R v McCready

This simple case has got into a muddle. We are grateful to counsel for helping us to sort it out. As long ago as September, 1976, a Mr. Fish was walking along a street in the centre of Bradford when he was attacked for no reason at all by four or five youths. He suffered head injuries, including a broken nose and a broken temporal bone. The police arrested four youths; Eric Lloyd Williams, Alan McCready, John Anthony Hurd and Anthony James Groark.

On December 14th, 1976, they were arraigned in the Bradford Crown Court on an indictment charging them with causing grievous bodily harm with intent. The particulars of offence alleged that "on the 30th day of September 1976 (they) caused grievous bodily harm to Timothy RogerFish with intent to do him grievous bodily harm." All four accused pleaded "not guilty". The trial was then adjourned until a convenient date. They were brought back to court and re-arraigned on different dates; Williams on 8th March 1977, Groark on 25th April 1977, McCready on 28th September 1977 and Hurd on 18th November 1977. McCready and Hurd had failed to appear on 8th March 1977 and bench warrants had to be issued. Williams changed his plea to guilty to the offence chargedand was sentenced by His Honour Judge Bennett to eighteen months' imprisonment. He has not appealed.

Groark changed his plea to common assault and was sentenced by His Honour Judge Chapman to six months' imprisonment suspended for two years. Applications for an extension of time for leave to appeal against conviction and for leave to so appeal, which purported to come from his solicitors, were received by the Court on 6th February, 1978, three days before the date which had been fixed for the hearing of McCready's appeal.

A question arises in this case whether there are effective applications before the Court. McCready's trial started on 28th September and finished the next day. The jury, on the direction of His Honour Judge Fingret, found him not guilty as charged, but they returned a verdictof guilty of common assault. He was sentenced to nine months' imprisonment consecutive to the sentence he was then serving. He appeals against his conviction on a point of law, namely that on the indictment he could not be found guilty of common assault. If this is so, Judge Chapman ought not to have accepted Groark's plea to common assault. Hurd was arrested in October 1977 and re-arraigned on 18th November 1977, when he pleaded guilty to unlawful wounding. This was accepted byHis Honour Judge Randolph who passed a sentence of nine months' imprisonment. He too has applied for an extension of time in which to appeal against conviction on a point of law, namely that on an indictment charging an offence of causing grievous bodily harm with intent the Judge cannot in law accept a plea to unlawful wounding, as it is not an alternative lesser offence to that charged.

We note with some concern, and without criticising anybody, that sentences in this simple case were imposed by four different Judges over a period of eleven months.

There are no merits whatsoever in any of these three cases. The submissions on both sides have turned on the out-of-date language of the Offences Against the Person Act 1861, and the slight differences in wording between Sections 18 and 20 in that Act. But if Mr. Harrison's submissions are well-founded questions of jurisdiction arise. We have been informed by counsel on both sides that these questions of jurisdiction have given cause for concern and confusion in the Crown Court.

The very first question as to jurisdiction, however, concerns this Court alone. When Groark pleaded guilty to common assault the case of Lambert (to which we will be returning) had been decided in this Court but had not then been reported. It was reported in Part 1 of 65 Criminal Appeal Reports at page 12. It was not noted in the 39th Edition of Archbold, and for good reason, as that Edition stated the law as it was at 31st December 1975. It was, however, noted in the Supplement to Archbold, which bears the date 23rd September 1977, together with the earlier case of Austin (1973) 58 Criminal Appeal Reports page 163, which before then had gone unnoticed.

When Groark's solicitors learned of the ground upon which McCready was appealing and of Lambert they decided to advise him to appeal, albeit he was well out of time. They tried to get in touch with him but they could not. He had left the address they had. Being anxious to protect his interests, they completed forms of application for an extension of time and for leave to appeal against conviction. On FormN they put their firm name followed by the words "on behalf of the appellant". Mr. Harrison, who had been instructed by this firm on behalf of Groark told us, when this case was called on, what had happened. In our judgment we cannot consider Groark's applications. He has not made them. Solicitors have no implied authority from their clients toappeal against any order of a Court; they must have express instructions. It follows that we cannot consider his application for an extension of time and without an extension of timethere can be no appeal. If any authority is required for what we regard as a self-evident proposition it is to be found in R. -v- Jones (1971) 55 Criminal Appeal Reports, page 321.

The next problem is whether Hurd can appeal against his conviction, having regard to his plea of guilty. In our judgment he can because, if his contention is right, the Court of trial had no jurisdiction to accept his plea and sentence him upon it. We grant him the extension of time for which he asked.

The question in McCready's case is whether, on a count charging him with causing grievous bodily harm with intent, the jury could find himguilty of common assault. Two cases in this Court, Austin and Lambert provide the answer which is "no". Both cases followed Springfield (1969) 53 Criminal Appeal Reports, page 608, This case was cited with approval in Lillis (1972) 56 Criminal Appeal Reports, page 573 at page 579, which was a judgment of the Full Court, but as Mr. Radcliffe pointed out that expression of approval wasnot necessary for the decision as a different point arises in Lillis to that which was decided in Springfield. He boldly submitted that Springfield had been decided "per incuriam" and alternatively that this Court, not being bound by its own decisions as its civil division is, should overrule it. The argument in support was that this Court had misdirected itself by adjudging that it was precluded from looking at the depositions (per Lord Justice Sachs at page 613). The question is whether the allegations in the indictment amounted to or included by implication an allegation of another offence. What was to be the source of the implication – the particulars of the offence alone or the depositions from which the particularswere derived? To confine the source of implication to the particularswould be unduly restrictive. Parliament must have intended that the Courts should look at all the available material and ask this question: on that material would the accused have had notice that he might have to meet a lesser alternative offence? If the answer was "yes" he could be convicted of or plead guilty to a lesser offence.

There are two short answers to these submissions. First, Springfield was not decided "per incuriam" – a most careful judgment was delivered by Lord Justice Sachs after hearing argument on both sides and considering the citation of Authority. Secondly, this Court's "liberty to depart from a precedent which it is convinced was erroneous is restricted to cases where the departure is in favour of the accused": see D.P.P. -v- Merriman, (1972) 56 Criminal Appeal Reports page 766 per Lord Diplock at pages 793-794. It follows that McCready's appeal will be allowed and his conviction quashed; and Groark's appeal would have been too if there had been an effective appeal before this Court. We direct the Registrar to invite the Secretary of State's attention to Groark's case so that he can consider whether he should exercise his powers under Section 17 of the Criminal Appeal Act, 1968.

Hurd's appeal cannot be disposed of so quickly. Mr. Harrison's submission was that when Springfield is applied to his appeal, the reasoning which led this Court to decide as it did in Austin and Lambert should produce the same kind of result when a plea of unlawful wounding is...