Hodson, R. v

A trial judge must leave an alternative verdict where it is obviously raised by evidence. The duty belongs to the judge, regardless of counsel’s position. There is no automatic requirement to leave every legally available alternative. The alternative must be a realistic interpretation of the evidence, properly reflect the facts and gravity of the conduct, and avoid trivialising it.

Where the principal charge requires specific intent and the lesser offence does not, an alternative verdict may be essential if the evidence leaves specific intent genuinely open. Otherwise, the jury may face an unsafe stark choice between conviction of the more serious offence and acquittal.

The appellant was convicted at Southwark Crown Court of wounding with intent contrary to section 18 of the Offences against the Person Act 1861. She received five years’ imprisonment.

The prosecution alleged that she deliberately struck the complainant in the face with a drinking glass. The defence was self-defence or accident. The Recorder left only the section 18 offence, and did not leave the lesser alternative of section 20 wounding.

By leave of the single judge, the appellant challenged her conviction on the ground that section 20 should have been left to the jury. The central issue was whether that lesser verdict was an obvious and realistically available alternative on the evidence.

Appeal allowed. The conviction for section 18 wounding was unsafe and was quashed. A retrial was ordered.

1. Applying R v Coutts [2007] 1 Cr App R 6, the court held that the responsibility for ensuring that proper alternative verdicts are left to the jury rests with the trial judge. The judge must leave an obvious alternative supported by evidence, whatever view counsel may have taken.

2. The court adopted the qualification in R v Foster [2008] 1 Cr App R 38. A legally available lesser verdict is not automatically to be left. It must be realistically open on the evidence, properly reflect the facts and gravity of the case, and not trivialise the offending.

3. Those requirements were met. The jury could properly have rejected self-defence and accident, and found that the appellant deliberately struck the complainant with an intact glass, while remaining unpersuaded that she intended grievous bodily harm. Section 20 was therefore a realistic alternative to the specific-intent section 18 charge.

4. By leaving only section 18, the Recorder presented the jury with a stark choice between conviction for a serious offence and complete acquittal. Once the jury rejected the defence case, that choice created a real risk that it convicted of section 18 when it might instead have returned a section 20 verdict. The conviction was consequently unsafe.

5. The court emphasised that counsel should draw a trial judge’s attention to a potentially necessary alternative verdict. It directed that a fresh indictment be preferred and that the appellant be arraigned within two months. Bail was granted on conditions.

1. Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the section 18 conviction, and ordered a retrial on a fresh indictment.
2. Southwark Crown Court: Following a jury trial, convicted the appellant of wounding with intent contrary to section 18 of the Offences against the Person Act 1861 and imposed five years’ imprisonment.