Lahaye, R v

Under section 6(3) of the Criminal Law Act 1967, unlawful wounding contrary to section 20 of the Offences against the Person Act 1861 is available as an alternative verdict on a single count of wounding with intent contrary to section 18.

The trial judge must assist the jury to return the true verdict properly open on the evidence. The parties’ tactical preferences do not remove that duty. The alternative may properly be left where doing so causes no unfair prejudice to the defendant. Prejudice will normally arise only where the lesser allegation is newly advanced and the defendant lacks a sufficient opportunity to prepare and present a defence to it.

The appellant was indicted at the Central Criminal Court for wounding with intent contrary to section 18 of the Offences against the Person Act 1861. The prosecution alleged that, after the complainant had stabbed the appellant on the preceding evening, the appellant deliberately stabbed him in revenge. The appellant denied being the aggressor. He asserted self-defence and accident, and denied any intent to harm the complainant.

Although both parties initially favoured a section 18-or-acquittal approach, the judge left unlawful wounding contrary to section 20 as an alternative verdict. The jury acquitted the appellant of section 18 but convicted him of section 20, and he was sentenced to two years’ imprisonment. The appeal challenged the propriety and fairness of leaving that alternative verdict.

1. Appeal dismissed. Section 6(3) of the Criminal Law Act 1967 permitted a conviction for unlawful wounding contrary to section 20 of the Offences against the Person Act 1861 on the single count alleging wounding with intent contrary to section 18. The effect of R v Wilson [1984] AC 242 and R v Mandair [1995] 1 AC 208 was that earlier contrary decisions had no continuing authority on that question.

2. The judge’s duty was to assist the jury to return the true verdict properly open on the evidence. That duty was independent of the tactical positions of the Crown and defence. If the jury were sure that the appellant deliberately and unlawfully wounded the complainant but were not sure of an intent to cause really serious injury, section 20 was a proper alternative.

3. The exercise of the section 6(3) power must not unfairly prejudice the defendant. Ordinarily, unfairness may arise if a defendant is unexpectedly required to meet a lesser allegation not previously advanced or contemplated, without adequate opportunity to prepare and present the defence. Here the appellant’s factual case—self-defence, accident and absence of intent to cause harm—would have been identical had a section 20 count appeared in the indictment. No actual prejudice was identified when the issue was raised, and both parties addressed the jury after the alternative had been left.

4. The court added that, although section 20 is normally available in law as an alternative to section 18, better practice is to include the section 20 count on the face of the indictment from the outset.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2005] EWCA Crim 2847.

• Central Criminal Court: convicted by a jury of unlawful wounding contrary to section 20 of the Offences against the Person Act 1861, following an indictment alleging section 18; sentenced to two years’ imprisonment.