R v Wilson (Clarence) ; R v Edward John Jenkins ; R v Ronald Patrick Jenkins
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE CANTLEY,LORD JUSTICE WATKINS,LORD JUSTICE PURCHAS |
| Judgment Date | 18 February 1983 |
| Neutral Citation | [1983] EWCA Crim J0128-1 |
| Judgment citation (vLex) | [1983] EWCA Crim J0218-7 |
| Docket Number | Nos. 59/A/82: 60/A/82,No. 5629/B1/81 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 February 1983 |
[1983] EWCA Crim J0128-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Watkins
Mr. Justice Cantley
and
Mr. Justice Hirst
No. 5629/B1/81
MR. D. GUY appeared on behalf of the Appellant.
MR. D. ZEITLIN appeared on behalf of the Crown.
On the 4th November, 1981, in the Crown Court at Kingston, this appellant as acquitted of a charge of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act, 1861. He was convicted, however, as an alternative, of an offence of assault occasioning actual bodily harm. The indictment contained merely a single count, alleging in the particulars simply that "on the 7th day of November, 1980, Clarence George Wilson maliciously inflicted grievous bodily harm on Maxim James Latham".
In relating what happened, it is important not to lose sight of the facts of this case, because everything that has been said and argued should be considered in relation to the facts and the actual indictment. The victim was a Mr. Latham, who was intending, on the 7th November at about 11 o'clock at night, to cross a road in south London. As he was about to leave the footpath, he noticed a previously stationary motor car move away from the curb. He waved the car on, but it stopped. When he proceeded to cross, the car started and nearly ran him down. It was a case of misunderstanding between the pedestrian and the driver, such as does happen from time to time. Obviously, one supposes, the driver thought the pedestrian's signals were still operative, so he started the car, and the pedestrian thought the driver had not accepted his invitation to proceed, so he went onto the roadway.
The car stopped. The driver got out and possibly, although this remained a matter of uncertainty at the trial, another male passenger also got out. There was then what is sometimes called a "punch-up". According to the evidence of the victim, Mr. Latham, which must have been accepted by the jury, the driver came up to him and punched him in the face. He, that is Mr. Latham, retaliated or defended himself by reasonable violence, but was overwhelmed by the continued attack upon him by the driver, helped possibly by this mysterious third man whose existence was never conclusively established.
Mr. Latham was quite seriously injured, so that the appellant may consider himself fortunate that the jury did not take the view that he had inflicted grievous bodily harm on Mr. Latham. There was, therefore, evidence, as the jury accepted, that there was an assault occasioning actual bodily harm, even if it did not qualify as a case of maliciously inflicting grievous bodily harm.
Realizing the understandable disposition of juries to incline towards the soft option, Mr. Zeitlin, who appeared for the prosecution, sought at the outset to amend the indictment by adding a count of assault occasioning actual bodily harm. The judge refused to allow that amendment. He was quite right to do so, because there was nothing in the committal evidence which supported the additional suggested charge against the appellant. The learned judge's hands were tied completely by section 2(2) and the proviso to that subsection in the Administration of Justice (Miscellaneous Provisions) Act, 1933.
Mr. Zeitlin then applied, as an alternative remedy, for leave to amend the existing count under section 20 of the Offences Against the Person Act, by adding to the particulars the words "by assaulting him". This is a practice which has been approved by this court in the case of McCready and Hurd, (1978) 67 Crim.App.R. 345. At page 351, Lawton, L.J., who presided over the court which consisted of himself, Mars-Jones, J. and Gibson, J., said: "We were told by counsel that because of the decisions in Austin (supra) and Lambert (supra) some draftsmen of indictments now give particulars of the way in which the grievous bodily harm was caused as, for example, by such words as 'by assaulting him'. We approve of this practice."
Those observations were obiter. Therefore, although they have the weighty authority of that distinguished Lord Justice, supported by the other members of the court, they are not yet binding as decided law. The learned editors of Archbold do not, however, approve of that suggested practice, even though it is now, from time to time, followed. They give their views in the Forty-first Edition, at paragraph 4-462. Whether their objections are correct or not is a matter which may sometime have to be decided, but the practice at least seems to be sensible and harmless if confined to the example given. Particulars, so long as they are particulars of the offence alleged, are not normally embarrassing by condescending to detail. Section 3(1) of the Indictments Act, 1915 requires "such particulars as may be necessary for giving reasonable information as to the nature of the charge."
The learned judge declined to allow this amendment. He did so in these terms: "It is said that one could avoid the difficulty by amending the existing count. For my part, I think it would be wrong to try to avoid that difficulty – which was of the prosecution's own making by the way that this matter was committed for trial – and it is quite clear from the notice of additional evidence that the job could have been done properly ab initio."
It may be, if the learned editors of Archbold are right, that the judge's decision was correct but it was not founded on the right reasons. The primary function of the courts is to administer justice as between the parties rather than to discipline practioners. However, the learned judge then ruled that, following the case of R v. Snewing (1971) Crim.L.R. 267, of which this court has a transcript, it was open to the jury, on the count as it stood, to convict the appellant on the charge of assault occasioning actual bodily harm, and he directed the jury accordingly. The sole question in this appeal is whether he was entitled to give that direction to the jury or whether it was erroneous. I will refer to the case of Snewing in due course.
It is necessary to begin with the statutory provisions which govern this matter. Those are contained in section 6(3) of the Criminal Law Act, 1967. That subsection provides: "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 jursidiction 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 question in this case is whether "expressly or by implication" an allegation of assault occasioning actual bodily harm is included in the allegations in the indictment.
Mr. Zeitlin, in his attractive and erudite argument, has submitted, among other things, that the allegation is "expressly" one of the allegations in the indictment, because the word "inflicted" means by assault and battery. In the view of this court, that is not necessarily the meaning to be attached to the word "inflicted": the precise meaning to be attached to that word must depend, ultimately, upon its context.
In the Shorter Oxford Dictionary, the word "inflict" is said to mean "to lay on as a stroke, blow, or wound"; or "to impose"; or "to cause to be borne". Among the literary examples given of the use of that word, there is a quotation which reads: "We should be inflicted with less … twaddle." It is easy to give other examples of the use of the word. It is a perfectly correct use of the word to say that hardship has been inflicted; even, in appropriate cases, that poverty has been inflicted. In neither of those phrases is it expressed or even implied that there was violence involved.
It should also be rioted that in section 23 of the Offences Against the Person Act, 1861 it is provided that "whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing….. so as thereby to inflict upon such person any grievous bodily harm" shall be guilty of an offence punishable by ten years imprisonment. This statement does not in our view include or connote an allegation of assault. That does not, of course, conclude the necessary investigation; one has to enquire do the allegations in this indictment impliedly include the allegation of assault occasioning actual bodily harm? I have already recited in full the words in the particulars of offence in the indictment.
In the case of R v. Springfield (1969) Crim.App.R. at 610, Sachs, L.J. put the matter in this way: "Where an indictment thus charges a major offence without setting out any particulars of the matters relied upon, what is the correct test for ascertaining whether it contains allegations which expressly or impliedly include an allegation of a lesser offence? The test is to see whether it is a necessary step towards establishing the major offence to prove the commission of the lesser offence: in other words, is the lesser offence an essential ingredient of the major one?"
We respectfully adopt that test, which already has the approval of a full court consisting of five judges, in the case of R v. Lillis (1972) 2 Q.B. at 241.
The Offences Against the Person Act was passed as long ago as 1861 and, therefore, there is a whole body of authority arising from prosecutions under section 20. In 1881, there was the case of R v....
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