Neutral Citation Number: [2007] EWCA Crim 1847
Case No: 200700140 C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
HHJ Van der Werff
T20067247
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/07/2007
Before:

LORD JUSTICE TOULSON
MR JUSTICE BUTTERFIELD
and
HIS HONOUR JUDGE WADSWORTH QC 
(SITTING AS A JUDGE OF THE HIGH COURT)
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Between:

	R	Respondent 	
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	SHEILA BANTON 	Appellant	

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Ms Sarah Morris instructed for the Appellant
Mr Simon Shannon instructed for the Respondent

Hearing dates: 22 June 2007
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Judgment
Lord Justice Toulson : 
Introduction
1.	On 20 November 2006 Sheila Banton was convicted at the Inner London Crown Court after a trial before His Honour Judge Van der Werff, by a majority of 10 to 2, of wounding with intent to do grievous bodily harm contrary to s 18 of the Offences Against the Persons Act 1861.  She appealed against her conviction with leave of the single judge on the ground that the judge was wrong not to leave to the jury the possibility of convicting her of the lesser offence of unlawful wounding contrary to s 20.  The argument for the appellant was founded on the decision of the House of Lords in R v Coutts [2006] UKHL 39, [2006] 1 WLR 2154.  The appellant was represented at the hearing of the appeal by her trial counsel, Ms Sarah Morris.  The prosecution was represented by Mr Simon Shannon, who also appeared at the trial.  At the end of the hearing we announced that the appeal was dismissed.  We now give our reasons.
The facts
2.	The incident giving rise to the trial occurred in the early hours of Sunday 9 April 2006.  It happened at a private party at a house in Brixton.  The 22 year old complainant, Charlene Brown, went to the party with her cousin Lamara Brown and Lamara’s step mother Nicola McKenzie.  The complainant found herself dancing next to the appellant.
3.	According to the complainant’s account in her witness statement and evidence, she must have accidentally stepped on the appellant’s foot.  She heard the appellant say to a friend, “Look how she stepped on my foot.  Mind I don’t kill her”.  The complainant asked the appellant, “Who are you going to kill?” At that point the appellant swung her right hand and smashed a bottle against the complainant’s face.  The appellant then ran off.  The complainant followed her into the garden.  She was not immediately aware of the injuries that she had received, but she was stopped by her husband in the garden.  She subsequently fainted but came to and was taken to King’s College Hospital.
4.	Medical evidence was given in the form of written statements by a registrar working in the emergency department and a senior house officer in the department of oral and maxillofacial surgery.  In summary, the complainant had a large open wound to her left check with lacerations to her left upper and lower eyelids and left eyebrow.
5.	Lamara Brown and Nicola McKenzie gave evidence supporting the complainant’s account of the attack on her.
6.	The appellant gave a contrary account to the police and to the jury. According to her, the complainant kicked her or trod on her several times and laughed at her.  The appellant took hold of her wrist and told her to stop.  The complainant then hit her on the top of the head with a bottle.  It did not break but it caused a bruise.  The others also tried to hit the appellant with bottles which they threw, so she picked up a bottle from the floor and flung it at the three of them from a distance of about a metre.  She said that she did not mean to hit the complainant in the face or to cause any injury and she did not see if the bottle hit anyone.  She ran out of the room and was followed by the appellant, who picked up a glass and threw it at her, but it did not hit her.  She first saw that the complainant had injuries when they were outside.
7.	The evidence finished on the afternoon of Friday 17 November 2006.  In the absence of the jury the judge raised the point that there was only one count in the indictment and asked Mr Shannon if he pinned his colours to it.  Mr Shannon replied that he did, but that if the jury were to accept the appellant’s account of being hit on the head with a bottle which did not break as being true or possibly true, “it might cause them some difficulties with regard to the question of intent as opposed to recklessness”.  The judge said that Mr Shannon could reflect on the matter over the weekend.  On Monday morning Mr Shannon told the judge that he had reflected on the position and made no application to add an alternative count.  The judge said, “So you nail your colours to the mast of: if she hit her in the face with a bottle she must have intended to do her serious injury?” Mr Shannon replied, “Yes, indeed”. The judge asked Ms Morris if she wished to make any objection or observation. Ms Morris replied that she did not.
Criminal Law Act 1967, s 6(3)
8.	This provides:
“Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.”
9.	Although this provision enables a person charged under s 18 to be convicted of an offence under s 20, it is better practice for the indictment to include a separate count under s20 if the jury is going to be required to consider that alternative: R v Mandair [1955] 1AC 208; R v Lahaye [2005] EWCA Crim 2847, [2006] 1 Cr App R 11.
Argument on the appeal
10.	Ms Morris submitted that the judge must have considered that on the evidence an offence of unlawful wounding was a realistic possible alternative to the offence charged on the indictment, because otherwise he would not have raised the issue with counsel in the way that he did.  Mr Shannon’s response showed that he too considered it a realistic possibility.  In the circumstances, the judge had a duty to direct the jury that they could find the appellant guilty of unlawful wounding rather than wounding with intent, regardless of whether the prosecution wished to nail its colours to the graver charge and regardless of the wishes of the appellant.
11.	Before turning to the authorities, it is important to identify the factual basis on which it was argued that the alternative offence ought to have been left to the jury.  The basis, and only basis, argued for by Ms Morris was that the jury might have accepted as possibly true the appellant’s account of throwing a bottle in the direction of the complainant and her friends after herself being attacked with a bottle and, if so, a verdict of unlawful wounding would have been plausible.
12.	Mr Shannon confirmed to the court that this was the scenario which he thought about when the matter was raised by the judge.  After reflection, he considered that it would not be right to ask the judge to leave unlawful wounding to the jury as a possible alternative verdict on that basis because it would have represented, as he put it, the prosecution moving the goalposts.  The case he had presented from first to last was that the appellant had hit the complainant in the face with a bottle, and, if the jury was not sure that this was true, it would be introducing a new way of putting the case to ask the jury to convict her of a lesser offence on the basis of having thrown the bottle in the circumstances as she described them.
13.	In the light of R v Coutts, Mr Shannon did not seek to resist Ms Morris’ argument that the judge ought to have left the alternative of unlawful wounding to the jury.  We have to consider whether the judge should have done so.
R v  Coutts
14.	In R v Coutts the defendant was convicted of murder. He killed the deceased by tying a ligature around her neck and causing either strangulation or vagal inhibition.  There was a difference of medical opinion which was the more probable mechanism.  The prosecution’s case was that he deliberately strangled the deceased for macabre sexual purposes and that he had necrophiliac propensities.  The defendant’s case was that her death occurred accidentally in the course of consensual asphyxial sex.  He stored the deceased’s body for a month after her death before taking it to an area of woodland and setting fire to it.  The House of Lords held that the judge ought to have left to the jury the possibility of convicting the defendant of manslaughter.  The leading speeches were given by Lord Bingham of Cornhill and Lord Rodger of Earlsferry, with whom the other members of the Judicial Committee all agreed.
15.	Lord Bingham examined two lines of authorities. One line related to murder cases and established the principle that, whatever defence might be adopted by the defendant’s counsel, it was the duty of the judge to put the alternative of manslaughter to the jury if there was any evidential basis for supporting it.  
16.	In that line of authorities, Lord Bingham said that the fullest statement of principle was that given by Lord Clyde on behalf of the Privy Council in Von Starck v R [2000] 1WLR 1270, 1275.  It is necessary to say more about that case because of an argument based on it.  The defendant was charged with murdering a woman by stabbing her in a hotel bedroom with a knife.  He made an admission to the police that they were high on cocaine and that it was the cocaine that caused him to do it.  At his trial the defendant did not give evidence, but he made an unsworn statement from the dock denying that he had killed the deceased.  The judge directed the jury that they should ignore what the defendant had said to the police about being intoxicated with cocaine since the defence advanced by him at the trial was that he had not killed the deceased.  It was held that this was a misdirection.  The judge could only properly direct the jury to put such material aside if it was “wholly incredible or so tenuous or uncertain that no reasonable jury could reasonably accept it”.  In this context, Lord Clyde observed that the “threshold of credibility” was low.  
17.	Secondly, Lord Bingham examined a line of authorities in cases other than murder, demonstrating a wider principle that ordinarily a judge should leave to the jury the possibility of convicting lesser included offences, that is, offences comprising some but not all the ingredients of the offence charged.  In particular, Lord Bingham cited with approval the reserved judgment given by Mustill LJ in R v Fairbanks [1986] 1 WLR 1202.  In that case the defendant was convicted of causing death by reckless driving.  The issue in the case was how bad was the defendant’s driving.  The defendant’s counsel submitted to the trial judge that the jury should be given the opportunity of considering whether the defendant was guilty of the lesser alternative offence of careless driving.  The judge rejected that submission.  After the jury had been deliberating for 90 minutes, they sent a note to the judge asking, “Would it be possible to define the term “reckless” as opposed to any other categories of bad driving?”  The judge directed the jury that they should ignore any possibility of the case being merely one of careless driving.  The Court of Appeal held that jury ought to have been given the opportunity of deciding whether the driving should be categorised as careless rather than reckless driving.
18.	Mustill LJ referred to various authorities, including two early decisions of the Court of Criminal Appeal (R v Vaughan (1908) 1 Cr App R 25 and R v Naylor (1910) 5 Cr App R 19) where defendants convicted of wounding with intent to murder, or wounding with intent to cause grievous bodily harm, appealed on the grounds that the trial judge ought to have left to the jury the possibility of convicting of the lesser offence of unlawful wounding, but their appeals failed.  Mustill LJ observed that the reports were brief, but that they demonstrated that the judge was not always obliged to leave all the alternative verdicts theoretically comprised in the charge of the offence and need not (indeed should not) do so unless the alternatives really arose on the issues as presented at the trial.  He emphasised that the ultimate question was what the interests of justice demanded.  He gave examples where such interests would not be served by leaving an alternative verdict to the jury, such as where the defence had not sought to deny that the full offence charged had been committed, but challenged that it was committed by the defendant, or where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but the possibility had not been pursued and had ceased to be a live issue.  
19.	In R v Coutts Lord Bingham stated as a matter of general principle at [23]:
“The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious or alternative offence which there is evidence to support.”
	He added at [24]:
“It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant’s right to a fair trial.”
He gave examples where this might be so, such as where decisions were made at the trial which would not have been made had the possibility of such a verdict been envisaged.
20.	Lord Rodgers’s speech was to similar effect.  He too emphasised at [84]:
“Since the duty to put the possibility of a viable alternative verdict before the jury exists to promote the interests of justice in this way, it will not apply in circumstances where giving the direction would not serve those interests and might indeed undermine the fairness of the trial.”
He instanced cases where a party might be prejudiced since, if they had realised that the alternative verdict was going to be left to the jury, they might have conducted the case differently, or where the alternative was “remote from the real point of the case”.
Discussion
21.	The foundation of the prosecution’s case against the appellant was that she smashed a bottle in the complainant’s face.  The appellant denied it.  This presented the jury with a stark question of fact.  For the prosecution to have sought the appellant’s conviction on a different factual basis would have been a radical departure from the case presented.  If the prosecution had applied at the close of the evidence to add a count of unlawful wounding on the basis of the appellant’s evidence, in our view the appellant would have had good grounds for objecting that this was unfair and that a resulting conviction of unlawful wounding would be unsafe.
22.	For the jury to have convicted the appellant of unlawful wounding on the basis now under consideration, it would have had to be sure that she had the necessary mens rea to be guilty of unlawful wounding and that she had in fact wounded the complainant.
23.	As to the necessary mens rea, “maliciously” in s 20 has been construed as including “recklessly” in the sense that the defendant foresaw that bodily harm might result from what he or she was going to do and yet, ignoring that risk, went on to commit the offending act: R v Barnes [2005] 1 WLR 910.  (We would take it that it must also have been unreasonable for the defendant to take the risk in the circumstances known to him or her, by analogy with R v G [2004] 1 AC 1034.)  The appellant’s evidence was that she did not mean to cause injury when she threw the bottle.  She was not cross-examined to suggest that she must nonetheless have realised at the moment of throwing the bottle that there was a risk of causing injury.  That aspect was left unexplored, because that was not how the prosecution was presenting its case.
24.	As to causation, the appellant accepted that after the incident she saw that the complainant had injuries but it was no part of her evidence that she saw the bottle hit the complainant, and it hardly seems likely that throwing a bottle in the way that she described would have caused the injuries.  True, that would have been a two edged point, for the injuries were far more likely to have been caused by the bottle being smashed in her face than being thrown at her.  But if, on the whole of the evidence, the jury was not sure that the prosecution witnesses had given a truthful account of how the complainant had been injured, it is at least doubtful how they could have been sure that she had in truth been injured by the appellant.
25.	In reliance on Von Starck v R, it was argued that the evidence was enough to establish the possibility that the complainant had been injured by the bottle being thrown at her, and that the appellant would have appreciated in throwing it that there was a risk of it hurting someone; and therefore the possibility of convicting her of unlawful wounding on that basis ought to have been left to the jury, since for this purpose the “threshold of credibility” was low.  But that is to misunderstand and misapply the passage in Lord Clyde’s judgment in which he used that expression.  In that case the prosecution had to establish on the charge of murder not only that the defendant killed the deceased but that he did so with the specific intent required for murder.  If the jury was sure that he killed the deceased, but in doubt whether he had the specific intent by reason of intoxication, in law the proper resulting verdict was one of manslaughter.  The judge was duty bound so to direct the jury unless the material raising the possibility of intoxication was so slender that no jury could reasonably accept it as possible.  To give such a direction would involve no unfairness to the defendant.  That is very different from a situation in which the prosecution presents a case based on a particular factual scenario, and a question is raised after the conclusion of the evidence whether the jury should consider the issue of the defendant’s possible guilt of an alternative lesser offence based on a different scenario, in circumstances where that issue has not been directly or fully explored.  The existence of some possible evidential basis for such an alternative verdict would be by no means necessarily a sufficient basis for putting it to the jury.  The judge would be justified in not leaving it to the jury if he reasonably considered it to be remote from the real point of the case. A fortiori, it would be wrong for the judge to leave it to the jury if it would cause a real possibility of unfairness to the defendant.
26.	We have concluded that it would have been unfair to leave unlawful wounding to the jury on the alternative basis now under consideration because, to put it shortly, the case had been about whether the appellant had deliberately smashed a bottle in the complainant’s face, and the possible alternative issue whether she had recklessly wounded the complainant by throwing the bottle had not been explored.  The prosecution was therefore right not to seek to add an alternative count to the indictment and the judge was right not to order it.
27.	Ms Morris pointed out that in directing the jury about the meaning of the word “unlawfully” in s 18 the judge said as follows:
“It seems to be accepted that what she did caused the wound to Charlene’s face, arm and hand.  But was what she did unlawful? It would not be unlawful if she was acting either in self-defence or what happened was the result of an accident.  You know what an accident is, and there is no real suggestion here that this was an accident.  If she threw the bottle as she said she did, intending to cause one or other of the women who were there some harm, grievous bodily harm, and it happened to hit Charlene in the face and do her injury, then that would not be any sort of defence.  However, it would be a defence if it was something which could properly be called self-defence, so I must direct you about what self-defence is in our law.”
28.	Two comments or criticisms may be made about this passage.  First, on the appellant’s account she did not see how the complainant sustained her injuries, although it may well be that the thrust of the way in which the defence case was presented was to accept tacitly that the injuries were caused by the bottle, while disputing the prosecution’s account of how it happened.  This would account for the judge’s comment that “it seems to be accepted” that the appellant’s acts were causative of the complainant’s injuries.  More problematic was the statement that the appellant would be guilty if she threw the bottle intending to cause serious bodily harm to one or other of the women, and it happened to hit the complainant in the face.  Although this was correct as a pure statement of law, it was not the way in which the case had been presented.  When he came to address directly the question of intent, the judge correctly put the issue as follows:
“If you find that she did act unlawfully and her unlawful act caused the wounds to Charlene Brown, then the last question is: did she intend to do her some grievous bodily harm? …What does it mean? It means really serious injury.  It need not be life threatening or permanent, but it must be serious.  The prosecution say, as you heard from Mr Shannon this morning, that they contend that what she did was a deliberate assault upon Charlene Brown with the bottle, with the intention at the time of doing her really serious injury.”
29.	That was an accurate and succinct statement of the issue, which reflected the way in which the case had been presented.  There is no ground of appeal based on the form of the summing up apart from the complaint that the judge did not leave the alternative offence of unlawful wounding to the jury, and realistically it is hard to imagine that the jury would have convicted the appellant of wounding with intent unless they accepted the prosecution witnesses’ account of what she did.  There is no cause to consider the conviction unsafe.