No. 2009/02780/B4
Neutral Citation Number: [2009] EWCA Crim 2214

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  3  September  2009

B e f o r e:

LORD  JUSTICE  RIX

MR  JUSTICE  COLLINS

and

HIS  HONOUR  JUDGE  PERT  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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STEPHEN  PETER  FOSTER
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Mr S Bishop appeared on behalf of the Applicant

Mr A Robertson appeared on behalf of the Crown
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J U D G M E N T

Thursday  3  September  2009

LORD JUSTICE RIX:  
1.  This application for leave to appeal against conviction and for an extension of time in which to do so has been referred to the full court by the single judge.  It concerns what has ultimately proved to be a single ground of appeal raising the question of whether the judge erred in refusing to direct the jury on a possible alternative verdict of assault occasioning actual bodily harm on a count of causing grievous bodily harm with intent.

2.  The appellant (as we will describe him in this judgment for reasons which we will give subsequently), Stephen Foster, was convicted on 16 October 2007 at the Crown Court at Southampton before His Honour Judge Boggis QC and a jury of a single count of causing grievous bodily harm with intent.  On 7 December 2007 he was sentenced to five years' imprisonment, with a direction under section 240 of the Criminal Justice Act 2003 that 235 days spent in custody on remand should count towards his sentence.  

3.  A co-defendant, James Ward, pleaded guilty in the course of the trial to causing grievous bodily harm with intent.  He was sentenced to 51 months' imprisonment, with a similar direction regarding the time spent on remand.  A third co-defendant, Nasser Ahmed, was acquitted following the Crown's decision to offer no evidence against him after the appellant's conviction and in circumstances where the jury were unable to reach a decision as to his position.  

4.  James Ward, the co-defendant who pleaded guilty, did so following the judge's ruling that there was a case to answer regarding the causing of grievous bodily harm.  The jury knew about that plea in the course of the trial.  

5.  The extension of time needed by the appellant is the lengthy one of one year seven months and three days in respect of his application for leave to appeal against conviction.   

6.  The factual situation out of which this appeal arises concerns what was alleged to be an attack by three men (the appellant, Ward and Ahmed) on the complainant, Elias Mazani.  The details of the altercation and assault do not matter for the purposes of this appeal.  Briefly, however, the complainant Mazani, his brother and the three defendants had all attended a night club or bar.  There may have been some altercation in the bar, but subsequently when they all joined a taxi queue outside there was a further altercation which led to the attack on the complainant.  He was punched to the ground and on the ground he was kicked.  

7.  The appellant accepts that he punched the complainant once but said that that was in self-defence.  Ward, as we have already said, pleaded guilty to the full charge of causing grievous bodily harm with intent.  In doing so he accepted that he had kicked the complainant on the ground.  Ahmed said that he was not involved at all.  Although there was evidence of three men being involved in the attack on the complainant the evidence as to who had done exactly what was, as is usual in such a case, not all of a piece.  Those details, however, as we have observed, do not matter for the present appeal.  

8.  There was evidence that the attack on the complainant had knocked him out completely.  That at any rate was the evidence of Mr Mazani's brother and there was (albeit in cross-examination) also evidence from other witnesses to the effect that the complainant had lost consciousness.  

9.  At half time there was a submission that there was no case to answer on the charge of section 18 because the evidence as a whole, including the medical evidence (about which we will say more in due course), did not amount to grievous bodily harm.  The judge, quite rightly in our view (although it was a ground of appeal, it was not pursued orally today), rejected that application and said that there was evidence fit to go before the jury upon which they could conclude that the injuries amounted to grievous bodily harm.  However, at the end of the evidence as a whole, at a time before final speeches when the judge raised with counsel matters concerning the directions that he would give, he was requested by Mr Robertson, who appeared on behalf of the Crown as he does again on this appeal, to consider leaving alternative counts to the jury, such as counts of section 20 and section 47 (assault occasioning actual bodily harm).  He was supported in that submission to the judge by counsel then appearing on behalf of the appellant, Miss Buck, but opposed by counsel appearing on behalf of Ahmed, Mr Henley.

10.  The judge considered the matter overnight.  On 12 October 2007 he gave his ruling in which he rejected any alternative verdict directions.  He reviewed the law, which he appears to have taken in the main from Archbold to several of whose paragraphs he referred, and considered in that connection the leading case of R v Coutts [2006] UKHL 39; [2006] 1 WLR 2154.  However, he concluded:

		"I will not leave alternatives to the jury.  They will be asked to return a verdict on the count as it stands, section 18, yes or no, because it seems to me that first this is all too late.  Secondly, it will confuse matters enormously.  And thirdly I am concerned about the position of the man who has pleaded." 

11.  In his written submissions and perfected grounds of appeal Mr Bishop, who appears on behalf of the appellant, originally raised four grounds of appeal, of which Coutts was the last.  In his perfected grounds, however, as in his oral submissions today, he has concentrated on the Coutts ground, although he has continued to support it by reference to various further detailed complaints concerning what he submits were omissions in the judge's directions.  However, in his oral submissions today he has concentrated on paragraph 1 of his perfected grounds which relates to the Coutts point.  In that connection the House of Lords said in Coutts that in the ordinary case, where there was evidence to support an obvious alternative offence then, whatever counsel's applications or views on the matter, the judge should, prima facie, give a direction which would include the alternative offence.  Paragraph 7-97 of Archbold 2009 puts the Coutts decision in the following pithy sentence: 

		"A failure to leave an obvious alternative verdict to the jury for their consideration will render a conviction on the offence charged unsafe."

12.  In Coutts Lord Bingham of Cornhill explained the matter as follows:

		"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 alternative offence which there is evidence to support.  I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree.  I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial.  Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction.  In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment.  A defendant may, quite reasonably from his point of view, choose to roll the dice.  But the interests of society should not depend on such a contingency. " 

At paragraph 24 Lord Bingham indicated that the risk of any unfairness to the parties is met "if the proposed direction is indicated to counsel at some stage before they make their closing speeches." 

13.  In his speech, with which Lord Nicholls agreed, Lord Hutton put the matter in this way:

		"61.  Therefore I consider that the House should follow the reasoning in the second line of cases and hold that, save in exceptional circumstances, an appellate court should quash a conviction, whether for murder or for a lesser offence, as constituting a serious miscarriage of justice where the judge has erred in failing to leave a lesser alternative verdict obviously raised by the evidence."

Their Lordships indicated that where, pursuant to that principle, a trial court had erred in failing to leave an obvious alternative verdict to the jury it would, at any rate in most instances, be the case that a conviction in the absence of that direction could not be regarded as safe because no appellate court could be sure that a jury fully directed in accordance with an alternative verdict direction would have convicted on the original sole charge.  

14.  That case has been followed in circumstances closely similar to the present appeal, that is to say where a judge was held by this court to have erred in failing to give an alternative verdict direction on a count of section 47 when a defendant was charged under section 18.  In R v Abdi Aziz Ali [2006] EWCA Crim 2906, in giving the judgment of this court, Hughes LJ said this: 

		"11.  We therefore have to address the question of whether the conviction is unsafe as a result of the fact that no alternative verdict was left and, if it is, what is to be done.  It is plainly arguable that the jury had evidence on which it was entitled to conclude both that intention was proved and that the injuries amounted to grievous bodily harm.  The difficulty is that, as their Lordships observed in Coutts, if an obvious alternative is not left to the jury there are two (at least) real dangers.  The first is that a jury will convict of the more serious charge because they did not believe that a defendant should escape altogether.  Conversely, the second is that a jury may acquit altogether because it is reluctant to convict of the sole serious charge on the indictment.  Either of those courses is inimical to the achievement of justice.  The present case, in which a defendant positively admitted causing the injuries but put in issue how he had done it, is a classic example of the first of those risks.  Since there were genuine issues as to intent and to the proper description of the injury, we have reached the conclusion that the conviction for causing grievous bodily harm with intent is unsafe and cannot be allowed to stand."

15.  In a further decision on the Coutts point this court, R v Mark Foster and Others [2007] EWCA Crim 2869, a five judge constitution of this court reviewed the Coutts jurisdiction in four separate appeals and illustrated by its judgment that the position was possibly more complex than a mere reading of their Lordships' speeches in Coutts might lead one to suppose, being affected, as must almost inevitably happen, by the particular factors and circumstances of each case.  The court illustrated that position by citing three decisions where the Coutts principle was addressed, the first of which was Abdi Aziz Ali.  It contrasted that decision, however, with R v Soran Ali [2006] EWCA Crim 3084 and R v Banton [2007] EWCA Crim 1847, where in both of those latter two cases the appeal was nevertheless dismissed.  At paragraph 59 the court illustrates concerns that an alternative verdict may well be remote from the real issues in the case, and at paragraph 61 it goes on to demonstrate that an alternative verdict direction might in its factual context be regarded as trivial or insubstantial.  Again it raised the problem at paragraph 61:

		".... the judge must examine whether the absence of a direction about a lesser alternative verdict or verdicts would oblige the jury to make an unrealistic choice between the serious charge and complete acquittal which would unfairly disadvantage the defendant.  In this context the judge enjoys 'the feel of the case' which this court lacks." 

16.  In the present case there is no doubt that the question of whether the injury caused to the complainant was grievous bodily harm or only actual bodily harm was a serious issue in the case.  It had been raised in the submission of no case to answer; it was raised again by counsel for the Crown before final speeches; and it is quite apparent from the judge's summing-up that it was an important issue.  Indeed in the logic of the case it was one of the primary issue in the case.  Of course on the merits the issue of self-defence was ultimately even more important because if the Crown failed on that issue the appellant was entitled to a complete acquittal.  

17.  Thus it was that in his summing-up the judge dealt with the question of grievous bodily harm at an early stage.  He said at page 5D:

		"Now, I want to start with grievous bodily harm because if you are not sure that Mr Mazani did in fact suffer grievous bodily harm that is the end of the case and these defendants are not guilty.  You will not have to consider any other issues, so I will deal with this issue first." 

The judge made the same point at other places in his summing-up.  The judge directed the jury on what grievous bodily harm was in law and then went on immediately to review the medical evidence, which was the principal evidence on that question.  Thus he referred to the statement of Dr Clancey which had been read to the jury.  He was a consultant in the Accident and Emergency Department of the hospital to which the complainant was taken.  He had not seen the complainant but he had looked at the notes of the doctor who had seen him.  Those notes disclosed that the complainant was seen first by paramedics shortly after 3am on 15 April 2007.  He was complaining of pain.  A triage nurse recorded that he had a reduced level of consciousness, that he opened his eyes only to pain, and that he failed to obey commands.  He was viewed as probably having ingested alcohol.  On examination he opened his eyes to speech but used inappropriate words.  He was orientated but unable to obey commands.  A graze to the right side of his head was recorded.  His level of consciousness deteriorated and he was anaesthetized so as to be able to undergo a scan.  The rest of the examination was normal.  Following his scan, Mr Mazani was taken to the Intensive Care Unit which reported two further grazes on his left frontal area, but there were no other obvious injuries.  It was thought that he was suffering from the effects of alcohol.  The CT scan was normal.  There was an attempt therefore to reverse the anaesthetic, but in fact he remained anaesthetized and came round normally in the ordinary way.

18.  The statement of Dr Scott, the anaesthetist in the Intensive Care Unit, was read to the jury.  On her arrival at 4.45am the complainant was unresponsive.  A Glasgow coma score of 12 out of 15 was reported.  There was no comprehensible speech.  He was not co-operative to examination and so was sedated for further investigation.  The judge pointed out that the expression about not being co-operative was ambiguous between deliberately not co-operating or being incapable of co-operating.  The diagnosis was recorded as follows:

		"Reduced consciousness secondary to head injury (presumed) and possible alcohol intoxication.  

		No abnormalities on CT scan."

Dr Scott's statement went on to say that the complainant was woken up and he was discharged home.  The prognosis recorded by Dr Scott was:

		"Full recovery before discharge.  No clarification from investigations as to cause of reduced conscious level."

19.  The judge went on to refer to what eye witnesses to the assault had said.  He recorded that in cross-examination the complainant's brother had said that the complainant was knocked out completely and did not speak.  Another witness described him as unconscious and in the recovery position.  A third witness described him as unresponsive, gurgling and unable to speak.  A fourth witness said that he was not moving and that she thought he was dead.  The judge went on to tell the jury that they were not to conclude from Ward's acceptance of his guilt on the charge that the complainant had in fact suffered grievous bodily harm.  The judge repeated that unless the jury were sure that the complainant had suffered grievous bodily harm "that is the end of the case.  The defendants will not be guilty".  The judge then went on to give a full direction about joint enterprise, although we are assured by both counsel before us that there was no substantial joint enterprise issue in the case and that therefore the appellant was not responsible for actions of Ward.  

20.  In these circumstances, on behalf of the appellant Mr Bishop submits that this is a straightforward case in which the Coutts principle should be applied; it was plainly an obvious alternative verdict in this case that a direction concerning assault occasioning actual bodily harm should be given to the jury.  It was not a remote, trivial or disproportionate thing to do in the circumstances of this case.  It was a leading and principal issue in the case.  There would have been no injustice to any defendant in giving such a direction.  Counsel for both the Crown and the appellant suggested to the judge that such an alternative verdict direction should be given.  Although the contrary view was expressed on behalf of the defendant Ahmed, in giving such a direction there was no real possible prejudice to him. 

21.  Prima facie, therefore, such a direction ought to have been given.  The judge gave three reasons for refusing to give one.  The first was that there had been delay and that it was too late.  It is submitted that the judge was in error there.  The right time to consider such a direction was at the conclusion of all the evidence and before final speeches, as Lord Bingham had indicated in paragraph 24 of his speech in Coutts.  Moreover, the issue had been flagged up all along, as ultimately the summing-up made clear.  We agree with that submission.  We consider that the judge was in error in saying that the point was raised too late.  

22.  The judge's second reason was that such a direction would confuse matters enormously.  He obviously considered that it would distract the attention of the jury.  In our judgment the judge was in error there too.  The issue was plainly before the jury and they had to consider it.  If it was their view that grievous bodily harm had been caused, then they would go on to consider the other ingredients of the section 18 offence.  If, however, they considered that grievous bodily harm had not been caused, then it would simply have been a matter that it would have been open to them on an alternative verdict direction to bring in a conviction under section 47 rather than, as they would have had to do on the directions of the judge, directly acquit the defendant concerned.

23.  The third reason given by the judge was that he was concerned about the position of Ward who had already pleaded guilty to section 18.  So far as it goes this was a valid and important consideration for the judge to bear in mind.  However, that aspect cut both ways.  In as much as there might have been unfairness to Ward, who had pleaded guilty to section 18, in permitting the trial to go ahead on an alternative verdict basis, Ward having pleaded guilty in the course of the trial following the judge's rejection of the submission of no case to answer, that could have been taken care of, if the jury had convicted only under section 47, by allowing Ward when it came to sentence to withdraw his plea of guilty to section 18 and to plead guilty instead to section 47.  So in as much as there was a possibility of unfairness to Ward, that was a danger which could be resolved in his favour and he could be put in the position he ought to have been put in if he had stood trial in the charge of the jury.  We have described the point as being double-edged, and so it was.   The jury had inevitably heard of Ward's acceptance of his guilt to the section 18 charge, and although the judge directed them not to be influenced by that in considering the issue of grievous bodily harm, nevertheless it was inevitable that there was the possibility that they were influenced by it.  That was therefore another reason for acting positively in support of the general Coutts principle.  

24.  In his written skeleton in response to this appeal (to which he did not add materially in any oral submissions) Mr Robertson, while addressing some of the more minor points raised in the written submissions on behalf of the appellant, did not deal in terms with the Coutts principle.  In answer to questions from this court as to why it was that, having commenced the trial on the basis of a single count and not two alternative counts, he approached the concluding stages of the trial by inviting the judge to consider directing the jury on the alternative count, inter alia, of section 47, Mr Robertson's reply, which must have reflected the reality of the situation, was that in the light of all the evidence, as it had emerged at the trial, his view at the time was that there was a real question mark or danger about a conviction under section 18 and in those circumstances it was undesirable that the defendants should escape all responsibility for what they had done if the jury were sure of their complicity in the events. 

25.  Although undoubtedly the decision was one for the judge and the judge alone and, as is made clear, in this respect the judge should not be ruled by the submissions of counsel who, in making those submissions, may have foremost in their minds the tactical questions at the trial and Lord Bingham's graphic expression "the roll of the dice", nevertheless, where in circumstances such as these prosecuting counsel considers that an alternative verdict direction, such as one for section 47 in a section 18 case, is one that could appropriately be considered by the judge, that should carry some weight because from his or her position prosecuting counsel will necessarily have very much the feel of the case.

26.  In sum, this was a relatively straightforward case in which there was an obvious alternative verdict direction concerning the extent and gravity of the injuries caused.  The evidence concerning the injuries was highly equivocal (an adjective which both counsel have used in their submissions concerning that evidence as a whole).  Crown counsel accepts in his written submissions that the evidence of injury must be taken as a whole, that the evidence of the eye witnesses and the medical evidence later in the evening cannot be divorced and held separate and isolated one from the other.  In all those circumstances we agree with the submission.  Indeed, Crown counsel agreed that the evidence of the gravity of the injury was equivocal.  

27.  In coming to this conclusion we have borne in mind the decision of this court in R v Hicks [2007] EWCA Crim 1500, which states that loss of consciousness can amount to grievous bodily harm.  In that case a jury asked the question in the abstract, and the answer in the abstract was necessarily that it could.  Moreover, on the facts of Hicks, the injuries went beyond unconsciousness.  Plainly in that case the victim had suffered serious injuries beyond that of unconsciousness.  

28.  There is no disputing that unconsciousness can amount to grievous bodily harm.  Nevertheless, unconsciousness may come in many different forms.  In this case it was plainly accepted that there was a real issue as to whether the evidence of injury, including the evidence of unconsciousness, was necessarily to be characterised as grievous rather than actual bodily harm.  The medical witnesses, who knew from the grazing of the head that a blow or blows had been caused to the complainant, were unable to say whether or to what extent his unconsciousness, such as it was or remained, was due to such blows or was due to his condition in drink.  The Glasgow coma score, as we understand it (although the matter was not explained to the jury), might reflect the consequences of drink as well as of blows; the Glasgow coma score at 12 out of 15 was on the borderline of 13, which indicates a mild head injury.  The issue of the gravity of the injury was plainly one which was for the jury and not for the court, whether the trial judge or this court. 

29.  In all those circumstances the conviction for causing grievous bodily harm with intent with its five year sentence must be quashed.  In the circumstances it is common ground that this court has the power to substitute an alternative conviction and sentence pursuant to its powers under section 3 of the Criminal Appeal Act 1968.  This was a serious assault in which the complainant was not only knocked to the ground, it appears by a single blow, but was also kicked on the ground by at least one if not both of the co-defendants who were convicted.  This court has, unfortunately, much experience of the fatal consequences of kicks to the head.  The jury were satisfied, grievous bodily harm or no, that there was an intent to inflict grievous bodily harm.  Mr Bishop does not seek to say that even under the head of section 47 a sentence of three-and-a-half years' imprisonment, following a trial, could not properly be imposed.  It seems to us that that is right and that it falls within the relevant level of the Sentencing Guidelines Council's category which has a starting point of 30 months and a range of two to four years.

30.  We therefore propose to substitute a conviction under section 47 of the Offences against the Person Act 1861 and a sentence of three-and-a-half years' imprisonment for the conviction and the sentence which we have quashed.

31.  Finally, we began this judgment by re-characterising the applicant as the appellant.  This is because, despite the very lengthy delay in bringing this application and thus this appeal before the court, following a consideration of the merits of this appeal and a consideration of where the fault lies for the delay, we consider that it should not ultimately be held against the appellant.  In brief it is clear that the appellant was at every stage of the long delay which has occurred anxious to be advised on an appeal and to progress an appeal.  Unfortunately, what appears to have happened is that his trial counsel was for some reason (we do not know why) replaced by another counsel at the time of sentence.  It was that second counsel, Mr Smith, who was asked to advise on appeal against conviction.  He did advise.  He drafted a preliminary advice within twelve days of sentence (although that was already out of time for the purposes of conviction), but, not being trial counsel he also advised that he could not perfect his advice until he had received transcripts.  Those transcripts were received by April 2008.  However, in the same month counsel was called up to serve as a Territorial Army reservist in Afghanistan.  In the ensuing delay the appellant decided to change solicitors.  His original solicitors had run into difficulties and were dissolved.  With the change of solicitors there came the instruction of new counsel.  When it was suggested that perhaps it would be wiser to go back to Mr Smith, it turned out that he was in Afghanistan.  One thing led to another and there was consequential delay.  It is not clear precisely where the responsibility at any particular stage lies, but it is quite clear that there was responsibility on the part of someone or other, or many people who were involved with the appellant's legal representation over a long period of time.  That is very unfortunate.  However, the responsibility of that delay should not be laid at the door of the appellant.  He appeared at all times to have been anxious to be advised on an appeal and to progress his appeal.  

32.  In these circumstances we considered that it was right to extend time for this application with the result which we have already indicated concerning this appeal.  We have considered his appeal to have merit.