REGINA v SAMUEL BENJAMIN SOUTH

An erroneous or redundant question in a jury’s route to verdict does not necessarily make a conviction unsafe. The route must be assessed with the oral and written directions as a whole. Where the jury were clearly directed to make a final finding that the accused intended to cause really serious injury before considering later issues, an additional question requiring only the mens rea for a lesser alternative offence adds nothing and creates no material risk of conviction without the required intent. A direction on malice is rarely, if ever, necessary for an offence under section 18 of the Offences Against the Person Act 1861. Trial advocates have a core duty to identify promptly material errors in a summing-up.

The appellant was convicted at the Crown Court at Ilford, by a majority verdict of 11 to one, of wounding with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. He received a six-year sentence. An alternative count under section 20 was added shortly before the close of the prosecution case.

The appeal alleged that the judge’s route to verdict contained a material misdirection. Question 6, which required only the mens rea for the alternative offence, had mistakenly remained in the section 18 route after the questions on intention and self-defence had been separated. The central issue was whether that error rendered the conviction unsafe.

The appeal was dismissed. The court considered the route to verdict together with the judge’s oral and written legal directions.

1. Mens rea for section 18. The jury had to be sure that the appellant formed the specific intention to cause really serious injury. The judge’s directions accurately explained that voluntary intoxication was relevant to whether that intention had been formed. The section 20 alternative required only an intention to cause some injury, or awareness and acceptance of a risk of causing some injury.
2. Effect of the erroneous question. Question 6 had been intended for count 2 and should not have appeared in the count 1 route. However, Question 2 expressly required the jury to reach a conclusive finding on the specific intention required for section 18. Only an affirmative answer permitted the jury to proceed to the self-defence questions and then to Question 6. There was nothing provisional about the direction on Question 2.
3. Once the jury had found the requisite specific intent, they necessarily also satisfied the lesser mens rea expressed in Question 6. That question therefore added nothing. In the context of the complete directions, there was no material risk that the jury convicted without being sure of the necessary ingredients of the section 18 offence.
4. The court observed that a direction on malice is rarely, if ever, necessary for a section 18 offence, referring to R v Mowatt [1968] 1QB 421; [1976] 51 Cr App R 402.
5. The court also repeated the guidance in R v Sakin & Ors [2021] EWCA Crim 411 that prosecution and defence advocates must focus on the summing-up and promptly draw material errors to the judge’s attention. The failure to do so may be relevant on a later appeal.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2021] EWCA Crim 1760.
• Crown Court at Ilford: The appellant was convicted by a majority verdict of 11 to one of wounding with intent to do grievous bodily harm and sentenced to six years’ imprisonment.