Ainscough, R. v

Where a defendant raises self-defence, the prosecution must disprove it. The jury should receive a clear direction to that effect in the context of the issue, even where a general direction on burden and standard of proof has been given.

A judge must not oversimplify causation by treating proof of a particular blow as proof that it caused the injury. Where the evidence leaves a realistic alternative mechanism of injury, causation remains for the jury. If facts underlying disputed previous convictions are relied on, the prosecution must provide proper supporting evidence rather than a police computer record alone.

The appellant was convicted at Liverpool Crown Court of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 and was sentenced to 15 months’ imprisonment.

The prosecution alleged an unprovoked assault in a public house, including a kick to the complainant’s head. The appellant accepted punching the complainant but claimed self-defence and denied kicking him. The evidence did not identify the mechanism by which the complainant sustained fractures to his jaw.

On appeal against conviction, the appellant challenged the treatment of his previous convictions and the directions on self-defence and causation. The central question was whether those errors made the conviction unsafe.

1. Appeal allowed and conviction quashed. The cumulative errors concerned important issues and damaged the appellant’s case. The court could not regard the conviction as safe.

2. Where the facts underlying a previous conviction are disputed, the prosecution cannot prove them merely through a Police National Computer record conveyed by an officer with no first-hand knowledge. Applying Humphries [2005] EWCA Crim 2030, the prosecution should obtain the evidence needed to establish the facts on which it seeks to rely. The court also stressed the need to avoid satellite disputes about old convictions, particularly in a short and simple trial.

3. The trial judge erred by treating common assault as necessarily involving physical force and by using that view to reject the appellant’s explanations of his previous convictions. This could undermine the appellant’s credibility. The court also considered it questionable whether the summing-up gave the clear warning against undue reliance on previous convictions required by Hanson and others [2005] EWCA Crim 824.

4. The judge’s attempted simplification of self-defence was impermissibly over-simple. The jury should have been specifically directed that it was for the prosecution to disprove self-defence. Further, proof that the appellant kicked the complainant did not resolve causation. The medical evidence did not identify the injury mechanism, and the fractures might realistically have resulted from the punches or impact with the bar.

5. The court rejected the separate complaint of judicial partiality. Applying the fairness principle stated in Bryant [2005] EWCA Crim 2079, the judge’s conduct was not comparable and did not convey that he favoured the prosecution. No retrial was considered to be in the public interest.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the conviction: [2006] EWCA Crim 694.
• Liverpool Crown Court: Convicted the appellant on 9 September 2005 of inflicting grievous bodily harm and, on 4 October 2005, imposed 15 months’ imprisonment. No citation was stated.