R v McGarry
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUTCHISON |
| Judgment Date | 16 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0716-14 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | NO: 98/2800/Y4 |
| Date | 16 July 1998 |
[1998] EWCA Crim J0716-14
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hutchison
Mr. Justice Scott Baker
and
The Judge Advocate General
His Honour Judge Rant Cb Qc
(Acting as a Judge of the Court of Appeal Criminal Division)
NO: 98/2800/Y4
MR WEBSTER appeared on behalf of the Appellant
MR HOLLAND appeared on behalf of the Crown
On 27th March 1998 in the Crown Court at Manchester the appellant was convicted of unlawfully inflicting grievous bodily harm on Craig Cathcart. On 27th April he was sentenced to 12 months imprisonment. He appealed against conviction with leave of the single judge and, on 9th June 1998, we allowed his appeal and quashed his conviction. We now give our reasons.
The encounter which led to the charge occurred in the early hours of 13th February 1997 outside the Bamford Squash Club in Manchester. The appellant, some of his friends and a number of other people had been drinking in the club. As the appellant left he delivered a single punch to the face of the victim, Craig Cathcart who was rendered unconscious (whether from the punch or from striking his head when he fell to the ground) with the unfortunate consequence that he lost his hearing. He had no recollection of the attack or of any significant events proceeding it.
The Crown's case was that the appellant had made an unprovoked attack on the victim. The appellant's case was that he had struck him in self-defence. The appellant, the victim and all the witnesses had been drinking during the evening and some were quite drunk.
After the encounter the appellant quickly left the scene. The police were summoned and Police Constable Clarke attended and spoke to a number of those still at the scene: on his return to the police station he recorded his impression that they "were all heavily under the influence of drink". A man named Jason Anderson, one of the victim's friends and in due course a prosecution witness, was not willing to make a statement while intoxicated, but did so the next day. No one else was willing to give a statement that night but two young women, Janice Heatherington and Lisa Flanaghan, who said they did not wish to get involved and would not give their names or addresses, told Police Constable Clarke that the attacker was called Paddy Maguire. (Later, after they had seen an advertisement for witnesses, they came forward, made statements, and were called by the prosecution).
Little though the two young women had said it was enough to lead the police, the following day, to go to the appellant's place of work on what they described as a fishing expedition. When the appellant indicated that he knew something about the incident he was arrested and taken to the police station where, after cautioning him, the police sought to question him. On legal advice he refused to answer questions, and was released on bail. Some five weeks later, on 19th March, the appellant was re-arrested, cautioned and interviewed again. At the beginning of the interview he handed to the police a prepared written statement which read:
"I agree that I was present at the Bamford Squash Club on the date in question. I had an altercation inside the club with the complainant. I agree that I left the club at about ten past one. As I was walking up the path towards the pavement the complainant was at my left hand side. He said something to me and lunged forward with his right hand at which point I punched him in self-defence. I have nothing further to say."
Thereafter, though questioned, he simply answered "No comment".
At the trial the prosecution witnesses who spoke of the incident were Jason Anderson, Janice Heatherington and Lisa Flanaghan. Each of them described the appellant's punching Mr. Cathcart. None saw anything done by the victim to provoke or justify the punch. Police Constable Clarke also gave evidence about his investigations and the state of intoxication of those at the scene on his arrival there.
The appellant gave evidence. He described an altercation on the dance floor in which, he said, Mr. Cathcart's head had contacted his. He said that as the crowd left he was heading for the pavement to get a taxi. He passed Mr. Cathcart and there was a further exchange, with some trading of insults. He said that Mr. Cathcart then lunged at him, rather as would a rugby player when handing off an opponent. Fearing a further attack, he swung round and delivered a single punch. He left the scene, thinking that Mr. Cathcart would recover in a minute or two.
The appellant, though cross-examined, was not asked questions about his no-comment interviews. The stance adopted by the Crown was that no adverse inferences could properly be drawn from the appellant's refusal to answer questions on 14th February. So far as the second interview went, they accepted, once the appellant had given evidence, that he had not relied on any new fact not covered by his short prepared statement —he had done no more than put some flesh on the bones of that account. Accordingly, Mr. Webster for the Crown did not invite the judge to tell the jury that they might draw inference from the appellant's failure to answer questions at the second interview —indeed the last sentence of his submission (which preceded speeches) on the subject of s. 34 of the Criminal Justice & Public Order Act 1994 was: "In respect of the second interview… I invite this court to say it would not be appropriate to invite the jury to consider the adverse inferences point in this case".
The judge thereupon said:
"To any competent jury it is going to be fairly obvious is it not that what happened in this incident was known by the defendant from half past one of the morning of the 13th of February. He did not need to be told what other people had said about it and it is going to be obvious that knowing that he said nothing on the first interview as he is entitled to do so. Thereafter knowing the matter was the subject of fairly intensive investigation on the 19th March, he then said as little about it as he could do, outlining in pleaded terms the bones of his case but not actually providing any flesh on the bones at all. Therefore it would be open to the jury even un-directed to form certain views about that matter would it not."
Defence counsel responded;
"Your Honour, yes. I concede that my learned friend was entitled to cross-examine —if he wished —on the deficiency in detail presented in the second interview but that is a matter entirely divorced from the adverse inference provision in section 34."
The judge then ruled as follows:
"I shall not in the circumstances be inviting the jury to consider drawing any adverse inferences but I will not be directing them not to if that is what they do of their own accord."
Mr. Holland sought to rely on a number of grounds of appeal, some of which we did not find persuasive. Thus he challenged the judge's rejection of his submission that the fact that Mr. Cathcart had unhappily been rendered deaf should not be revealed to the jury; and his rejection of the further or alternative submission that, because he could say nothing useful as to the circumstances of the alleged attack, the Crown should not be allowed to call Mr. Cathcart at all because of the prejudicial effect of seeing a deaf man examined and cross-examined. These were, however, plainly matters for the judge's discretion. He also criticised —it seemed to us unjustifiably —the way the judge dealt with Police Constable Clarke's evidence about drunkenness and also his suggested failure to explain to the jury the...
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