R v Keane (Daniel John)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,LORD JUSTICE RIX |
| Judgment Date | 19 October 2010 |
| Neutral Citation | [2010] EWCA Crim 1047,[2010] EWCA Crim 2514 |
| Docket Number | No: 2009/2352/C4 & 2010/1218/D3,No: 200902352 C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 19 October 2010 |
[2010] EWCA Crim 1047
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Rix
Mr Justice Ouseley
Mr Justice Openshaw
No: 200902352 C4
MR N HINTON appeared on behalf of the Appellant
: The applicant in this case renews his application for permission to appeal against conviction only. He was convicted on 9 April 2009 of an offence contrary to Section 20 of the Offences Against the Person Act and was sentenced to 15 months’ imprisonment. That sentence has been served. The application for permission to appeal against sentence is not now pursued.
The principal issue which arose in the case was whether on the particular facts the Crown had shown that the applicant had not acted in self defence. The Crown case was that the applicant had deliberately provoked the complainant to start a fight which led to the complainant taking a swing at the applicant which did not connect, but which led to the applicant striking the complainant with a hard blow to the head, causing him to fall to the ground where the impact of his head on the ground caused very serious injuries.
The applicant's case was that although he may have been badly behaved and although he may have said provocative words, nonetheless the first person to use violence was the complainant and the applicant had responded with reasonable force to the threat that he considered that he was under.
In circumstances where there is provocation asserted as the basis for the initial physical violence and where that violence then is relied on by the defendant as the essential background to his self defence, the question arises as to how the jury should be directed. The jury in this case was given what may be the standard direction as was from the JSB, with some additional words which reflected the possible provocation. The judge said at page 5E:
“You must first ask whether the defendant honestly believed whether it was necessary to use force to defend himself at all. This would not be the case if he was the aggressor, or if he knew that he did not need to resort to violence, or if he successfully and deliberately provoked a fight.”
It is contended on behalf of the applicant that the effect of those words were to withdraw the defence of self defence from the jury if they were satisfied that, as the Crown contended, the applicant had said provocative words which might have provoked a fight. The question of how a jury should be directed on the various possible views of the facts which arose is a matter which has been considered in a number of cases, notably R v Rashford 2005 EWCA Crim 3377, and Harvey 2009 EWCA Crim 469, which are not reflected in the current JSB Guidelines: the most recent version of the Bench Book suggests that the JSB guidelines are no longer applicable, and something more tailored to the facts of the case are required where there is provocation or initial aggression by the person who then becomes, it is said, the subject matter of the assault, in response to which he defends himself. The question of how juries should be directed in those circumstances is therefore a matter which in our judgment makes the way in which the jury was directed here arguably wrong in law, and the question would benefit from a careful analysis of the range of ways in which in the light of the new Bench Book juries should be directed. For those reasons we have decided that this is an appropriate case in which permission to appeal against the conviction should be granted. Of course, and the now appellant needs to be well aware of this, errors in summing up do not necessarily lead to an unsafe verdict.
: Thank you. So the application for permission to appeal against conviction is granted. The application for permission to appeal against sentence has been withdrawn.
Indeed my Lord. One further matter: a representation order; I would seek—
: Yes, that is for the appeal? We have granted that. And for today only?
I am appearing—
: Pro bono?
Pro bono, my Lord. So I would ask for a representation order for today.
: Yes, thank you.
I am very grateful, thank you.
: Would the DVD be available, please, for the appeal?
My Lord, I shall ensure it is.
: Is anything else required for the appeal?
I don't think so. It was on the summing up, effectively. I don't think the preliminary discussions are necessary for the court.
THE ASSOCIATE: Are any further transcripts required?
No, I don't think so.
: Skeleton arguments from both parties, please. A time estimate of an hour and a half, two hours?
An hour and a half would be sufficient.
: We will say two hours, if the authorities are to be gone through, plus judgment. We will say two hours, and it would be helpful please if the court were provided with the authorities which the skeleton argument will refer to. There are at least four, it seems to me at any rate, which would need possibly to be referred to. Please provide them to the court in advance and please provide them in the form in which they are reported, not simply downloaded from the internet, which I am afraid there is too much of these days.
: You may find it difficult to get hold of Balogun.
I take the criticism. I have in fact the Balogun printout.
: If it is only Balogun you cannot be criticised, but too often the court is presented with Bailey copies of cases which have been reported. Not only is the report more accurate but we also have the headnote. How long do you want for your skeleton argument?
I don't know how quickly the court wishes to list this for hearing. I would ask certainly for 14 days.
: 14 days skeleton arguments, 7 days for response from the Crown.
[2010] EWCA Crim 2514
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before He Vice President
(Lord Justice Hughes)
Mr Justice Owen
Mr Justice Roderick Evans
No: 2009/2352/C4 & 2010/1218/D3
Mr N Hinton appeared on behalf of the Appellant Keane
Miss K Fortescue appeared on behalf of the Crown (Keane)
Mr J Rees QC appeared on behalf of the Appellant McGrath
Mr R Thomas QC appeared on behalf of the Crown (McGrath)
THE VICE PRESIDENT: We have heard these two appeals against conviction together because they both raise questions which relate to the summing-up of cases where self-defence is in issue and one particular aspect of the law of self-defence is raised by the arguments in both cases.
When considering the papers in the second of the appeals, McGrath, the single judge, David Clarke J, helpfully drew attention to the possibility, no more, that section 76 of the Criminal Justice and Immigration Act 2008 might in some quarters be thought to have introduced complications into this area of the law. It may help therefore if we begin with some general observations. We make it clear, however, that they are geared to the type of case which we have had to consider today. They are not intended to provide a comprehensive survey of the whole of the law of self-defence any more than the summing-up in any individual case should be intended to do so.
The purpose of a summing-up, as this court has said on countless occasions, is to tell the jury what the law is which relates to facts which they may find and it is to steer clear of anything that does not relate to facts which they may find.
The law of self-defence is not complicated. It represents a universally recognised commonsense concept. In our experience juries do not find that commonsense concept at all difficult to understand. The only potential difficulty for a judge is that he needs to remember the potential possibility of what lawyers would call a subjective element at an early stage of the exercise, whilst the critical question of the reasonableness of the response is, in lawyer's expressions, an objective one. In using those lawyer's terms we do not for a moment suggest that it is helpful to use them in a summing-up.
It is however very long established law that there are usually two and sometimes three stages into any enquiry into self-defence. There may be more, but these are the basic building blocks of a large proportion of the cases in which it is raised:
If there is a dispute about what happened to cause the defendant to use the violence that he did, and there usually is such a dispute, then the jury must decide it, attending of course to the onus and standard of proof.
If the defendant claims that he thought that something was happening which the jury may find was not happening, then the second question which arises is what did the defendant genuinely believe was happening to cause him to use the violence that he did? That question does not arise in every case. If it does arise then whether his belief was reasonable or not, providing it is genuinely held, he is to be judged on the facts as he believed them to be unless his erroneous belief is the result of voluntarily taken drink or drugs, in which event it is to be disregarded.
Once it has thus been decided on what factual basis the defendant's...
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