Caven, R. v

At a trial for causing grievous bodily harm with intent, a judge must leave the lesser alternative of unlawfully inflicting grievous bodily harm where it is obviously raised on the evidence and the issues at trial. The judge must consider whether omitting it would force the jury into an unrealistic choice between the more serious offence and acquittal.

Where the jury could reject self-defence yet reasonably conclude that the defendant lacked the specific intent required for Offences Against the Person Act 1861 section 18, section 20 must be left as an alternative. Its omission may render the conviction unsafe.

The appellant was convicted at Kingston Crown Court of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, following an alleged group assault which caused the complainant serious injury.

The prosecution alleged that the appellant participated in a sustained attack. The appellant contended that he struck the complainant in self-defence and then left before further violence occurred. With both advocates’ agreement, the Recorder did not leave the lesser section 20 alternative to the jury.

On appeal, the central issue was whether that omission made the section 18 conviction unsafe.

1. Appeal allowed. The court quashed the section 18 conviction as unsafe and ordered a retrial.

2. Applying the principles derived from R v Coutts [2006] 1 WLR 2154 and R v Foster and others [2008] 1 WLR 1615, the court held that an alternative verdict must be left where it is obviously raised on the evidence. It must be an outcome reasonably open to the jury on the real issues at trial. The judge must assess all the disputed and undisputed evidence and avoid an unrealistic choice between conviction of the serious offence and acquittal.

3. The relevant inquiry was whether, after finding that the appellant struck the complainant and rejecting self-defence, a jury would inevitably have found an intent to cause grievous bodily harm. It would not. A jury could conclude that a blow causing a fractured eye socket was not delivered with the specific intent required by section 18, although it was unlawful and intended to cause lesser harm.

4. Section 20 was therefore obviously raised. The Recorder’s initial inclination to leave it was correct. Omitting it may have disadvantaged the appellant by requiring the jury to choose unrealistically between the section 18 charge and acquittal.

5. The court did not determine the second proposed ground. It ordered a retrial on a fresh indictment containing a section 18 count and a separate section 20 alternative count, with arraignment within two months.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction and ordered a retrial: [2011] EWCA Crim 3239.

• Crown Court at Kingston: On 9 August 2011, convicted the appellant of causing grievous bodily harm with intent under section 18 of the Offences Against the Person Act 1861. The Recorder did not leave a section 20 alternative verdict to the jury.