R v Smith (Christopher)

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date20 June 1996
Neutral Citation[1996] EWCA Crim J0620-27
Judgment citation (vLex)[1996] EWCA Crim J0620-25
Docket NumberNo. 95/6992/Z5
CourtCourt of Appeal (Criminal Division)
Date20 June 1996
Regina
and
Christopher Floyd Anthony Smith

[1996] EWCA Crim J0620-25

Before:

The Lord Chief Justice of England

(Lord Bingham of Cornhill)

Mr Justice Ognall

and

Mr Justice Astill

No. 95/6992/Z5

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

MR JAMES BECK appeared on behalf of THE APPELLANT

MR MARK KNOWLES appeared on behalf of THE CROWN

1

Thursday 20 June 1996

THE LORD CHIEF JUSTICE
2

On 6 October 1995, in the Crown Court at Nottingham, the appellant stood trial on an indictment containing three counts. On count 1, which charged him with causing grievous bodily harm with intent, he was acquitted. On count 2, which charged him with assault occasioning actual bodily harm, he was also acquitted. On count 3, which charged him with affray contrary to section 3(1) of the Public Order Act 1986, he was convicted and conditionally discharged for 12 months. He appeals against conviction by leave of the single judge.

3

The indictment arose out of a party held on 4 December 1994 to celebrate the christening of a child, Jordan, who was the son of the appellant and a woman named Pauline Hamilton. At some time the party ceased to be a festive occasion. There were a number of incidents which gave rise to charges against the appellant and at least one other person. The prosecution relied in particular on four matters in support of the counts in the indictment. First, it was alleged against the appellant that at a certain stage of the party he bit off the top of Pauline Hamilton's finger. That gave rise to the first count of the indictment of which he was acquitted. The prosecution also alleged that he struck another woman, Lisa Jacubiak, with a vase. That gave rise to the second count of which again he was acquitted. It was further alleged by the prosecution that within the house where the party was held, the appellant struck Pauline Hamilton's daughter Dionne with an ornament.

4

Following that incident the appellant went outside and there, according to the prosecution, he attacked Pauline Hamilton and also her sister, Donna Bartley, with a Christmas tree. Count 3 of the indictment, which charged the appellant with affray, covered the events inside the house, save for the assaults which were the subjects of counts 1 and 2; in other words, it covered the assault on Dionne. It concerned also the events outside the house. So far as the alleged assault on Dionne is concerned, the appellant's case was that he never struck the child at all. So far as the events outside the house are concerned, his defence was one of self-defence.

5

The indictment particularised the alleged offence of affray against the appellant in these terms:

"Christopher Floyd Anthony Smith on the 4th day of December 1994 used or threatened unlawful violence towards another and his conduct was such as would cause a person of reasonable firmness present at the scene to fear for his personal safety."

6

The learned Recorder, who went to great lengths to put this matter to the jury in a clear and intelligible way, at page 5 of the transcript directed the jury on the general elements of affray. He said:

"Count 3 is a more general, in effect, sweeping-up count and it relates to any of the fighting which the prosecution say that this defendant was carrying out, over and above the precise assaults on Miss Pauline Hamilton and on Lisa Jacubiak and I suppose, would essentially cover the hitting of Dionne on her head, if you found that was proved, and also perhaps in particular the assault outside. Again, if you found it proved, when the defendant, according to the prosecution, had this Christmas tree in his hand and was certainly hitting, again according to the prosecution, Donna, Miss Hamilton's sister."

7

The Recorder then went on to deal with the general nature of the offence of affray and said in terms which are not the subject of any criticism:

"But so far as the affray is concerned, really what has to be proved by the prosecution is covered in the words that you can see under the particulars of the offence, namely that Mr Smith used or threatened unlawful violence, and again the concept of unlawfulness comes into it, towards another and his conduct was such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. So the vital ingredient there is the threat or use of unlawful violence."

8

In that passage it appears that the Recorder, in referring to incidents both outside and inside the house, may well have reflected the way in which the case was put by the stage of the summing-up, but initially the count of affray which the prosecution were advancing very much rested on the events outside the house rather than inside. It may well be that the difficulty which has arisen in this case has arisen because of the extension of the count to embrace events inside the house. At page 14 of his summing-up the Recorder said:

"So far as count 3 is concerned, it covers the hitting of Dionne with the figurine and the hitting of Pauline and Donna, or one or both of them, outside with a Christmas tree. That is the prosecution's case and the prosecution say: well, that cannot have been in self-defence; he had no justification for either of those acts. The defendant denies hitting Dionne at all and says that he was merely using the Christmas tree to defend himself, thinking at the time he swung around with it that it was still Eldine [Pauline Hamilton's son] coming after him with the knife."

9

At page 23 of the transcript the learned Recorder, in the course of reviewing the evidence, said to the jury:

"…. count 3 covering the events partially inside and partially outside. But what happened outside is important in this respect…."

10

He then went on to consider the evidence in some detail.

11

The criticism of this direction by Mr Beck, who represents the appellant, can be simply put. It is that by embracing events both inside the house and outside, and in failing to direct the jury that they had to be satisfied that the evidence either inside the house or outside the house constituted the offence of affray, the learned Recorder was guilty of an inadvertent misdirection, leading to the possibility that although the jury unanimously convicted, they did so on different factual bases. In other words, he says that the possibility exists that some of the jury may have found the offence of affray proved on the strength of what happened inside the house and some may have found the offence established on the strength of what they were satisfied happened outside the house, but without the jury as a whole being satisfied that an affray was committed on either basis.

12

It is essential in considering this submission to bear in mind the nature of the offence of affray. It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on. Again, typically it involves a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents. To require such proof would deprive section 3(1) of the 1986 Act of its intended effect, and deprive law-abiding citizens of the protection which this provision intends that they should enjoy. It would be asking the impossible to require a jury of 12 men and women to be satisfied beyond reasonable doubt that each or any incident in an indiscriminate melee such as constitutes the typical affray was proved to the requisite standard.

13

Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence.

14

In the present case the prosecution, it would seem, recognised the essential truth of what we have just suggested and did not initially place reliance on events inside the house. However, it is evident from the passage we have quoted that the learned Recorder invited the jury to consider events inside the house as well as outside. That would not be objectionable had he given a careful direction in relation to each sequence, emphasising that the jury had as a unanimous body to be satisfied in relation to one sequence or the other. He did not, however, do so and therefore the matter was left at large. That must, it seems to us, give rise to the theoretical possibility that the jury based their verdict on evidence accepted by some relating to the first sequence inside the house and evidence accepted by others in relation to the second sequence outside the house. That would seem in general not to be a fanciful possibility since the appellant was acquitted of the two specific charges inside the house.

15

Mr Knowles, who represents the Crown in this court as he did below, submits that, although a theoretical possibility, that is not a realistic possibility in the present case. He points out that all the evidence relating to events inside the house was...

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