M, R v

A trial judge should leave an alternative offence to the jury where it is obviously raised by the evidence, can fairly be left, and would assist rather than distort the real issues. The decision is a case-sensitive judicial judgment, not a discretionary ruling, and an appellate court will intervene only where it was clearly wrong.

An alternative is not obvious merely because it is theoretically possible. Where the evidence presents a genuine binary choice between deliberate conduct evidencing the specific intent charged and accident entitling the defendant to acquittal, an intermediate offence is not a viable alternative. Directions on intent must be read as a whole. An isolated imprecision will not render a conviction unsafe if the jury were correctly directed on the essential intent requirement.

The appellant, aged 14 at the time, was tried in the Crown Court at Wood Green for attempted murder and, in the alternative, wounding with intent under section 18 of the Offences against the Person Act 1861. He had already pleaded guilty to possessing a bladed article in a public place. The jury convicted him unanimously of wounding with intent after evidence that he had stabbed another 14-year-old three times with a kitchen knife. They did not agree on attempted murder.

His case was that the injuries were accidental while he swung the knife to deter others during a fast-moving confrontation. He appealed against conviction, contending that the judge should have left unlawful wounding under section 20 as a further alternative. He also renewed an application to challenge the admission of evidence of two earlier knife-related incidents. The central issue was whether section 20 was an obvious and viable alternative on the evidence.

1. Appeal dismissed. The judge was entitled not to leave unlawful wounding under section 20 of the Offences against the Person Act 1861 as an alternative verdict. The renewed application for leave to appeal against the admission of previous-incident evidence was refused.

2. The governing principle, drawn from R v Coutts [2006] UKHL 39, is that a judge should leave an obvious alternative offence supported by evidence, irrespective of counsel’s wishes. The decision calls for judgment rather than discretion. Relevant considerations include the evidence, whether the alternative would assist or unnecessarily complicate the issues, fairness to the defendant, and proportionality. The appellate court will interfere only if that judgment was clearly wrong.

3. Section 20 was not an obvious alternative here. The evidence gave the jury a stark choice. If the appellant deliberately stabbed the victim three times, including two deep wounds, that was compelling evidence that he intended really serious bodily harm for section 18. If the injuries were accidental, as the appellant maintained, he was guilty of neither section 18 nor section 20. There was no evidential basis for a finding that he deliberately wounded the victim while lacking the intent to cause really serious harm.

4. The risk that a jury may convict of a greater offence rather than permit a defendant to escape punishment does not require every conceivable lesser offence to be left. It arises only where an obvious alternative is supported by the evidence. The jury also knew that the appellant had pleaded guilty to possession of the knife.

5. The trial judge’s oral direction could, in isolation, have suggested that deliberate infliction of the injuries was sufficient. Read as a whole, however, the summing-up correctly required the jury to be sure that the appellant intended really serious bodily harm. The conviction was therefore safe. Written directions on intent should be standard practice.

6. The earlier incidents were relevant to contradict the appellant’s claim that he had fortuitously found and retained the knife. They were capable of showing an interest in knives and a propensity to carry them, bearing on his state of mind. The judge’s admission ruling and directions disclosed no arguable error.

• Court of Appeal (Criminal Division) — In [2019] EWCA Crim 1094, the court dismissed the appeal against the section 18 conviction and refused the renewed application for leave to appeal concerning the previous-incident evidence.
• Crown Court at Wood Green — The appellant was convicted unanimously on 27 February 2019 of wounding with intent. The jury did not agree on attempted murder, and the prosecution later offered no evidence on that count. He was sentenced on 15 April 2019 to four years’ detention.