R v Merriman

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE EDMUND DAVIES
Judgment Date17 May 1971
Judgment citation (vLex)[1971] EWCA Crim J0517-1
Date17 May 1971
Docket NumberNo. 5459/C/70

[1971] EWCA Crim J0517-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:-

Lord Justice Edmund Davies

Lord Justice Cairns

and

Mr. Justice MacKenna

No. 5459/C/70

Regina
and
John Michael Merriman

MR. R. WOOD appeared on behalf of the Appellant.

MR. K.J. TAYLOR appeared on behalf of the Crown.

LORD JUSTICE EDMUND DAVIES
1

This is an appeal from the conviction of John Michael Merriman in September last at the Crown Court at Manchester. By the first count in the indictment, he was charged jointly with his brother Prank of wounding William Parry with intent to do him grievous bodily harm. He was also convicted on a second count of assaulting a Police Constable and thereby occasioning him actual bodily harm.

2

He received a sentence of six years' imprisonment on the first count, nine months consecutive on the second count, and a suspended sentence of six months imposed upon him in November 1969 for unlawful wounding was ordered to be put into effect consecutively, so that he was in all sentenced to a totality of seven years and three months. His brother Prank pleaded guilty to the first count and was sentenced to five years' imprisonment The matter comes before this Court with the leave of the single Judge.

3

It was not in dispute that on the night of the 11th July, 1970, this Appellant and his brother Frank and their father were asked by Mr. Parry, the licensee of a hotel in Rochdale, to leave his premises as they had taken too much drink. The two brothers were reluctant, but eventually they were escorted to the door.

4

Mr. Parry gave evidence that he got the party out through the double doors and was standing in the space between those doors and the front door when he felt a blow in the small of his back. He turned and he saw this Appellant with a knife in his hand. He was also attacked by Frank, the brother, who stabbed him, this time in the leg, and he was then again stabbed by the Appellant. Eventually he got back into the hotel and was taken to the hospital in a grievous state. The indications were that he had sustained at least seven blows, and that the one inflicted originally had caused a very deep wound.

5

This Appellant later told the Police, "Mixer Merriman, that's me. I have been at the Roebuck all night with our Francis and my dad. I have wounded nobody". A little later he said "You're not on. I never stabbed Parry. You had better start looking for my brother. You can search me, I have no knife. You find Francis, he will tell you what happened".

6

Later he said he wanted to get the matter straightened out. He was informed that the Police now had in their possession a knife which he was believed to have used, and on being cautioned he said "I saw Francis getting up by Parry so I went in also. That bastard Parry got what was coming to him". Then he made a written statement in the course of which he said he had walked away from the scuffle, but then turned around and saw Frank and Parry fighting, and the statement continued "I went back to them and tried to separate them and Bill Parry hit me so I hit him with my fists once or twice and we were all on the ground. I saw that my brother Frank had a knife and that Parry had been stabbed. I saw that Frank's face was covered in blood and then Parry got up and walked back to the pub, I dragged Frank away".

7

The Appellant gave evidence on the lines of his statement, testifying that, having returned to the fight, he saw Mr. Parry was beating up Frank, so he said he tried to get in between the two to prevent any further bother. He later got rid of the knife.

8

The two brothers, as we have already observed, were in the first count jointly charged with wounding with intent. This was, and remained throughout, a Joint charge. In these circumstances, Mr. Wood, who concedes, as indeed he must, that this appeal wholly lacks merit, makes complaint (which we are reluctantly compelled to regard as well-founded) that the learned Special Commissioner misdirected the Jury.

9

Before we turn to the directions given, it is well to recall that the matter of joint charges has recently been dealt with by the Court of Criminal Appeal in the case of Scaramanga, in 1963 reported in 47 Criminal Appeal Reports at page 213, and by this Court in Parker, reported in 1969 53 Criminal Appeal Reports at page 289. We understand that unfortunately neither decision was cited below.

10

Scaramanga was a case where two people, charged jointly with doing malicious damage by night and with assault occasioning actual bodily harm, each pleaded not guilty and each was convicted. But their convictions were quashed because, as the Lord Chief Justice put it, "In our judgment, except where provided by statute, when two persons are jointly charged with one offence, judgment cannot stand against both of them on a finding that an offence has been committed by each independently".

11

The facts of that case were quite different from those in the present case, and the same observation can be made about Parker. Parker was a shoplifting case where a Miss Overy and a Miss...

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