R v Appleby (Declan Paul) and Others

JurisdictionEngland & Wales
Judgment Date18 December 2009
Neutral Citation[2009] EWCA Crim 2693
Docket NumberCase No: 2009/03832/A1 (1) 2009/03972/A3 (3) 2009/03836/A9 (4) 2009/03838/A9 (5)
CourtCourt of Appeal (Criminal Division)
Date18 December 2009
Between:
R
and
Appleby
and
(1) (Reference Under Section 36 of the Criminal Justice Act 1988)
R
and
Bryan and Roberts (2)(3)
R
and
Cowles and Cowles (4)(5)

[2009] EWCA Crim 2693

Before:

The Lord Chief Justice of England and Wales

Lord Justice Thomas Vice President of the Queens Bench Division

Lord Justice Hughes Vice President of the Court of Appeal Criminal Division

Mr Justice Simon and

Mr Justice Royce

Case No: 2009/03832/A1 (1)

2009/03971/A3 (2)

2009/03972/A3 (3)

2009/03836/A9 (4)

2009/03838/A9 (5)

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT TEESSIDE (1)

ON APPEAL FROM THE CROWN COURT AT CAERNARFON (2)(3)

ON APPEAL FROM THE CROWN COURT AT NORWICH (4)(5)

HIS HONOUR JUDGE FOX QC. RECORDER OF MIDDLESBOROUGH

THE HON MR JUSTICE DAVIS

THE HON MR JUSTICE SAUNDERS

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Andrew Edis QC for the Attorney General

Mr T D Roberts QC for Appleby (1)

Mr Duncan Bould for Bryan (2)

Mr J Duffy for Roberts (3)

Mr Graham Parkins QC for Ben Cowles (4)

Mr Michael Hubbard QC for Tom Cowles (5)

Hearing dates : 3 rd December 2009

The Lord Chief Justice of England and Wales:

1

These three cases were heard together. In each of them a man was killed. Two (Bryan and Roberts, and Cowles and Cowles) concern death resulting from violence in which no weapon was used and which, but for the death of the victim, would have been categorised as assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861, or inflicting grievous bodily harm contrary to section 20 of the 1861 Act, but without the intention required for the purposes of proving section 18. The third (Appleby) arises from a conviction for murder and the judge's concern about the disparity between the sentence imposed on the defendant and that imposed on a co–accused who was convicted of manslaughter.

2

The starting point is that the maximum sentence available on conviction of assault occasioning actual bodily harm or inflicting grievous bodily harm contrary to section 20 of the 1861 Act is 5 years' imprisonment: common assault is not triable on indictment, and the maximum penalty is 6 months' imprisonment. The Crown Prosecution Service Charging Standard advises that minor injuries justify a charge of common assault, rather than assault occasioning actual bodily harm. They include grazes, scratches, abrasions, minor bruising and swellings, superficial cuts and reddening of the skin. Unlawful violence taking this relatively minor form can result in death and a conviction for manslaughter. The same Charging Standard identifies the kind of injuries which should lead to a charge of assault occasioning actual bodily harm. They include loss or breaking of a tooth or teeth, extensive or multiple bruising, displaced broken nose, minor fractures, temporary loss of sensory function, which may include loss of consciousness, and minor, but not superficial, cuts of a sort which might require medical attention in the form of stitching. Grievous bodily harm is concerned with serious injuries.

3

Cases like these sometimes arise in the course of a fight, frequently in the streets, often at night. Sometimes those involved in the fight are equally aggressive and behaving violently. Sometimes one will be using unlawful force and the other seeking only to defend himself. Sometimes they involve an unprovoked assault on an individual who is not fighting or looking for any trouble at all. Any of these incidents can end in death and they represent a significant number of the cases of manslaughter which come before the courts up and down the country. Taken together, these three cases provide the court with an opportunity to reconsider the approach to sentencing in cases of manslaughter when, notwithstanding that the defendant intended neither to kill nor to cause the deceased grievous bodily harm, he is convicted of manslaughter on the basis that the death was consequent on an act of unlawful violence. They are, of course, always tragic in their consequences, but they do not constitute murder, and they cannot be sentenced as if they were. If the defendant is convicted of manslaughter the consequences must be treated as if they were unintentional and unintended. The court must honour the verdict of the jury (if the jury convicts of manslaughter) or the plea to manslaughter accepted by the Crown (if that is the basis on which the case is prosecuted) yet, whether the case falls to be sentenced as murder or manslaughter, the catastrophic result for the deceased and his or her family is the same: the loss of a precious life. In each of these cases we have been made aware of the poignant, lamentable impact of the deaths of each victim on the families who are left behind to grieve.

4

It is a truism that each such case is different, but for many years now, when seeking guidance about the appropriate sentencing parameters, advocates representing the defendant frequently return to the decision of this court in R v Coleman [1992] 13 Cr. App. R (S) 508, this was a case in which death resulted from a single blow followed by a fall which “almost accidentally” resulted in the deceased sustaining a fractured skull. Analysing the judgment of Lord Lane CJ, it was clearly intended to be “strictly confined” to such a case, where the death was indeed almost accidental. A series of earlier cases was analysed, and they themselves reflected yet earlier decisions. It is perhaps sufficient for present purposes to acknowledge the analysis made nearly 40 years ago by Dr David Thomas on the approach of the court to manslaughter where an accidental death resulted from a minor assault in R v Mallett [1972] Crim LR 260. He suggested that the then current approach “to sentencing in manslaughter cases of this kind, where death is the wholly accidental result of an unlawful act of a relatively trivial nature, is to sentence the offender on the basis of the act he did and the consequences he intended”. That approach continued for many years and is perhaps conveniently summarised in the observations of Watkins LJ in ( R v Goodchild unreported – August 12 1991– made at virtually the same time as Coleman itself) where, following an argument, the deceased was struck with a clenched fist in the middle of his face and was knocked over, so that his head struck the kerbstone and his skull was fractured with fatal results. Watkins LJ said:

“If one were to look at the matter from the point of view of the victim and his family, the temptation would be to sentence the person responsible for such a thing to imprisonment for a number of years. But this Court has said that that is not the way to look at the matter. Justice is not seen to be done in that way”.

5

This observation was quoted by Lord Lane CJ in his judgment in Coleman. It reflected the continuing well understood view that the defendant's criminality was to be assessed in the context of his actions and his intentions at the time when the offence was committed rather than with its consequences. Indeed this remains one view which, in the context of identifying potential criminal liability for death rather than the sentencing process itself, was recently advanced by Mitchell in More thoughts about unlawful and dangerous act Manslaughter and the One-punch Killer [2009] Crim LR 502 where he said:

“Driving by its very nature is almost inevitably a highly dangerous activity, however careful and competent the driver. A single punch in the face of another person is inherently less dangerous and significantly less likely to cause serious harm. On the other hand, in contrast to driving it is, of course, unlawful, but that simply means that the puncher ought not to have thrown the punch; it does not provide a sufficient rationale for holding the puncher criminally liable for whatever consequences ensue.”

6

This observation highlights the problem of equating the sentencing levels for offences of such a different character as death in the context of driving and unlawful act manslaughter: however the criminal liability for an unlawful act of violence resulting in death, even if it takes the form of a punch, is, as a matter of law, beyond argument, and encompassed in the crime of manslaughter. Later in this judgment we shall return to the legislative history of sentencing in driving offences which result in death.

7

Coleman itself was decided at a time when there was less public disquiet about violent behaviour and death in town and city centres and residential streets than there is now. It did not involve an attack by more than one participant. At that time, the assessment of the tariff to represent the punitive and deterrent element following conviction for murder (now the minimum term) was lower than it is now. The structure of sentences as part custody and part licence was in its infancy and there did not exist the statutory contrast now prevailing between determinate sentences and minimum terms attached to life sentences. Finally, the expression “starting point” was used in Coleman to mean “lowest point” (and after a guilty plea) whereas those words have now acquired a quite different meaning both in the decisions of this court and in the work of the Sentencing Guidelines Council.

8

Following Coleman, a long line of fact specific decisions has come, for reasons of convenience and shorthand, to be subsumed in the generic description, “one punch manslaughter”. This description is apt to mislead unless it is indeed “strictly confined” to cases where death results from a single blow with a bare hand or fist. Within that confined ambit a further distinction must be drawn arising from the force used by the offender himself. This can vary from an almost half-hearted blow which would be unlikely to topple over many victims of such a blow, or produce more than a minor bruise or small reddening of the skin, to a blow...

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