Banton, R v

A trial judge should ordinarily leave an obvious lesser included offence to the jury where evidence supports it, regardless of the parties’ wishes. The duty is governed by the interests of justice and must not undermine the defendant’s right to a fair trial.

An alternative verdict need not be left where it depends on a materially different factual case that was not properly explored at trial. It may properly be withheld where it is remote from the real issue, or where leaving it would create a real possibility of unfairness.

Sheila Banton was convicted at the Inner London Crown Court, by a majority of 10 to 2, of wounding with intent contrary to section 18 of the Offences Against the Persons Act 1861. The prosecution alleged that she deliberately smashed a bottle into the complainant’s face. Banton denied that account and said that, after being attacked, she threw a bottle without intending injury.

She appealed against conviction on the ground that the judge should have left unlawful wounding under section 20 as an alternative verdict. The appeal relied on R v Coutts [2006] UKHL 39. The central issue was whether the untested alternative factual basis required the judge to leave the lesser offence to the jury.

1. Appeal dismissed. The conviction for wounding with intent was safe.
2. The court applied the general principle in R v Coutts [2006] UKHL 39: a judge should ordinarily leave an obvious lesser included offence supported by evidence, irrespective of trial counsel’s wishes. That duty is limited by the interests of justice and by the defendant’s right to a fair trial. It does not require a judge to introduce an alternative that is remote from the real issue or would unfairly prejudice a party.
3. The prosecution case had always been that Banton deliberately smashed a bottle into the complainant’s face. The suggested section 20 alternative depended instead on Banton’s account that she threw a bottle after being attacked. That was a radical factual departure from the case presented by the prosecution. The relevant questions of subjective recklessness and causation had not been directly explored. In particular, the evidence did not establish that Banton foresaw a risk of bodily harm when throwing the bottle, or that the jury could safely be sure that the bottle caused the complainant’s injuries.
4. The court distinguished the low threshold of credibility discussed in Von Starck v R [2000] 1 WLR 1270. That principle concerned a lesser verdict arising from the evidential issues in the case actually tried. It did not compel the introduction, after the evidence, of a lesser offence founded on a different and insufficiently explored factual scenario. It would have been unfair to leave that alternative to the jury. The prosecution was right not to seek an additional count, and the judge was right not to require one.
5. The judge’s later direction accurately identified the live issue as whether Banton deliberately assaulted the complainant with a bottle intending really serious injury. There was no separate viable challenge to the summing up, and no basis to regard the conviction as unsafe.

• Court of Appeal (Criminal Division): Dismissed Banton’s appeal against conviction and upheld the conviction for wounding with intent.
• Inner London Crown Court: On 20 November 2006, convicted Banton by a majority of 10 to 2 of wounding with intent contrary to section 18 of the Offences Against the Persons Act 1861.