Brown, R v

Where the evidence supports an obvious and viable lesser alternative verdict, the trial judge should ordinarily leave it to the jury despite the parties’ contrary preferences. This is particularly important where the charged offence requires proof of a specific intent which the alternative does not.

A jury may accept and reject parts of each party’s account. It should not be forced to choose between conviction of the more serious offence and complete acquittal where an intermediate verdict is realistically open on the evidence. Failure to leave that alternative may render the conviction unsafe.

The appellant was convicted at Inner London Crown Court of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. The prosecution alleged a deliberate stabbing. The defence alleged that, during a struggle, the complainant’s face was accidentally slashed by a knife which the appellant had picked up in self-defence.

Agreed medical evidence described the injury as an incised slash wound, consistent with a struggle and not indicative of a stabbing action. Although the judge raised the possibility of leaving unlawful wounding as an alternative verdict, neither party supported it. The jury therefore considered only wounding with intent, self-defence and accident. The appellant appealed against conviction by leave of the single judge.

1. Appeal allowed. The conviction for wounding with intent was quashed. A conviction for unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 was substituted.

2. The principle in R v Coutts [2006] 1 WLR 2154 required an obvious and viable alternative verdict, supported by evidence, ordinarily to be left to the jury regardless of the parties’ wishes. The risk is especially acute where the offence charged requires proof of a specific intent and the alternative does not.

3. This was a classic case for unlawful wounding to be left. The jury could reject the allegation that the appellant had threatened to kill the complainant, while also rejecting self-defence and accident. It could find that she deliberately retained and struggled with the knife, appreciating that her conduct might injure someone close to her, but without intending really serious bodily harm.

4. The parties’ shared view that the lesser verdict would obscure the true issue did not prevent the judge from leaving it. The failure adequately to direct the jury on that available alternative rendered the section 18 conviction unsafe.

5. The jury’s findings made a verdict of unlawful wounding inevitable, so substitution was appropriate. The suspended sentence was reduced from two years’ imprisonment to 18 months’ imprisonment, suspended for two years. The victim surcharge remained payable.

• Court of Appeal (Criminal Division) — in R v Brown [2014] EWCA Crim 2176, allowed the appeal, quashed the section 18 conviction, substituted unlawful wounding under section 20, and reduced the suspended sentence.
• Crown Court at Inner London — on 8 November 2013, convicted the appellant of wounding with intent. On 9 December 2013, imposed 24 months’ imprisonment suspended for two years and a £100 victim surcharge.