October 2005

B e f o r e:

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(The Right Honourable Sir Igor Judge)

MR  JUSTICE  RODERICK  EVANS

SIR  CHARLES  MANTELL

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R E G I N A

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DEAN  JOHN  LAHAYE

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MR JOHN COOPER appeared on behalf of THE APPELLANT

MR N CORSELLIS appeared on behalf of THE CROWN

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J U D G M E N T
Wednesday, 12 October 2005

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:  

1.	This is an appeal against conviction with leave of the full court by Dean Lahaye.  He appeared at the Central Criminal Court before His Honour Judge Morris QC and a jury on a single count alleging wounding with intent, contrary to section 18 of the Offences against the Person Act 1861.  In the result he was convicted of wounding, contrary to section 20 of the same Act.  He was subsequently sentenced to two years' imprisonment.  
 
2.	The facts of the case can be summarised shortly.  The appellant was a man of previous good character.  The victim, David Probert, had previous convictions.  They were neighbours.  On 5 September 2002, Probert became abusive to the appellant.  The appellant was troubled about Probert's habit of throwing bottles which smashed onto the pavement.  After some words had passed between them, Probert ran into his house and came out carrying two knives.  He attacked the appellant in the street.  In the violence which then ensued he caused a stab wound to the appellant's arm which required seven stitches.  He was subsequently sentenced to eighteen months' imprisonment for this attack.  Later that evening he was arrested in connection with an assault on his wife.  During the course of his arrest he behaved abusively and violently towards the police.  He was released from police custody the next day.  
 
3.	Shortly after midday the appellant and Probert came across each other again.  There was an altercation in the course of which Probert sustained three stab wounds:  one to the back of the left of his chest which penetrated the pericardium and just missed his heart, another to the diaphragm and another to the surface of the left lobe of his liver.  Probert required surgery and intensive care.  He was detained in hospital for some time.  
 
4.	The prosecution case was straightforward.  The appellant had deliberately stabbed Probert in revenge for what Probert had done to him on the previous evening.  There was a good deal of evidence to support that case.  One eyewitness, for example, identified the man (who, on his account, was the appellant) holding a knife with a long blade which was seen coming out from Probert's abdomen.  Another witness described seeing the man who was the appellant taking a long, thin object, which the Crown said was this knife, from within his jacket and coming into close contact with Probert.  Yet another witness described hearing an argument, which became increasingly aggressive and unpleasant, and words to this effect, "You stabbed me, you fucker.  I'm going to stab you".  
 
5.	The defence case was that all this evidence was wrong.  The appellant gave evidence that he had reported the earlier incident in which he had been stabbed to the police and that, not surprisingly, he had been frightened by what had happened.  His injuries required that his arm should be put in a sling.  He had seen the victim's wife and went out into the street.  He called for her to come out, but she disappeared.  He then realised that Probert was in the same street with him.  Given what had happened earlier, he was surprised to find him there and not at the police station or in police custody.  His case was that Probert had lunged at him with a large knife and in doing so he had cut his (the appellant's) pocket.  Faced with that, he took his arm out of his sling, grabbed hold of Probert's arm and struggled to prevent any further stabbing action.  His evidence was that he thought he was going to be killed.  He denied that anything had been said about the stabbing incident on the previous evening.  Somehow at some point in the struggle Probert had fallen.  At that stage the appellant had a knife in his hand, but he could not remember how it came to be in his hand.  He denied adamantly that he had tried to punch or to stab the victim.  
 
6.	On this brief summary of his case, as it seems to us, issues of self‑defence and accident arose.  Importantly, it was plain from his evidence that, whatever else he was saying, he was saying that he had no intention that Probert should suffer any harm, let alone really serious bodily harm.  He called a number of witnesses to give evidence on his behalf.  It is unnecessary for the purpose of understanding the issue in this appeal to recite that evidence.  
 
7.	At the close of the evidence, and before speeches, Mr Cooper, who appeared at the Old Bailey and has appeared before us in support of this appeal, raised with the judge the issue of an alternative verdict under section 20.  He put his submission to the judge in this clear way:  
 
		".... my initial view is, subject to your Lordship's, that this is a section 18 or nothing, as it were."  
 
He made the point that the Crown had not regarded this as a section 20 case.  When the judge asked counsel for the Crown, Mr Corsellis, who also appeared below and before us, agreed.  Mr Cooper suggested that the Crown had put its case forward against the appellant as a deliberate action by him, and that they had accordingly tied their colours to the mast of section 18 or nothing.  
 
8.	On closer analysis that is not entirely accurate.  The judge rightly understood that the Crown's purpose was to seek to avoid what in the Crown's view would have been an inappropriate verdict of wounding, contrary to section 20.  To leave that option to the jury would decrease the prospect of what the Crown believed would be an appropriate conviction under section 18.  At the same time, as it seems to us, the defence were not anxious for section 20 to be left to the jury because that might reduce the prospect of an acquittal overall.  In short, there were tactical considerations afoot.  No issue of principle was involved.  We understand the forensic positions being taken by each side.   
9.	However, the judge had a different duty.  Among others, his duty was to assist the jury to return whatever verdict was properly open to them and which they regarded as a true verdict according to the evidence.  As the discussion developed, the judge pointed out that there might be "a number of reasons why a jury would be satisfied as to the intent but, if they were not satisfied as to the intent ....  it would be open on the face of it to acquit of section 18 and convict of section 20".  He acknowledged that that was not the way the Crown wanted the case put, and might well not be how the defence wanted the case put but, "out of fairness to the defendant, it seems to me that the matter ought to be left to the jury, unless you wish to argue to the contrary".  
 
10.	Having expressed himself in that way, the judge invited further submissions.  Mr Cooper did not at that stage suggest that the case for the appellant would have been conducted differently if he had appreciated that section 20 would be left to the jury.  We do not see how he properly could have done so.  The appellant's case was that he had never at any time been an aggressor.  That was the case that Mr Cooper had put on his behalf to witnesses who inculpated him in this crime, and he called evidence, including the appellant himself, to support.  In other words, the factual case presented by the applicant was identical to the case which would have been presented if a specific count under section 20 had been included in the indictment. 
 
11.	When the judge came to sum up the case, he dealt with the matter very clearly and simply.  He pointed out to the jury, and directed them, that in relation to section 18 there were three specific ingredients to be considered.  Then he came on to the fourth ingredient, which only arose if the jury were satisfied so as to be sure that what had happened represented deliberate, non‑accidental action by the appellant, which was unlawful and not in self defence.  The judge said:  
 
		".... when the defendant stabbed Mr Probert, he intended to cause him really serious injury."  
 
He then gave an appropriate direction about that ingredient.  Having done so, he went back to the position which could arise if the jury were sure of the first three ingredients:  that Probert had been wounded; that the appellant had inflicted those wounds by deliberate acts; and that the stabbing was unlawful because it was not in reasonable and necessary self defence.  He directed the jury that if they were not sure that the appellant had the necessary intention to cause really serious injury, the verdict would be not guilty of wounding with intent but guilty of unlawful wounding, "which is the lesser offence and which does not involve the intention to cause really serious injury."  
 
12.	The essence of this appeal arises from Mr Cooper's complaint that the section 20 alternative should not have been left to the jury.  He submitted that this was not a case in which that alternative would have been available on the evidence; it was not the case the Crown was putting, and it therefore was not the case that the appellant had had to meet.  He suggested that if he had appreciated at an earlier stage that the judge would leave section 20 to the jury, he would (or might) have conducted the case in a different way.  
 
13.	The current statutory arrangement for alternative verdicts is provided by section 6(3) of the Criminal Law Act 1967.  For the purposes of this judgment it is unnecessary to recite its terms.
 
14.	We have had our attention drawn to a very large number of authorities.  For the purposes of this judgment we do not propose to recite them.  We have considered their impact.  We note in passing that in R v Saunders (1988) the House of Lords considered the application of section 6(2) of the 1967 Act which, as the text shows, is expressly concerned with verdicts of manslaughter when the indictment alleges murder.  There is a sentence in the speech of Lord Ackner which suggests that the principles of the common law in relation to murder (and treason) were not abrogated by section 6(2).  However it is difficult to envisage circumstances in any other cases in which the common law continues to permit an alternative verdict in circumstances which would not be encompassed by section 6(3).  So the starting point, and subject to possible exceptional cases (which it is difficult to imagine as we sit here now), the end point remains section 6(3).  

15.	Any analysis of the authorities drawn to our attention suggests that the critical question to the understanding of the judgment in each case requires attention to be given to whether the ground of complaint arose because the appellant was convicted of a serious offence, when the judge failed to leave the alternative verdict of a lesser offence to the jury, or whether the argument arose when the defendant charged with a major offence was convicted of a lesser offence.  R v Fairbanks 83 Cr App R 251 is a classic example of the first situation.  The error made by the judge arose from his failure to direct the jury that a verdict of careless driving was available to them when the indictment charged causing death by reckless driving.  In the same context the reasoning in Fairbanks was applied in the House of Lords in R v Maxwell [1990] 1 WLR 401, when Lord Ackner observed:  
 
		"The court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what on any view was disgraceful conduct.  If they are so satisfied, then the conviction cannot be safe or satisfactory."  
 
16.	In the present appeal we are confronted with an instance of the second situation, that is that the judge left the lesser offence to the jury when it was not expressly alleged in the indictment.  The effect of the decisions of the House of Lords in R v Wilson [1984] AC 242 and R v Mandair [1995] 1 AC 208 has deprived a number of earlier decisions, such as R v Springfield (1969) 83 Cr App R 608, R v McCready [1978] 1 WLR 1376 and R v Field (1997) 97 Cr App R 357, of any continuing authority in this area.  In summary, section 6(3) of the 1967 Act enables a defendant to be convicted of an offence contrary to section 20 of the 1861 Act as an alternative to a charge and single count alleging contravention of section 18.  

17.	The proper operation of the powers granted by section 6(3) requires that, like any other aspect of the trial process, the defendant should not be unfairly prejudiced.  In this particular context the principle would normally be contravened if the defendant were suddenly to find himself facing an allegation not previously advanced nor even contemplated, and deprived of a sufficient opportunity to prepare and present his defence to the lesser charge. 
 
18.	We return to the facts of this case and apply those principles to them.  As we have indicated, the factual case presented by the appellant in the course of this trial was identical to any case which would have been presented if a specific count under section 20 had been included in the indictment.  We have examined Mr Cooper's contention about potential prejudice.  The reality is that we can see no improper prejudice.  None was identified by Mr Cooper when the issue was canvassed with the judge.  In truth, all that happened here was that the judge was ahead of the forensic tactical battle.  He allowed neither side to take advantage of the other.  His concern was to enable the jury to return a true verdict.  Knowing that section 20 would be left by the judge to the jury, both sides addressed the jury in their closing speeches with an ample opportunity to, and no doubt they sought to, persuade the jury of the validity of their case ‑‑ in the case of the Crown that section 18 was the correct verdict; and in the case of the appellant, that an acquittal would be right.  The judge then summed up the case in the way we have already indicated, and, subject only to this point, in a way which was not criticised. 
 
19.	We have looked closely to see whether there was any possible prejudice or that any glimmer of unfairness has been demonstrated in the course taken by the judge.  We can see none.  Accordingly, this appeal must be dismissed.  
 
20.	We are, however, troubled at the absence of a count under section 20.  As we have indicated, the authorities establish beyond doubt that a verdict under section 20 is normally available when section 18 is alleged.  However we can see no advantage (and none has been drawn to our attention) by the omission of a section 20 count, which in virtually every case will be available to the jury and which the judge at trial will almost inevitably have to address, because whether section 20 is alleged or not, it is the judge's duty to cut to the heart of the matter.  If section 20 would be available in any event, we can see no reason why it should not be alleged at the outset.  We see no disadvantage to the Crown.  If their case is that the jury should convict of section 18, they will present their evidence and the arguments to sustain that conclusion.  On the other hand, the jury may take a different, less severe view and should be trusted to reach the appropriate verdict according to the evidence.  
 
21.	In circumstances where as a matter of law section 20 is available as an alternative to section 18, and where the application of section 6(3) of the 1967 Act means that that alternative would be available even if section 20 were not alleged, we consider that it would be better practice for the section 20 count to be included on the face of the indictment.  

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