Foster, R v

Where the evidence plainly raises an obvious lesser alternative offence, the trial judge should normally leave it to the jury regardless of counsel’s tactical preferences. The direction is required where its omission would force an unrealistic choice between conviction of the greater offence and complete acquittal.

Delay, potential jury confusion, and a co-defendant’s guilty plea will not justify withholding the alternative where the issue is real and the prejudice can be addressed fairly. Where the gravity of injury is genuinely equivocal, a conviction for the more serious offence is unsafe if the jury was denied an available alternative verdict.

The appellant was convicted at Southampton Crown Court of causing grievous bodily harm with intent after an attack outside a nightclub. He accepted punching the complainant but relied on self-defence. The evidence raised a live issue whether the complainant’s injuries amounted to grievous bodily harm or only actual bodily harm.

Before final speeches, both the Crown and the appellant invited the trial judge to leave alternative verdicts, including assault occasioning actual bodily harm. The judge refused. The appellant sought leave to appeal out of time, contending that the omission made his conviction unsafe. The central issue was whether an alternative verdict under section 47 should have been left to the jury.

1. Appeal allowed. Time was extended for the application. The delay should not be attributed to the appellant, who had consistently sought advice and progress on an appeal.

2. The judge erred in refusing to leave assault occasioning actual bodily harm as an alternative verdict. Under R v Coutts [2006] UKHL 39, a judge should ordinarily leave an obvious alternative offence supported by evidence, irrespective of counsel’s views. The direction protects both the defendant and the public against an unjust choice between an excessive conviction and complete acquittal.

3. The issue of injury severity was central and the evidence was equivocal. The jury could properly have concluded that grievous bodily harm was not proved, while nevertheless finding an unlawful assault causing actual bodily harm. The alternative was neither remote nor trivial. Refusal did not avoid confusion; it required the jury to acquit if not sure of grievous bodily harm.

4. The timing was proper because the issue was considered before final speeches. Ward’s earlier guilty plea to the section 18 offence was a relevant consideration, but did not justify refusing the direction. If an alternative verdict had been returned, any unfairness to Ward could have been addressed at sentence by permitting an appropriate change of plea. Knowledge of his plea also increased the risk that the jury might be influenced on the issue of injury severity.

5. Loss of consciousness can amount to grievous bodily harm, but its gravity is fact-sensitive. Here the medical evidence did not resolve whether reduced consciousness resulted from blows, alcohol, or both. That assessment belonged to the jury.

6. The conviction under section 18 of the Offences against the Person Act 1861 and the five-year sentence were quashed. Exercising its power under section 3 of the Criminal Appeal Act 1968, the court substituted a conviction under section 47 and a sentence of three and a half years’ imprisonment.

• Court of Appeal (Criminal Division): Time was extended and the appeal against conviction was allowed. The conviction under section 18 was quashed and replaced with a conviction under section 47 of the Offences against the Person Act 1861.
• Crown Court at Southampton: The appellant was convicted on 16 October 2007 of causing grievous bodily harm with intent and sentenced on 7 December 2007 to five years’ imprisonment.