Neutral Citation Number: [2011] EWCA Crim 3239
Case No: 201104987 D5
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 20th December 2011
 
B e f o r e:

LORD JUSTICE AIKENS 

MR JUSTICE MADDISON 
 
HIS HONOUR JUDGE STEPHENS QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 
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R E G I N A 

v 

BEN CAVEN
 
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Mr T Godfrey appeared on behalf of the Appellant 
Ms M Pinkus appeared on behalf of the Crown 
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J U D G M E N T 
1.	LORD JUSTICE AIKENS:  This is an appeal by Ben Caven, now aged 20, which is brought with the leave of the Single Judge with respect to one ground of appeal.  In respect of the second ground, the Single Judge referred the matter to the full court.
2.	On 9th August 2011, following a seven day trial before Mr Recorder Bayliss and a jury, in the Crown Court at Kingston, the appellant was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861.  A co‑accused, William Spooner, was acquitted of a similar charge.  The appellant has not yet been sentenced because of events that occurred after his conviction on 9th August 2011.  Given those circumstances, we have imposed an order under section 4(2) of the Contempt of Court Act in terms which we have already discussed with counsel and which have been agreed.
3.	The charge arose out of events on the night of 27th and 28th August 2010, when there was a party at Beauval Road, Dulwich, South East London.  The party was attended by the appellant and his co‑accused and other young men.  The complainant, Michael Horgan, arrived in Beauval Road as the party was finishing, to meet his friend, Thomas Bath, who had also attended the party.
4.	The prosecution case at the trial was that the appellant was involved in a group assault on the complainant, who suffered serious injuries as a result, including a fractured eye socket.  The prosecution case was that the appellant was the instigator of the violence and that he and others, including the co‑accused, who was acquitted, were participants in this group violence against Mr Horgan, which was a sustained attack.  The case was put on the basis of a joint enterprise.  We repeat that Mr Spooner was acquitted.
5.	The defence case was that Mr Horgan had approached the appellant aggressively and had attempted to head‑butt him.  The appellant's case was that he had thrown a punch at Mr Horgan in self‑defence and that the two had then grappled up against a car.  The appellant said that he then left the scene with Mr Spooner but Mr Horgan stayed there and the violence continued.  
6.	The issues for the jury were, therefore, whether the appellant might have been acting in self‑defence or, if not, whether the appellant took some part in the attack against Mr Horgan with the intention of causing him really serious bodily harm.
7.	Before the Recorder gave his directions to the jury he sought the opinion of counsel for the Crown and of the defence as to whether or not an alternative verdict of guilty contrary to section 20 of the Offences Against the Person Act 1861 should be left to the jury; that is to say, a verdict of guilty of grievous bodily harm.  Both the prosecution and defence counsel indicated that they did not want the alternative verdict to be left to the jury and the Recorder acceded to this view.  Therefore, no alternative verdict was put to the jury or dealt with in the course of the Recorder's directions.
8.	It is now submitted on behalf of the appellant that, in the light of the leading authorities, this was an error on the part of the Recorder.  Mr Tom Godfrey, for the appellant, has accepted that when he answered the question from the Recorder about the possibility of leaving the alternative section 20 verdict to the jury, he did not particularly have in mind the leading authorities, in particular the House of Lords' decision in R v Coutts [2006] 1 WLR 2154 and this court's decision in R v Foster and others [2008] 1 WLR 1615 (Practice Note).
9.	The first ground of appeal is that, because the section 20 alternative verdict was not left to the jury, the conviction of the section 18 offence is unsafe. 
10.	The second potential ground of appeal, and the matter which the single judge has referred to the full court, concerns events that occurred after the jury had returned its verdict.  In the light of the clear conclusions that we have reached with regard to ground 1, we do not need to set out the facts which give rise to the proposed ground 2.  Accordingly, we will deal only with ground 1.
11.	The question is whether the fact that the Recorder did not leave an alternative section 20 verdict to the jury renders the conviction of the appellant unsafe.  The statutory basis for possible alternative verdicts in relation to trials on indictment is provided for in section 6(2), (3) and (4) of the Criminal Law Act 1967.  Section 6(2) relates to indictments for murder.  Sections 6(3) and (4) relates to offences, other than treason or murder, tried on indictment.
12.	The general principles to be derived from R v Coutts and R v Foster are, so far as this appeal is concerned, as follows:  (1) before any requirement to leave an alternative verdict to the jury arises, that alternative verdict must be "obviously" raised on the evidence.  The alternative verdict must suggest itself to the mind of "any ordinary knowledgeable and alert criminal judge"; see Coutts at paragraph 23, Foster at paragraph 54.  (2) That test will generally only be passed if the alternative verdict is one to which a jury could reasonably come; which must mean that the alternative is one which really arises on the issues as presented at the trial. (3) There is no duty to put an alternative verdict if such a verdict would be remote from the real point of the case. (4) However, each case must depend on its particular facts. (5) The evidence, disputed and undisputed, and the issues of law and fact to which it gives rise, must be examined; see Foster at paragraph 61.  A judge will not be in error if he decides that a lesser alternative verdict should not be left to the jury if that verdict can properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issue in the case; see Foster at paragraph 61. (6) Where the defence to a specific charge amounts to the admission or assertion of a lesser offence, the primary obligation of the judge is to ensure that that defence is left to the jury.  If it is not, then the summing‑up will be seriously defective and the conviction unsafe. (7) A judge may have to reconsider a decision not to leave an alternative verdict to the jury in the light of any question which the jury may see fit to ask; see Foster at 61. (8) At all stages the judge has to ask the question: will the absence of a lesser alternative verdict oblige the jury to make an unrealistic choice between the serious charge and a complete acquittal in a way which would unfairly disadvantage the defendant, see Foster also at 61.  We emphasise that these are principles, not tramlines, and that each case depends upon its particular facts.
13.	The submission of Ms Pinkus on behalf of the Crown this morning is that a section 20 verdict was not one that would have been open to the jury on the facts of this case.  She submits that the principal issues were whether or not there was a defence of self‑defence and whether or not the appellant left the scene, as he said he did, after there was a confrontation between himself and the complainant.  She points out that the co‑accused's evidence was that the appellant had stayed and was involved in the later group violence.  She submitted that there was no evidence as to when the fracture of the eye socket was sustained.  In all the circumstances, Ms Pinkus submits, this was not a case where a section 20 verdict was one which was obviously raised on the evidence.
14.	We have to ask how should the principles we have set out be applied to the particular facts of this case?  In some cases, a possible alternative verdict under section 20 of the Offences Against the Person Act 1861 is "obviously" an alternative to a verdict under section 18".  The latter requires that a defendant has inflicted grievous bodily harm with intent to do so, the former requires that a defendant has inflicted grievous bodily harm, but there is no requirement to prove the specific intent to inflict grievous bodily harm.  There need only be intent to inflict some lesser harm.  We think that the question here is whether this alternative was obviously raised on the evidence and in the light of the issues that were raised at the trial.
15.	The principal issues were: (i) did the appellant strike Mr Horgan at all; (ii) might he have done so in self‑defence; (iii) if the prosecution proved that the appellant did strike Mr Horgan and the prosecution disproved that he did so in self‑defence, were any of the blows that were made by the appellant on Mr Horgan made by the appellant with the intent of inflicting grievous bodily harm?  We think that the correct approach to the question of whether the judge should have left an alternative verdict under section 20 to the jury is to ask this question: was the evidence such that, once the jury had concluded that the appellant did strike Mr Horgan and that he did not do so in self‑defence, was it inevitable that a jury must have concluded that the appellant intended to inflict grievous bodily harm? 
16.	We cannot say that this had to be the conclusion of the jury.  It seems to us that the jury might have concluded, on the evidence before it, that they were sure that the blow or blows struck by the appellant were not in self‑defence in the sense that they were satisfied that such blows would not have been ones which were only reasonably necessary in the circumstances.  But it does not follow that, once the jury had rejected self‑defence, they had to conclude that the blow or blows were made with an intent to cause grievous bodily harm.  Although one blow caused a fractured eye socket, in our view, a jury, properly directed, could have concluded on the evidence that that blow, or any other blows, were not inflicted with intent to cause grievous bodily harm.
17.	Accordingly, it seems to us that, taking all the relevant factors into account, the Recorder's first instinct, which clearly was to consider putting an alternative verdict to the jury, was the correct one.  We think that the verdict was unsafe because, on the facts of this case, we think it did or may have put the jury in a position of having to make an unrealistic choice between the serious charge under section 18 and an outright acquittal.  This may have operated to the disadvantage of the appellant in this case.
18.	Therefore, we have concluded that the appeal must be allowed on the first ground of appeal.  Accordingly, we do not need to consider the second possible ground. 
19.	So the appeal is allowed
20.	 
21.	MR GODFREY:  I am very grateful, my Lord.
22.	LORD JUSTICE AIKENS:  Thank you. 
23.	MS PINKUS:  My Lord, the current position would be that the Crown would seek a retrial.  Obviously I would convey the judgment to those who instruct me and I would ask for some time for that matter to be considered, together with the witnesses, who will have be consulted again about the way forward in this matter.
24.	LORD JUSTICE AIKENS:  Well, I think whether we grant leave for that is something we ought to consider now.  Whether you pursue it, of course, is a different matter.  You will have a certain time in which to prefer an indictment and you can make your final decision within that time.  But, I think, if you want to make an application, you must make it then.
25.	MS PINKUS:  Yes, my Lord.  Then the Crown would seek a retrial in this matter.
26.	LORD JUSTICE AIKENS:  Right.  On what basis?
27.	MS PINKUS:  On the basis that the section 20, as an alternative verdict, will now be left to the jury.
28.	LORD JUSTICE AIKENS:  Yes, but on what basis do you seek a retrial?  Presumably it would not be on the basis of an indictment which contains simply a section 20 matter.
29.	MS PINKUS:  My Lord, no, on an indictment containing two counts, section 18, count 1, and, as an alternative, but as an separate count, section 20 on count 2.
30.	LORD JUSTICE AIKENS:  All right. Mr Godfrey?
31.	MR GODFREY:  My Lord, my client ‑‑ he sits at the back of court in fact ‑‑ he is a young man, aged now 20.  These proceedings are now very old, they go back to August of last year.  Should there be a retrial of course, it will not take place ‑‑ I know Kingston Crown Court listings are busy ‑‑ it will not take place for some time.  It has been an enormous strain on him having these matters outstanding.  My Lord may have read, he is an university student, or certainly was: he has had to now defer his second year until September, due to the stresses, and one can well understand, of these ongoing proceedings.  
32.	I wonder whether, in the light of that, in light of his exemplary character hitherto ‑‑ I will not need to refer your Lordship to his character references ‑‑ whether in these circumstances it may be appropriate to draw a line now at this stage and allow Mr Caven, the appellant, to return to his studies.
33.	LORD JUSTICE AIKENS:  Yes.  Thank you.  (Pause) 
34.	Thank you very much, Mr Godfrey, but we think, in all the circumstances, particularly given the fact that Mr Horgan did, for whatever reason, suffer a serious injury to his eye socket, that the public interest lies in there being an order for a retrial.  (Pause).
35.	We do not seem to have the standard sheet here, Mr Godfrey and Ms Pinkus, so we will have to try and work through this on our own without it.  The normal rule is that the indictment is to be preferred within two months, is it not?
36.	MS PINKUS:  I think so, my Lord.
37.	LORD JUSTICE AIKENS:  And that the question of listing is to be dealt with by the appropriate authorities in the South Eastern Circuit.  I think there are one or two other orders we are meant to make.  (Pause).
38.	So we have to make an order obviously allowing the appeal, which we have done.  We have quashed the conviction, which we have done.  At any given point, the counts are quashed.  The appellant will be retried upon that count, but a fresh indictment is to be preferred and he will be arraigned on the fresh indictment within two months, according to section 8(1) as amended by section 43 of the Criminal Justice Act 1988.
39.	The appellant is on bail at the moment? 
40.	MR GODFREY:  He is on bail, my Lord, yes.  There is a condition of residence.  It was imposed by the learned Recorder at the aborted sentencing hearing, principally, it seems, so that probation could be in touch with Mr Caven.  He is now residing back at his mother's address.  I do not know whether your Lordship is seeking a condition.  He was certainly on unconditional bail ‑‑ forgive me, non‑contact ‑‑ with the Crown witnesses up until his trial.
41.	LORD JUSTICE AIKENS:  Yes, thank you.
42.	The address that is given here ‑‑ this is the order that is made on 9th August.  That is the address you are talking about, is it, the conditional bail? 
43.	MR GODFREY:  Two addresses were put forward: one was his home address, which is in Wimbledon or Southfields, and the other address was one in Portsmouth, where he was studying.  
44.	LORD JUSTICE AIKENS:  This is the Wimbledon one.
45.	MR GODFREY:  Very well. 
46.	LORD JUSTICE AIKENS:  So you are content that there should be that condition, or not? 
47.	MR GODFREY:  My Lord, I see no real reason why there should be a condition of residence.  He is certainly not going to flee the vicinity.  He is a man of unblemished character and, as I say, there certainly was not that condition whilst he was awaiting trial.
48.	LORD JUSTICE AIKENS:  Yes.  But the reason given is to ensure attendance, here, which I suppose is the standard reason.  (Pause). 
49.	There will be a condition of non‑interference, of course, but no residence condition will be imposed.
50.	MR GODFREY:  I am grateful.  
51.	LORD JUSTICE AIKENS:  There will be a representation order for the retrial.
52.	MR GODFREY:  Thank you. 
53.	LORD JUSTICE AIKENS:  And the order that we have already made now must be extended under section 4(2) to include a restriction on the reporting of all of the proceedings until after the conclusion of the retrial.
54.	Obviously the fresh indictment will not be confined to section 18.  It will include a second count, inevitably.
55.	Anything else that you think we need to deal with? 
56.	MR GODFREY:  My Lord, not from me.
57.	LORD JUSTICE AIKENS:  Ms Pinkus?  
58.	MS PINKUS:  No, thank you, my Lord. 
59.	LORD JUSTICE AIKENS:  Thank you both very much indeed.