R v Mitchell
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE STAUGHTON |
| Judgment Date | 18 February 1983 |
| Judgment citation (vLex) | [1983] EWCA Crim J0218-4 |
| Docket Number | No. 3924/A/82 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 February 1983 |
[1983] EWCA Crim J0218-4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Purchas
Mr. Justice Talbot
and
Mr. Justice Staughton
No. 3924/A/82
MISS R. HARE Q.C. and MR. W. POWELL appeared as Counsel on behalf of the Appellant.
MR. O. M. SELLS appeared as Counsel on behalf of the Crown.
Ronald James Mitchell was tried on 19th, 20th and 21st July, 1982 at the Central Criminal Court, before his Honour Judge Abdela and a jury, on an indictment containing two counts, Count 1 was a charge of manslaughter, in that he unlawfully killed Anne Crafts. Count 2 charged that he assaulted Edward Smith thereby occasioning him actual bodily harm. It will be noticed that there were two different victims. That is what gives rise to the main problem in this appeal. The appellant was convicted by a majority verdict of 11 to 1 on count 1, and unanimously on count 2. He was sentenced to 27 months' imprisonment on count 1 and to nine months' imprisonment on count 2, the sentences to run concurrently.
On 1st February, 1983 there were before this Court applications for leave to appeal against conviction and sentence. Leave to appeal against conviction was granted, and the appellant's counsel consented to the application being treated as the hearing of the appeal. But the appeal against conviction was dismissed. Leave to appeal against sentence was refused. The Court announced that its reasons would be given at a later date. This we now do.
The facts alleged by the prosecution at the trial were briefly as follows. On 26th March, 1981 Mitchell, who was aged 22 at the time, was in a busy Post Office at Tottenham. An altercation arose when he tried to force himself into a queue or in some other way to be served before those who had been waiting longer than he had. A Mr. Edward Smith, who was aged 72, spoke to him about his behaviour. There was some argument, and Mitchell hit Mr. Smith in the mouth, causing him to stagger back and hit the back of his head against a glass panel above the Post Office counter. The glass panel shattered. Mr. Smith recovered and moved forward. Mitchell then either hit Mr. Smith again or else threw him, so that he fell into other people who were waiting in the Post Office. Mr. Smith fell against Mrs. Anne Crafts, a lady aged 89. Both Mr. Smith and Mrs. Crafts fell to the ground. Mr. Smith suffered a bruise in the back of his head, and his lower lip was cut and swollen. Mrs. Crafts suffered a broken femur. She was taken to hospital, and on 31st March, 1981 an operation was performed to replace her hip joint. She appeared to make a satisfactory recovery, but on 2nd April, 1981 she died suddenly. The cause of death was pulmonary embolism caused by thrombosis of the left leg veins, which in turn was caused by fracture of the femur.
Some of those facts were disputed at the trial. There was conflicting evidence as to who struck what blows, and the issue of self-defence was raised. The jury evidently accepted, at least in substance, the facts alleged by the prosecution; they likewise evidently found that self-defence had been disproved. No complaint is made about the summing-up or the verdicts in relation to those matters. No ground of appeal is advanced in relation to the conviction for assault occasioning actual bodily harm upon Mr. Smith. But in relation to count 1 (manslaughter) it is argued that the learned judge (i) wrongly failed to accede to a defence submission that there was no case to answer; (ii) misdirected the jury in failing to tell them that an unlawful and dangerous act, for the purposes of manslaughter, had to be directed at the victim, that is to say, the person whose death was caused; (iii) failed to direct the jury that the unlawful and dangerous act had to be deliberate, in that the accused must be shown to have intended to do the act in question. Grounds (i) and (ii) raised one and the same point, as counsel for Mitchell agreed. Ground (iii) did not feature in the grounds of appeal, but no objection was taken to its being argued.
What is said upon grounds (i) and (ii) is that Mitchell aimed no blow at Mrs. Crafts, nor did he hit or touch her. The conviction on count 2, of assault occasioning actual bodily harm, showed that he committed an unlawful and dangerous act. But it was argued that to establish manslaughter the unlawful and dangerous act had to be directed at the person whose death was caused.
Both counsel were agreed that there are four elements in this class of manslaughter, as follows: first, there must be an act which is unlawful; secondly, it must be a dangerous act, in the sense that a sober and reasonable person would inevitably recognise that it carried some risk of harm, albeit not serious harm (that being an objective test); thirdly, the act must be a substantial cause of death; fourthly, the act itself must be intentional. No question relating to any other class of manslaughter (such as manslaughter by gross negligence) arose in this case.
The main question argued was whether the person at whom the act is aimed must also be the person whose death is caused. On that question, it was suggested, there is no authority directly in point. Counsel for Mitchell also argued that the act must have been directed at the victim in the sense, as we understand the point, that it must have had some immediate impact upon the victim. For that proposition the case of R. v. Dalby, (1982) 74 Cr. App. R. 348 was said to be authority.
There are cases which apparently support the first part of this argument. Thus in R. v. Larkin, (1942) 29 Cr. App. R. 18, Humphreys J., at p. 23, referred to –
"an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person."
Similarly in R. v. Church. (1965) 49 Cr. App. R. 206, at p. 213 Edmund Davies L. said:
"the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm."
(Emphasis supplied, in both cases.)
However, in neither case was there any question raised of an act, which carried the risk of harm to A, in fact causing the death of B. We cannot treat either case as authority upon that question. It is possible that such a question could have been raised in Larkin. but it was not.
Nor does any such question appear to have been raised in the leading case of D.P.P. v. Newbury, (1976) 62 Cr. App. R. 291, although it might have been. There two youths aged 15 were on a railway bridge. One of them pushed part of a paving-stone over the bridge parapet towards an oncoming train. It fell on the driver's cab, killing the guard, who was sitting next to the driver. Both were convicted of manslaughter of the guard. Their convictions were upheld by the House of Lords.
Presumably it could have been said that the act of the two youths was aimed at the driver, if at anyone, or perhaps at the passengers, if there were any; it may be that the guard was the least likely to be injured, unless it were known that he was travelling in the front of the train. However, no argument on those lines appears to have been advanced. The whole contest was as to mens rea. It was argued that the youths themselves had to be proved to have foreseen that they might cause harm to someone. That argument was rejected. Lord Salmon, at p. 296, said:
"The learned trial judge did not direct the jury that they should acquit the appellants unless they were satisfied beyond a reasonable doubt that the appellants had foreseen that they might cause harm to someone by pushing the piece of paving stone off the parapet into the path of the approaching train. In my view the learned trial judge was quite right not to give such a direction to the jury. The direction which he gave is completely in accordance with established law, which, possibly with one exception to which I shall presently refer, has never been challenged. In Larkin (1942) 29 Cr. App. R. 18, Humphreys J. said at p. 23: 'Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the "death of that other person by that act, then he is guilty of manslaughter.' I agree entirely with Lawton L.J. that that is an admirably clear statement of the law which has been applied many times. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence and sometimes to little less than murder.
"I am sure that in Church (1965) Cr. App. R. 206; (1966) 1 Q.B. 59 Edmund Davies J. (as he then was), in giving the judgment of the court, did not intend to differ from or qualify anything which had been said in Larkin (supra). Indeed he was restating the principle laid down in that case by illustrating the sense in which the word 'dangerous' should be understood. Edmund Davies J. said 'For such a verdict' (guilty of manslaughter) 'inexorably to follow, the unlawful act must be such as all sober and...
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