Harvey v R.

An initial aggressor is not automatically deprived of self-defence. If the response to the initial aggression may have created an honest belief that force was necessary, the prosecution must disprove self-defence.

Directions to a jury must be clear, simple and tailored to the real factual dispute. A judge need not mechanically recite every element of self-defence. Force is ordinarily assessed against the circumstances as the defendant honestly believed them to be. An omission to state that principle causes no unfairness where there is no possible difference between the relevant facts and the defendant’s perception of them.

The appellant was convicted by a majority at Blackfriars Crown Court of assault occasioning actual bodily harm after biting the complainant’s nose during a drunken street fight. She was acquitted of a racially aggravated assault.

There was no dispute that she had bitten the complainant. The central factual issue was whether she did so while above the complainant, as the prosecution alleged, or while pinned to the ground and unable to breathe, as she alleged.

On appeal, she challenged the judge’s directions on self-defence. She alleged a reversal of the burden of proof, confusing and excessive directions, and a failure to direct the jury to assess the force used by reference to the circumstances as she honestly believed them to be.

Disposition

1. The appeal was dismissed. The conviction was safe. The judge’s directions could have been shorter and more closely directed to the factual issue, but they did not mislead the jury.
2. The direction concerning an initial aggressor did not reverse the burden of proof. The judge was seeking to prevent the jury from wrongly treating initial aggression as an absolute bar to self-defence. As recognised in R v Rashford [2005] EWCA Crim 377, an initial aggressor may still rely on self-defence if the other side’s response may have made defensive force necessary and the force used may have been reasonable.
3. The real issue was the circumstance of the bite, rather than who had first provoked the confrontation. If the jury accepted the prosecution account that the appellant bit the complainant while she was above her, she could not honestly have believed that the bite was necessary. If the appellant may have been pinned to the ground, the prosecution had to prove that the bite was excessive or disproportionate force.
4. The reasonableness of force is ordinarily assessed on the facts as the defendant honestly believed them to be, as stated in R Shaw v The Queen [2001] UKPC 26. Here there was no material difference between the appellant’s asserted perception and the factual version which the jury had to consider. The omission of an express direction in those terms therefore made no difference.
5. Jury directions should state only the rudiments of self-defence in clear and simple terms, tailored to the factual dispute. Although the summing up was unnecessarily lengthy, it sufficiently identified the available factual conclusions and their consequences. The jury must have been sure either that the bite occurred when no necessity arose or that the force used was excessive.

• Court of Appeal (Criminal Division) — In [2009] EWCA Crim 469, dismissed the appeal against conviction and held that the verdict was safe.
• Blackfriars Crown Court — On 14 April 2008, the appellant was convicted by a majority of assault occasioning actual bodily harm and acquitted of racially aggravated assault.