Neutral Citation Number: [1998] EWCA Crim 3269
Case No: 9803904/Y4, No: 9804059/Y4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Monday 16th November 1998
 
B E F O R E :

LORD JUSTICE CLARKE

HIS HONOUR JUDGE NORMAN JONES QC
(Acting as a Judge of the Court of Appeal
Criminal Division)

and

SIR CHARLES MCCULLOUGH

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R E G I N A

‑ v ‑

Nigel John RICHARDSON

and

Sean Anthony IRWIN

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 404 1400   Fax No: 0171 404 1424
(Official Shorthand Writers to the Court)
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MR S EDWARDS appeared on behalf of the Appellants
MR H DUNLOP appeared on behalf of the Crown
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JUDGMENT (As approved by the Court)
LORD JUSTICE CLARKE: On 29th May 1998 in the Crown Court at Guildford before Mr C Beaumont, sitting as a Recorder, and a jury, the appellants were convicted by a majority of 11 to one of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861.  The Recorder imposed a community service order of 100 hours and each of the defendants was directed to pay compensation of £750 to the victim.
      They now appeal against conviction by leave of the trial judge, who granted a certificate pursuant to section 1(2)(b) of the Criminal Appeal Act 1968 that the case was fit for appeal.  The judge granted the certificate on the ground that:
 
"There was a misdirection in that the jury were directed that the intention of the defendant should be on the basis of a reasonable (i.e. not under the influence of drink) man and not (as they were) under the influence of drink."
  
The Recorder added that he did not agree that there was a misdirection but gave leave because he thought that the point was arguable.
      The facts of the case can be shortly stated.  Both appellants were at the material time students at Surrey University.  The complainant, Simon Rose, was also a  student at the university.  There was evidence that the appellants, the complainant, and the other prosecution witnesses were all friends who regularly drank together at the university.  The only possible exception was Nigel Richardson.
      On the night in question it was effectively agreed in evidence that the appellants, the complainant and others had been drinking at the student union bar and returned to the appellant Irwin's accommodation.  It was said that they had had four to five pints of lager.  The accommodation consisted of a duplex flat in which one student occupied the lower floor and Irwin occupied a mezzanine floor up a flight of stairs.
      When they arrived there they began joshing Irwin about a girlfriend of his who was also there.  They also started what was apparently known as "bundling", which the Recorder described as "all jumping about and just regular sort of horseplay."  It was a regular occurrence among the group.
      About 2 a.m. the appellants, the complainant and another student, Dean Johnson, went up the stairs into Irwin's part of the accommodation.  According to both the complainant and Dean Johnson, Irwin said, "Let's get Simon over the edge".  There was something of a struggle, apparently all part of the horseplay.  However  during the course of this the complainant was lifted over the edge of the balcony and was dropped, as a result of which he fell about 10 to 12 feet and suffered injuries which the jury must have concluded were really serious and thus grievous bodily harm.
      The complainant alleged that that was done by the two appellants.  The appellant Irwin agreed that they were the only two involved in it, although the appellant Richardson alleged that the fourth person present, Dean Johnson, was also involved.
      Irwin gave evidence shortly to this effect.  He admitted that he was involved in the tussle which led to the complainant falling over the balcony.  However it was his case that such tussles were a regular occurrence among the group and that the complainant consented to it.  It was further his evidence that it was not within any of their contemplations that the complainant should actually fall over the balcony, rather the complainant slipped out of his arms when he was seeking to hold him.
      Richardson did not give evidence but had admitted in interview that when Irwin had hold of the complainant he, Richardson, held his ankles.  Richardson let go of Rose's ankles, and very shortly after that, a period which Richardson put in his interview at some three  seconds, Irwin let go of his arms and the complainant fell.
      Section 20 of the Offences Against the Person Act 1861 provides, inter alia:
 
"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable ... to be imprisoned ... for not more than five years."
  
The prosecution case was that the appellants had together acted both unlawfully and maliciously.  The appellants' case on the other hand was that the complainant had consented to the horseplay and that his fall was an accident.
      A key issue before the jury was whether the appellants acted maliciously and the essential question in this appeal is whether the Recorder correctly directed the jury in this regard and, if he did not, whether the convictions are safe.
      As we understand it, it was not the prosecution case that the appellants had intended to drop the complainant and cause him harm, but that they acted maliciously in the sense that they each actually foresaw that dropping the complainant would or might cause harm and that they nevertheless took the risk of doing so. 
      As we understand it, absent the effects of drink, it is common ground that in order to establish the offence under section 20 the prosecution had to prove that in the case of each defendant he either intended the dropping of the complainant to cause him some harm, or that he actually foresaw that it would or might do so: R v Savage and DPP v Parmenter [1992] 1 AC 699, per Lord Ackner at page 751 D where he said this:
 
"Therefore in order to establish an offence under section 20 the prosecution must prove either that the defendant intended or that he actually foresaw that his act would cause harm."
  
As so often the instant case is complicated by the fact that the appellants had had a good deal to drink.  It was therefore possible that the jury might conclude that they did not actually foresee that the dropping of the complainant could cause him injury, if only because they did not foresee the risk of dropping him.  The reason that they did not do so was the amount of drink which they had consumed.
      It appears to us to be clear on the authorities that in considering what each defendant actually foresaw the jury must disregard the fact that the appellants had been drinking.  In DDP v Majewski [1977] AC 443 Lord Elywn‑Jones, LC, said at page 476: 
 
"My noble and learned friends and I think it may be helpful if we give the following indications of the general lines on which in our view the jury should be directed as to the effect upon the criminal responsibility of the accused of drink or drugs or both, whenever death or physical injury to another person results from something done by the accused for which there is no legal justification and the offence with which the accused is charged is manslaughter or assault at common law or the statutory offence of unlawful wounding under section 20, or of assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861.
 
In the case of these offences it is no excuse in law that, because of drink or drugs which the accused himself had taken knowingly and willingly, he had deprived himself of the ability to exercise self control, to realise the possible consequences of what he was doing or even to be conscious that he was doing it. As in the instant case, the jury may be properly instructed that they 'can ignore the subject of drink or drugs as being in any a defence' to charges of this character."
  
In that case the House of Lords did not give guidance as to how juries should be directed in cases such as this. However, in Caldwell [1982] AC 341, although the House was there considering a different question, namely the test of recklessness under section 1(2) of the Criminal Justice Act 1971 Lord Diplock said at page 355:
 
"The speech of Lord Elywn‑Jones, LC, in Majewski ... is authority that self‑induced intoxication is no defence to a crime in which recklessness is enough to constitute the necessary mens rea ... Reducing oneself by drink or drugs to a condition in which the restraints of reason and conscience are cast off was held to be a reckless course of conduct and an integral part of the crime. The Lord Chancellor accepted, as correctly stating  English law the provision in paragraph 2.08(2) of the American Model Penal Code:
 
'When recklessness establishes an element of the offence, if the actor, due to self‑induced intoxication, is unaware of a risk of which he would have been aware had he been sober such unawareness is immaterial'.
 
So in the instant case, the fact that the respondent was unaware of the risk of endangering the lives of residents in the hotel owing to his self‑induced intoxication, would be no defence if that risk would have been obvious to him had he been sober."
  
The matter was expressly considered by the Court Martial Appeals Court in Atkin Bennet and Barson (1992) 95 Cr App R 304.  In that case the judge advocate had directed the court in this way:
 
"'... you must satisfied so that you feel sure that each defendant, when he did the act, either foresaw that it might cause some injury, not necessarily serious injury, or wound to some person; in other words, he or she does not have to foresee the particular type of wound or injury which resulted, but foresaw that he might cause some injury, albeit of a minor nature ‑‑ that is the first ‑‑ or would have foreseen that the act might cause some injury, had he not been drinking."
  
It was submitted that the last part of that direction, namely "would have foreseen that the act might cause some injury had he not been drinking", was a misdirection, having regard to the reasoning in Parmenter.  The court comprising Farquharson LJ, Alliott and Cazalet J J, considered the matter in considerable  detail.  It held that the House of Lords in Parmenter did not intend to go behind the clear dicta in Majewski, which we have quoted.  Its conclusion was that the judge advocate's direction with regard to what it called "self‑induced intoxication" was correct.
      It follows that in the instant case, if the matter was to be raised at all, the Recorder should have given a direction to like effect.  We might observe in passing that Archbold 1998 does not discuss this problem, referring only to Atkin on a rather different point.  We think it would be of benefit to practitioners if it were considered in the next edition.  It might, for example, be referred to in paragraph 17‑45 to 46 (cf Blackstone paragraph A3.10).
      There were a number of issues which the jury had to consider.  As we understand it Mr Dunlop opened the case on the basis that the jury had to be sure that each defendant foresaw the risk that Mr Rose might fall or be dropped and sustain harm.  He did not invite the jury to consider the case on the alternative basis that the particular defendant might not have actually foreseen harm, but that he would have done so if he had not been drinking.  That would of course have been a less favourable formulation from the defendant's point of view than the one in fact advanced.  The prosecution's  final speech was also put on the basis of actual foresight and it was that case which the defence speeches were designed to meet.  We see no reason why the prosecution should not confine the way in which it put the case in the way described.  However the Recorder introduced the alternative into his summing up.  In our judgment it would have been better if before doing so he had indicated his intention to counsel before they addressed the jury so that they might take that possibility into account in their addresses to the jury.
      It follows from the conclusions which we have stated that, as we see it, the Recorder should have directed the jury along these lines, which seem to us to be consistent with the standard Judicial Studies Board directions:
 
"The complainant Rose suffered bodily harm because he slipped or was dropped from the top of the stairwell. No question of self defence arises.  To convict either defendant you must be sure: (1) that he alone or with the other defendant put Rose into the position from which he slipped or was dropped; (2) that Rose did not consent to being put there; (3) that he realised that Rose did not the consent; (4) that his actions in putting Rose there were deliberate i.e. not accidental; (5) that when doing this either (a) he realised that Rose might slip or be dropped and thus sustain some degree of bodily harm, albeit of a minor character, or (b) he would have realised that had he not been drinking.
 
Questions (3) and (5)(a) are about the defendant's state of mind.  When considering both you must take account of  the evidence that the defendant's mind was affected by alcohol.  In relation to question (3) you cannot convict if you find that the defendant did mistakenly believe or might have mistakenly believed that Rose did consent. Take the evidence of his consumption of alcohol into account when considering this.  Similarly in relation to question 5(a) you cannot convict if you find that the defendant did not realise or might not have realised that Rose might slip or be dropped and be injured.  Here too you must take account of the evidence of the defendants' consumption of alcohol into account.  In the same way the alcohol consumed by Rose bears on question (2)."
  
There was, in our judgment, no need to mention the word recklessness.  It is to be noted that if question 5(b) was to be included it asks not about what the reasonable man would have realised, but what the defendant would have realised.  In this case, as Mr Edwards has pointed out, the defendants were not hypothetical reasonable men, but university students.
      We turn to the directions given by the Recorder in his summing up.  In the course of the summing up the Recorder gave these directions.  He said with regard to the requirement of "maliciously" at page 10 E to 12 D:
 
"Maliciously means either intending to cause such harm or being reckless as to whether such harm will occur. That means that if the defendant foresees that such harm may occur but nevertheless goes on to take the risk of that harm, he could be guilty if it is reckless because that is part of malice.  Recklessness is when there are circumstances which would have drawn the attention of an ordinarily prudent sober ‑‑ you must ignore the fact that these two men and several others had had something to drink; you must treat them as though they were sober  and judge them as though they were sober ‑‑ circumstances which would have drawn the attention of an ordinarily prudent and sober individual to the possibility that the act that they were doing was capable of causing the kind of serious harmful consequences, in this case grievous bodily harm contrary to this particular statue which it's designed to prevent.  That applies unless the risk of this consequence of happening was so slight that a prudent individual would feel justified in regarding the risk as negligible, that if you do something which has got very little risk in it at all but it happens to hurt somebody, then he would not necessarily be reckless, but if you do something of which the result there is a measurable risk of causing serious injury then in that case the person concerned has been reckless and it's for you to consider, depending on the facts as you find them in this case, whether putting a person into a position from which he might fall ten or 12 feet to a floor below is something which is capable of causing serious bodily harm to the person who is in that position.  It is for you to decide.
 
Now I mention that you have got to consider them as sober people, not to say that they were sober but you must judge them as though they had been sober.  The mere fact that a defendant's mind was affected by drink so that he acted in a way that he would not have done had he been sober does not assist him at all provided that the necessary intention was there.  A drunken intent is nevertheless an intent and you have got to consider all of the evidence including the evidence that they had had a certain amount to drink to draw such inferences as are proper from it and to ask yourselves whether you feel sure that at that time each of the defendants, separately and considering them separately, had got the relative intent because it is clear, and this is admitted, that everybody concerned drank voluntarily. It wasn't as though somebody plied them with drink, and they didn't know what they were doing for that sort of reason, but it was voluntarily done.  So that is what you have to decide.  You have got to decide whether the defendant that you're considering realised that some injury might happen to in this case Mr Rose from his act and yet ignoring that risk he went on and did the act. The prosecution does not have to prove that the defendant anticipated the extent or gravity of the injury which in fact resulted from his conduct, so bear that mind."
  
Mr Dunlop concedes on behalf of the prosecution that the Recorder should have confined himself to the definition of "maliciously" derived from Savage and not included a direction which was more appropriate to objective recklessness of the kind discussed in Caldwell.  That concession is, in our judgment, correctly made.  We shall return briefly to those parts of the summing up in a moment, but in order to determine this appeal it is necessary to consider what was said not only during the summing up itself, but also subsequently.
      The summing up took place on the morning of 29th May 1998, and the jury retired at 11.24 a.m..  At 2.05 p.m. the jury were asked to return to court, apparently because the Recorder was considering giving them a majority direction.  However, the Recorder asked them whether they would like him to assist them on either the facts or the law.  The foreman of the jury said:
 
"... maybe a discussion on the definition between intent and recklessness may be of use." 
 
Mr Dunlop then suggested that it would be appropriate for the matter to be discussed with counsel in the absence of the jury.  Such a discussion then took place.  We should interpose to say that it is asserted  in the grounds of appeal on behalf of the appellants that the Recorder should not have asked the jury whether they would like assistance.  For our part, although it may be unusual, we can see no reason why, depending on the circumstances of the particular case, a judge should not ask a jury whether they require assistance, provided that he asks the jury to put any question which they had in writing.  The question can then be considered with counsel and therefore answered appropriately.  However that may be, this is not a point which affords the appellants any arguable ground of appeal of the facts of this case, since after some discussion between counsel and the judge in the absence of the jury, the jury were asked to reduce their question to writing.  They did so and asked a question in these terms:
 
"The jury requires clarification of the interpretation of recklessness as is it applies to maliciousness in law."
  
After further discussion in the absence of the jury, which related to what the judge might say about "unlawfully" and "maliciously", but not to the effect of drink, the judge directed the jury as follows:
 
"In order to answer it fully I think it is better to go back to the statute which talks about an act being done  unlawfully and maliciously.  Now I mention these two things in my summing up.  Unlawfully ...
 
The second part of it is maliciously, and maliciously means either intending to cause some harm to Mr Rose in this case or being reckless as to whether such harm will occur and reckless in that sense means foreseeing that some harm, not necessarily the harm of the gravity or extent which did in fact happen here, but foreseeing some harm may occur and yet going on to take the risk of that harm happening by his or their deliberate act and it is a question not of what the defendants thought themselves or realised, but in the case of consent it is a question of what defendants actually thought or believed to be true.  In the case of recklessness you have to apply the test of a reasonable man.  Would a reasonable man have thought there was a risk, and a reasonable man includes a man who is sober.  So would a reasonable and sober man have realised that there was a risk of injury occurring?  If such a person would have realised and yet went on to take the risk then that is recklessness even if they didn't intend any harm."
  
In that passage the Recorder again referred, among other things, to what he called "the test of a reasonable man".  The jury retired and after a time sent another note which asked this question:
 
"Could the judge clarify if a reasonable person also means sober, i.e. the definition of sober?"
  
It appears that counsel then conferred privately with the jury still present, whereafter the following occurred:
 
"Mr Dunlop: If we understand the thrust of the question in our respectful view the answer to that is a reasonable person is a sober person.
 
The Recorder: Yes.
  
Mr Dunlop: They are one the same for the purposes of this test.
 
The Recorder: Yes, you can't be reasonable without being sober I think is the ‑‑
 
Mr Dunlop: Yes, in law certainly.
 
The Recorder: In law, yes.  Members of the jury, the point is that the test of the risk being apparent to a reasonable man means an ordinary person of reasonable intelligence.  It has got nothing to do with whether he is drunk or sober, but a person who is not sober does not get any watering down of his responsibility because a reasonable person means someone who is sober and therefore you ignore the fact that these people, all of them, might have or had taken drink.  You make no allowances for insobriety.  Is that sufficient?"
  
He then asked them to retire.
      After a further short interval the jury were given a majority direction.  They ultimately convicted with a majority of 11 to one.
      As already stated, it is correctly conceded by Mr Dunlop that in the summing up itself the Recorder should not have directed the jury that, at any rate ignoring the effects of drink, there is a requirement to establish what he called "objective recklessness". However, he submits that the convictions are not unsafe and his submissions may be summarised in this way.  It cannot be said that the Recorder failed to include a reference to the proper test when directing the jury. During the summing up he included the proper ingredients  of the section 20 offence:
 
"... if the defendant foresees that such harm may occur but nevertheless goes on to take the risk of that harm he could be guilty if it is reckless ..."
  
By the Recorder's direction the jury had first to apply the proper test.  It was only if they found against the defendant in that test, that on the Recorder's direction, they had to go on to consider the next test, namely "objective recklessness".  The test posed by the Recorder was, therefore, two‑fold.  The appellants were not prejudiced because the first limb of his test set out the proper criterion.  The Recorder then posed a second criterion, thereby creating a further hurdle for the Crown to prove their case.  Accordingly, despite the confusing addition of a "recklessness" direction during the summing up, and subsequently in answer to two questions the convictions were not unsafe.
      Mr Dunlop submits that the case against the appellants was very strong and he has drawn our attention to parts of the interviews of both appellants, to the defence statements and indeed to the appellant Irwin's evidence.  Mr Edwards has, however, drawn our attention to the fact that the jury convicted only by a majority of 11 to one after asking two questions, and more importantly to the fact that in evidence Irwin said  that he had hold of Rose, that he thought he had a good grip and that he did not appreciate the risk. Mr Edwards submits that we cannot be sure that if the jury had been properly directed they would have convicted.  He so submits on the basis that the jury might have convicted on the basis that they thought that a reasonable man would have foreseen the risk without applying their minds to the question of whether these students would have done so if they had not been drinking.
      We have had considerable doubt as to whether we should dismiss this appeal on the ground that the convictions were nevertheless safe, because we see the force of the submission made by Mr Dunlop that the prosecution's case was indeed strong, but we have reached the conclusion that we cannot be sure that the jury would have convicted if they had been properly directed.  We regret to say that we have reached the conclusion that both passages in the summing which we have quoted, and in particular the judge's response to the jury's questions were, as Mr Dunlop properly concedes, in some respects confused. Having regard to that confusion, we are unable to say that these convictions are safe, especially since the prosecution conducted their case on the basis of actual foresight  throughout and counsel for the defendants addressed the jury on the footing that that was the prosecution case. They never had the opportunity to address the jury on the alternative basis adverted to for the first time in the summing up.  For these reasons the convictions will be quashed.

MR DUNLOP: My Lord, just to cover every aspect, do I take it that your Lordships have considered the question of a retrial?

LORD JUSTICE CLARKE: We have considered the question of whether there should be a retrial.  Would you like to make submissions on that?  Our preliminary view is that in the circumstances a retrial would not be appropriate.

MR DUNLOP: I do not seek to address you differently.

LORD JUSTICE CLARKE: There will be no retrial.