R v Harry John Ward

Where self-defence is raised, the prosecution bears the burden of proving that the defendant was not acting lawfully in self-defence. This includes proving that any force used was unreasonable or disproportionate in the circumstances as the defendant believed them to be.

A conviction is unsafe where a route-to-verdict direction reverses that burden on a central issue and the jury may have followed it. General and otherwise correct directions on the burden of proof will not cure the error where the judge presents the erroneous route as the required method of decision.

Following a jury trial at the Central Criminal Court, Harry John Ward was convicted of assault occasioning actual bodily harm. He was acquitted of the remaining counts, including intentional strangulation.

His case on the assault count was self-defence. The Recorder’s written and oral route to verdict required the jury to be sure that the force he used was reasonable, rather than requiring the prosecution to make them sure that it was unreasonable. Although the error was identified before the jury retired, the Recorder declined to correct it.

The appeal concerned whether the summing-up, read as a whole, nevertheless rendered the conviction safe.

1. Appeal allowed. The conviction for assault occasioning actual bodily harm was quashed because the self-defence direction created a clear and material reversal of the burden of proof.

2. Once self-defence is raised, the defendant bears no burden of proof. The prosecution must make the jury sure that the defendant was the aggressor or, if force was used in self-defence, that its degree was unreasonable and more than proportionate in the circumstances as the defendant believed them to be.

3. The Recorder correctly gave general directions that the prosecution bore the burden and that the defendant had nothing to prove. However, the subsequent route to verdict required the jury to be sure that the force used was reasonable before acquitting. That was the opposite of the correct inquiry.

4. The error was not cured by the summing-up as a whole. The route to verdict addressed the discrete and identified issue of self-defence at the end of the tailored directions. The jury were told that it encompassed the legal directions and that they should follow it. It was therefore enough that the jury may have followed the erroneous direction; the appellant did not have to prove that they did so.

5. The acquittal on the strangulation count showed that the jury did not wholly accept the complainant’s account. The Crown did not contend that the evidence was overwhelming. The court was consequently unable to regard the conviction as safe.

6. The court declined to order a retrial in the particular circumstances. The six-year restraining order remained in force.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction, declined to order a retrial, and continued the restraining order.
• Central Criminal Court: Following a jury trial before Mrs Recorder Dhaliwal, convicted the appellant on 31 March 2023 of assault occasioning actual bodily harm and acquitted him on the other counts.