R v Wilson (Clarence) ; R v Edward John Jenkins ; R v Ronald Patrick Jenkins
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Elwyn-Jones,Lord Edmund-Davies,Lord Roskill,Lord Brightman |
| Judgment Date | 13 October 1983 |
| Judgment citation (vLex) | [1983] UKHL J1013-2 |
| Court | House of Lords |
| Date | 13 October 1983 |
[1983] UKHL J1013-2
House of Lords
Lord Fraser of Tullybelton
Lord Elwyn-Jones
Lord Edmund-Davies
Lord Roskill
Lord Brightman
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill.
For the reasons given by him I would allow both appeals and answer both certified questions in the affirmative.
My Lords,
I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Roskill. I agree with it and for the reasons he gives I would allow both appeals.
My Lords,
I am grateful for the opportunity of reading during the long vacation the speech prepared by my noble and learned friend, Lord Roskill. I am in respectful agreement with the views he has expressed and the conclusions at which he has arrived.
My Lords,
These two consolidated appeals by the prosecution are brought by leave of your Lordships' House and necessitate the House considering the true construction of section 6(3) of the Criminal Law Act 1967 - "1967 Act" - for the first time since its enactment some sixteen years ago. The Court of Appeal (Criminal Division) granted certificates in each case. Wilson, the respondent in the first appeal, was indicted at Kingston Crown Court on a single count of "maliciously inflicting grievous bodily harm" on a man named Latham. Wilson was acquitted on that count but the learned trial judge, His Honour Judge Rubin, directed the jury that if they were not satisfied that Latham's injuries were sufficiently serious to justify conviction, they might on that single count convict Wilson of assault occasioning actual bodily harm. The jury did so. That direction was given after the learned judge had heard argument. I shall refer to this case as " Wilson".
The two respondents, Edward and Roland Jenkins, were father and son. They faced a single count of burglary at Canterbury Crown Court before Mr. Recorder Lewis Q.C. and a jury. That charge was laid under section 9(1)( b) of the Theft Act 1968, the particulars being that they had entered a building at Westgate "as trespassers" and there "inflicted grievous bodily harm" upon a man named Wilson. If one omits the references to entering the building "as trespassers", the particulars, apart from the omission of the word "maliciously" were identical with those in Wilson. I shall refer to this case as " Jenkins". The learned recorder, after lengthy legal arguments - he himself had first raised the question - gave the same direction to the jury as had been given in Wilson regarding the possibility, in the event of acquittal on the burglary count, of convicting these respondents of assault occasioning actual bodily harm.
These rulings and directions were founded upon section 6(3) of the 1967 Act. All the respondents, upon their respective convictions, appealed. Wilson was heard by the Court of Appeal (Criminal Division) - Watkins L.J. and Cantley and Hirst J.J. - judgment being given on the 28th January 1983 by Cantley J. Jenkins was heard by a differently constituted Court of Appeal (Criminal Division) - Purchas L.J. and Talbot and Staughton J.J. - judgment being given on the 18th February 1983 by Purchas L.J. The convictions in both cases were quashed. The reasons were substantially the same with the additional reason in Jenkins that that court was bound by the earlier decision in Wilson. Stated briefly, the reason was that the decision of the Court of Appeal (Criminal Division) in Springfield (1969) 53 Cr.App.R. 608 made it impossible to justify a conviction for assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 ("the 1861 Act"), by virtue of section 6(3) of the 1967 Act, since the offence charged of " inflicting grievous bodily harm" did not, upon the authorities, necessarily include the offence of assault occasioning actual bodily harm. The emphasis added to these three words is mine.
Both courts granted certificates but refused leave to appeal. That leave was, as already stated, granted by this House. The certificate in Wilson was in the following terms:
"Whether on a charge of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 it is open to a jury to return a verdict of not guilty as charged but guilty of assault occasioning actual bodily harm."
The certificate in Jenkins was in slightly different terms. It read thus:
"Whether on a charge of burglary contrary to section 9(1)( b) of the Theft Act 1968, the particulars of the offence being that the accused having entered a building as trespassers inflicted grievous bodily harm upon a person therein, it is open to a jury to return a verdict of not guilty as charged but guilty of assault occasioning actual bodily harm."
In substance both certificates raised the same point of law.
My Lords, it is a regrettable fact that, at least in Wilson, the question raised in the courts below and now in your Lordships' House need never have arisen had the prosecution's case at the time of committal for trial been properly prepared in the magistrates' court. Wilson was committed only on the section 20 charge. Two applications were made to the learned trial judge when the present issue arose, one to add a count under section 47 of the 1861 Act, and the other, to overcome the point on which both appeals ultimately succeeded, by adding to the particulars of the offence charged under section 20, the words "by assaulting".
The learned judge rejected the first application, on the ground that he had no power to add the count under section 47, since the witness statement from Latham did not even identify Wilson as his assailant. This reasoning was unassailable. Your Lordships were shown a copy of the statement. It is a matter for severe criticism of those who had charge of the prosecution's case at the time of committal that it should have been so slovenly prepared. For this reason the learned judge declined, to quote his own words, "to help the prosecution" by amending the count since the problem was entirely of the prosecution's own making.
It was in these circumstances that the learned judge came to leave the section 47 charge to the jury in the exercise of what he believed to be his power under section 6(3) of the 1967 Act. Thus it was as regards Wilson that this matter has reached this House. This need never have happened. In Jenkins, the learned recorder himself raised the question, but after an argument the transcript of which occupied some forty pages, decided against any other course than that he would leave the alternative section 47 charge to the jury in accordance with his view of section 6(3).
My Lords, it would be convenient to preface discussion of the problems to which section 6(3) of the 1968 Act gives rise by first setting out the several statutory provisions which fall for consideration in this appeal.
Section 6(3) itself reads thus:
"(3) Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."
The words "falling within the jurisdiction of the court of trial" can now be ignored since the creation of the Crown Court.
Section 18 of the 1861 Act so far as presently relevant reads:
"Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person … with intent … to do some … grievous bodily harm to any person … shall be guilty …".
Section 20 of the 1861 Act reads:
"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person … shall be guilty of a misdemeanor …".
I draw attention to the fact that the word "assault" nowhere appears in this section.
Section 47 of the 1861 Act reads thus:
"Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable …".
Section 9(1)( a) and (2) of the Theft Act 1968 reads thus:
"9(1) A person is guilty of burglary if -
( a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below;
(2) The offences referred to in subsection (1)( a) above are offences … of inflicting on any person therein any grievous bodily harm …".
My Lords, there can be no doubt that before 1967 the view was widely held that at common law upon a charge under section 20, a defendant might be convicted of at least common assault. See Archbold (36th Ed.) 1966 paragraph 575. "Upon an indictment for assaulting and unlawfully wounding and ill-treating the prosecutor, and thereby occasioning him actual bodily harm, the prisoner may be convicted of common assault …. The prisoner may also be convicted of a common assault upon either count of an indictment charging him in the first count with unlawfully and maliciously wounding, and in the second count with unlawfully and maliciously inflicting grievous bodily harm,...
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