Court of Appeal
| Published date | 01 August 2007 |
| Date | 01 August 2007 |
| DOI | 10.1350/jcla.2007.71.4.296 |
| Subject Matter | Court of Appeal |
Court of Appeal
Recklessness: Intoxication and Assault
R vBrady [2006] EWCA Crim 2413
The defendant had been drinking and taking ecstasy tablets whilst at a
nightclub with friends. He was described by a doctor who examined him
after the incident as being a ‘happy drunk’. The prosecution contended
that the defendant had climbed onto the railings of a balcony over-
looking the main room of the club, stood up, looked around and then
jumped onto the crowded dance floor below. The defendant maintained
that he was sitting on the railings and fell backwards accidentally on
to the floor below. The uncontested result of the fall was that the
defendant landed on the victim breaking her neck and rendering her
quadriplegic.
The defendant was convicted of inflicting grievous bodily harm con-
trary to s. 20 of the Offences against the Person Act 1861 and appealed
against the judge’s direction. First, the defendant submitted that the
judge had failed to explain, in accordance with R v G[2004] 1 AC 1034,
(2004) 68 JCL 31, that he must have foreseen injury to another person
as an obvious and significant risk of his actions, or would have done had
he been sober. Secondly, that the judge had not made it sufficiently clear
that recklessness was a purely subjective concept. Thirdly, that the judge
had failed to explain fully the need for a direct assault. Fourthly, that the
judge required the jury only to decide on one issue, recklessness, and
not on the other elements of the s. 20 offence and the effect of intoxica-
tion on these issues.
H
ELD
,
ALLOWING THE APPEAL AND QUASHING THE CONVICTION
,there
were a number of defects with the content and structure of the judge’s
summing-up and direction to the jury that may have lead them to
convict the defendant on the wrong basis. It was unarguable that the
risk of injury foreseen by the defendant should be both ‘obvious and
significant’. As in R vCunningham [1957] 2 QB 396, recklessness is
subjectively defined and, therefore, the risk of injury must be foreseen
by the defendant himself, or would have been foreseen by him had he
been sober.
Although it was not necessary for the determination of the appeal to
come to a conclusive view on the point because of other deficiencies in
the summing-up, the judge should have made clear to the jury the need
for a direct assault to have been committed by the defendant. A direct
assault requires a deliberate, non-accidental act by the defendant to
form the basis of the actus reus. As there were two very different bases
from which the actus reus could be established, the defendant’s deliberate
jumping from the railings or his reckless falling from them, the judge
should have given two alternative directions to reflect this. Finally, there
was no clear explanation of the effect of intoxication on the lawfulness
of the defendant’s act nor on his mens rea.
296
To continue reading
Request your trial