Lemon & Anor, R. v

A trial judge must leave a legally available lesser alternative offence to the jury only where it is a realistic verdict on the evidence, properly reflects the facts and gravity of the offending, and does not trivialise the real issues. The need is especially important where the charged offence requires specific intent and the lesser offence does not. There is no automatic requirement to leave every alternative verdict.

The appellate question is whether the omission rendered the conviction unsafe. A conviction may be unsafe where the jury faced an unfair and unrealistic choice between the serious charge and complete acquittal. No such risk arises where the proposed alternative is inconsistent with the totality of the evidence or materially understates the alleged offending.

The appellants were convicted at the Crown Court at Isleworth of attempted robbery following an incident in which the prosecution alleged that they acted together in a group attempt to obtain the complainant’s property. Their case was that there had been no attempted robbery. Effer accepted that he had struck the complainant, but maintained that this followed an aggressive confrontation. Lemon denied participation in criminal conduct.

They appealed against conviction on the ground that the judge should have left common assault as an alternative count in Effer’s case. Lemon contended that, as the prosecution alleged joint participation, an unsafe conviction of Effer also undermined his own conviction. The central issue was whether the absence of that alternative left the jury with an unfair stark choice and thereby rendered the convictions unsafe.

1. The appeals were dismissed. The judge was not obliged to leave common assault as an alternative to attempted robbery, and the convictions were safe.
2. The court applied the approach in R v Hodson [2009] EWCA Crim. 1590, informed by R v Coutts [2007] 1 Cr.App.R 6 and R v Foster [2008] 1 Cr.App.R 38. A lesser verdict should be left only if it is realistically open on the evidence and fairly reflects both the facts and the gravity of the alleged conduct. The rule is particularly important where the principal offence requires specific intent, but it is not automatic.
3. Common assault did not meet that standard. The proposed verdict did not reflect the prolonged incident visible on the CCTV footage, the timing of the admitted punch, or the prosecution case of a joint street robbery involving demands for property from the outset. It would have understated the gravity and totality of the case presented to the jury.
4. The relevant appellate question was whether omission of the alternative undermined the safety of the convictions, rather than simply whether a direction had been omitted. There was no evidence that the jury faced a stark choice between conviction for attempted robbery and acquittal. They asked no question suggesting difficulty about an intermediate verdict, and returned timely unanimous verdicts after a fair and balanced summing-up with correct legal directions.
5. The court additionally noted the duty of counsel to invite the judge to consider a realistically available alternative verdict. Neither trial counsel had done so. That supported the conclusion that common assault had not been regarded as a realistic alternative at trial, although the convictions were safe on the evidence in any event.

• Court of Appeal (Criminal Division): Dismissed both appeals against conviction in [2018] EWCA Crim 2660.
• Crown Court at Isleworth: On 26 September 2017, following trial before a judge and jury, both appellants were convicted of attempted robbery. They were sentenced on 6 November 2017.