No: 201306244/B3 
Neutral Citation Number: [2014] EWCA Crim 2176
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 15th October 2014
 
B e f o r e:

PRESIDENT OF THE QUEEN'S BENCH DIVISION 
(SIR BRIAN LEVESON)
MRS JUSTICE ELISABETH LAING DBE 
 
MR JUSTICE WILLIAM DAVIS 
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R E G I N A 

v 

SHENAE BAFFRENE BROWN
 
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Mr P Dyer appeared on behalf of the Appellant
Mr M Tomassi appeared on behalf of the Crown
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J U D G M E N T
1.	PRESIDENT OF THE QUEEN'S BENCH DIVISION:  On 8th November 2013 in the Crown Court at Inner London before Mr Recorder Mitchell and a jury, this appellant, who is now aged 24 years, was convicted of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861.  On 9th December she was sentenced to 24 months' imprisonment suspended for 2 years and ordered to pay a victim surcharge of £100.  She now appeals against conviction by leave of the single judge.
2.	The facts can be summarised very briefly.  The prosecution case was that Horace Duffus, the complainant, was stabbed at the home he shared with the appellant and with whom he was in a relationship.  Following an exchange of words between the two during which she had become angry and indeed threatened to kill him, it was alleged that she had picked up a knife and deliberately stabbed him, intentionally causing him really serious harm, There is no doubt that the knife caused a vertical wound to Mr Duffus' right cheek.
3.	The defence case was that during the course of a physical and verbal altercation between the two the appellant picked up a knife in self‑defence to keep Mr Duffus away from her.  He moved towards her, grabbed hold of her wrist holding the knife, moving her arm behind her head causing her to turn and during the course of the struggle she accidentally slashed his face with the knife.  The appellant did not let go of the knife during the struggle as she was concerned about what would happen if she did so.  She gave evidence and denied intending to hurt Mr Duffus.  She was of good character.
4.	There was medical evidence which was reduced into an admission which negated the allegation of a stab wound.  It was common ground that the wound to Mr Duffus' face was properly described as an incised wound, wholly consistent with having been caused by a sharp bladed weapon, such as a knife, more properly described as a slash wound.  The admissions continued that it was consistent with having been sustained during the course of a struggle; a deliberate stabbing action into the face would be expected to cause a more limited wound on the skin together with an injury to deeper structures within the face and mouth.  The admissions went on to the effect that no more than mild to moderate force would have been required to inflict the injury and did not indicate a stabbing action.
5.	Prior to the end of the case the judge raised with counsel whether an alternative of unlawful wounding should be left to the jury for their consideration.  For different reasons counsel did not take up the learned judge's suggestion.  The Crown took the view that to allow the jury to return a verdict of unlawful wounding would be to cause a risk that the true issue in the case, which was the intention of the appellant, would be fudged.
6.	The defence took the view that the jury would not convict of an offence involving intention to cause serious bodily harm in the light of the agreed medical evidence.  The judge did not demur from the submissions placed before him and as a result the jury were left only with the issues of self‑defence and accident.  The judge observed however: 
"You may think the real issue in this case is intent.  In this case you must be sure, if you are to convict, that the defendant intended to cause really serious bodily harm to Mr Duffus.  You can only decide what her intention was by considering all the relevant circumstances and in particular what she did, and what she said about what had happened on that occasion.  
If you think the serious injury which Mr Duffus suffered to his face was accidental, or might have been accidental, then you must acquit.  You can only convict if you are sure the defendant intended to cause really serious harm to Mr Duffus."
The learned judge then directed the jury in relation to self‑defence and the circumstances in which the appellant came to be holding the knife in any event.
Having given a full and proper direction on self‑defence, he went on:  
"Of course I remind you that the question of self‑defence arises in this case is the reason why the defendant held a knife at all.  Her defence in her case is the question of accident.  She says this injury was an incident. There was a struggle and in the course of that struggle the injury was caused and the injury was not deliberate.  That is her defence."
7.	In truth the defendant's case was that she had deliberately picked up the knife "in order to keep him away" that is to say to scare him.  When Mr Duffus put her arm behind her back she deliberately tried to get free of his grip, so she could regain control of the knife.  She knew that she was holding the knife yet she struggled in a way that an ordinary sober individual would have realised might caused some injury to a person standing close to her.  If the result was that she slashed the face of Mr Duffus, albeit not intending serious bodily injury then, if the jury rejected accident and self defence, it was open to the jury to conclude that she was guilty of the offence of unlawful wounding.
8.	Having been convicted of wounding with intent in the Crown Court Miss Polly Dyer, for the appellant, now takes the point that the jury should have been left with the alternative of unlawful wounding.  She relies on the decision of House of Lords in R v Coutts [2006] 1 WLR 2154, the headnote of which makes clear: 
"In a trial on indictment any obvious and viable alternative verdict should ordinarily be left to the jury if there were evidence to support it irrespective of the parties' wishes."
She also points to the decision in R v Hodson [2009] EWCA Crim 1590, in which Keene LJ observed in relation to alternative verdicts: 
"It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not. Even then there may be circumstances where the issue of specific intent does not truly arise. For example, if a man is shot at point‑blank range in the head and the defence is simply that the defendant was not present, there is no requirement on the judge then to leave the alternative of manslaughter by way of killing without the necessary intent for murder. However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether. That may give rise to a miscarriage of justice."
9.	In this case Mr Tomassi for the Crown argues that a conviction for section 20 would have fudged the true issue between the parties.  But that depends upon the jury reaching the assessment the one or either of the cases advanced at the trial was entirely accurate.  In truth it was open to the jury to decide what facts they accepted and what they rejected from the contentions of each of the parties.  It was certainly open to the jury to reject the suggestion or the allegation that the appellant had in terms said that she wished to kill the complainant and equally to reject the defence of self‑defence, in the light of the way in which and the circumstances in which the appellant had picked up and used the knife.
10.	In our judgment, this was a classic case where the jury should have been given the opportunity to return a verdict of unlawful wounding.  In those circumstances, we have come to the conclusion that there was a failure adequately to address the jury in that regard and we quash the conviction for the wounding with intent.  
11.	It was not submitted at the Bar that in the light of the findings of the jury a verdict of unlawful wounding would not have followed and in the circumstances we substitute for the conviction for wounding with intent a conviction for unlawful wounding contrary to section 20 of the Offences Against the Person Act.
12.	Turning to the question of sentence, we note that the learned judge clearly had considerable sympathy for this appellant having imposed a sentence far below that which falls even at the bottom end of the bottom category of offences of wounding with intent.  In truth he passed a sentence much more in keeping with an offence of unlawful wounding.  To mark the difference between the conviction for wounding with intent and unlawful wounding we feel it appropriate to adjust the sentence imposed and we do so by reducing the term of imprisonment from one of 2 years' imprisonment to 18 months the operation of which is suspended for a period of 2 years.  The victim surcharge continues to apply.