Caley-Knowles, R v

A conviction is unsafe where a judge directs a jury to convict and thereby completely removes the issue of guilt from the jury. That is a significant legal misdirection or material irregularity, even where the evidence of guilt is clear and no defence exists in law.

The rule does not mean that every impermissible direction to convict automatically makes a conviction unsafe. The safety inquiry under the Criminal Appeal Act 1968 remains fact-sensitive. A conviction may remain safe where the jury was in fact left to retire and return its own verdict.

The Criminal Cases Review Commission referred two historic convictions to the Court of Appeal. Mr Caley-Knowles had been convicted of assault occasioning actual bodily harm after admitting the assault but advancing no defence recognised by law. Mr Jones had been convicted of criminal damage after damaging a town hall as a protest. He relied unsuccessfully on lawful excuse.

In each one-day trial, the appellant represented himself. The judge told the jury that there was no legal defence, directed it to return a verdict of guilty, and did not permit it to retire and decide the issue independently. The central question was whether such convictions could nevertheless be safe following R v Wang [2005] UKHL 9.

Convictions quashed.

1. Under section 2(1) of the Criminal Appeal Act 1968, the court had to allow the references if the convictions were unsafe. A conviction may be unsafe despite clear evidence of guilt where the trial has been vitiated by serious unfairness or significant legal misdirection. The court applied the approach in R v Davis and others [2001] Cr.App.R 115 and R v Hanratty [2002] Cr.App.R 30.

2. R v Wang established that a judge must never direct a jury to return a guilty verdict. Its reasoning did not require every conviction following such a direction to be quashed. The safety of the conviction remained the statutory question.

3. These cases crossed the relevant line. Each judge had expressly taken the decision on guilt away from the jury. The jury was not allowed to retire or reach its own verdict. The verdict was therefore, in reality, the judge’s decision. That was a material irregularity and significant legal misdirection which made each conviction unsafe, notwithstanding that neither appellant had a defence in law.

4. The court distinguished R v Kelleher [2003] EWCA Crim. 3525. In that case, although the judge’s language could have amounted to a direction, the jury retired and returned its own guilty verdict. The court confirmed that it would have reached the same conclusion in Kelleher today. There is therefore no automatic rule that every direction to convict renders a conviction unsafe.

5. A criminal court may robustly but reasonably exclude legally irrelevant evidence and argument, and must actively manage the trial under the Criminal Procedure Rules 2005. That power must not be exercised by withdrawing the ultimate issue of guilt from the jury. A retrial of Mr Jones was rejected.

• Court of Appeal (Criminal Division): On references by the Criminal Cases Review Commission, the court held both convictions unsafe and quashed them.
• Court of Criminal Appeal: In 1973, an application made by Mr Caley-Knowles was dismissed. The judgment does not establish whether it was an application for leave to appeal or an extension of time.
• Crown Court at Kendal: In 1972, Mr Caley-Knowles was convicted on the trial judge’s direction of assault occasioning actual bodily harm.
• Carmarthen Crown Court: In 1994, Mr Jones was convicted on the trial judge’s direction of criminal damage.