Vaughan, R v

Where evidence of a separate incident is materially capable of supporting a defendant’s account of self-defence or undermining the complainant’s account, the jury must receive clear directions on its relevance. A direction which is liable to cause the jury to disregard that evidence, without explaining how it bears on the issues, may render a conviction unsafe.

A trial judge has ultimate responsibility to leave an alternative verdict which is obviously raised by the evidence. On a charge under section 18 of the Offences Against the Person Act 1861, an alternative under section 20 will normally be available. It should be left where the evidence may establish grievous bodily harm without the specific intent required for section 18, unless the alternative is truly trivial, insubstantial or remote from the real issues.

The appellant was convicted at the Crown Court at Wood Green of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. She was sentenced to four years’ imprisonment.

The prosecution alleged that she had attacked the complainant with a monkey wrench. The appellant maintained that the complainant had first attacked her with the wrench and that she acted in self-defence. Evidence that the complainant may earlier have damaged windows using a similar tool was relevant to that account.

On appeal, the principal issues were whether the Recorder’s direction caused the jury to disregard the criminal-damage evidence, and whether he should have left a section 20 alternative verdict. The appellant also raised complaints concerning judicial interventions, hearsay, prosecution submissions, and the recording of unanimity.

1. Appeal allowed. The court quashed the appellant’s conviction under section 18 of the Offences Against the Person Act 1861 and ordered a retrial.

2. The direction that the jury were not to consider any other allegation heard during the case was significantly misleading. Although the Recorder may have intended only to exclude the complainant’s acquittal on the criminal-damage allegation, the oral direction was liable to make the jury disregard the allegation and its supporting evidence altogether. That evidence was important to the appellant’s self-defence case: if the complainant had used a similar tool to damage the windows, it could bear on who initially wielded the monkey wrench and on the reliability of her account. The summing-up did not explain that relevance. The resulting error made the conviction unsafe.

3. The Recorder also erred by not leaving an alternative verdict under section 20. The trial judge bears the ultimate responsibility to leave an alternative which is obviously raised by the evidence. R v Lahaye [2005] EWCA Crim 2847 establishes that section 20 is normally available where section 18 is charged. The exceptions identified in R v Foster [2007] EWCA Crim 2869 did not apply: a section 20 conviction would not have been trivial, insubstantial or an artificial compromise.

4. The evidence permitted a finding that, during an encounter in which the appellant may initially have been defending herself, she caused grievous bodily harm without intending to cause really serious harm. The omission of the lesser alternative therefore worked to her disadvantage. Taken with the defective direction on the criminal-damage evidence, the court could not be sure that the jury would not have convicted her under section 20 instead.

5. The remaining grounds did not independently disclose error rendering the conviction unsafe. The sentence appeal consequently did not require determination. A fresh indictment was to be served and the appellant arraigned within two months; any application for bail was to be made to the Crown Court.

• Court of Appeal (Criminal Division) Allowed the appeal, quashed the section 18 conviction, and ordered a retrial: [2014] EWCA Crim 1456.
• Crown Court at Wood Green The appellant was convicted on 24 July 2013 of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, and was sentenced on 6 September 2013 to four years’ imprisonment.