Brady, R. v

A jury directing itself on recklessness must apply a subjective test and address the factual basis on which liability is alleged. A direction is unsafe if it may permit conviction because the defendant acted stupidly or caused serious harm, rather than because he appreciated a risk of injury and unreasonably took it.

R v G and Another [2004] 1 Cr App R 21 does not require every direction to describe the risk as “obvious and significant”. Those words are not a mandatory formula. Where voluntary intoxication is relevant, the jury must nevertheless be directed clearly on its proper significance and on the defendant’s case.

The respondent was convicted at Middlesex Guildhall Crown Court of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. He had fallen from a low first-floor club railing onto a woman dancing below, causing catastrophic injury.

The prosecution case was that he deliberately jumped. His case was that he had perched on the railing, lost his balance and fallen accidentally. He appealed against conviction, principally contending that the jury had been misdirected on recklessness. A further issue was whether conduct falling short of a deliberate jump could amount to the actus reus of the section 20 offence.

1. Appeal allowed; conviction quashed. The summing up created a real danger that the jury convicted on a false basis. The court could not treat the conviction as safe and declined to order a retrial.

2. The trial judge correctly identified that recklessness ordinarily requires awareness of a risk of injury. The court rejected the submission that R v G and Another [2004] 1 Cr App R 21 requires every direction to qualify risk as “obvious and significant”. Lord Bingham’s observation used those words to explain criminal culpability. It did not prescribe a compulsory verbal formula.

3. The real defect was the lack of clear, case-specific directions. The jury had to decide whether the respondent jumped. If he did, they then had to assess recklessness in that context. If he instead accidentally fell while perching on the railing, they had to consider his evidence that he genuinely perceived no risk, and whether voluntary intoxication affected that issue. Global directions followed by a narrative summary did not sufficiently distinguish those alternatives or make clear that the test was not objective.

4. A defendant is not tried merely for becoming intoxicated, behaving foolishly, or causing grave harm. A genuine failure to perceive a risk, other than one attributable to self-induced intoxication, does not itself establish the culpable state of mind required for a serious offence. The court could not resolve evidential conflicts about the railing and ledge, and therefore could not conclude that the defence was hopeless.

5. On the actus reus issue, the court gave only a preliminary view. Following R v Ireland: R v Burstow [1998] AC 147 and R v Dica [2004] 2 Cr App R 28, section 20 does not require a direct assault or physical violence applied to the victim. Deliberately perching precariously above a crowded dance floor could arguably be deliberate, non-accidental conduct substantially causing the injuries, even if the ensuing fall was unintended. Fuller argument was unnecessary because the misdirection required the appeal to be allowed.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction and made no order for a retrial: [2006] EWCA Crim 2413.
• Middlesex Guildhall Crown Court: On 27 January 2006, the respondent was convicted of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 and sentenced to two years’ imprisonment.