Criminis + EYY Wee, EC + KCL + Respondent Bundle

BUNDLE ON BEHALF
OF THE
RESPONDENT
KINGS COLLEGE LONDON
REPRESENTING (Eliana Covell
And Elijah Wee)
1
Moot Problem… .................................................................................................................... 2
Skeletal Submissions ............................................................................................................. 4
Tab 1… ................................................................................................................................... 6
Police and Criminal Evidence Act 1984, Section 78
Tab 2… ................................................................................................................................. 10
Youth Jus)ce and Criminal Evidence Act 1999 (YJCEA 1999), s 31(1)
Tab 3… ................................................................................................................................. 14
R v Barker [2010] EWCA Crim 1861
Tab 4 ..................................................................................................................................... 34
R v Denham and another [2016] EWCA Crim 1048
Tab 5 ..................................................................................................................................... 43
R v Galbraith[1981] 1 WLR 103
Tab 6 ..................................................................................................................................... 49
R v Goddard[2012] EWCA Crim 1756
Tab 7 .................................................................................................................................... .63

R v Highbury Magistrates’ Court ex. Parte Deering [161 JP 138] DC
Tab 8 .................................................................................................................................... .69

R v Savage [1992] 1 A.C. 699
Tab 9 .................................................................................................................................... 126

R v Turnbull [1977] QB 224]
Tab 10 .................................................................................................................................. 143

R v Walsh [1990] Crim LR 822
2
IN THE COURT OF APPEAL (Criminal Division)
ON APPEAL FROM THE INNER LONDON CROWN COURT (BARON J)
BETWEEN
REX
-and-
WILLIAM WALKER
Facts of the case
1. William Walker, the Appellant, is a 43-year-old man who works as an investment banker. He has been
convicted of physical abuse against Rhonda Burton, his partner, with whom he has an 8-year-old child
(“C”).
2. Walker has been in a relaHonship with Burton, on and off, for 16 years. During this Hme, they have
cohabited and been separated, but have consistently co-parented their shared son. At the Hme of the
convicted offence, they had cohabited for just under 2 years.
3. On August 16th, 2021, Walker was convicted of assault occasioning actual bodily harm, contrary to
secHon 47 of the Offences against the Person Act 1861. The evidence used to secure a convicHon was a
medical report and a witness statement from C.
4. The incident is said to have occurred on January 10th, 2021, aUer Walker had been drinking with his
friends and had returned home late. Burton was taken to hospital aUer he returned home, with a
laceraHon to her forearm caused by glass. This conclusion was reached as shards of glass were found
within the wound.
5. Burton said in hospital, and has maintained since, that the wound was caused as she slipped and fell
whilst holding a glass and had put her arm out to stop her injuring her face.
6. The medical report of Dr. Evans stated that the glass entered Burton’s arm with force, as there was a
bruising paXern around the laceraHon. She also noted older bruises on her upper arm and wrist. When
asked if she could examine her further, Burton declined and gave a reason for the upper arm bruises:
she fell, Walker caught her, and she bruises easily. When asked again later by Dr. Evans, Burton said she
had walked into a door frame.
7. Dr. Evans made a report to the police as the bruises appeared to be in the shape of fingers and were at
several different stages of healing.
8. AUer this report was made, the police began an invesHgaHon and spoke to the couple’s son. The Police
conducted an ABE interview of C. C told police that, on the night of the alleged assault, he was woken
3
2
by his Mum screaming and so went downstairs to find out what was happening. He told police that he
“saw Daddy poinHng a sharp thing at Mummy”. When asked if he had ever been woken by his Mum
screaming in the past, C said that he usually heard his Mum screaming a couple of Hmes a week.
9. Upon referral to the Local Authority, an applicaHon was made to London Family Court and Court of
ProtecHon for an Interim Care Order. The Order was granted by HHJ Smith. C was placed with Foster
Carers.
10. The CPS took the decision to prosecute Walker with the following offence:
a. Actual bodily harm caused by Walker on January 10th, 2021, contrary to secHon 47 of the Offences
against the Person Act 1861.
11. Burton refused to give evidence for the prosecuHon at trial.
12. At trial, C was a witness for the prosecuHon. C gave evidence which was consistent with the evidence
given in his ABE interview. C’s evidence was key to convicHon, along with the report by Dr. Evans.
13. Walker now appeals to the Court of Appeal with permission on two grounds:
1. The trial judge erred in refusing a submission of no case to answer by the defence.
2. The trial judge wrongfully refused an applicaHon under s.78 of PACE to disallow the evidence of C.
(R v Highbury Magistrates’ Court ex. Parte Deering [161 JP 138] DC)
4
3
IN THE UK SUPREME COURT
BETWEEN
REX
-V-
William Walker
Skeleton Argument on behalf of the Respondent
First Ground of Appeal
1. The trial judge did not err in refusing a submission of no case to answer by the defence, as
the evidence is strong and dependent on witness’ reliability for a reasonable court to convict.
a. Walker was the only person C observed in the home in the same space with Rhonda before she
was hurt, therefore it can be proven beyond reasonable doubt that Walker harmed Rhonda. (R v
Galbraith[1981] 1 WLR 1039, R v Savage [1992] 1 A.C. 699)
b The strength of C’s testimonial depends on his reliability, because C is the sole witness of the
alleged offence, as well as Rhonda’s screaming during the current incident and in the past when
Walker was also present in the house.(R v Galbraith[1981] 1 WLR 1039)
i.The description of Rhonda’s current and previous injuries in the medical report is insufficient by
itself to support the inference that Walker harmed Rhonda if C’s identification evidence is of poor
quality. (R v Turnbull [1977] QB 224, (228)-(229)), (R v Goddard[2012] EWCA Crim 1756)
iiTherefore, the identification evidence from C is necessary to exclude other realistic causes of
Rhonda’s aforementioned injuries to prove Walker’s culpability, since C did not witness physical
contact between Walker and Rhonda. (R v Savage [1992] 1 A.C. 699), (R v Goddard[2012] EWCA
Crim 1756), (R v Galbraith[1981] 1 WLR 1039)
Elijah Wee (Senior Counsel for the Appellant) representing.
Second Ground of Appeal

2. The evidence of C does not fall within section 78 - having ‘such an adverse effect on fairness
of the proceedings that the court ought not to admit it’. This is indicated by the following:
a The crucial question is whether breaches in obtaining evidence affect trial fairness (R v
Walsh [1990] Crim LR 822). Here there is no suggestion that C’s interview breached the
ABE guidelines or any other requirements for interviewing child witnesses. The evidence
was obtained properly and fairly, with no oppression of C.
b Conflicts in evidence do not warrant exclusion under s.78. That C's evidence differed from
his mother's goes to the weight of the evidence, not its admissibility (R v Denham and
another [2016] EWCA Crim 1048)
c There is also no reason to doubt C's reliability as a witness. Despite his young age, his
interview followed ABE guidelines, he gave clear details, and his testimony aligns with the
physical evidence regarding his mother's injuries. Excluding competent evidence from
achild witness simply because he is a child would be contrary to authority (R v Barker
[2010] EWCA Crim 1861) (Sec$on 53(1) of the Youth Jus$ce and Criminal Evidence Act 1999 (YJCEA
1999).
a It is in the public interest for this evidence to be included. This goes above and beyond the
interests of the child here. (R v Highbury Magistrates’ Court ex. Parte Deering [161 JP
138] DC)
Eliana Covell (Junior Counsel for the Crown) representing.
For the above reasons, on both grounds, it is submitted that the appeal must be dismissed.
5
4
Tab 1
6
6
Changes to legislation: Police and Criminal Evidence Act 1984, Section 78 is up to date with all changes known to be in force
on or before 02 February 2024. There are changes that may be brought into force at a future date. Changes that have been
made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes
Police and Criminal Evidence Act 1984

1984 CHAPTER 60
PART VIII
EVIDENCE IN CRIMINAL PROCEEDINGS—GENERAL
Miscellaneous
78 Exclusion of unfair evidence.

(1) In any proceedings the court may refuse to allow evidence on which the prosecution
proposes to rely to be given if it appears to the court that, having regard to all the
circumstances, including the circumstances in which the evidence was obtained, the
admission of the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude
evidence.
F1
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Extent Information
E1 S. 78 extends to England and Wales only with exceptions as regards courts martial, see s. 120(1)(6)-(8)
Textual Amendments
F1 S. 78(3) repealed (18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013
for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 56(5), Sch.
37 Pt. 4; S.I. 2012/1320, art. 4(1)(c)(d)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I.
2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c)(d), Sch. (with arts. 34) (as amended (4.11.2012) by
S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(d)(2)(3) (with arts. 34)
Modifications etc. (not altering text)

C1 S. 78(1) modified (2.10.2000) by S.I. 2000/2370, rule 27(2), Sch. 3 Pt. III para. 18(c)
S. 78(1) modified (2.10.2000) by S.I. 2000/2371, rule 27(2), Sch. 3 Pt. III para. 18(c)
7
2 Police and Criminal Evidence Act 1984 (c. 60)
Part VIII – Evidence in Criminal Proceedings—General
Document Generated: 2024-02-02
Changes to legislation: Police and Criminal Evidence Act 1984, Section 78 is up to date with all changes known to be in force
on or before 02 February 2024. There are changes that may be brought into force at a future date. Changes that have been
S. 78(1) modified (2.10.2000) by S.I. 2000/2372, rule 27(2), Sch. 3 Pt. III para. 18(c)
8
Police and Criminal Evidence Act 1984 (c. 60) 3
Changes to legislation:
Police and Criminal Evidence Act 1984, Section 78 is up to date with all changes known to be in
force on or before 02 February 2024. There are changes that may be brought into force at a future
date. Changes that have been made appear in the content and are referenced with annotations.
View outstanding changes
Changes and effects yet to be applied to the whole Act associated Parts and Chapters:
Whole provisions yet to be inserted into this Act (including any effects on those
provisions):
– s. 17(1)(cza) inserted by 2021 c. 17 s. 26(9)
– s. 47A(3A) substituted by 2022 c. 35 Sch. 2 para. 7
– s. 61(6BA) inserted by 2008 c. 28 s. 10(1) (This amendment not applied to
legislation.gov.uk. S. 10 omitted (14.12.2011) by virtue of 2011 c. 23, ss. 29, 31(2),
Sch. 7 para. 5(3))
– s. 63(3D) inserted by 2008 c. 28 s. 10(2) (This amendment not applied to
Sch. 7 para. 5(3))
– s. 64(1AA) inserted by 2008 c. 28 s. 10(4) (This amendment not applied to
Sch. 7 para. 5(3))
– s. 64A(1B)(cb) inserted by 2022 c. 32 Sch. 11 para. 18(a)
– Sch. 1A para. 21A added by 1995 c. 32, s. 8B(1) (as inserted) by 2006 c. 12 Sch. 3
para. 13
9
Tab 2
10
7
Changes to legislation: Youth Justice and Criminal Evidence Act 1999, Section 53 is up to date with all changes known to be in
force on or before 23 October 2023. There are changes that may be brought into force at a future date. Changes that have been
Youth Justice and Criminal

Evidence Act 1999
1999 CHAPTER 23
PART II
GIVING OF EVIDENCE OR INFORMATION FOR PURPOSES OF CRIMINAL PROCEEDINGS
CHAPTER V
COMPETENCE OF WITNESSES AND CAPACITY TO BE SWORN
Competence of witnesses
53 Competence of witnesses to give evidence.

(1) At every stage in criminal proceedings all persons are (whatever their age) competent
to give evidence.
(2) Subsection (1) has effect subject to subsections (3) and (4).
(3) A person is not competent to give evidence in criminal proceedings if it appears to the
court that he is not a person who is able to—
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.
(4) A person charged in criminal proceedings is not competent to give evidence in the
proceedings for the prosecution (whether he is the only person, or is one of two or
more persons, charged in the proceedings).
(5) In subsection (4) the reference to a person charged in criminal proceedings does not
include a person who is not, or is no longer, liable to be convicted of any offence in
the proceedings (whether as a result of pleading guilty or for any other reason).
11
2 Youth Justice and Criminal Evidence Act 1999 (c. 23)
Part II – Giving of evidence or information for purposes of criminal proceedings
Chapter V – Competence of witnesses and capacity to be sworn
Changes to legislation: Youth Justice and Criminal Evidence Act 1999, Section 53 is up to date with all changes known to be in
force on or before 23 October 2023. There are changes that may be brought into force at a future date. Changes that have been
Modifications etc. (not altering text)

C1 S. 53 applied (with modifications) (31.10.2009) by The Youth Justice and Criminal Evidence Act 1999
(Application to Service Courts) Order 2009 (S.I. 2009/2083), arts. 1, 9, 10
12
Youth Justice and Criminal Evidence Act 1999 (c. 23) 3
Changes to legislation:
Youth Justice and Criminal Evidence Act 1999, Section 53 is up to date with all changes known
to be in force on or before 23 October 2023. There are changes that may be brought into force
at a future date. Changes that have been made appear in the content and are referenced with
annotations.
View outstanding changes
Changes and effects yet to be applied to the whole Act associated Parts and Chapters:
Whole provisions yet to be inserted into this Act (including any effects on those
provisions):
– s. 33BA33BB inserted by 2009 c. 25 s. 104(1)
13
Tab 3
14
8
R. v Barker, 2010 WL 19952 (2010)
For educational use only

RvB
Positive/Neutral Judicial Consideration
Court
Court of Appeal (Criminal Division)
Judgment Date
21 January 2010
Case No: 2009/02867/C5
[2010] EWCA Crim 4, 2010 WL 19952
Before: The Lord Chief Justice of England and Wales Lady Justice Hallett and Mrs Justice Macur
Date: 21/01/2010
On Appeal from the Central Criminal Court His Honour Judge Kramer QC
Hearing date: 24th November 2009
Representation
Miss Sally O'Neill QC for the Crown.

Mr Bernard Richmond QC and Mr R Patton for the Appellant.
Judgment
The Lord Chief Justice of England and Wales:
1. On 1st May 2009 at the Central Criminal Court before His Honour Judge Kramer QC and a jury, B was convicted of anal
rape of a child under 13 years of age (count 1). His co-accused, C, was acquitted by the jury on cruelty to the same child by
wilful neglect (count 2). On 22 May B was sentenced to imprisonment for life with a specified minimum term of 20 years.
Appropriate orders were made in relation to time spent in custody on remand, and he was made subject to a sexual offences
prevention order, a notification requirement, and disqualified indefinitely from working with children.
2. B's applications for leave to appeal against conviction and sentence were referred to the full court by the Registrar. The
application for leave to appeal against conviction requires the court to address the circumstances in which very small children
may give evidence in criminal trials. Although it was not quite how Mr Bernard Richmond QC advanced it, stripped to
essentials, the argument at the heart of this application is that it is not acceptable for a conviction, very heavily dependent
on the evidence of a child as young as 4½ years, describing events said to have occurred when she was not yet 3 years old,
to be regarded as safe: more formally, the competency requirement was not satisfied. The argument merits attention. Leave
to appeal against conviction and sentence are granted.
The Evidence
© 2024 Thomson Reuters. 15 1

R. v Barker, 2010 WL 19952 (2010)
3. The appellant is now aged 33. He became involved with C, a young woman with children and in early 2007, he moved
into her home in Tottenham. There he came into contact with a number of young children. X, as we shall call her, was born
in [date]. On 3rd August 2007, together with her 2 somewhat older sisters, she was taken into care following the unnatural
death of her younger brother. The appellant was arrested on 6 May 2008 and interviewed in connection with an allegation
that he had sexually abused X. He denied any inappropriate touching, and could advance no reason why she should make
the allegation. C was arrested a few days earlier. She made no comment in interview. In the meantime, she, the appellant and
his brother were all charged with causing or allowing the death of a child known in the media as “Baby P” or “Baby Peter”,
contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 . They were convicted on 11 November 2008.
For his involvement in that offence the appellant was sentenced to 12 years' imprisonment. It has not been suggested that the
case for the prosecution that the appellant raped X can or should receive any support or confirmation from the lamentable
circumstances in which Baby P died. However, if the present conviction is upheld, the death of Baby P will become relevant
to the appeal against sentence.
4. X and her sisters went to live with E on 3rd August 2007. Mrs E kept a notebook record of her care of the children. She
remembered an occasion in October 2007, shortly before the complainant's third birthday. As X was dressing herself after
breakfast and about to put on her knickers, she said something indicative of sexual abuse by the appellant. Mrs E made a
contemporaneous or virtually contemporaneous note which was in evidence before the jury. In it she wrote: “I was dressing
X. She was sitting on the floor, taking off her PJ and was TO (short for touching) herself. I asked her was she sore? She said
no. Her dad does that to her fanny. Asked was it in the bath? She said no, in Mum's bedroom and Mum said: Don't do that
again. Not Kenny, other Dad”. It is unnecessary to summarise the evidence given by Mrs E in chief, save that X described
her mother telling her “other dad” not “to do that again”, as she wagged her finger at him with an angry expression on her
face. Mrs E was also asked about the relationship between the three children. She confirmed that X's elder sister would boss
the others around and was very much in charge. Mrs E insisted however that she had not heard her using the language used
by X when making her disclosure.
5. DS Kate Bridger is a child protection officer. She spoke to X at her home on 21st November 2007. In what seemed to
us a rather curious exchange with a young child, the officer asked X about what she had told E. DS Bridger indicated with
both hands the general area around her hips, genitals and bottom. X either could not recall or had no idea what she was
talking about. The officer then “narrowed the question” and asked her whether anyone had touched her in the area which she
again indicated with her hands. X shook her head. The officer was unsure whether the complainant was effectively saying no
one had touched her or that she did not understand. The officer then asked whether B had ever touched her around “here”,
indicating the same area. X shook her head.
6. DS Bridger was cross examined and agreed that her questions were designed to establish whether X had been subjected
to sexual abuse. Her note of the conversation was read out to the jury: “I attended the children's home and spoke with X.
She is a very young girl, 3 years old. We had a discussion regarding what she had told her foster carer and who had touched
her inappropriately. She made no disclosures and when asked directly if B touched her genital area, she shook her head. X
has never mentioned the incident since. With regard to this allegation X is too young to ABE interview. When spoken to by
myself, she made no disclosures. When asked about any possible sexual abuse she made no disclosure. All enquiries regarding
this incident are now complete.” DS Bridger confirmed in cross examination she did not pursue the allegation because X had
said nothing about sexual abuse and she “did not have much speech at the time”. No further action was contemplated.
7. The allegation resurfaced when Dr De Jong, a consultant child psychiatrist and her colleague, Mrs Seymour, became
involved with the children. They were asked to make a behavioural assessment in relation to care proceedings.
8. On 11th January 2008 the doctor interviewed each girl separately at Great Ormond Street Hospital. A verbatim note was
made. X was then just over 3 years old. Her speech was not as developed as it should have been for a child of her age and

R. v Barker, 2010 WL 19952 (2010)
was occasionally indistinct. She was asked about members of her family. She said she cried when she missed her mum but
she did not cry about B. Unexpectedly, and spontaneously, she announced that she hated B and said, “I saw his willy”. The
doctor asked how this had happened. “B took his trousers off. He got it all down me.” “I saw B's willy in Mummy's bedroom.
Mummy was there, Mummy told him not to do it, B. He tries to get me into trouble”. She was asked where and she said:
“He did it in my bedroom. B took his trousers off and showed me his willy”. The doctor asked what she was wearing and
she said she had her pyjamas on. She said “I kept it on. B did it in my bedroom. I saw B's willy. It was not nice what he did”.
Dr De Jong asked if he had touched her and she said, “B hurt me. It was harder. I do not know how.” She put both her hands
on her bottom and said “it hurt all day” and “he hurt me with his willy”. She demonstrated what had happened, using a table
to represent the bed and dolls. She put the girl doll down on the table, face up. Then she turned the girl doll over and placed
her face down and the boy doll representing B face down on top of her. She said: “I felt his willy”. Asked what it felt like
she said he hurt her and again without hesitation twice put the dolls one on top of the other in the same position. The doctor
asked her what she did. She said “I went to the toilet. I needed to go to the toilet. My bottom was sore.” During this exchange
the doctor noted that X had stopped smiling. She said she had not told her foster carer, but she had told her eldest sister and
her mummy. She said it happened lots of times. She was asked specifically whether B put his “willy” in any other place, and
said no. She was asked whether anyone else had done this to her and said no. She said she asked B to stop but he never did.
9. In cross examination Mr Patton pressed the doctor on whether it would have been important for her to know that the child
had apparently denied any sexual abuse. She said that she was not involved as an investigator. She agreed that she ended her
conversation with X by praising her for revealing what had happened to her, and accepted that this might have reinforced in
the child's mind the notion that to give an account of abuse is a good thing.
10. Mrs Seymour, the family therapist, confirmed the evidence of Dr Jong, and the complaint made by X. She also explained
that X's disclosure was completely unexpected and came in the course of a general conversation about her family. Although
X had difficulties articulating what she wanted to say, Mrs Seymour was sure that she was telling them that the applicant had
hurt her, that it had happened several times, that she had wanted him to stop, and had asked her mother to make him stop.
11. Dr Hodes is a consultant paediatrician. She saw X on 4th April 2008. During the course of her examination, she asked
X: “Did anyone hurt your bottom?” and the complainant repeated the allegation, “Yes, B did it.” On examination Dr Hodes
found no injury to X's genitalia and her vagina intact. She examined the anus using a colpascope. There was no evidence of
scarring, anal fissures and tags, but there was one finding upon which the doctor remarked. Normally, in a child of this age,
the external sphincter muscle remains closed. However after ten seconds of gentle movement the complainant's sphincter
opened and the doctor could see up into the rectum. This is an unusual finding, but of itself not diagnostic or conclusive of
anal penetration. Even when there is no allegation of sexual abuse the condition may occur in as many of 11 % of children
who are examined in this way. However, the doctor said that, absent a medical condition such as constipation (and no such
condition was canvassed in evidence), the finding could be supportive of an allegation of penile anal penetration.
12. Dr Hodes was cross examined about the fact that reflex anal dilatation has caused major controversy and the Royal
College of Paediatrics has expressed considerable reservations about its use as any kind of diagnostic tool. It may be explained
by various medical conditions, or it may simply be a natural anatomical variation. The doctor accepted the Royal College
has commented on the lack of good quality comparative studies to assist.
13. As a result of what X said to Dr Hodes the decision was taken to carry out an ABE interview. Before admitting the evidence
the judge examined X's competence as a witness. He studied the ABE interview itself. He heard evidence from experts on
both sides who proffered their opinions about X's competence. Dr Weir, called on behalf of the appellant, questioned the
extent to which X had the ability to understand questions and whether she would become confused. He criticised the way in
which the ABE interview was conducted, arguing that the officers were guilty of putting leading questions to X. He expressed
considerable doubt as to the value of her evidence given “her age at the time of the alleged offence, her apparent developmental
difficulties, the passage of time before the ABE interview, her exposure to multiple and possible flawed interviews and the

R. v Barker, 2010 WL 19952 (2010)
further passage of time”. However he accepted that she appeared to understand the questions put to her in the ABE interview
and could provide answers to questions that could be understood, provided the questions were put in simple language. On
this evidence, X passed the competency test. Dr Baker, called on behalf of the Crown, acknowledged the considerations
which led Dr Weir to form his opinion, including the child's very young age and immaturity of speech, but he nevertheless
concluded that X had the capacity to give “cogent” evidence of her “own remembered experience”. He saw no reason to
doubt her veracity. Mr Richmond on behalf of the appellant, accepted that it was open to the judge to find on the basis of
this evidence and his own consideration of the ABE interview that X was competent to give evidence. We ourselves have
studied the ABE interview. We should immediately record not only that it was open to the judge to find that X was competent
as a witness, but that he was right to do so.
14. X's evidence-in-chief was the video recording of that interview conducted on 8th April 2008 by DS Bridger, known to X
as Curly Kate or Kate, and DC Wright, known to her as Tony. A social worker, was present throughout. The first half of the
interview was conducted by DS Bridger and was focussed on the present allegation. DC Wright participated in the interview
at a later stage, and investigated whether the child could throw any light on the circumstances in which Baby P came to
sustain his injuries. A few days before the trial X viewed the ABE interview. This process itself was video recorded and the
recording was disclosed to the parties. She watched it intently and silently. No point was taken on behalf of the appellant.
Immediately before the trial she was given the opportunity to watch the video recording in the presence of her Guardian
ad Litem and the court trained usher. This became her evidence in chief. She was then cross-examined and re-examined by
video link. As already indicated, we have watched the video ourselves and we also have the benefit of a full transcript of
cross examination and re-examination.
15. It was not in dispute that the child's account described an incident of anal penetration, sufficient to found the allegation
against the appellant. The relevant passages from the video recording include:
“Q…what did you tell the doctor about your bottom, can you remember?
A. B got hurt me.
Q. B hurt your bottom and how did he hurt your bottom?
A. Cos he gave me his willy.
Q. Say that again.
A. He gave me his willy.
Q. He gave you his willy and what did he do with his willy?
A. He got hurt me.
Q. How did he do it. Show me?
A. Well he put it in me.
Q. He put it in you whereabouts?
A. There.
Q. There, at the front, (X nods) OK and what did he do with his hands when he put his willy there?
A. He didn't …he didn't put his hand in there.

R. v Barker, 2010 WL 19952 (2010)
Q. What did he put there?
A. He just put his willy in there.”
The witness then described where this incident had happened and said that he did hurt her. It happened at night, and the light
was on. She was asked what she was doing when it happened.
“A. I was laying down.
Q. You was laying down, where were you laying down?
A. On mummy's pillow.
Q. Your head on mummy's pillow? So on mummy's bed and where was mummy?
A. Mummy was downstairs.
Q. She was downstairs.”
The interview then addressed clothes worn by the appellant and the witness said that he “put his willy out” of his clothes.
She was then asked.
“Q. And did he say anything when he hurt your willy…when he hurt your bottom, sorry?
A. Hurt my bottom.
Q. Did he hurt your bottom and how did it, and what did you do when it hurt? What did you say?
A. Don't do it.
Q. Don't do it?
A. And my mum.
Q. And who did you tell B had hurt your bottom?
A. My mum.
Q. And what did she say again?
A. (The answer is inaudible to start with and then continues) and hided behind my mum and my
mum goes, B don't do it.
Q. Don't do it, alright. OK, and who else have you told about B hurting your bum?
A. Social workers.
Q. Hmm

R. v Barker, 2010 WL 19952 (2010)
A. E and social workers.
Q. Oh E and the social workers, OK that's a good girl because we are all here to help you aren't we?
A. And her Sarah.
Q. Sarah, that's right.
A. And I talked to Sarah.”
The child was referring to Sarah Skipper who was the social worker present during this interview.
16. DC Wright continued the interview and eventually returned to the current allegation.
“Q…I think Kate said this but I want you to show me how you were when B hurt you. Show me
what position you was in, do you know what I mean?
A. We was lying down.
Q. You was lying down or he was?
A. He was and I was.
Q. You were both lying down yeh and how was you…show you how you was lying down. Can you
show me on the floor, its clean.”
The child then gave a demonstration, lying down on her front. The question continued:
“You was like that, so you was lying on your front. Would that be right? On your front, yes OK.
And how was B lying?
A. Not very well.
Q. Not very…do you remember what position you were lying? Do you remember? Can you show
me?
A. He was lying down like that too.”
The child demonstrated.
“Q. He was like that as well? He was like that, the same as you?
Q. So you were both lying on your tummy?

R. v Barker, 2010 WL 19952 (2010)
Q. OK
A. Like penguins
Q. Like penguins do?
Q. And was B's …did you see B's hands? Where were his hands?
A. They were there (demonstrating that the appellant was holding himself up with his hands.)”
D.C. Wright briefly left the room, and on his return he asked “…you was on your belly, B you said was on his front, and his
belly yeh and was he behind you over the top of you …”
“A. Over the top of me.
Q. Over the top of you? Right so if you looked up you would see B, would that be right, OK and
when you said it hurt, whereabouts did it hurt?
A. There.
Q. There, OK or was it more round the back?
A. Round the back.
Q. …and what happened after it hurt, tell me exactly what happened after it hurt.
A. My mum come up.
Q. Mummy came up yeh, and what did B do when mummy came in?
A. My mum said, don't do that. I hide (there was then something inaudible)' hind my mum.”
The interview then drifted away from matters of importance to an end.
17. In cross-examination X was asked by Mr Richmond about the difference between the truth and a lie. She was asked what
happens when you tell fibs. She answered: “You're lying”. The questions continued in the following vein:
“Q. Can you give me an idea of a fib? Tell me a fib. Can you think of a fib?
A. (Witness shakes head)
Q. Let me think of an example. If I said my name was Curly Kate, would that be a fib?
A. (Witness nods)

R. v Barker, 2010 WL 19952 (2010)
Q. Why would that be a fib? Can you think?
A. (Witness shakes her head)
Q. What is my name? I told you didn't I? What is my name? Everyone forgets my name, don't worry.
It is Bernard. Do you remember?
A. (Witness nods)
Q. My name isn't Kate, is it?
Q. Let me think of another one. If I said it was Sunday today, would that be a fib?
A. (Witness nods)
Q Why? What is today?
A. Your name is Bernard.”
18. Pausing there, Mr Richmond suggested the child's response “your name is Bernard” indicates she was not following his
questioning. However, on one reading, once she had worked out what he meant, X provided the answer as to why it was a
fib for him to say his name was Curly Kate. Mr Richmond made a similar criticism of the next passage:
Q. Do you ever tell fibs?
Q. Never? Never, ever, ever?
Q. Everybody tells fibs, do they not? What about if you do not want to get into trouble?
A (Inaudible)
Q. Say that again
A. I don't say anything rude.
19. Mr Richmond claimed her answer “I don't say anything rude.” was a non sequitur and an indication of her inability to
follow and respond to his questioning. To our mind it shows the opposite. Mr Richmond asked 2 questions in one: “everyone
tells fibs don't they?” and “what about if you don't want to get into trouble?” X answered the second question: if she did not
want to get into trouble she didn't say anything rude. She was then asked about her sisters to which she responded by saying

R. v Barker, 2010 WL 19952 (2010)
her sister was rude in calling people “loser”. Mr Richmond reverted to the question of whether she told fibs. She shook her
head to indicate she did not. He asked her what happened if she told fibs and she replied, “You get told off”.
20. Mr Richmond then put his case to her that she was being truthful when she saw DS Bridger the first time and said nothing
had happened and that she later changed her account because one or both of her sisters put her up to it:
“Q. What about if you thought Y (her older sister) was going to get into trouble? Would you tell
a fib then to help her?
A ( Witness shakes her head)
Q What about to help Z (her younger sister)?
Q. Never? Do you remember Curly Kate asked you a question? When she saw you one time, she
asked you whether Stephen had ever touched you. Do you remember?
A. (Witness nods)
Q. You shook your head, didn't you? Do you remember? Do you remember that?
A. (Witness nods)
Q. She touched down here and said: “Did you ever get touched by Stephen there?” You shook your
head, didn't not? That is right, isn't it? Do you remember?
A. (Witness nods)
Q. You remember that happening, don't you? Yes or no?
A. (Witness nods)
Q. So you don't fibs and Curly Kate asked you—not in the tape—whether Stephen had ever touched
you and you said he didn't. Stephen never touched you with his willy did he? Did he, X?
Q. Was it something Y told you to say?
Q. Was it something Z told you to say?
Q. Was it something you made up?
A. I … (inaudible)

R. v Barker, 2010 WL 19952 (2010)
21. Later Mr Richmond repeated his question that Y had told her to say the applicant touched her and again she shook her
head. He asked her whose idea it was and she replied: “No-one's”. He asked her if she made it up herself and she shook her
head. After a break Mr Richmond again reverted to the question of truth and lies and asked her this question:
“Q. Do you remember when you said to me that you do not tell fibs? Is that true or a fib?”
A. Truth.”
22. He then asked her a series of questions on the subject of whether she had told Curly Kate the truth when she first saw
her. She responded by either nodding or shaking her head, for example she nodded to indicate she remembered Curly Kate
asking her if Stephen touched her:
“Q. You did this, didn't you. You shook your head. Do you remember?
A. (Witness nods)
Q. Curly Kate asked you either here down below. Do you remember?
A. (Witness nods)
Q. You shook your head. Do you remember?
A. (Witness nods)
Q. She touched your bottom, didn't she and asked if Stephen had touched you there. Do you
remember?
A. (Witness nods)
Q. You shook your head didn't you….
23. A short break was then necessary because the child was tiring. After the break, Mr Richmond asked X what she meant
when she shook her head and she said: “No”. Again, he asked her if she remembered telling Curly Kate Stephen didn't touch
her. She nodded. Mr Richmond asked her: “you were not fibbing to Curly Kate, were you?” She shook her head.
24. X was cross-examined by leading counsel on behalf of her mother. The questions were short and simple. It is effectively
conceded on behalf of the appellant that they demonstrated that she clearly understood what she was being asked and was
well able to answer the questions.

R. v Barker, 2010 WL 19952 (2010)
25. In re-examination X said she remembered the video interview and that the applicant had done something to her, but
when she was asked twice what he had done she did not answer. Referring to the ABE interview she said she had told Curly
Kate and Tony the truth.
26. At the conclusion of X's evidence, the judge was invited to re-visit the competency issue, and alternatively, to exclude
X's ABE interview under section 78 of the Police and Criminal Evidence Act 1984 . He closely examined the factual
background in the light of then recent authorities on the issue. He concluded that “when simple questions were asked, the
defence were able to put their cases sufficiently to ensure that the defendants have a fair trial. Inconsistencies…or matters
of credibility and reliability and not competence…the interpretation of those silences… goes to credibility and reliability
and not competence. The jury observed X with care throughout and are capable, properly directed, of coming to their own
conclusions…It may indeed be that this case concerns a child at the edge of competency but, in my judgment, having seen
and heard her, although inevitably her intelligibility and, therefore, her ability to be understood were at times difficult, X
did pass the test of understanding and intelligibility sufficiently for me to say that she is and was a competent witness”. In
relation to the submission under section 78 , which was based on the difficulties said to be experienced by X in answering
questions in cross-examination, the judge did not rehearse what he had already said, but effectively for the same reasons
he rejected the submissions. Later, consistently with this approach, he also rejected a submission that there was no case for
the appellant to answer.
27. The appellant did not give evidence and relied upon the account given during his police interview when he denied
touching X inappropriately. He was unable to think of any reason why she should make up the allegation. An appropriate
direction was given to the jury about the potential significance of the defendant's decision not to give evidence
28. Mr Richmond submitted to the jury that they could not safely rely upon the evidence of the complainant because it was
inconsistent and contradictory. Dr Hodes' evidence was less than compelling: it certainly did not prove that the child had
been anally raped. Criticisms were made of the ABE interview and of the lack of investigation of and explanation for the
inconsistencies in the complainant's accounts. The jury were reminded of the complainant's evidence that she “hated” the
complainant. It was submitted that the complainant had fabricated the allegations and that she may have been influenced by
her sisters or she may have been seeking attention.
29. In the course of the summing up the jury was given detailed and fair directions about the way in which they should
approach X's evidence. The judge began by reminding the jury that the procedure adopted in her case was not “intended to
pre-judge the evidence” that she would give, and went on to remind the jury that the question whether she was “reliable,
credible and truthful” had to be decided in exactly the same way as it would with any other witness. The jury was to judge
“her accuracy, reliability and credibility, both in the interview and at court” and he advised them to take 5 specific matters
which were said to undermine confidence in X's credibility into account. In very brief summary (the judge dealt with them
in much more detail) they were: the child's age at the time of the alleged offence, the date of the interview, and her age when
she gave evidence; the various gaps in time which might effect her memory; the sequence of events which culminated in her
evidence at trial; the need for the jury to make their assessment of whether she was able to understand and be intelligible
both in her video interview and her evidence; the way she gave evidence, and in particular whether her evidence about what
the appellant had done was spontaneous or simply responding to questions which suggested the answers, and whether she
agreed with everything suggested to her, or whether she was prepared to “stick to her guns and disagree” when she thought
the question was wrong. Finally, he asked the jury to consider the way in which X had given evidence, making appropriate
allowances for her age. One short extract from this part of the summing up will illustrate the fairness with which the issues
were put to the jury.
“The interpretation of those silences has been placed in question. Was it or may it have been a silence
because she was being stubborn, because she was simply refusing to answer, or because she knew
what had happened but could not bring herself to repeat before others something which upset her?

R. v Barker, 2010 WL 19952 (2010)
Was she silent because she had no answer to the question, having been caught out in a fib, or was
it or may it have been because she did not understand? Was it or may it have been because the
language concepts failed her? Those are matters for your consideration and on which you should
come to your own conclusions without speculating.”
30. The judge then continued the summing up by reminding the jury of the criticisms directed by the defence at the way in
which the ABE interview had been conducted.
31. At the end of the summing up the judge summarised the respective submissions made to the jury on behalf of
both defendants, and the prosecution. No criticism of the summing up is advanced. None could be: it was meticulous,
comprehensive and fair.
Prejudice
32. We can dispose swiftly of the second ground of appeal against conviction. A powerful surge of public revulsion against
those involved in the dreadful events which led to the death of Baby P led the judge, unusually, but in the interests of a fair
trial, to order that the appellant, and his co-accused should be tried using pseudonyms. Thus, to avoid the risk of prejudice,
neither would be linked with the Baby P case. All went well until the summing up when the judge was reading out part of a
document and inadvertently referred to the actual surname of the appellant's co-accused which had been redacted from the
document before the jury. This was immediately noticed by counsel. The choices facing the judge were to discharge the jury,
or to proceed with the trial, either by ignoring the mention altogether, or, after explaining to the jury that they must ignore
his mistake (with the inevitable consequence of highlighting it). This was essentially a case specific decision for the trial
judge vested with the responsibility of ensuring that his error did not unbalance the fairness of the trial to the prejudice of
the appellant and his co-accused. He decided that the best course was to leave the error unremarked. A specific direction
to the jury to ignore what he had said would serve only to draw attention to it. The slip had been minor. The situation was
not so grave as to require the discharge of the jury. We have found no basis for interfering with his decision. None has been
demonstrated. Without resiling from that conclusion our view is reinforced by the fact that notwithstanding the mention of
the name of the co-accused by the judge, she was acquitted by the jury.
Competency
33. We must analyse and address the essential point in the appeal, that is the principles which apply nowadays when young
children give evidence in criminal trials. Many accreted suspicions and misunderstandings about children, and their capacity
to understand the nature and purpose of an oath and to give truthful and accurate evidence at a trial have been swept away.
The former approach was typified by an observation in R v Wallwork [1958] 42 CAR 153 , when a little girl of 5 years had
been called as a witness, and Lord Goddard CJ observed:
“The court deprecates the calling of a child of this age as a witness…the jury could not attach any
value to the evidence of a child of five: it is ridiculous to suppose they could…”
That observation was re-emphasised as recently as October 1986 in R v Wright and Ormerod [1990] 90 CAR 91 , where it
was said, in reference to Wallwork:

R. v Barker, 2010 WL 19952 (2010)
“…the validity of, and good sense behind, that proposition has remained untrammelled in the
practice of the criminal court…”
34. Not very much later, in February 1990 in R v Z [1990] 2 WB 355 , Lord Lane CJ underlined that “…despite those
observations…it still remains a matter for the judge's discretion”. Perhaps with the then recent Report of the Advisory Group
on Video Evidence, chaired by Judge Pigot QC in mind, he drew attention to a changing attitude “to the acceptability of the
evidence of young children and of increasing belief that the testimony of young children, when all precautions have been
taken, may be just as reliable as that of their elders”. In this jurisdiction these observations represented a dramatic change
of approach.
35. This intimation of a changed approach to the evidence of children was consistent with long standing principles in Scotland.
As Spencer and Flin describe in their valuable and illuminating study, The Evidence of Children, The Law and the Psychology,
1993, (2nd Edition) things were different there. The testimony of children was not subject to any prescriptive arbitrary age
limit below which the child was deemed to be incompetent. As long ago as Treatise on the Law of Evidence in Scotland
(1864) at section 1679 W. G Dixon commented:
“An intelligent child is generally a good witness in matters within his comprehension. Being
accustomed to observe more than to reflect, he tells what he has seen or heard without
drawing inference or pre-conceived opinion…in cross-examination a young witness generally tells
ingenuously whether he has been tutored, and (if so) what he was desired to say.”
Indeed at much the same time when the observations in Wright and Ormerod were being made in England, a discussion paper
from the Scottish Law Commission in 1988, at para 2.3 included this comment:
“…nowadays many judges …assume that a child is prima facie a competent witness but may, upon
a preliminary conversation with the child, reach the conclusion that the child is either incapable of
giving intelligible evidence or is not yet able to understand the difference between right and wrong,
and so is unable to undertake to tell truth”.
36. The result of a complex legislative process is that the old misconceptions no longer apply and have no relevance in
England and Wales. The principles are encompassed in and governed by statute.
37. Section 53 of the Youth Justice and Criminal Evidence Act 1999 (the third legislative attempt to address these issues)
provides that:

R. v Barker, 2010 WL 19952 (2010)
“Competence of witnesses to give evidence.
(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give
evidence.
(2) Subsection (1) has effect subject to subsection (3) and (4).
(3) A person is not competent to give evidence in criminal proceedings if it appears to the court
that he is not a person who is able to –
(a) Understand questions put to him as a witness and
(b) Give answers to them which can be understood.
(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings
for the prosecution (whether he is the only person, or is one of two or more persons, charged in
the proceedings).
(5) In sub-section (4) the reference to a person charged in criminal proceedings does not include a
person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether
as a result of pleading guilty or for any other reason).
38. These statutory provisions are not limited to the evidence of children. They apply to individuals of unsound mind. They
apply to the infirm. The question in each case is whether the individual witness, or, as in this case, the individual child, is
competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions
or preconceptions. The witness need not understand the special importance that the truth should be told in court, and the
witness need not understand every single question or give a readily understood answer to every question. Many competent
adult witnesses would fail such a competency test. Dealing with it broadly and fairly, provided the witness can understand the
questions put to him and can also provide understandable answers, he or she is competent. If the witness cannot understand
the questions or his answers to questions which he understands cannot themselves be understood he is not. The questions
come, of course, from both sides. If the child is called as a witness by the prosecution he or she must have the ability to
understand the questions put to him by the defence as well as the prosecution and to provide answers to them which are
understandable. The provisions of the statute are clear and unequivocal, and do not require reinterpretation. ( R v MacPherson
[2006] 1 CAR 30 : R v Powell [2006] 1 CAR 31 : R v M [2008] EWCA Crim 2751 and R v Malicki [2009] EWCA Crim 365 .)
39. We should perhaps add that although the distinction is a fine one, whenever the competency question is addressed, what is
required is not the exercise of a discretion but the making of a judgment, that is whether the witness fulfils the statutory criteria.
In short, it is not open to the judge to create or impose some additional but non-statutory criteria based on the approach of
earlier generations to the evidence of small children. In particular, although the chronological age of the child will inevitably
help to inform the judicial decision about competency, in the end the decision is a decision about the individual child and his
or her competence to give evidence in the particular trial.
40. We emphasise that in our collective experience the age of a witness is not determinative on his or her ability to give
truthful and accurate evidence. Like adults some children will provide truthful and accurate testimony, and some will not.
However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will,
in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are

R. v Barker, 2010 WL 19952 (2010)
children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of
the special measures which apply to the evidence of children carry with them the implicit stigma that children should be
deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which
is reliable and that which is not, whether it comes from an adult or a child. If competent, as defined by the statutory criteria, in
the context of credibility in the forensic process, the child witness starts off on the basis of equality with every other witness.
In trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic
which may bear on the issue of credibility, along with the rest of the available evidence.
41. The judge determines the competency question, by distinguishing carefully between the issues of competence and
credibility. At the stage when the competency question is determined the judge is not deciding whether a witness is or will be
telling the truth and giving accurate evidence. Provided the witness is competent, the weight to be attached to the evidence
is for the jury.
42. The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has
increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example,
the now well understood and valuable use of intermediaries. In short, the competency test is not failed because the forensic
techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in
relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she
is capable. At the same time the right of the defendant to a fair trial must be undiminished. When the issue is whether the child
is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic
for the advocate to formulate short, simple questions which put the essential elements of the defendant's case to the witness,
and fully to ventilate before the jury the areas of evidence which bear on the child's credibility. Aspects of evidence which
undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury, but it is not necessarily
appropriate for them to form the subject matter of detailed cross-examination of the child and the advocate may have to
forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which will
be before the jury in any event from different sources. Notwithstanding some of the difficulties, when all is said and done, the
witness whose cross-examination is in contemplation is a child, sometimes very young, and it should not take very lengthy
cross-examination to demonstrate, when it is the case, that the child may indeed be fabricating, or fantasising, or imagining,
or reciting a well rehearsed untruthful script, learned by rote, or simply just suggestible, or contaminated by or in collusion
with others to make false allegations, or making assertions in language which is beyond his or her level of comprehension,
and therefore likely to be derived from another source. Comment on the evidence, including comment on evidence which
may bear adversely on the credibility of the child, should be addressed after the child has finished giving evidence.
43. The competency test may be re-analysed at the end of the child's evidence. This extra statutory jurisdiction is a judicial
creation, clearly established in a number of decisions of this court ( R v MacPherson : R v Powell : R v M : R v Malicki ; see
to the contrary effect DPP v R [2007] EWHC 1842 (Admin)), where it was emphasised that an asserted loss of memory by a
witness does not necessarily justify the conclusion that the appropriate level of understanding is absent.) If we were inclined
to do so, and we are not, it would be too late to question this jurisdiction. This second test should be viewed as an element in
the defendant's entitlement to a fair trial, at which he must be, and must have been, provided with a reasonable opportunity
to challenge the allegations against him, a valuable adjunct to the process, just because it provides an additional safeguard
for the defendant. If the child witness has been unable to provide intelligible answers to questions in cross-examination (as
in Powell) or a meaningful cross-examination was impossible (as in Malicki) the first competency decision will not have
produced a fair trial, and in that event, the evidence admitted on the basis of a competency decision which turned out to be
wrong could reasonably be excluded under section 78 of the 1984 Act. The second test should be seen in that context, but,
and it is an important but, the judge is not addressing credibility questions at that stage of the process any more than he was
when conducting the first competency test.
44. Mr Richmond submitted that a close analysis of X's evidence reveals that attempts to examine her were futile and that
he was unable effectively to challenge her account and to put the appellant's case to her. There was no other evidence of
guilt, and without the evidence of the complainant, there could have been no conviction. The argument was developed on

R. v Barker, 2010 WL 19952 (2010)
the basis that it was not practicable for Mr Richmond to put the full details of his case to the witness. As he could not do
that, the end result was an unfair trial.
45. We are very conscious of the extreme youth of the child, and that the ABE interview took place long after the alleged
indecency occurred. The first question for decision is whether the judge was wrong when he concluded that the child's
competence had been established not only before she gave evidence but after its conclusion. We have the advantage of the
ABE interview of the child, which we studied closely. As we have recorded, we ourselves are satisfied that both the child's
answers and her behaviour during the interview demonstrated her competence to give evidence. We did not observe the
child being cross-examined: the judge did. We have studied the transcript of her evidence, and taken note and commented
on specific features of it which concerned Mr Richmond. We note that she gave clear answers although, from time to time,
she responded by nodding her head or shaking it. That is what she had done during the ABE interview. No one entertained
the slightest doubt that a nod meant “yes”, and a shake of a head meant “no”. Neither indicated uncertainty nor lack of
comprehension by her of the question or her intended response, or left any doubt about her meaning. Having reflected on
these submissions, and considering the matter with anxious care, there is in our judgment no basis which would justify this
court interfering with the judge's conclusion that the competency of the child as a witness was established, and remained
established after her evidence had concluded.
46. We are unable to accept that Mr Richmond could not put his case to X. Indeed as the transcript demonstrates, he did.
His case was that the child was not telling the truth, and that she was advancing fabricated allegations against the appellant
because of the influence and pressure exerted on her by her older sisters to improve the position of her mother at the expense
of the appellant. He also asked questions with a view to demonstrating that the child's responses to the first interview with
the police officer, when she did not formulate a complaint of sexual misbehaviour against the appellant, represented the truth.
Her answers were that she was telling the truth about what had happened to her and that she was not acting on her sister's
instructions or at her behest to fabricate a false story. Indeed given the extreme youth of the child, it seems plain that if she
had been advancing a story manufactured for her by her older sisters, a very short cross-examination would have revealed,
“ingenuously”, as W.G. Dixon had observed in 1864, that the child had been tutored, and what she was “desired to say”.
47. Mr Richmond's fallback position was developed in the context of delay. He suggested that although an abuse of process
submission on this ground had failed, and the argument on appeal is not focussed on abuse of process as such, Mr Richmond
identified two earlier decisions of the court, R v Powell and R v Malicki in support of his contention that the conviction
should, in any event, be quashed on the basis of delay.
48. In Powell, after considering a video recording of the child's evidence, as well as evidence of the officer responsible for the
interview and expert evidence, the judge decided that a girl of 3½ years satisfied the competence test. This court concluded
that her decision was justified, but went on to examine whether the competency decision should have been revisited in the
light of the cross-examination of the complainant, which, taking it briefly, provided serious grounds for doubting whether
she was “simply not intelligible in the context of the case”. The court suggested that the competency issue should have been
revisited, and that if it had been, the competency of the witness would not have been established. Accordingly the case should
have been stopped. The court expressed concerns about the delay which had overtaken the preparation of the child's video
evidence. Expert evidence in that case suggested that very young children did not have “the ability to lay down memory in
a manner comparable to adults”. However the conviction was not quashed on this ground, the court simply observing that
“looking at this case with hindsight, it was completely unacceptable that the appellant should have been tried for an offence
proof of which relied on the evidence of a 3½ year old when the trial did not take place until over 9 months had passed from
the date of the alleged offence”.
49. In R v Malicki the complainant was 4 years 8 months at the date of the alleged indecent assault. The video interviews
suggested she was competent. After cross-examination the question of her competence was re-visited. In cross examination
the complainant had asserted a recollection of the incident, but it was “impossible to discern whether she was actually

R. v Barker, 2010 WL 19952 (2010)
remembering the incident herself or simply recalling her video, which she had just seen twice: once on the Friday before
the Monday of the trial, and once at the trial before she was cross-examined”. It was suggested that the problem of cross-
examining the child arose from the fact that it was not possible to ask whether “her being licked was a recollection of a
question put to her by the police officer on the video rather than a direct recollection of the event itself”. The court identified
two problems arising from the delay, first that a child that young would not have any accurate recollection of events which
took place 14 months earlier, and second, what was described as an “even greater risk” that she might merely be recollecting
what was said on the video and incapable of distinguishing between what was said on the video and he underlying events
themselves. These considerations led the court to conclude that the evidence should have been excluded under section 78 of
the 1984 Act and “stopped because of the lapse of time”.
50. Both Powell and Malicki underlined the importance to the trial and investigative process of keeping any delay in a
case involving a child complainant to an irreducible minimum. Unsurprisingly, we agree, although we draw attention to
the circumstances which did not appear to arise in either Powell or Malicki , that the complaint itself, for a variety of
understandable reasons, in the case of a child or other vulnerable witness may itself be delayed pending “removal” to a safe
environment. The trial of this particular issue was delayed because of the trial arising from the death of Baby P. With hindsight
it can now be suggested that perhaps the better course, given the age of X, would have been to try her allegation first. Be that
as it may, in our judgment the decisions in Powell and Malicki should not be understood to establish as a matter of principle
is that where the complainant is a young child, delay which does not constitute an abuse of process within well understood
principles, can give rise to some special form of defence, or that, if it does not, a submission based on “unfairness” within
the ambit of section 78 of the 1984 Act is bound to succeed, or that there is some kind of unspecified limitation period.
There will naturally and inevitably be case specific occasions when undue delay may render a trial unfair, and may lead
to the exclusion of the evidence of the child on competency grounds. Powell , for example, was a case in which after the
evidence was concluded it was clear that the child did not satisfy the competency test, and if the child in Malicki was indeed
“incapable of distinguishing between what she had said on the video and the underlying events themselves” it is at least
doubtful that the competency requirement was satisfied. However, in cases involving very young children delay on its own
does not automatically require the court to prevent or stop the evidence of the child from being considered by the jury. That
would represent a significant and unjustified gloss on the statute. In the present case, of course, we have reflected, as no doubt
the jury did, on the fact of delay, and the relevant timetable. Making all allowances for these considerations, we are satisfied,
as the judge was, that this particular child continued to satisfy the competency requirement.
51. There remains the broad question whether the conviction which is effectively dependent upon the truthfulness and
accuracy of this young child is safe. In reality what we are being asked to consider is an underlying submission that no such
conviction can ever be safe. The short answer is that it is open to a properly directed jury, unequivocally directed about the
dangers and difficulties of doing so, to reach a safe conclusion on the basis of the evidence of a single competent witness,
whatever his or her age, and whatever his or her disability. The ultimate verdict is the responsibility of the jury.
52. We have examined the evidence and asked ourselves whether there is any basis for interfering with the jury's verdict.
Despite justified concerns about some aspects of the way in which it was conducted, the ABE interview shows an utterly
guileless child, too naive and innocent for any deficiencies in her evidence to remain undiscovered, speaking in matter of fact
terms. She was indeed a compelling as well as a competent witness. On all the evidence, this jury was entitled to conclude
that the allegation was proved. Unless we simply resuscitate the tired and outdated misconceptions about the evidence of
children, there is no justifiable basis for interfering with the verdict.
53. Accordingly, the appeal against conviction is dismissed.
Sentence

R. v Barker, 2010 WL 19952 (2010)
54. The appellant was born on 5 June 1976 (33 years old) and had no previous convictions or cautions. He is a man of limited
intelligence who claims to have been the victim of sexual abuse as a child. He suffers from depression. When interviewed by
the author of a pre sentence report he maintained that the allegations were untrue. Given his denials, the writer was unable to
offer any real insight into his offending behaviour and suggested that a psychological assessment should be carried out. The
probation officer assessed the applicant as posing a low risk of re-offending against an adult, but a significant risk of causing
serious harm to children by the commission of further specified offences, as defined by the Criminal Justice Act 2003 . A
psychiatrist found no evidence of mental illness.
55. The judge rightly bore in mind that the appellant had been convicted of two different offences in relation to two
children under the age of three within the same family. X had suffered anal rape, an abhorrent office. Baby P died in horrific
circumstances set out in the judgment of this court differently constituted in R v Owen [2009] EWCA Crim 2259 . He suffered
a catalogue of abuse and injuries of increasing severity culminating in his death aged just 17 months. Hughes LJ, Vice
President of the Court of Appeal Criminal Division, giving the judgment of the court in Owen summarised what happened
to him in this way at para 7.
“From October 2006 to July 2007 he presented from time to time at the doctor's surgery or at hospital
with bruising to various parts of his body: his buttocks, his head, his back and his legs; damage to
his fingers with missing nails; lesions and scabs to the top of his head and a missing toenail. After
he died it was found he had significant recent non-accidental injuries which caused or contributed
to his death. There were fractures to his ribs inflicted probably between seven to ten days and two
weeks before death, a broken spinal cord inflicted at most three or four days before death and at
some time on the day before he died the forceful knocking into his mouth of a tooth which he ended
up ingesting.”
The appellant was one of the adults who caused or allowed this to happen. He was the only adult who interfered sexually
with X. Both Baby P and X were exceptionally vulnerable by reason of their ages, and the appellant's activity represented a
gross breach of trust. The judge took the view that the offences were very grave and the level of culpability particularly high.
56. Nevertheless, Mr Richmond argued that the sentence was manifestly excessive and or wrong in principle. He criticised
the judge for, as he would have it, failing to identify why he had decided to sentence outside the Sentencing Guidelines
Council Definitive Guideline. Mr Richmond conceded the offence of anal rape was committed in breach of trust and on a
very young child. However, the appellant stood to be sentenced for one offence of offence of “non violent” anal rape. There
was no evidence of ejaculation or lasting injury. Even if the offence was committed on a child as young as X and aggravated
by the applicant's involvement in Baby P's death, Mr Richmond maintained a life sentence with a minimum term of 20 years
was excessive.
57. We disagree. The flaw in Mr Richmond's argument is that the judge stated in terms the minimum term was intended to
reflect the seriousness not simply of the anal rape “aggravated by Baby P's death” but the totality of the appellant's crimes.
The questions for this court, therefore, are whether a life sentence was justified and the minimum term excessive for these
associated offences of causing or allowing the death of Baby P and the anal rape of X. Both P and X were very young children
and both entrusted to the care of the appellant. One died aged 17 months of appalling injuries and the other suffered an anal
rape when she was under 3 years old. The trial judge was satisfied, on the evidence before him, that the appellant played a
major role in the events of December 2006 to August 2007 which led to P's death. At about the same time as he was causing
or allowing one toddler to be physically abused he abused another sexually.

R. v Barker, 2010 WL 19952 (2010)
58. All the reports upon the appellant indicate he is a danger to young children. We agree with the judge that his culpability
was high and the offences particularly grave. These crimes were simultaneously incomprehensible and truly appalling.
The sentence of life imprisonment was merited, and further, given the gravity of the two offences, for which consecutive
determinate sentences could with every justification have been passed, the minimum term was neither excessive nor wrong
in principle. The appeal against sentence is dismissed.
Crown copyright

Tab 4
34
9
R v Denham and another
Overview | [2016] EWCA Crim 1048, | [2017] 1 Cr App Rep 64, | [2016] All ER (D) 79 (Aug)
Court of Appeal, Criminal Division

Simon LJ, Hickinbottom J and Judge Zeidman QC
28 July 2016
Judgment
Mr Robin Shellard for Denham
Mr Derek Perry for Stansfield
Mr Robert Davies for the Prosecution
Hearing date: 28 June 2016
---------------------
Approved Judgment
Lord Justice Simon:

1. On 27 February 2015 at Bristol Crown Court, the appellants Denham and Stansfield each pleaded guilty to a
number of sexual offences.
2. On 22 April 2015, following a trial before HHJ Lambert and a jury, Denham was convicted of Conspiracy to
Sexually Assault a Child under 13. This was a conviction on count 1A, which was an alternative to count 1 on
the trial indictment: Conspiracy to Rape a Child. On the same occasion Stansfield was convicted of two counts
of Conspiracy to Rape a Child (counts 2 and 4).
3. Denham's and Stansfield's applications for leave to appeal against conviction and for a representation order
have been referred to the full court by the Single Judge; and Denham's application for leave to appeal against
sentence has been referred to the full court by the Registrar.
4. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence.
35
5. We grant leave to appeal against conviction and consider the application for leave to appeal against
sentence later in this judgment.
6. There were a number of co-accused, but at this stage it is only necessary to refer some of these defendants
and the charges to which they pleaded guilty. We do so by reference to the trial indictment.
7. Robin Hollyson pleaded guilty to three charges of Conspiracy to Rape a Child (counts 1, 2 and 4), and
Christopher Knight pleaded guilty to two charges of Conspiracy to Rape a Child (counts 1 and 2). Two other
defendants also figure in the narrative: Matthew Lisk and David Harsley.
8. The charges reflected offending by a number of men who had an interest in the sexual abuse of young
children.
9. A baby boy (T) was one of the victims of this abuse. T lived with his parents in Luton, in a house next door to
Hollyson. His parents were friends of Hollyson; and they had made him a godparent of T. Although they knew
that Hollyson been to prison, he had not told them that this was in connection with downloading images of
children. They trusted him and were happy for him to babysit T when the need arose.
10. Between December 2013 and January 2014, Hollyson raped T for the first time by inserting his penis into
the child's mouth, at a time when he had been trusted to look after him. He filmed the rape, broadcast it and
sent it to others. He pleaded guilty to the offence of Rape, and the taking and distributing of a video showing the
commission of the offence. The film was recovered from Denham's computer.
11. Count 1/1A of the trial indictment related to a plan by Hollyson to invite others to go to Luton on another
occasion when he would have sole charge of T, during which T would be sexually abused. This was due to take
place on 17 January; and the Prosecution case was that the plan only failed because Hollyson was
unexpectedly detained in Hospital on 17 January, having been admitted on the previous day for a prearranged
operation. But for this fact, and the fact that T's father had unexpectedly returned home on 15 January, the
abuse would have taken place. The Prosecution produced records of Skype and other chat logs which showed
graphic discussion about the anticipated abuse of T between the alleged conspirators, although no particular
time or place was mentioned. Although Knight and Denham had met in London on 17 January, they did not
communicate electronically between 7 January and 4 February. Denham never met T; and the Skype chat
between Denham and Hollyson contained regrets that they had not met on 17 January. Hollyson and Knight
both pleaded guilty to the count 1 conspiracy.
12. Following his arrest in September 2014, Denham was interviewed and asked about the electronic
communication. He explained that his internet name (which might be said to demonstrate an unequivocal
interest in abuse of very young children) was used to get attention from other online users. He said that he
fantasised about such abuse, but that his fantasies never extended to the 'real world.' Denham's defence at trial
was that the Skype chat was simply masturbatory fantasy. When discussing the abuse of infants and children
he became aroused and masturbated, along with others. However, he did not think that there was any real plan
to rape T, whom he had never met, never seen and did not know had been abused at this point.
13. The issue for the Jury on counts 1 and 1A, was whether Denham joined in the agreement to rape or abuse
T and 'got cold feet' (as the prosecution alleged), or whether (as the defence alleged) he had never been party
to the conspiracy to abuse T, and had simply engaged in fantasy chat.
36
14. Count 2 charged Stansfield of a conspiracy between 1 and 6 February 2014 with others, including Hollyson
and Knight, to rape T. As we have noted, Hollyson and Knight both pleaded guilty to this count.
15. The charge related to an incident that occurred on 5 February 2014. Recovered chat logs showed that a
few days before this date Hollyson communicated to Denham that he would have access to T on the morning of
5 February and that he could attend to abuse T with Knight. In fact, Denham was unable to get to Luton on 5
February. However, cell site and automatic number plate recognition (ANPR) evidence showed that Stansfield
left his home in Portsmouth at about 05.45 and travelled to Luton.
16. Stansfield explained that he had been invited to Luton at short notice by Knight; and that Knight had told
him that there would be a 'free area' where there would be 'a party'. His understanding was that indecent
images would be shown and shared, and masturbation would take place. He was given a postcode for his
satnav and was told that Knight would meet him, and that they would go on to the 'free area' together. The
evidence showed that as Stansfield was travelling to Luton from Portsmouth, Knight was travelling to Luton
from Manchester. Stansfield arrived at 07.45, but Knight was delayed and did not arrive until 09.30. In the
intervening 90 minute period there was frequent telephone contact between Knight and Stansfield, and
between Knight and Hollyson. Stansfield's case was that after arriving at the designated location in Luton, he
waited for Knight and that by the time he had arrived Knight had learnt that the 'host' no longer had a 'free
house'. He and Knight had then had coffee together and he had returned to Portsmouth.
17. In the months that followed it was accepted that T had been abused by Hollyson, Knight and others.
Although Stansfield's mobile phone never returned to Luton, the evidence showed that he had viewed online
images of T being abused.
18. Count 4 charged Stansfield between 1 July and 9 August 2014 of a further conspiracy with others,
including Hollyson, to rape T. Hollyson pleaded guilty to this offence.
19. The Prosecution case on count 4 was that the abuse of T took place on-line using 'Skype Chat' and the
TOR internet messaging service. Skype chat logs showed that Stansfield was in contact with Hollyson and, on
28 July, in a clear reference to T, asked whether there was 'any chance of seeing him soon.' Hollyson replied
that 8 August was a possibility. The conversation then turned to a discussion about the possibility of group
abuse on 8 August, with Stansfield suggesting that he might invite others and Hollyson encouraging him to do
so. The evidence showed that over the following 7 or 8 days, Stansfield was inviting a number of people to
Luton on 8 August, and it is accepted on Stansfield's behalf that the 'plan' was for T to be abused on that date.
Denham was one of those with whom Stansfield was in contact.
20. On the morning of 8 August, Stansfield sent a message to Hollyson telling him that his car had broken
down the previous evening, and that the AA had told him it could not be used for a long drive. This was untrue.
In fact, he was not even a member of the AA. There was an issue as to how this should be regarded by the
jury.
21. The Crown case was that there was a conspiracy from which Stansfield had withdrawn. Stansfield's case
was that he had never intended that T should be raped. His approach to Hollyson was to ingratiate himself and
his approach to others was not genuine. The defence case was that he obtained sexual gratification from the
fantasy of pretending to carry out abuse and from the fact that others thought he was genuine.
37
22. One of the issues which the Judge had to consider was whether the Prosecution should be allowed to rely
on the guilty pleas of Hollyson (to counts 1, 2 and 4) and of Knight (to counts 1 and 2); and his ruling that the
Prosecution was so entitled gives rise to the first ground of appeal.
Ground 1 (Denham and Stansfield)
23. The Prosecution relied on the provisions of s.74 of the Police and Criminal Evidence Act 1984 ('PACE')
(1) In any proceedings the fact that a person other than the accused has been convicted of an offence by or
before any court in the United Kingdom … shall be admissible in evidence for the purpose of proving that that
person committed that offence, where evidence of his having done so is admissible, whether or not any other
evidence of his having committed that offence is given.
(2) In any proceedings in which by virtue of this section a person other than the accused is proved to have been
convicted of an offence by or before any court in the United Kingdom … he shall be taken to have committed
the offence unless the contrary is proved.
24. Section 78 of PACE provides for the exclusion of evidence where its admission would be unfair.
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely if it
appears to the court that, having regard to all the circumstances, including the circumstances in which the
evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it.
25. Mr Shellard and Mr Perry submitted to the trial judge that there was clear authority that s.74 of PACE
should be used sparingly, particularly in cases where a joint offence is being alleged, such as conspiracy. They
submitted that where the evidence which the Prosecution sought to be put before the Jury under s.74 by
necessary inference imported the complicity of a defendant who was standing trial, then the evidence should be
excluded under s.78. The judge rejected those submissions.
26. Mr Shellard argued that Denham had advanced a defence of fantasy, in circumstances where there was no
completed offence and where the evidence against him relied on conversations with those who had pleaded
guilty to the conspiracy. The jury had to consider a closely confined issue: whether Denham was part of this
conspiracy. The judge's ruling made a challenge to the existence of a conspiracy impossible, and not merely
difficult.
27. Mr Perry advanced a similar argument in relation to count 4 where likewise there was no completed
offence. He further argued that it was possible that the guilty pleas of Hollyson and Knight may have been
entered for tactical reasons, so as to avoid a trial in circumstances where convictions on these two particular
counts were unlikely to affect the overall sentence. He complained that the Prosecution did not call Hollyson
and Knight, and therefore Stansfield's defence had no opportunity to cross examine on these points.
28. On count 2 it was not possible to explore the possibility that the intention might have been to have abused
T, rather than to rape him. On count 4 it was not possible to explore the possibility that Hollyson did not in fact
take Stansfield seriously and that he (Hollyson) never intended rape or other abuse to take place on 8 August.
The issue in relation to count 4 was not merely whether Stansfield had joined the conspiracy with the necessary
intent. The 'plan', which at face value existed, was initiated by Stansfield; and it followed that it was not a case
38
in which the jury were considering whether he joined a concluded agreement. In these circumstances, there
was a realistic chance that the jury might conclude that Hollyson's plea connoted guilt on the part of Stansfield;
and insufficient regard to the subtle but significant point that if one party (even the instigator of a plan) lacks the
intent to execute the conspiracy he is not guilty.
29. These were points that were repeated on appeal in support of ground 1; but before considering them, it is
necessary to see how the trial judge dealt with them.
30. In a thorough and careful ruling, giving reasons for his earlier decision to admit the pleas of Hollyson and
Knight, the judge referred to a number of decisions which provided guidance on the interaction of sections 74
and 78 of PACE in conspiracy cases: Curry [1988] Crim L R 527; Kempster [1990] 90 Cr. App 14; Derek
Nathan Smith[2007] EWCA Crim 2105 and FBMK[2012] EWCA Crim 2438.
31. He accepted that s.74 should not be used to allow evidence to go before a jury which is irrelevant,
inadmissible, prejudicial or unfair simply because it was convenient for the jury 'to have the whole picture'. He
directed himself in accordance with the law as set out in Derek Nathan Smith at [20].
It remains a proper approach, we are satisfied, that where there was no real question that the offence was
committed by someone and the real issue was whether the present defendant was a party or not, the evidence
of pleas of guilty is likely to be perfectly fair, though each case depends on its own facts.
32. He also noted the court's qualification to that general proposition, namely:
However, it also remains true that such evidence may well be unfair if the issues are such that the evidence
closes off issues which the jury has to try.'
33. The judge adopted that approach at p.9D of his ruling.
If the admission of the guilty pleas of others effectively shuts down a defence, or a particular line of defence, or
makes it a practical impossibility to defend the case, then the pleas must not, of course, be admitted.
34. Having reviewed the authorities the judge concluded (at 10F):
Section 74 is to be approached with caution and it is not to be used as a matter of routine. It is not to be used
as a smuggling device to place evidence before the jury which it would be convenient for the jury to hear. The
paradigm notions to be applied will be those of relevance and then fairness.
35. We entirely agree with this approach.
36. He then went on to deal with the instant case (at 10G):
On the facts of the case, it seemed to me that there was no real question but that the offences were committed
by someone, and the real issue was whether the present defendants were party to the concluded agreements,
with the requisite intent, or not. I found, on the current facts, evidence of the pleas of guilty of others was likely
to be perfectly fair, though of course that could alter if the evidence at trial was at variance with that predicted
39
by the witness statements and exhibits, or if defences emerged divergent from those in the Defence Case
Statements.
I reminded myself from the authorities that it also remains true that such evidence may well be unfair, if the
issues are such that this evidence would close off the issues which the jury has to try. But it means just that, to
close off, not to make more difficult.
37. With proper, early directions in respect of the elements of conspiracy, combined with written direction the
judge was satisfied that it would be fair and proper to admit the evidence.
38. The essential questions raised by this ground of appeal are: first, whether the judge's approach was wrong
in law; and secondly, if not, whether his decision to admit the evidence was nevertheless a decision which can
be properly impugned on appeal?
39. On the first point we are clear that he correctly stated the law which should be applied. The evidence
should be excluded if its admission were unfair in the particular circumstances. The admission of prosecution
evidence will often raise difficulties for a defence; but it is unfairness to, and not difficulties for, the defence
which is the key.
40. On the second point, the decision whether to admit the evidence, although often described as the exercise
of discretion, might better be described as the exercise of a judgment in which a balance has to be struck on
the issue of fairness. We mention this because, if it were a pure matter of discretion the basis of challenge to a
judge's decision might be unduly confined. Ultimately the decision whether to admit evidence in these
circumstances is either right or wrong, although whether the conviction is safe is another matter. Nevertheless,
as the judge noted, correctly in our view, such decisions will necessarily be fact sensitive, and the judge will be
in a particularly good position to assess the issue of fairness in the context of the dynamics of the trial process.
41. In our view, the admission of the evidence of Hollyson's and Knight's pleas neither shut off the defences
which had been raised in the defence statements, nor close down the very issue the jury had to consider. It was
not the defence of either appellant that there were no conspiracies to abuse T, their cases were that they were
not a party to such conspiracies, either because they had not joined in the particular conspiracy, or because
they had a different intent as to what the plan was to achieve, or because the whole plan was, in their mind,
simply a masturbatory fantasy. In our view the challenge to the judge's decision to admit this evidence fails.
42. We would add that the jury's verdicts on counts 1 and 1A plainly shows that it was able to distinguish the
intent of Hollyson and Knight on the one hand, and the intent of Denham on the other.
Ground 2 (Stansfield)
43. At the conclusion of the Prosecution case Mr Perry submitted that there was no case to answer against
Stansfield in respect of Count 2. It was conceded that it was open to the jury to reject the appellant's evidence
that he went to Luton on the 5 February 2014 to masturbate and view indecent images, and that it could
conclude that he intended some form of abuse against T was to take place (and therefore that count 3,
conspiring to sexually assault a child under the age of 13, could be left to the jury). However, it was submitted
that the jury could not conclude that he necessarily intended that oral rape rather than other forms of abuse
would occur.
40
44. At Mr Perry's invitation, the judge considered the case of Goddard and Fallick[2012] EWCA Crim 1756, and
noted that the evidence against Stansfield on count 2 was limited. He regarded it as 'pivotal' to the question
whether or not there was a case to answer that there was 'backwards referable evidence of intent'. In his view,
the evidence of Stansfield's participation in Skype and other conversations on 4 and 5 August 2014 was
sufficient evidence on which a reasonable jury, properly directed, could find that there was a conspiracy to rape
T, rather than some other form of abuse on 5 February 2014. The judge added, 'It is only by reference to those
conversations that I consider that there would be sufficient evidence.'
45. In support of ground 2, Mr Perry submitted that the evidence of Stansfield's communications with various
known and unknown Skype and chat line users on 4 and 5 August was an insufficient basis for a jury forming a
view about his intent 6 months earlier. He submitted that, although these communications appeared to show an
intent to rape, they were at least as consistent with fantasy and a desire to obtain kudos among the online
community of paedophiles, where being regarded as 'genuine' was important and where sexual gratification
was derived from the thought of being taken seriously as a paedophile. He submitted that they were at least as
consistent with him being a boastful and lying fantasist. Furthermore, and quite apart from the genuineness or
otherwise of the communications on 4 and 5 August, none of them contained any detail which would enable the
reader to relate them to 5 February.
46. Mr Davies submitted that the prosecution had accepted that some of the communications of 4 and 5
August 2014 could have been fantasies, but the jury was entitled to consider this material and form its own view
about it, when considering what Stansfield had intended in February 2014 when he had driven from the south
coast to Luton at a time when he believed Hollyson had sole charge of T.
47. We accept Mr Davies's submission. We do not intend to set out in this judgment the nature of the
exchanges to which Stansfield was a party on 4 and 5 August 2014. It is sufficient to say that there were
communications by him which were, at the very least, consistent with an intent to rape T. Whether that intention
had changed since 5 February was, as the judge concluded, a matter for the jury to consider.
48. The court in Goddard and Fallick was faced with a different situation, described at [40]:
We have concluded that no reasonable jury, taking the prosecution evidence at its highest, could surely infer
that the defendants intended to carry out the agreement. The evidence is all equivocal; it is as consistent with
fantasy as with an intent to carry out the plan. It is particularly striking that these men never met at any stage,
either before or after the text exchange nor did they even suggest meeting to discuss the plan further. Nor is
there any evidence that they took any steps to advance the plan beyond suggesting. 'Friday night'. No place or
time or other practical details are identified. Nothing at all happened after the exchange of text messages. We
appreciate that their silence in interviews and failure to mention that this was all a fantasy can be taken into
account. But that is of very little weight given the other facts or rather lack of them.
49. Here there was the evidence which we have set out above and which was identified by Mr Davies, there
was discussion of time and place, with descriptions of practical details and there was the round trip to Luton
and back. In our view, it was plainly open to a jury to conclude from the totality of the prosecution evidence that
Stansfield had an intent which went significantly beyond the admitted masturbatory.
50. For these reasons we dismiss Stansfield's second ground of appeal; and both Denham and Stansfield's
appeal against conviction.
Application for leave to appeal against sentence (Denham)
41
51. On 27 February 2015 Denham had pleaded guilty to a number of offences: count 5 (Conspiracy to engage
in Sexual Activity in the presence of a Child), count 2 (Possession of Indecent Photographs), count 22 (Making
Indecent Images of a Child), count 23 (Distributing Indecent Images of a Child) and count 24 (Possession of
Extreme Pornography).
52. On 11 September 2015 he was sentenced for these offences as well as the offence of which he had been
convicted by the jury: count 1A (Conspiracy to Sexually Assault a Child).
53. The sentences which were passed were: on count 5, a 12 year extended sentence (comprising of a
determinate term of 8 years and an extended licence period of 4 years); on count 21, no separate penalty; on
count 22, 16 months imprisonment concurrent; on count 23 a 12 year extended sentence (comprising of a
determinate term of 8 years and an extended licence period of 4 years) concurrent; on count 24, 6 months
imprisonment concurrent and on count 1A, a 12 year extended sentence (comprising of a determinate term of 8
years and an extended licence period of 4 years). An overall sentence of 12 years, comprising a 8 year
custodial term and a 4 years period of extended licence.
54. On 5 November 2015 Denham's case was relisted before Judge Lambert pursuant to s.155 of the Power of
Criminal Courts (Sentencing) Act 2000. An error in the sentences on counts 5 and 23 was identified. The
sentence on each count had exceeded the maximum sentence for the offences. Accordingly, the judge varied
the sentences. Count 5 was varied to a term of 2 years imprisonment, concurrent, and the sentence on Count
23 was varied to 4 years imprisonment concurrent. The sentence for the offence of which he was convicted,
count 1A, was unaffected.
55. The grounds of appeal against sentence are confined. It is not argued that an overall sentence of 8 years
custodial term gives rise to properly arguable grounds of appeal. Nor is it argued that the decision to pass an
extended sentence gives rise to properly arguable grounds of appeal. Mr Shellard sought to argue that a
sentence of 8 years on count 1A was manifestly excessive and that the overall sentence for that sentence
should have been a term of 4 years. The sentence of 8 years should have been made up by passing sentences
of 4 years each on count 5 and 23 to be served concurrently with each other, but consecutively to the term
passed on count 1A. Such a course would have had a beneficial effect, so far as Denham is concerned, in
terms of his release date.
56. We are entirely unpersuaded by this argument which, incidentally, involves Mr Shellard arguing that the
sentence passed on his client in respect of count 5 should be doubled and submitting that the court should
approach sentencing on the basis of the most favourable release regime from the offenders point of view.
Looking at the overall sentence passed for this offending we are entirely unpersuaded that the extended
sentence of 12 years for the overall level of his offending is either wrong in principle or manifestly excessive.
57. Accordingly Denham's application for leave to appeal his sentence is refused.
End of Document
42
Tab 5
43
10
The Weekly Law Reports, July 10, 1981
1039
1 W.L.R.
A
[COURT OF APPEAL]
* REGINA v. GALBRAITH
1981 May 12; 19 Lord Lane C.J., Peter Pain and Stuart-Smith JJ.
B Crime-Practice-Submission of no case to answer-Evidence of

person charged committing crime alleged-Strength or weak-
ness of evidence depending on view taken of witnesses-
Whether for jury to determine
The applicant was charged with having fought and made an
affray. The prosecution evidence showed that there had been
an affray in a bar in which at least three men were stabbed,
C one fatally. There were passages in the evidence of two
witnesses which tended to show that the applicant had taken
an active part in the affray, although in a statement to the
police the applicant had maintained that at the time the affray
was in progress he had not been in the bar but downstairs in the
lavatory. At the close of the prosecution evidence a sub-
mission of no case to answer was rejected. The applicant, who
made a statement from the dock reiterating the self-exculpatory
D statement which he had made to the police, was convicted.
On an application for leave to appeal against conviction: -
Held, refusing the application, that when a submission of
no case was made the case was to be stopped when there was
no evidence that the person charged had committed the crime
alleged and was also to be stopped if the evidence was tenuous
and the judge concluded that the prosecution's evidence taken
at its highest was such that a properly directed jury could not
E properly convict on it ; but that, where the prosecution's evi-
dence was such that its strength or weakness depended on the
view to be taken of the reliability of a witness or other matters
which were, generally speaking, within the province of a jury
and one possible view of the facts was that there was evidence
on which they could properly conclude that the person charged
was guilty, the matter was to be tried by them ; that border-
line cases were in the judge's discretion ; and that, in the
F circumstances, the applicant's submission of no case to answer
was properly rejected.
Reg. v. Barker (Note) (1975) 65 Cr.App.R. 287, C.A.
approved.
Reg. v. Mansfield [1977} 1 W.L.R. 1102, C.A. explained.
The following cases are referred to in the judgment:

0 Reg. v. Barker (Note) (1975) 65 Cr.App.R. 287, C.A.
Reg. v. Mansfield [1977} 1 W.L.R. 1102; [1978] 1 All E.R. 134, C.A.
Reg. v. Tobin [1980] Crim.LR. 731.
The following additional cases were cited in argument:

Reg. v. Falconer-Atlee (1973) 58 Cr.App.R. 348, C.A.
Reg. v. Ripson [1969] Crim.LR. 85, C.A.
H
APPLICATION for leave to appeal against conviction.
On November 13, 1979, at the Central Criminal Court (Mars-Jones
J.) the applicant, George Charles Galbraith, was convicted on an indict-
ment charging that he fought and made an affray. He was sentenced to
four years' imprisonment. He applied for leave to appeal against con-
viction on the grounds that the judge wrongly rejected a submission at
the end of the prosecution's case that the case against him should be
44
1040
Reg. v. Galbraith (C.A.) [1981]
withdrawn from the jury and that the verdict was unsafe and unsatis- A
factory. An application for leave to appeal against sentence does not call
for report. At the conclusion of the argument Lord Lane C.J. announced
that the application for leave to appeal against conviction was refused
for reasons to be given at a later date.
The facts are stated in the judgment.
Robin Simpson Q.C. and Howard Godfrey for the applicant. B

Allan Green and Susan Edwards for the Crown.
Cur. adv. vult.
May 19. LoRD LANE C.J. read the following judgment of the court.
On November 13, 1979, at the Central Criminal Comi, the applicant C
was convicted by a majority verdict of affray and was sentenced to four
years' imprisonment. He now applies for leave to appeal against that
conviction, the application having been referred to this court by the
single judge..
The facts of the case were these. On November 20, 1978, at the
Ranelagh Yacht Club, Putney Bridge, in the early hours of the evening D
a fight broke out in the bar. There were a number of people present,
amongst them being Darke, Begbe, Bohm, Dennis and Bindon. Knives
were used. At least three men were stabbed, Darke fatally, Bindon
seriously, and Dennis less so. There was in these circumstances no doubt
that there had been an affray. The only question for the jury to decide
was whether it had been established with a sufficient degree of certainty
that the applicant had been unlawfully taking part in that affray. E
At the close of the prosecution evidence, a submission was made by
counsel for the applicant that there was no case for him to answer. The
judge rejected that submission. The principal ground of appeal to this
court is that he was wrong in so doing. There are other subsidiary
grounds of appeal which we shall have to examine in due course.
We are told that some doubt exists as to the proper approach to be p
adopted by the judge at the close of the prosecution case upon a sub-
mission of "no case": see Archbold, Criminal Pleading Evidence &
Practice, 40th ed. (1979), 6th Cumulative Supplement, para. 575 and
Reg. v. Tobin [1980] Crim.LR. 731.
There are two schools of thought: (1) that the judge should stop the
case if, in his view, it would be unsafe (alternatively unsafe or unsatis-
factory) for the jury to convict; (2) that he should do so only if there is 0
no evidence upon which a jury properly directed could properly convict.
Although in many cases the question is one of semantics, and though
in many cases each test would produce the same result, this is not
necessarily so. A balance has to be struck between on the one hand a
usurpation by the judge of the jury's functions and on the other the
danger of an unjust conviction. H
Before the Criminal Appeal Act 1966, the second test was that which
was applied. By section 4 (1) (a) of that Act however the Court of Appeal
was required to allow an appeal if they were of the opinion that the ver-
dict should be set aside on the grounds that " under all the circumstances
of the case it is unsafe or unsatisfactory." It seems that thereafter a
practice grew up of inviting the judge at the close of the prosecution
case to say that it would be unsafe (or sometimes unsafe or unsatisfac-
45
1041
1 W.L.R. Reg. v. Galbraith (C.A.)
A tory) to convict on the prosecution evidence and on that ground to with-
draw the case from the jury. Whether the change in the powers of the
Court of Appeal can logically be said to justify a change in the basis of
a " no case " submission, we beg leave to doubt. The fact that the Court
of Appeal have power to quash a conviction on these grounds is a slender
basis for giving the trial judge similar powers at the close of the prosecu-
tion case.
B There is however a more solid reason for doubting the wisdom of
this test. If a judge is obliged to consider whether a conviction would be
"unsafe" or "unsatisfactory," he can scarcely be blamed if he applies
his views as to the weight to be given to the prosecution evidence and as
to the truthfulness of their witnesses and so on. That is what Lord
Widgery C.J., in Reg. v. Barker (Note) (1975) 65 Cr.App.R. 287, 288, said
C was clearly not permissible :
" ... even if the judge "-our emphasis-" has taken the view that
the evidence could not support a conviction because of the incon-
sistencies, he should nevertheless have left the matter to the jury.
It cannot be too clearly stated that the judge's obligation to stop
the case is an obligation which is concerned primarily with those
D cases where the necessary minimum evidence to establish the facts of
the crime has not been called. It is not the judge's job to weigh the
evidence, decide who is telling the truth, and to stop the case merely
because he thinks the witness is lying. To do that is to usurp the
function of the jury , .. "
Although this was a case where no submission was in fact made, the
E principle is unaffected.
Some of the difficulties have arisen from the subsequent case of Reg.
v. Mansfield [1977] 1 W.L.R. 1102. Lawton L.J. said, at p. 1106:
"Unfortunately since this practice started ... "-sc. withdrawing a
case from the jury on the ground that a conviction on the evidence
would be unsafe.-" there has, it seems, been a tendency for some
judges to take the view that if they think that the main witnesses for the
F prosecution are not telling the truth then that by itself justifies them
in withdrawing the case from the jury. Lord Widgery C.J. in his
. judgment in Reg. v. Barker pointed out that this was wrong "
He then cited part of the passage we have already quoted. Lawton L.J.
then went on to say:
G " Mr. Cockburn intended to submit to the judge that some of the
evidence was so conflicting as to be unreliable and therefore if the jury
did rely upon it the verdict would be unsafe. In our judgment he was
entitled to make that submission to the judge and the judge was not
entitled to rule that he could not."
On one reading of that passage it might be said to be inconsistent both
H with Reg. v. Barker (Note) 65 Cr.App.R. 287 and with the earlier part of
the judgment itself. It is an illustration of the danger inherent in the use
of the word "unsafe"; by its very nature it invites the judge to evaluate
the weight and reliability of the evidence in the way which Reg. v. Barker
(Note) forbids and leads to the sort of confusion which now apparently
exists. "Unsafe," unless further defined, is capable of embracing either
of the two schools of thought and this we believe is the cause of much
of the difficulty which the judgment in Reg. v. Mansfield has apparently
46
1042
Reg. v. Galbraith (C.A.) [1981]
given. It may mean unsafe because there is insufficient evidence on which A
a jury could properly reach a verdict of guilty; it may on the other hand
mean unsafe because in the judge's view, for example, the main prosecu-
tion witness is not to be believed. If it is used in the latter sense as the
test, it is wrong. We have come to the conclusion that if and in so far
as the decision in Reg. v. Mansfield [1977] 1 W.L.R. 1102 is at variance
with that in Reg. v. Barker (Note) 65 Cr.App.R. 287 we must follow the B
latter.
How then should the judge approach a submission of "no case "?
(1) If there is no evidence that the crime alleged has been committed by
the defendant, there is no difficulty. The judge will of course stop the
case. (2) The difficulty arises where there is some evidence but it is of a
tenuous character, for example because o.f inherent weakness or vague-
ness or because it is inconsistent with other evidence. (a) Where the judge C
comes to the conclusion that the prosecution evidence, taken at its
highest, is such that a jury properly directed could not properly convict
upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or
weakness depends on the view to be taken of a witness's reliability, or
other matters which are generally speaking within the province of the D
jury and where on one possible view of the faots there is evidence upon
which a jury could properly come to the conclusion that the defendant is
guilty, then the judge should allow the matter to be tried by the jury. It
follows that we think the second of the two, schools of thought is to be
preferred.
There will of course, as always in this branch of the law, be borderline
cases. They can safely be left to the discretion of the judge. E
We turn now to the evidence in this case. It was admitted that the
applicant had gone to the club with Darke and Begbe and, using a false
name, had signed them in. They had later been joined by Bohm. It was
further not disputed that at the conclusion of the fighting the applicant
was in the bar and, much to his credit, was helping a dying Darke. He
did not go into the witness box, but the account of events which he gave F
in a self-exculpatory statement to the police, reiterated in a statement
from the dock, was that he had at the material time when the affray was
in progress not been in the bar at all but had been downstairs in .the
lavatory.
There were two principal pieces of evidence called by the prosecution
which tended to disprove that assertion and to show that he was in the
bar taking an active part in the affray. The first was a witness called John G
Gilette. He said that Darke had attacked Bindon and that at that time
there were three men with Darke. They all had knives. He then described
the three men. One description plainly referred to Begbe, another to Bohm
and the third was an accurate description of the applicant. These men
were described by Gilette as standing by the fight watching with knives
out in a threatening way. He had attended an identification parade on H
February 19, 1979. On that parade the applicant was standing. Gilette
however said he was not able to point out anyone on that parade whom
he recognised as having been in the club that night.
The second piece of evidence was from a witness called Cook. He was
the doorman of the club and was a very reluctant witness. Leave was
eventually given to treat him as hostile. Cook described how the applicant,
or a man who; from the description given by Cook, was plainly and
47
1043
1 W.L.R. Reg. v. Galbraith (C.A.)
A admittedly the applicant, had signed Darke and Begbe into the club at
about 4.15 p.m. At 6.15 p.m. he heard glass breaking and people shout-
ing in the bar, so he went upstairs. When he got there Dennis had told
him that he had been stabbed and pointed to a group of people standing
by the juke box. This group was described by Cook as being "John
Darke's party, the man with the beard, the fair-haired chap and the
bloke with the twisted nose." The reference to the fair-haired chap was
B plainly intended to be a reference to the same person as had signed the
other two in at the door two hours previously, namely, the applicant.
In cross-examination he said that he could have been mistaken in think-
ing that the fair-haired man with Darke by the juke box was the same
blonde man who signed them in.
In addition to these two pieces of evidence there was a further witness
c called Stanton who gave evidence that when Darke was attacking Bindon
as Bindon lay on the floor, a little guy went. up to Darke and said " stop
it John, you'll kill him." This man was described by Stanton in a way
which would fit the applicant. However, in cross-examination, Stanton
said the little guy was not the applicant. There was a body of evidence
which seemed to indicate that there had been some form of agreement
D between the witnesses that they would, so far as possible, back-pedal from
the statements which they had made to the police immediately after the
incident had taken place.
In these circumstances it seems to us that this was eminently a case
where the jury should be left to decide the weight of the evidence upon
which the prosecution based their case. It was not a case where the
judge would have been justified in saying that the prosecution evidence
E taken at its highest was such that the jury properly directed could not
properly convict upon it.
Of the remaining subsidiary grounds w_hich the applicant advances in
his perfected grounds ·of appeal, the only one that has ·any substance is
the complaint that the judge misdirected the jury in directing them that
they could regard Bindon's evidence of having shaken hands with the co-
defendants Bohm and Galbraith and having said to them " let bygones be
F bygones " in a cell at the magistrates' court as evidence against the
applicant. We are inclined to agree that strictly· speaking that was a
misdirection. The evidence was certainly part 6f the background of the
case and an important part of the· background, budt could not properly
be said to be evidence against the applicant. However this minor error
on the part of the judge can ·hav.e had no possible effect on the outcome
O of the case and can safely be disregarded.
There is nothing in the·other grounds of appeal which makes it neces-
sary to comment upon them.
Accordingly, as indicated at the close of the argument before us,
the application for leave to appeal against conviction is refused. We
have already dealt with the question of sentence.
H Application refused.
Solicitors: Henry Milner & Co., Director of Public Prosecutions.
.L. N. W.
48
Tab 6
49
11
Neutral Citation Number: [2012] EWCA Crim
1756
Case No: 2011/04111/B2 &
2011/04113/B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM READING CROWN COURT
HHJ JOHN
T20107121
Royal Courts of Justice

Strand, London, WC2A 2LL
27/07/2012
Before:
LORD JUSTICE AIKENS

MR JUSTICE SWEENEY
and
MR JUSTICE SUPPERSTONE
Between:
Daniel Terence GODDARD and Robin Jack

FALLICK Appellant
- and -
Regina Respondent
Mr. C Parker QC & Mr. A Morris (instructed by Hines Solicitors) for the Appellant
Mr. J Price QC (instructed by CPS) for the Respondent
Hearing date : 13/07/2012
JUDGMENT
Crown Copyright ©
50
Lord Justice Aikens :
1. On Friday 13 July 2012 we heard appeals against conviction brought by Daniel

Goddard and Robin Fallick, aged respectively 35 and 27. The appellant Goddard
also appealed against sentence. All appeals were brought with the leave of the
single judge. At the end of the hearing of the conviction appeals we announced
that they would be allowed for reasons that we would set out in writing. These
are our reasons. As Goddard's appeal against conviction was allowed his
sentence appeal became immaterial and we did not hear argument about it.
The convictions and sentences
2. On 17 January 2011 in the Crown Court at Reading before HHJ John the two
appellants pleaded guilty to a number of offences of making or possessing
indecent photographs of children. They are not the subject of the present appeals
but are relevant to them nonetheless.
3. On 23 June 2011 after a trial before HHJ John and a jury at Reading Crown Court
the two appellants were both convicted of conspiracy to rape a child under 13.
That allegation was the subject of count 1 on the indictment. The particulars of
the offence stated that Goddard and Fallick "between 14th day of September
2006 and 16th day of September 2006 conspired together to rape a male child
under the age of 13 years". For that offence each appellant was sentenced to 6
years imprisonment. Goddard was sentenced to 6 months imprisonment for the
indecent photograph offences, to be served consecutive to the conspiracy
offence. The total sentence imposed on the appellant Goddard was therefore 6 ½
years less time spent on remand. Fallick was sentenced to a total of 14 months
imprisonment for the indecent photograph offences, also to be served
consecutive to the sentence of the conspiracy offence. Thus Fallick's total
sentence was 7 years and 2 months less time spent on remand.
4. Orders consequent upon those convictions and sentences were also made; in
particular both appellants were subject to Sexual Offences Prevention Orders
("SOPOs") and requirements to register as sex offenders.
5. The appellant Fallick was acquitted of making one indecent photograph of a child
(level 1), which was the subject of count 16. The jury were discharged from
giving a verdict on count 2 which was an alternative to count 1. That count
alleged that Fallick had incited Goddard to rape a child under 13 years. On the
prosecution's case the child concerned was the same one as was the subject of
count 1.
The facts
6. The facts that gave rise to the charges started to come to light as a result of a
police search of Goddard's flat in Slough on 7 August 2007 when he was first
arrested. His laptop was seized and was found to contain many indecent images
of children which became the subject of counts 3 – 14 to which Goddard pleaded
guilty. His mobile phone was also seized and analysed. A number of text
51
messages from Fallick were found on it. Fallick's number was stored on
Goddard's phone as "Rob in2 young", which was interpreted as meaning "Rob
into young".
7. A number of text messages received by Goddard from Fallick dated 15

September 2006 appeared to represent one side of an exchange about raping a
six year old boy. The exchanges start at 09.35 and go on until 15.10. They are as
follows:
Time (hour:min:sec) Message Fallick to Goddard
09:35 I need some help rapin a 6yo

09:37:06 Next friday night
09:39:57 Its rob in slough
09:41:53 tis ok. So your in?
10:46:27 He's about 4ft dark hair and eyes, slim, toned stomach tight
round ass and perfect legs. Really soft smooth skin and ruby red lips.
11:02:29 He'll be with me, he's 6
11:09:18 Next friday. Yes we can do stuff but we need to make sure he
doesn't drop us in it. i'm best friends with his mum, drug him is a poss?
11:12:45 He'll be at school
11:34:46 Yeah all night. And maybe saturday too.
12:49:30 Your thick cock will open his mouth nicely for mine. i'll open his
ass ready for you. how many sleeping pills do you reckon
12:53:36 I thought about 3 or 4, to totally knock him out. finally a bit of
kid fun at last.
15:10:24 Ya know wat, fuck the sleeping pills, i wanna hear him moan and
scream. I don't care if he says anything. I'm a pedo and proud."
8. On 31 March 2009 both appellants were arrested; Goddard in Slough and Fallick
in London. Fallick was found to have indecent photographs of children stored on
a hard drive, laptop and memory stick. These formed the subject matter of
counts 15, 17 and 18 to which Fallick pleaded guilty. The police also seized two
cameras one of which contained a photograph of a girl, whom we shall call ML,
taken in the garden of her home in July 2006. Fallick denied taking the
photograph. It was said to be indecent and that was the subject of count 16 of
which Fallick was acquitted.
9. Both appellants were interviewed on 31 March 2009. Both declined to answer

questions. Their evidence at the trial was that this decision was made on the
advice of their respective solicitors.
10. On 10 June 2009 the police visited Fallick's home again and found further
indecent images of children which had been downloaded since Fallick's previous
arrest. Those formed the subject of count 19 to which Fallick pleaded guilty.
11. Fallick was friendly with a woman called LL, who had three children. One was
the girl ML and another was a boy called HL who had been born in May 2001. In
September 2006 he was, therefore, 5 ½ years old.
52
The prosecution case and the defence response
12. The prosecution case was that the text messages from Fallick to Goddard on 15
September 2006 which we have set out above were evidence of an agreement to
rape a young boy. The prosecution also relied on evidence of text messages sent
by Goddard to others, apparently showing an interest in raping young boys. The
prosecution further relied on the convictions of the appellants of possessing
indecent photographs of children as showing a keen sexual interest in young
boys and also in demonstrating a willingness to break the law in relation to
young children. Further evidence on which the prosecution relied to prove that
this was a serious plan which was intended by both appellants to be carried out,
as opposed to a fantasy, was the fact that there were text messages from Fallick
which referred to a particular boy, whom the prosecution said was HL, the son of
Fallick's friend LL. The prosecution said HL was the target of the rape plan. The
prosecution alleged that this boy was someone to whom Fallick had access
through his friendship with the boy's mother. There was evidence that Fallick
had said to LL that the boy could stay with him, although in fact he had never
done so.
13. The defence case was that there was no agreement to rape a child and that the
text message conversations between the two appellants represented a fantasy
from which each gained sexual pleasure and that there was never, either at the
outset or thereafter, any intention to carry out any plan. The appellants relied on
the fact (which was the case) that they had never met and that in the time that
had passed between the exchange of messages on 15 September 2006 and their
arrests on these matters in 2009, nothing at all had been done to carry out this
alleged plan and the boy who had been the alleged target had not been harmed
in any way.
Application to dismiss count 1 and the trial
14. On 17 January 2011 the judge heard an application to dismiss counts 1, 2 and 16
of the Indictment, viz. the charge of conspiracy to rape a male child under 13,
incitement to rape a male child under 13 and taking an indecent photograph of
ML. In relation to count 1 it was submitted that it should be dismissed because
no agreement to commit conspiracy to rape could be inferred from the evidence
on which the Crown relied because the texts represented only one side of a text
conversation between Goddard and Fallick. The judge rejected that argument. He
gave reasons and noted that the argument had centred on whether, on the basis
of the texts set out above, a jury could properly infer that there had been an
agreement between the two defendants to rape a male child under 13. The judge
accepted that there could be no speculation on what might be on Mr Fallick's
mobile. He continued, in relation to count 1 (page 3C-G):
"It has been attractively argued on behalf of Mr. Fallick that if one puts
together the issues of opportunity; capability; the passage of time
between the sending of the messages and the analysis of the phone and
intention, that there is no evidence to support a conspiracy between the
two men and so the question for me, therefore, is simply whether there is
53
evidence upon which a jury could, if it chose, safely infer that Mr. Goddard
was responding positively to the suggestions in Mr. Fallick's text that Mr.
Goddard should assist him in the rape of an identifiable child.
I have carefully considered both the content and the sequence of the text
set out in the defence skeleton arguments. I am satisfied that it would be
open to a jury properly to infer that a plan was being worked through
between Mr. Fallick and Mr. Goddard, hence the request for clarification
in some of the texts, and that it would be properly open to a jury to infer
an agreement to participate in the planned rape from that content and
that sequence of the texts which are available. I, therefore, reject the
application to dismiss count one."
15. The trial began on 20 June 2011. At the outset the Crown applied to adduce the
guilty pleas to the indecent photograph offences as "Bad Character" evidence
against the two appellants, pursuant to the "gateways" set out in section
101(1)(d) and (f) of the Criminal Justice Act 2003. The prosecution argued that
the persistent downloading of images of child abuse at the relevant time made it
more likely that the defendant concerned would seriously embark on the plans
alleged in counts 1 and 2 (in the case of the appellant Fallick) and count 1 in the
case of Goddard. Counsel for both defendants argued that the evidence of the
indecent images was not relevant to the issue of whether the defendants were
sexually interested in young children because that issue was conceded on the
evidence of the texts. Mr Morris, who appeared at the trial for Goddard,
submitted to the judge that the central issue that the jury would have to decide
in relation to count 1 was whether there really was a plan to carry out the
agreement which appeared from the texts or whether it was just a fantasy of the
two men. He submitted that the indecent images could not be evidence that
would assist the jury in deciding that issue: (page 18B-D of transcript).
16. The judge indicated his view, in argument, as follows (page 20H):
"It is difficult, it seems to me, to say that two men who have been
downloading over considerable periods material of this kind are not
demonstrating a persistent interest in young boys and I would have
thought an admission to that effect would be lest harmful to their case
than the risk of what the Crown's application entails".
Following these exchanges between the judge and counsel for the appellants, it
was agreed that the evidence relating to the indecent images the subject of the
guilty pleas should go before the jury as an agreed fact.
17. The prosecution then called its evidence. LL gave evidence that she was a friend
of Fallick in 2006. She did not leave any of her children alone with him. She never
asked him to babysit but he did say that if she needed a babysitter he would help.
She said that Fallick had suggested that HL should stay with him on more than
one occasion and HL had said that he would but when it came to it on each
occasion HL would not go.
54
18. The "no comment" interviews were put in evidence, albeit rather more for what
was not said than what was said.
19. At the close of the prosecution case the two appellants submitted that there was
no case to answer on both counts 1 and 2. The judge rejected those submissions.
He said that he was satisfied, for the reasons that he gave in his ruling in the
dismissal application, that there was sufficient evidence to go to the jury in
relation to counts 1 and 2. He said: "the evidence…is effectively the same as it
was when I gave that ruling on 7 January [2011]".
20. The two appellants gave evidence. Goddard explained that he had never met
Fallick until the court case. He admitted that he had downloaded images of young
boys from August 2005 to August 2007 and that he would look at them and
pleasure himself. That gave him sexual gratification. His evidence was that he
had chatted on-line to others about having sex with young boys but he said that
he had never taken steps to have sex with children and had never wanted to have
sex with any young child.
21. He agreed that he had been part of a text conversation with Fallick on 15
September 2006 and that he must have replied and asked questions which
elicited the next response in the sequence. He may have said that he was
interested in taking part but he was not, in fact. The text No 23 on page 120 of
the exhibits ("he is about 4 ft" etc) from Fallick to Goddard would have been in
response to him (Goddard) asking what the boy looked like. This would have
been to make it realistic and was part of the fantasy. Goddard said that he would
have asked "who is he" and "where is he" and then masturbated to the answers
given.
22. In cross-examination on behalf of Fallick Goddard said that the contact with
Fallick lasted about 2 weeks and then ceased. In cross-examination on behalf of
the Crown, Goddard admitted that he had a persistent interest in young males
and that the idea of having sex with them was exciting to him. He said that the
idea of raping a young male was exciting to him but that he would not have
actually done it. He agreed that when he was specifically asked in interview
whether the text messages were fantasy, he had answered no comment, on the
advice of his lawyer.
23. The appellant Fallick gave evidence that he had met LL in 2004. They became
quite close and had been to one another's homes. He accepted that he had met
Goddard on a gay chat-line in September 2006. He agreed that the conversations
were sexually explicit and that they dealt with young boys and that the purpose
of them was to achieve sexual gratification whilst masturbating. He had never
met Goddard and did not know where he lived. He said that the description in
message No 23 was generic and did not relate specifically to HL. He would never
have carried out what was implicit in the messages. He had no other discussion
with Goddard apart from the message sequence that was before the court and he
did not contact him after that sequence had finished.
55
24. In cross-examination Fallick accepted that he had a sexual interest in young
males and that in September 2006 he had obtained sexual gratification from
fantasies involving them. In answer to the question that his continued
downloading of images of boys even after he had been arrested and when he
knew it was contrary to the law showed that he had a strong and persistent
interest in young children he answered "in context, yes". He accepted that the
idea of raping a young child was sexually exciting to him but that was only
fantasy. He agreed that the text messages were detailed and realistic. He agreed
that HL did indeed have dark hair and eyes. But he said that the description
given in the text was generic and that it was a coincidence that it was similar to
that of HL.
The Grounds of Appeal
25. There are three broad grounds of appeal on conviction that are advanced by both
appellants, on whose behalf Mr Christopher Parker QC appeared on appeal. (He
did not represent the appellants at the trial). The first ground is that the judge
was wrong to reject the submission of no case to answer at the close of the
prosecution case. He should have accepted it because there was no evidence on
which a reasonable jury, properly directed, could be sure that each of the
appellants in question intended that any apparent agreement to rape a child
should be put into effect. In Mr Parker's phrase, there was no evidence of
"executory intent". As part of this ground it is argued that the judge failed to
consider what prosecution evidence, if any, could be relied on by the jury to
make them sure of this executory intent.
26. The second ground is that the judge failed to direct the jury in his summing up on
the issue of how they should approach evidence of intent that was founded solely
upon inference from the facts that were before them. It is submitted that the
judge should have identified carefully the possible evidence that could found a
conclusion by the jury that there was the necessary "executory intent" and he
failed to do so.
27. The third ground concerns the "bad character" evidence. This ground breaks
down into a number of points. First, it is said that this evidence (even in the form
of admissions) should not have been permitted to go before the jury at all.
Secondly it is submitted that the judge failed to direct the jury as to the area of its
relevance or the limited purpose for which it could be used. Thirdly, the converse
to that is also urged, namely that the judge erroneously directed the jury to the
effect that they could rely upon making or taking indecent images of children to
infer that the appellants intended that the rape should be committed. Lastly it is
said that the judge failed to give the jury an adequate warning, in respect of this
bad character evidence, against prejudice from revulsion induced by the
indecent photographs of children that comprised this "bad character" evidence.
56
Ground One: failure to accept submission of no case to answer on count
one: the legal test
28. There was some discussion before us of the correct test that should be adopted
in a case like the present when a submission of no case to answer is made. On
behalf of the Crown, Mr John Price QC (who also did not appear at the trial)
accepted that in this case there had, in fact, been no steps to carry out the
agreement to commit the criminal act in question, viz. the rape of a male child
under 13 years of age. It was, of course, common ground that the Crown had to
prove that, at the time that the agreement to commit a criminal act was
concluded, each defendant intended in fact to carry out the unlawful plan. It was
further agreed that, in this case, that intent could only be inferred from other
facts as proved; there was no direct evidence of such intent in relation to either
defendant.
29. The long-standing test to be applied upon a submission of no case to answer is

that in R v Galbraith [1981] 1 WLR 1039 at 1042B-D. The statement of Lord
Lane CJ need not be set out yet again. In the present case it had to be accepted
(for the purposes of the submission of no case at least) that there was sufficient
evidence of an agreement to rape a male child under 13 such that a jury, properly
directed, could so find. The key issue for the judge therefore, was whether, at the
close of the prosecution case, there was sufficient evidence that a jury, properly
directed, could infer that there was an intent on the part of each of the
defendants, at the time the agreement was concluded, to carry out that
agreement.
30. A similar issue arose in R v Hedgcock, Dyer and Mayers [2007] EWCA Crim
3486, in which the three defendants were accused of conspiracy to rape a girl
under the age of 16 and conspiracy to murder a girl under 16. The prosecution
case in relation to Hedgcock and Dyer was based on internet conversations
between the defendants in internet "chat rooms", in the course of which
Hedgcock sent to Dyer pictures of his goddaughter and sister, aged 15 and 14
respectively (although introduced over the internet as being younger). This
court held that there was clearly evidence on which a jury could reasonably
conclude that there was an agreement to rape a girl under the age of 16. The key
question for this court was whether the judge should have accepted a
submission of no case to answer, on the basis that there was insufficient
evidence from which a jury, properly directed, could reasonably infer that the
defendants had the "executory intent" at the time the agreement was concluded.
31. Laws LJ gave the judgment of the court. At [19] he said that there had been
argument as to "the correct approach to be taken by a jury in a criminal case to
an invitation by the Crown to draw an inference adverse to a defendant from
primary facts". He referred to a statement of Lord Diplock in Kwan Ping Bong v
R [1979] AC 609 at 615G and statements of Moses LJ in R v Jabber [2006]
EWCA Crim 2694 at [20]-[21]. Laws LJ said that he did not think that there was
much difference in the result of both statements. He then said (at [20]) that
"…Elementarily the jury must apply the criminal standard of proof to the
57
exercise of drawing inferences as [they must] to every other facet of the fact-
finding process". Laws LJ continued, at [21]:
"The question was whether a reasonable jury properly directed, not least
as to the standard of proof, could draw the inference proposed and thus
(as it was put in Jabber) reject all realistic possibilities consistent with
innocence. That approach seems to us to be entirely consistent with Lord
Diplock's remarks. If at the close of the Crown's case the trial judge
concludes that a reasonable jury could not reject all realistic explanations
that would be consistent with innocence, then it would be his duty to stop
the case. What is the position here?".
32. Laws LJ then considered the facts. He said, at [26], that in the "highly unusual
circumstances" of that case, the jury could only conclude that the participants (to
the "chat room" conversations) actually intended to carry out the agreement to
rape if there was some extraneous evidence favouring that interpretation. The
conclusion the court reached was that the internet conversations only carried
the matter so far, but the other "objective circumstances" if anything pointed the
other way.
33. The statements of Laws LJ in Hedgcock, together with those of Moses LJ

in Jabber, were considered in the very recent decision of this court in R v
Anthony Darnley [2012] EWCA Crim 1148. In that case, the appellant had been
convicted of a dwelling house burglary. The police had found a fabric
handkerchief in the burgled house and when that was subjected to DNA tests it
was found that the DNA profile consisted of a major DNA profile which matched
that of the appellant and a minor profile. The prosecution said that this DNA
evidence, together with his previous convictions (evidencing propensity) and his
admitted relapse into drug use all led to the inevitable adverse inference that the
appellant had committed the burglary. On appeal it was said that the judge was
wrong to reject the submission of no case to answer.
34. Elias LJ gave the judgment of the court. At [18] he referred to the statement of
Moses LJ in Jabber, at [21] of that case that "…to draw an adverse inference
from a combination of factual circumstances necessarily does involve the
rejection of all realistic possibilities consistent with innocence". He also referred
to the statement of Laws LJ in Hedgcock at [21] set out above. Elias LJ stated, at
[19], that when a judge is considering a submission of no case to answer, those
"tests" (our quotation marks) should not be substituted for the classic test
in Galbraith.
35. Elias LJ commented that Moses LJ, in Jabber, plainly did not intend to depart
from the traditional test. Then, having made further quotations from the
judgment of Moses LJ in Jabber, Elias LJ continued, at [21]:
"…we think that the focus should be on the traditional question, namely
whether there was evidence on which a jury, properly directed could
infer guilt. It is an easier test, not least because it focuses on what a
reasonable jury could do rather than what it could not do. Reasonable
58
juries may differ because the assessment of the facts is not simply a
logical exercise and different views may reasonably be taken about the
weight to be given to potentially relevant evidence. The judge must be
alive to that when considering a half-time application. Of course, if the
judge is satisfied that even on the view of the facts most favourable to the
prosecution no reasonable jury could convict, then the case must be
stopped. As Moses LJ points out [in Jabber] that conclusion will
necessarily involve accepting that not all realistic possibilities consistent
with innocence can be excluded. It does not, however, follow that the tests
are equally appropriate or that either can be adopted by a trial judge".
36. We think that the legal position can be summarised as follows: (1) in all cases
where a judge is asked to consider a submission of no case to answer, the judge
should apply the "classic" or "traditional" test set out by Lord Lane CJ
in Galbraith. (2) Where a key issue in the submission of no case is whether
there is sufficient evidence on which a reasonable jury could be entitled to draw
an adverse inference against the defendant from a combination of factual
circumstances based upon evidence adduced by the prosecution, the exercise of
deciding that there is a case to answer does involve the rejection of all realistic
possibilities consistent with innocence. (3) However, most importantly, the
question is whether a reasonable jury, not all reasonable juries, could, on one
possible view of the evidence, be entitled to reach that adverse inference. If a
judge concludes that a reasonable jury could be entitled to do so (properly
directed) on the evidence, putting the prosecution case at its highest, then the
case must continue; if not it must be withdrawn from the jury.
37. Thus, in the present case, the vital question for the judge to consider was
whether a reasonable jury could be entitled to infer, on one possible view of the
prosecution evidence, that it was sure that each of the defendants intended to
carry out the agreement to rape a male child under 13. However, it is plain, as Mr
Price was prepared to accept, that this specific issue was neither identified nor
dealt with by the judge either at the dismissal application or at the submission of
no case to answer. Therefore, as counsel accepted before us, we have to examine
the evidence, as adduced by the prosecution, to see whether or not there was
evidence from which a reasonable jury could infer (on one possible view of that
evidence) that each of the defendants intended to carry out the agreement to
rape a male child under 13.
No case to answer: the facts in the present case
38. Mr Parker made the following submissions: (1) he accepted that the messages
are, on the face of them, capable of being read either as an agreement or as a
fantasy. However, (2) he points out that they do not disclose whether the
appellants had ever met before, or whether they were living in close proximity or
whether they had any realistic means of effecting their plan. There was no
prosecution evidence that they did meet either before or after the exchange. (3)
The description of the possible child victim is generic. (4) He accepted that there
was evidence from other messages that were sent or received by Goddard which
demonstrated that he did obtain sexual gratification from the discussion with
10
59
other men of child sexual offences, but that fact also was equivocal. (5) There
was no extraneous evidence that either appellant had taken any steps to execute
the plan during the extended period between the texts being sent (in 2006) and
their arrest for the count 1 offence in 2009, so that there was no evidence of
overt acts to support a conclusion that, at the time of the agreement to commit
the unlawful act – if there was one – that there could be inferred on the part of
each defendant that he intended to put the agreement into effect. In short, the
prosecution evidence, at its highest, could not entitle a reasonable jury to be sure
that it could infer that each of the defendants did intend to carry out the
agreement evidenced by the text exchanges.
39. Mr Price, for the Crown, submitted that there was sufficient evidence. He relied
upon the following facts in particular which he said would entitle a jury to be
sure it could infer an intent to carry out the plan: (1) the text exchange itself. (2)
The fact that there was no evidence of masturbation by the defendants when the
exchange took place. (3) The fact that no visual pornographic material was
exchanged between the two defendants (unlike Hedgcock). (4) The fact that
Fallick knew LL (who described him as her "best friend") and her son ML, who, it
could be inferred, was the specific intended child victim. Fallick had given an
accurate description of the child and had sought to be alone with him. (5) The
fact that both defendants possessed indecent images of male children. This
indicated their sexual interest in young boys and their willingness to break the
law to pursue such interest. (6) The fact that both defendants had given "no
comment" interviews and had not answered specific questions about whether
this was a fantasy or not. In that regard Mr Price drew our attention to section
34(2)(c) of the Criminal Justice and Public Order Act 1994, which provides that
when a court is considering whether an accused has a case to answer it can take
account of the fact that he failed to answer questions in interview. Mr Price also
drew our attention to section 38(3) of that Act which states that a submission of
no case to answer cannot be rejected solely on the basis of such silence.
40. We have concluded that no reasonable jury, taking the prosecution evidence at
its highest, could surely infer that the defendants intended to carry out the
agreement. The evidence is all equivocal; it is as consistent with fantasy as with
an intent to carry out the plan. It is particularly striking that these men never
met at any stage, either before or after the text exchange nor did they even
suggest meeting to discuss the plan further. Nor is there any evidence that they
took any steps to advance the plan beyond suggesting "Friday night". No place or
time or other practical details are identified. Nothing at all happened after the
exchange of text messages. We appreciate that their silence in interviews and
failure to mention that this was all a fantasy can be taken into account. But that is
of very little weight given the other facts or rather lack of them.
Conclusion on Ground One
41. Accordingly, we would allow the appeal on this first ground alone.
11
60
The Other Grounds of Appeal
42. This conclusion makes it unnecessary for us to rule on the other grounds.
However, we do wish to comment shortly on some aspects of those grounds and
in particular on the directions given by the judge in his summing up in this case.
The first concerns the issue of whether the defendants had any executory intent
to carry out the agreement at the time it was made. The judge correctly identified
this as an ingredient of the offence comprised in count 1 at 4F of the transcript.
We appreciate that in most cases it is wise for a judge to give no elaboration on
how to infer intent other than the general one that intent is to be inferred from
what has been said and done and the surrounding circumstances. However, in
the circumstances of the present case, where the prosecution case was that there
was a conspiracy but it was accepted that the unlawful plan was not put into
action, we think that something more is needed precisely because there was
simply no evidence of any overt act to show that the plan was being or was to be
put into operation. In such circumstances, particularly where the allegation (a
conspiracy to rape a young boy) is likely to be repulsive to the members of a jury,
we think that it is important that the judge should identify specifically and in one
place in his summing up the sources of evidence that the jury could use in order
to draw the inference that the two defendants intended, at the time the
agreement was made, to carry it out. In this case the judge did not do so, nor did
he specifically warn them that they had to be sure that there was the necessary
intent, as opposed to this all being a fantasy. If necessary we would have allowed
the appeal on that ground as well.
43. So far as concerns the admission of the offences of possessing indecent images of
children as "bad character" evidence, we have three comments to make. First, it
seems to us that the judge did not fully grasp the fact that there was no issue
between the parties about the defendants' sexual interest in young boys. That
was clearly admitted. So there was no point in admitting those offences as "bad
character" evidence on that issue. Secondly, the judge does not appear to have
considered specifically whether the admission of those offences could be
evidence of either an agreement to rape a male child under 13 or evidence of an
intent to carry out the plan. The point was clearly identified by Mr Morris in the
course of submissions during the application to admit that evidence. We think
that if the judge had analysed the matter he would have been bound to conclude
that the admission of those offences could not assist in relation to those two
points, whereas their admission would be highly prejudicial to the defendants. In
our judgment, they should not have been admitted, either pursuant to section
101(3) of the Criminal Justice Act 2003 or pursuant to section 78 of the Police
and Criminal Evidence Act 1984.
12
61
44. Lastly, we consider that if that evidence had been properly admitted, the judge
would be bound to give careful directions as to the proper and limited use that
could be made of that evidence by the jury. The judge set out at 11C-E of the
transcript of his summing up what the prosecution case was in relation the
evidence of the indecent image offences, viz. that it demonstrated an unhealthy
sexual interest in young boys and that made it more likely that what they were
doing on that date in September was in earnest and showed a real agreement to
rape a child. But the judge does not then give the jury a specific direction on
precisely what that evidence could be used for.
45. In our judgment he should have given three directions. First, he should have
stated that that evidence could not be used to demonstrate that there was an
agreement as such. Plainly the independent possession of indecent images could
not be evidence of an agreement between two people as to a proposed course of
action. Secondly, he should have directed the jury that those offences could not
be used as evidence of an intent to carry out the plan, for the same reason – they
were independently obtained and did not relate to the plan at all. Thirdly,
assuming that the evidence was properly before the jury at all, the judge should
have given a careful warning that the jury must not, by reason of those offences,
conclude that the defendants must have committed the conspiracy offence. He
did not do that.
Conclusion
46. The appeals are allowed and the convictions quashed. The convictions in relation
to the other matters remain, but it is accepted by the Crown that in consequence
of the appeals being allowed, the terms of the SOPOs must be amended.
Paragraphs 2 and 4 are no longer necessary and must be deleted.
13
62
Tab 7
63
12
R. v Highbury Corner Magistrates Court Ex p. D, 1996 WL 1090488 (1996)

The Queen v Highbury Corner Magistrates' Court, Ex parte
Joseph Deering
Court
Queen's Bench Division
Judgment Date
25 July 1996
CO/1695/96
High Court of Justice Queen's Bench Division (Divisional Court)
1996 WL 1090488
Before: Lord Justice Schiemann –and– Mr Justice Brian Smedley
Thursday, 25th July 1996
Representation
The Applicant appeared in Person and was assisted by Dr. Pelling.

The Respondent did not appear and was not represented.
Judgment
Lord Justice Schiemann:
This is an application by way of judicial review of a decision of a metropolitan magistrate, Mr. Barr, to refuse to issue a
witness summons directed to a child. The relief sought is a quashing of that refusal and an order of mandamus requiring
the issue of that summons.
The applicant is the defendant to an assault charge brought against him by his former co-habitant alleging an assault on her.
He wishes to call their 9 year old son as a witness of fact to the assault. He applied for a witness summons pursuant to s of
the Magistrates' Courts Act which reads, so far as presently relevant:
“Where a justice of the peace … is satisfied that any person … is likely to be able to give material
evidence … at the summary trial of an information … and that that person will not voluntarily attend
as a witness … the justice shall issue a summons directed to that person requiring him to attend
before the court at the time and place appointed in the summons to give evidence.”

The metropolitan magistrate refused to issue the summons directed at the child, this notwithstanding that the magistrate was
satisfied, as he tells us in his affidavit which he has supplied, that the applicant had established a prima facie case that the
preconditions in subsection (1) of section 97 were fulfilled.
The reason for his failure to do so is set out in paragraph 5 of his affidavit in the following words:
“I considered that although the applicant had prima facie established the preconditions to the issue
of a witness summons, I had a duty under section 44 of the Children and Young Persons Act 1933 to
have regard to the welfare of Thomas. Therefore I had to weigh up the interests of the Applicant in
as much as he was entitled to a fair trial as opposed to those of Thomas in being put in the position
of having to give evidence about an incident involving acrimony between his parents. I concluded
that the service of a witness summons and the obligation to attend court that would follow would be
wholly detrimental to Thomas's welfare and that this factor outweighed the interests of the applicant.
Accordingly, I refused the application for a witness summons.”
There has been prepared for us by Dr. Pelling, who appears with our leave as a person helping Mr. Deering, a useful argument
in relation to points that he wishes to raise. He draws our attention to section 44 (1) of the 1933 Act. This reads as follows:
“Every court in dealing with a child or young person who is brought before it, either … as an offender
or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case
take steps for removing him from undesirable surroundings, and for securing that proper provision
is made for his education and training.”
He submits that the whole context of section 44 (1) is that the child or young person would actually be before the court and
the court would be considering an order to be made in respect of him typically because he was in need of care or protection or
because he was charged with an offence, but also, he accepts, for other reasons, such as his giving evidence. But he submits,
in essence, that in the present case, the judgment of the magistrate was, in any event, premature. He says in substance that the
balancing exercise should be carried out later by the court before whom the defendant is being tried. He drew our attention to
a case called R v B County Council, ex parte P [1991] 1 WLR 221 . That case concerned care proceedings in respect of four
children including one known by the initial “J”. In the juvenile court, when those proceedings were being heard, the father
applied for the issue of a summons requiring “J” to attend as a witness. This was refused by the magistrate. That decision was
the subject of judicial review proceedings heard by the President, Sir Stephen Brown. He held at first instance that section 97
did not apply to a child who was a party. The Court of Appeal on appeal held that he was wrong and that section did apply.
The Court of Appeal further held that section 44 was applicable and that there was a discretion to refuse a witness summons.
It indicated, per Lord Donaldson MR at page 233, that this could be exercised where:
“he is satisfied that in no circumstances would the court seized with the matter permit the child …
to give oral evidence.”

It is the submission of the applicant that section 44 has simply no application to a stage where the child is not yet before the
court, either as an offender or as a witness or as somebody in need of care proceedings. He submits that this argument was
not canvassed in the foregoing case and that, therefore, this court is not bound by it. However, he concedes that the court has
an inherent jurisdiction not to issue a witness summons where the requirement is oppressive. As it seems to me at present, he
is right to concede that. In any event, he does. But, in the circumstances of the present case, it appears to me that, even if the
magistrate has a discretion at that stage not to issue a warrant on the basis that the child could not possibly give any useful
evidence which would outweigh the damage to the defendant by not having that witness called, the present case is far from
one when it was appropriate to exercise that discretion, if, indeed, it exists.
Here is a witness of fact to an alleged incident. The materiality of the witness is common ground. The balancing act of
deciding whether the harm to the defendant is outweighed by the interests of the child, accepting for the moment that is an
appropriate balancing act to be performed by someone, should, in my judgment, be performed by the court of trial and not
at the stage of issuing or refusing to issue a warrant, in any event, unless the circumstances are obviously such that the court
of trial must exercise its decision one way. That, as I say, is far from the present situation. I would hold that his decision not
to issue a warrant is one which is judicially reviewable and ought to be reviewed on the grounds that it is one which, on the
facts of the case, was simply not open to him, and that he was not the right person at that stage to come to that view. The best
time to come to the sort of decision involved in this case will be when the case is about to be tried and the moment arises
when it is desired to call the child. By that stage something may be admitted or may not be admitted. One does not know.
That is in the vast majority of cases, including this, the appropriate time to consider it.
I would not wish to depart from this case without referring to the case of In re F (Specific Issue: Child Interview) [1995]
1 FLR 819 . That was a case in which the Court of Appeal were faced with this situation. Two boys were aged 11. Their
father was due to stand trial on charges of assault occasioning actual bodily harm and indecent assault against the mother.
The father's defence solicitors wished to interview the boys to discover how much, if anything, either of them saw of the
incident or its aftermath. The mother refused to give her consent for the boys to be interviewed. The father applied to the
County Court for a specific issue order authorising the interview. That was possible because there were proceedings pending
in the County Court. The order was granted by the judge. The mother appealed. That appeal was dismissed. The facts of the
case do not in general matter, but it is useful as indicating the general approach of the court in which they echo a decision of
the Court of Appeal entitled Re R and Others (minors) (wardship: criminal proceedings [1991] 2 All E R 193 . In the course
of that case Lord Donaldson is quoted as saying:
“This principle we would state in the following terms. Children, whether wards of court or not,
are citizens owing duties to society as a whole (including other children) which are appropriate
to their years and understanding. Those duties are defined both by common law and by statute.
In the context of the conduct of criminal proceedings in court, the definition and enforcement of
these duties have been entrusted by law exclusively to the court in which the proceedings are being
conducted and it is not for the wardship court, whatever the theoretical scope of its jurisdiction, to
use that jurisdiction to interfere with the performance by the criminal courts of their lawful duties.
If it were thought that the criminal courts had insufficient discretion to enable them to balance the
public interest in the welfare of child witnesses, whether or not wards of court, against the public
interest in the achievement of justice between the state and the accused, the remedy lies not in the
exercise of the wardship jurisdiction, which could only assist the wards, but in the conferment of
new and wider discretions upon the criminal courts.”

Returning to In re F, that principle effectively was applied to a situation which was not a wardship situation. One sees another
case immediately following it called Re M where the same principle effectively was applied. In Re F Waite L.J. said this,
towards the end of his judgment at page 824:
“…the father's affidavit … indicated the nature of the evidence which it was hoped to adduce from
the boys was too speculative and too thin. With respect, I disagree. It is common ground that the
boys were on the scene at the time of the incident. Their potential value as witnesses is too obvious
to need amplification.”
For my part, I have a lot of sympathy for the desire of the magistrate to spare the boy what was likely to be an unpleasant
experience, to put it at its lowest. It is not for this court to carry out the balancing exercise. In my judgment, it was not for
the magistrate either. In any event, on the facts of this case, he should have exercised any discretion he had in favour to issue
the warrant. In those circumstances, I would make the order asked for.
Mr. Justice Brian Smedley:
I agree and I have nothing to add.
DR. PELLING: Mr. Deering asked me to raise the question of costs. I am doubtful whether in fact costs are awarded.
LORD JUSTICE SCHIEMANN: No, they are not.
DR. PELLING: Mr. Deering also asks if the judgment could be provided at public expense.
LORD JUSTICE SCHIEMANN: I do not see any need for that. I do not think that is a matter for public expense. You have
been able to take a note. You will be able to have access to it and have a look at it.
DR. PELLING: We think this does create quite an important precedent. We will send it to the official law reporters.
LORD JUSTICE SCHIEMANN: I appreciate you are part of a larger organization with other people under your wing, apart
from Mr. Deering, but I think that if you want a copy of the transcript you must pay for it like everybody else.
DR. PELLING: There is one further point that arises. That is concerning the witness. The mother is actually making an
application to the county court for leave to take him out of the jurisdiction on holiday. We believe this is a device to make

sure that he does not have to attend the trial. Are you able to make any order to protect the witness? We would like an order
that the witness be in Mr. Deering's custody until the trial.
LORD JUSTICE SCHIEMANN: I am sure I do not have that jurisdiction. When is the trial?
DR. PELLING: 1st August.
LORD JUSTICE SCHIEMANN: If you turn up with the order from the court which I have just made, if you have that in
your hand — tomorrow it might be feasible — then you could show it to the county court. I do not have jurisdiction as such
to make an order.
DR. PELLING: The Magistrates' Court advised that once they have sight of your order they would immediately issue the
summons. How is the defendant to serve that summons? We have a problem, the boy being in the care of his mother. How
will we serve it upon Thomas? What we are thinking of doing — you may wish to give us a little advice — is going to the
Principal Registry ex parte and asking for an appropriate order under the Children Act .
LORD JUSTICE SCHIEMANN: I would hesitate to advise you, not because I am being unhelpful but because I am not
a family division judge. It is not a field of law in which either of us have substantial experience. My advice would not be
worth having.
Crown copyright

Tab 8
69
13
699
I A.C.
A [ HOUSE OF LORDS]
REGINA RESPONDENT
AND
SAVAGE APPELLANT
DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT

AND
PARMENTER RESPONDENT
C
[On appeal from REGINA v. PARMENTER]
[ CONJOINED APPEALS]
1990 April 26; Glidewell L.J., Ian Kennedy and Fennell JJ.
May 10;
D May 14; Mustill L.J., Waterhouse and
June 15; Swinton Thomas JJ.
July 20;
Nov. 6
1991 July 2, 3, 4; Lord Keith of Kinkel, Lord Brandon of Oakbrook,
Nov. 7 Lord Ackner, Lord Jauncey of Tullichettle
and Lord Lowry
E
Crime-Assault-Alternative verdict-Unlawful wounding-Need for
defendant to foresee physical harm-Whether alternative verdict
of assault occasioning actual bodily harm to be substituted on
appeal-Whether subjective test of intent applicable-Offences
against the Person Act 1861 (24 & 25 Viet. c. JOO), ss. 20, 47
In the first case the defendant was tried on an indictment
F containing a single count of unlawful wounding contrary to
section 20 of the Offences against the Person Act 1861, the
particulars being that she "unlawfully and maliciously wounded"
B. The defendant was convicted. On appeal against conviction,
the Court of Appeal (Criminal Division) held that the recorder's
direction to the jury was defective in that he had omitted to
direct the jury that they had to find that the defendant foresaw
that some physical harm would follow as a result of what she
G did; and that in the circumstances a verdict of guilty of assault
occasioning actual bodily harm contrary to section 47 of-the Act
could be substituted under section 3(1} of the Criminal Appeal
Act 1968. The defendant appealed.
In the second case, the defendant admitted injuring his baby
son and pleaded guilty to a count of cruelty to a person under
16. He was also charged with inflicting grievous bodily harm
H contrary to section 20 of the Offences against the Person Act
1861. The issue at trial was whether he had the necessary
intent. The judge directed the jury that it was "unnecessary
that the accused should have foreseen that his unlawful act
might cause physical harm" of the type described in the section;
70
700
Reg. v. Savage (H.L.(E.)) [1992]
it was "enough that he should have forseen that some physical A
harm to some person albeit of a minor character, might result."
The defendant was convicted. On appeal against conviction, the
Court of Appeal (Criminal Division), allowing the appeal, held
that the trial judge had misdirected the jury by directing them
to ask themselves not whether the defendant actually foresaw
that his acts would cause injury, but whether he ought to have
foreseen it; and that it was not possible to substitute a verdict
under section 47 of the Act of 1861 pursuant to section 3 of the B
Act of 1968 since the verdict had been given in the light of a
direction in terms of objective intent whereas the correct test
for the purpose of section 47 was whether the defendant
subjectively intended or recognised the risk of physical harm.
The Crown appealed.
On the appeals:-
Held, dismissing the defendant's appeal in the first case and
allowing the Crown's appeal in the second case to the extent of C
substituting verdicts of guilty of assault contrary to section 47
for the section 20 offences of which the defendant was convicted,
(1) that a verdict of assault occasioning actual bodily harm was
a permissible alternative verdict on a count alleging unlawful
wounding contrary to section 20 of the Offences against the
Person Act 1861; and that a verdict of assault occasioning actual
bodily harm might be returned merely upon proof of an assault D
together with proof of the fact that actual bodily harm was
occasioned thereby (post, pp. 728n-E, 740n, 742F, 752H-7538).
Reg. v. Wilson (Clarence) [1984] A.C. 242, H.L.(E.)
followed.
Reg. v. Roberts (1971) 56 Cr.App.R. 95, C.A. approved.
Reg. v. Spratt [1990] 1 W.L.R. 1073, C.A. overruled.
(2) That in order to establish an offence under section 20
the prosecution must prove either that the defendant intended E
or that he actually foresaw that his act might cause physical
harm to some person albeit it was only harm of a minor
character (post, pp. 7280-E, 752F, H-7538).
Reg. v. Cunningham [1957] 2 Q.B. 396, C.C.A.; Reg. v.
Mowatt [1968] 1 Q.B. 421, C.A.; Reg. v. Caldwell [1982] A.C.
341, H.L.(E.) and Reg. v. Lawrence (Stephen) [1982] A.C. 510,
H.L.(E.) considered. F
Decision of the Court of Appeal (Criminal Division) in Reg.
v. Savage (Note), post, pp. 7158 et seq.; [1991] 2 W.L.R. 418;
[1991] 2 All E.R. 220 affirmed.
Decision of the Court of Appeal (Criminal Division) in Reg.
v. Parmenter, post, pp. 7048 et seq.; [1991) 2 W.L.R. 408;
[1991] 2 All E.R. 225 reversed.
The following cases are referred to in the opinion of Lord Ackner:

G
Reg. v. Bradshaw (1878) 14 Cox C.C. 83
Reg. v. Caldwell [1982] A.C. 341; [1981) 2 W.L.R. 509; [1981] 1 All E.R.
961, H.L.(E.)
Reg. v. Cunningham f1957] 2 Q.B. 396; [1957] 3 W.L.R. 76; f 1957] 2 All
E.R. 412, C.C.A.
Reg. v. Grimshaw [1984] Crim.LR. 108, C.A. H
Reg. v. Lawrence (Stephen) [1982] A.C. 510; [1981] 2 W.L.R. 524; [1981] 1
All E.R. 974, H.L.(E.)
Reg. v. Lillis [1972] 2 Q.B. 236; [1972] 2 W.L.R. 1409; [1972] 2 All E.R.
1209, C.A.
71
701
I A.C. Reg. v. Savage (H.L.(E.))
A Reg. v. Majewski [1977] A.C. 443; [1976] 2 W.L.R. 623; [1976) 2 All E.R.
142, H.L.(E.)
Reg. v. Mearns [1991) 1 Q.B. 82; [1990) 3 W.L.R. 569; [1990] 3 All E.R.
989, C.A.
Reg. v. Mowatt [1968) 1 Q.B. 421; [1967) 3 W.L.R. 1192; [1967) 3 All E.R.
47, C.A.
Reg. v. Roberts (1971) 56 Cr.App.R. 95, C.A.
Reg. v. Seymour (Edward) [1983) 2 A.C. 493; [1983) 3 W.L.R. 349; [1983)
B 2 All E.R. 1058, H.L.(E.)
Reg. v. Spratt [1990) 1 W.L.R. 1073; [1991) 2 All E.R. 210, C.A.
Reg. v. Springfield (1969) 53 Cr.App.R. 608, C.A.
Reg. v. Stephenson (1979) Q.B. 695; (1979) 3 W.L.R. 193; [1979) 2 All E.R.
1198, C.A.
Reg. v. Sullivan (1981) Crim.LR. 46, C.A.
Reg. v. Venna (1976] Q.B. 421; (1975) 3 W.L.R. 737; [1975) 3 All E.R. 788,
C C.A.
Reg. v. Ward (1872) L.R. 1 C.C.R. 356
Reg. v. Wilson (Clarence) (1984] A.C. 242; [1983] 3 W.L.R. 686; (1983]
3 All E.R. 448, H.L.(E.)
The following additional cases were cited in argument in the House of

Lords:
D Director of Public Prosecutions v. K. (A Minor) [1990] 1 W.L.R. 1067;
[1990] 1 All E.R. 331, D.C.
Director of Public Prosecutions v. Smith [1961) A.C. 290; [1960) 3 W.L.R.
546; [1960) 3 All E.R. 161, H.L.(E.)
Elliott v. C. [1983) 1 W.L.R. 939; [1983) 2 All E.R. 1005, D.C.
Hughes v. Lord Advocate [1963) A.C. 837; [1963] 2 W.L.R. 779; [1963]
1 All E.R. 705, H.L.(Sc.)
E Large v. Mainprize [1989) Crim.LR. 213, D.C.
Reg. v. Austin (1973) 58 Cr.App.R. 163, C.A.
Reg. v. Beasley (1980) 73 Cr.App.R. 44, C.A.
Reg. v. Beech (1912) 7 Cr.App.R. 197, C.C.A.
Reg. v. Court [1989] A.C. 28; [1988] 2 W.L.R. 1071; [1988] 2 All E.R. 221,
H.L.(E.)
Reg. v. Courtie [1984) A.C. 463; [1984] 2 W.L.R. 330; [1984) l All E.R.
F 740, H.L.(E.)
Reg. v. Harrow Justices, Ex parte Osaseri [1986) Q.B. 589; [1985) 3 W.L.R.
819; (1985) 3 All E.R. 185, D.C.
Reg v. Lambert (John) (1976) 65 Cr.App.R. 12, C.A.
Reg. v. McCready [1978) 1 W.L.R. 1376; [1978] 3 All E.R. 967, C.A.
Reg. v. Morrison (1988) 89 Cr.App.R. 17, C.A.
Reg. v. Nash, The Times, 11 June 1991, C.A.
G Reg. v. Pembliton (1874) L.R. 2 C.C.R. 119
Reg. v. Salisbury [1976] V.R. 452; (Note) (1975) 76 Cr.App.R. 261
Sweet v. Parsley [1970] A.C. 132; [1969) 2 W.L.R. 470; [1969] 1 All E.R.
347, H.L.(E.)
W. (A Minor) v. Do/bey (1983) 88 Cr.App.R. 1, D.C.
The following cases are referred to in the judgment of the Court of Appeal
in Reg. v. Savage (Note):
H Reg. v. Mearns [1991] 1 Q.B. 82; [1990) 3 W.L.R. 569; [1990) 3 All E.R.
989, C.A.
Reg. v. Mowatt [1968) 1 Q.B. 421; [1967] 3 W.L.R. 1192; [1967] 3 All E.R.
47, C.A.
72
702
Reg. v. Parmenter (C.A.) [19921
No additional cases were cited in argument. A

The following cases are referred to in the judgment of the Court of Appeal
in Reg. v. Parmenter:
Reg. v. Bradshaw (1878) 14 Cox C.C. 83
Reg. v. Caldwell [1982] A.C. 341; [1981] 2 W.L.R. 509; [1981] 1 All E.R.
961, H.L.(E.)
Reg. v. Cunningham [1957] 2 Q.B. 396; [1957] 3 W.L.R. 76; [1957] 2 All B
E.R. 412, C.C.A.
Reg. v. Lawrence (Stephen) [1982] A.C. 510; [1981] 2 W.L.R. 524; [1981] l
All E.R. 974, H.L.(E.)
Reg. v. Majewski [1977] A.C. 443; (1976] 2 W.L.R. 623; [1976] 2 All E.R.
142, H.L.(E.)
Reg. v. Morrison (1989) 89 Cr.App.R. 17, C.A.
Reg. v. Mowatt [1968] 1 Q.B. 421; [1967] 3 W.L.R. 1192; [1967] 3 All E.R. C
47, C.A.
Reg. v. Savage (Note) [1992] 1 A.C. 714; [1991] 2 W.L.R. 418; [1991] 2 All
E.R. 220, C.A.
Reg. v. Seymour (Edward) [1983] 2 A.C. 493; (1983] 3 W.L.R. 349; (1983]
2 All E.R. 1058, H.L.(E.)
Reg. v. Spratt [1990] 1 W.L.R._ 1073; (1991] 2 All E.R. 210, C.A.
Reg. v. Venna [1976] Q.B. 421; [1975] 3 W.L.R. 737; (1975] 3 All E.R. 788,
C.A.
D
No additional cases were cited in argument.
REGINA V.· PARMENTER E
APPEAL against conviction.

The appellant, Philip Mark Parmenter, on 22 February 1989 in the
Crown Court at Chelmsford, before Judge Taylor and a jury, pleaded
guilty to one count of cruelty to a person under 16; he pleaded not
guilty to three counts of causing grievous bodily harm with intent,
contrary to section 18 of the Offences against the Person Act 1861, and F
to four counts of inflicting grievous bodily harm, contrary to section 20
of the Act of 1861. On 24 February he was acquitted of the section 18
offences but convicted of the section 20 offences. He was sentenced to a
total of five years' imprisonment, including 18 months on the count of
cruelty to a person under 16. He appealed against conviction on the
ground that when dealing with the section 20 offences the judge G
misdirected the jury on the definition of "maliciously."
The facts are stated in the judgment of the court.
Aftab Jafferjee (assigned by the Registrar of Criminal Appeals) for

the appellant. The trial judge, when directing the jury on the crucial
issue of the necessary intent the appellant must have had for him to be
convicted of the offence of inflicting grievous bodily harm, contrary to H
section 20 of the Offences against the Person Act 1861, never stated that
the intent was subjective. The questions which he posed for the jury to
resolve amounted to a misdirection for two reasons. First, the jury
73
703
I A.C. Reg. v. Parmenter (C.A.)
A would have understood the direction to mean that they should ask
themselves whether the appellant ought to have foreseen that his acts
would cause injury, whereas they should have been asking themselves
whether he did actually foresee the consequences: see Reg. v.
Cunningham [1957] 2 Q.B. 396; Reg. v. Mowatt [1968] 1 Q.B. 421 and
Reg. v. Morrison (1988) 89 Cr.App.R. 17. Secondly, the direction
concerning foresight of "some physical harm, albeit of a minor character"
B was an unwarranted gloss on the Cunningham direction (foresight of
"the particular kind of harm") which was introduced by way of obiter
dicta by Diplock L.J. in Mowatt's case [1968] 1 Q.B. 421, 426c-o. It was
the Cunningham definition (1957] 2 Q.B. 396, 399-400 and not the
Mowatt refinement which was in fact adopted in Morrison's case (1988)
89 Cr.App.R. 17, 19-20.
C As a result of the misdirection the appellant was left without a
defence. Accordingly the conviction should be quashed. It is not an
appropriate case for the application of the proviso to section 2(1) of the
Criminal Appeal Act 1968, since there was never any direction on the
subjective appreciation of the consequence of the appellant's acts even
on the Mowatt test; and where there was such a direction (under section
18 of the Act of 1861), the appellant was acquitted.
D If a conviction for the section 20 offence is quashed, a conviction for
the section 47 offence should not be substituted: Reg. v. Spratt [1990] 1
W.L.R. 1073. The only basis for any such substitution is section 3 of the
Criminal Appeal Act 1968, but the substitution cannot be made where
there has not been the necessary direction to the jury on subjective
foresight.
E By way of general observation, it is to be noted that as a result of
the decision in Reg. v. Spratt, if Reg. v. Mowatt and Reg. v. Cunningham
continue to co-exist there will be no difference between what is required
to prove an offence under section 20 and what is required to prove an
offence under section 47 where the issue is recklessness.
Colin Woodford and Richard Daniel for the Crown. The omission of
a direction by the judge to the jury that they had to be satisfied that the
F appellant actually foresaw that his acts would cause injury creates a
problem. Reg. v. Mowatt [1968] 1 Q.B. 421, which was correctly decided
and is binding, explained Reg. v. Cunningham [1957] 2 Q.B. 396. The
difficulties arise from the use of the word "should" in Mowatt. But in
Reg. v. Savage (Note), post, p. 714, Mowatt's case was accepted as good
law, and in Reg. v. Spratt [1990] 1 W.L.R. 1073 it was held that the
G defendant's foresight of the consequences of his acts was a necessary
ingredient of a section 47 offence.
However, if the conviction for the section 20 offence is quashed,
conviction for the section 47 offence is a proper alternative. There is an
immediate causal link between the nature of the actions admitted by the
appellant and the nature of the injuries flowing from them. Even if the
judge did not give the first part of the direction on subjective intent in
H Reg. v. Cunningham [1957] 2 Q.B. 396, he gave the direction based on
Reg. v. Mowatt (1968] 1 Q.B. 421. Mowatt's case is still good law, as
was accepted in Reg. v. Savage (Note), post, p. 714, and a conviction for
an offence contrary to section 47 is a proper alternative verdict.
74
704
Reg. v. Parmenter (C.A.) [1992]
Mustill L.J. stated that the appeal would be allowed for reasons to A
be given at a later date, and ordered that the appellant should be
discharged.
Cur. adv. vult.
20 July. MuSTILL L.J. read the following judgment of the court.

During February 1989 the appellant was tried at Chelmsford Crown B
Court on an indictment containing eight counts, all relating to injuries
caused to his baby son, aged some three months. Of these, six counts
represented three paired alternatives, laid under sections 18 and 20 of
the Offences against the Person Act 1861. The seventh count alleged a
separate offence under section 20, and the eighth count, to which the
appellant pleaded guilty from the outset, alleged cruelty to a person C
under the age of 16. At the conclusion of the trial he was acquitted of
the three section 18 offences and convicted of all four section 20
offences. He received concurrent sentences of five years', four years',
four years' and four years' imprisonment in relation to the convictions,
and a concurrent sentence of 18 months' imprisonment on the count to
which he pleaded guilty. He now appeals against conviction on a point
of law and applies for leave to appeal against sentence. D
The appellant is the natural father of the baby, and lived with the
mother and child. The evidence against the appellant consisted largely
of observations made when the baby was taken to hospital by the
mother, and statements made by the appellant in the course of interviews
with the police. There was no doubt that the baby had suffered injuries
to the bony structures of his legs and right forearm, and the appellant E
did not dispute that the injuries had been caused by rough handling on
his part. The only issue at the trial was whether the appellant had acted
with the necessary intent, his case being that he had no experience with
small babies and did not realise that handling which (as was accepted by
a paediatrician at the trial) would not be inappropriate when handling a
three- to four-year-old child would be quite inappropriate with a new-
born baby. F
On this crucial issue of intent the trial judge directed the jury:
"Let me tell you what maliciously means. First of all, let me tell
you what it does not mean. If you and I meet in the corridor
outside and we were discussing the word maliciously, one I rather
expect would say, and I expect you would too, it means something
like spiteful, something like that. That does not apply in the G
framework of this section of the Act of Parliament. Let me tell you
what maliciously means, because in the circumstances of this case it
is very important indeed. It is quite unnecessary that the accused
should have foreseen that his unlawful act might cause physical
harm of the type described in the section-and here comes the
important part-it is enough that he should have foreseen that some
physical harm to some person, albeit of a minor character, might H
result. Two of you are writing it down, I see. I say it again, like a
shipping forecast: it is enough that he should have foreseen that
some physical harm to some person, albeit of a minor character
75
705
A might result. That is what you have to consider. So, members of the
jury, the questions that you have to ask yourselves on counts four,
five and six only arise if he is not guilty on counts one, two and
three, and they are these. Are we sure that he inflicted grievous
bodily harm of the nature described in the indictment? If the
answer to the question is yes, then: are we sure that he should have
foreseen that some physical harm, albeit of a minor character,
B might result? If the answer to that question is yes, he is guilty. If
the answer to that question is no, he is not guilty."
Later, when dealing with the police interviews the judge said:
"Has he admitted that he should have foreseen that some injury
albeit of a minor nature would result, might result from what he
C did?"
It is plain that this direction was founded on Reg. v. Mowatt [1968) 1
Q.B. 421. We must quote the relevant passage in full, where, after
stating the facts of Reg. v. Cunningham [1957) 2 Q.B. 396, the court
continued, at pp. 425-426:
D "No doubt upon these facts the jury should be instructed that they
must be satisfied before convicting the accused that he was aware
that physical harm to some human being was a possible consequence
of his unlawful act in wrenching off the gas meter. In the words of
the court, 'maliciously in a statutory crime postulates foresight of
consequence,' and upon this proposition we do not wish to cast any
doubt. But the court in that case also expressed approval obiter of a
E more general statement by Professor Kenny in [Kenny, Outlines of
Criminal Law, 18th ed. (1962), p. 202), which runs as follows: 'in
any statutory definition of a crime, "malice" must be taken not in
the old vague sense of wickedness in general, but as requiring either
(1) an actual intention to do the particular kind of harm that in fact
was done, or (2) recklessness as to whether such harm should occur
or not (i.e. the accused has foreseen that the particular kind of
F
harm might be done, and yet has gone on to take the risk of it). It
is neither limited to, nor does it indeed require, any ill will towards
the person injured.'
"This generalisation is not, in our view, appropriate to the specific
alternative statutory offences described in sections 18 and 20 of
the Offences against the Person Act 186 L, and section 5 of the
G Prevention of Offences Act 1851, and if used in that form in the
summing up is liable to bemuse the jury. In section 18 the word
'maliciously' adds nothing. The intent expressly required by that
section is more specific than such element of foresight of
consequences as is implicit in the word 'maliciously' and in directing
a jury about an offence under this section the word 'maliciously' is
best ignored.
H "In the offence under section 20, and in the alternative verdict
which may be given on a charge under section 18, for neither of
which is any specific intent required, the word 'maliciously' does
import upon the part of the person who unlawfully inflicts the
76
706
wound or other grievous bodily harm an awareness that his act may A
have the consequence of causing some physical harm to some other
person. That is what is meant by 'the particular kind of harm' in the
citation from Professor Kenny. It is quite unnecessary that the
accused should have foreseen that his unlawful act might cause
physical harm of the gravity described in the section, i.e., a wound
or serious physical injury. It is enough that he should have foreseen
that some physical harm to some person, albeit of a minor character, B
might result."
At first sight it appears that the direction in the present case is quite
unexceptionable, containing as it did a verbatim quotation from Reg. v.
Mowatt. Yet on closer inspection it can be seen to be flawed, because by
directing the jury by reference to only part of the passage which we
have quoted the judge in the present case has inadvertently imparted a C
fundamental change to the principle laid down in Reg. v. Mowatt. It
seems to us clear, when the judgment in Mowatt is read as a whole, that
the court was stating two propositions, one positive and one negative.
The positive proposition was that to found a conviction under section 20
it must be proved that the defendant actually foresaw that physcial harm
to some other person would be the consequence of his act. This is D
subject to a negative qualification, that the defendant need not actually
have foreseen that the harm would be as grave as that which in the
event occurred.
If one now returns to the summing up in the present case we find the
judge posing the crucial question as follows:
"Are we sure that he inflicted grievous bodily harm of the nature
described in the indictment? If the answer to the question is yes, E
then: are we sure that he should have foreseen that some physical
harm, albeit of a minor character, might result? If the answer to
that question is yes, he is guilty. If the answer to that question is
no, he is not guilty."
In the judgment in Mowatt the words "should have foreseen" were,
we believe, intended to bear the same meaning as "did foresee" or F
simply "foresaw." Read out of context, however, the ordinary meaning
of the words "should have" is "ought to have." By reading the passage
to the jurors in isolation from its context the judge thus inadvertently
created a real risk that the jurors would believe that they were being
directed to ask themselves, not whether the appellant actually foresaw
that his acts would cause injury, but whether he ought to have foreseen G
it. Indeed we would be prepared to go further and say that this is the
natural understanding of the passage which we have just quoted. At any
rate, whether we are right in this or not there was an ambiguity which
went to the heart of the case, for while there was a possibility that the
jury might feel doubt about whether the appellant actually intended to
injure the child, there seems on the evidence to have been little room
for question that, judged objectively, he "should have" realised that H
what he did would lead to injury.
There was thus an important misdirection. There can be no question
of applying the proviso, especially since we are told by Mr. Jafferjee,
77
707
A and accept, that he would have conducted his cross-examination of the

paediatrician in a quite different way had he known how the jury would
be directed. The convictions on the four counts under section 20 must
therefore be quashed.
Before leaving this part of the case we must mention one further
point. At one stage of the argument we felt some anxiety about a
possible conflict between Reg. v. Mowatt [1968] 1 Q.B. 421 and the
B recent decision in Reg. v. Morrison (1988) 89 Cr. App. R. 17, especially
since Mowatt was not cited in the later case. In the event, we conclude
that if Mowatt is understood in the way we have described, there is in
fact no conflict, as both cases specify a subjective test for section 20.
Whether the gloss placed on Reg. v. Cunningham [1957] 2 Q.B. 396 in
Mowatt is correct is a question on which commentators have expressed
C doubts, but these do not arise in the present case and in any event can
probably now be resolved only by a higher court.
This is not however the end of the appeal, because we also have to
decide whether we can and should substitute for the convictions which
we have quashed alternative verdicts of guilty under section 47 of the
Act of 1861, a course which we could only take if, assuming in the
D appellant's favour that the injuries were foreseeable but not actually
foreseen, the necessary element of intent for this offence was present.
In this regard a curious situation emerged, for it was discovered that
only a few days before the present appeal was heard two divisions of
this court had by a remarkable coincidence delivered judgments in Reg.
v. Spratt [1990] 1 W.L.R. 1073 and Reg. v. Savage (Note), post, p. 714
on the necessary intent for section 47 at precisely the same time, but
E had unfortunately reached opposite conclusions. When this situation
came to light neither counsel nor this court were in possession of full
transcripts of the two decisions, so the point could not be explored in
any depth. Subsequently, we invited and have received helpful
submissions on the interaction between the two cases in the light of the
approved transcripts of the judgments.
F First we shall consider Reg. v. Spratt. The facts were simple. A
young girl was struck twice whilst playing in the forecourt of a block of
flats by two airgun pellets which had been fired from a window by the
appellant. When the police were called he told them that he had fired a
few shots out of the window to see how far the pellets would go, and
had not intended to hit anyone. In due course he was charged with an
offence under section 47 to which he pleaded guilty. It was explained to
G
the judge in the Crown Court that the plea was tendered on the basis
that the appellant had been reckless, and that his recklessness took the
shape of a failure to give thought to the possibility of a risk; but it was
also asserted that if he had known there were children in the area he
would not have fired the shots. The judge imposed a sentence of 30
months' imprisonment, against which Spratt appealed. When the matter
H came before the full court the court raised the question whether, if the
facts asserted on the defendant's behalf were true, he had in law
committed the offence to which he had pleaded guilty. Subsequently
leave was given to pursue an appeal against conviction.
78
708
From this brief summary it can be seen that on the facts assumed the A
appellant did not intend to hit the victim at all, let alone cause her any
injury. It was nevertheless argued for the Crown, in line with the view
adopted by the counsel who had advised the defendant on his plea in
the Crown Court, that the appellant ought objectively to have appreciated
that there was a risk, and that this was enough to establish an offence
under section 47, albeit that in the light of Reg. v. Cunningham [1957] 2
Q.B. 396 it would not be sufficient for the purposes of section 20. The B
full court considered this submission in the light of Reg. v. Cunningham;
Reg. v. Bradshaw (1878) 14 Cox C.C. 83; Reg. v. Venna (1976] Q.B.
421; Reg. v. Majewski [1977] A.C. 443; Reg. v. Caldwell [1982] A.C.
341; Reg. v. Lawrence (Stephen) [1982] A.C. 510 and Reg. v. Seymour
( Edward) [1983] 2 A.C. 493. After reviewing these authorities the court,
in a judgment delivered by McCowan L.J., concluded that (i) Venna C
had established that the Cunningham (i.e. subjective) type of recklessness
furnished the test for sections 20 and 47 alike; (ii) Venna was still good
law. The court went on to reject an alternative argument advanced by
counsel for the Crown [1990] 1 W.L.R. 1073, 1082:
"Finally, Mr. Arlidge argues that while Reg. v. Venna (1976] Q.B.
421 says that Cunningham recklessness will amount to guilt under D
section 47, it does not say that nothing else will do. In other words,
it is now possible to add on failure to give thought to the possibility
of risk as also qualifying for guilt. We do not accept that
interpretation of the decision in Reg. v. Venna. Moreover, we are
not attracted by what would be the consequence of accepting Mr.
Arlidge's argument, namely that responsibility for the offence of
assault occasioning actual bodily harm (in respect of which E
Parliament used neither the word 'maliciously' nor 'recklessly')
would be wider than for the offence of unlawful wounding (in
respect of which Parliament used the word 'maliciously')."
We now turn to Reg. v. Savage (Note), post, p. 714. Here again the
facts were simple. The appellant was on bad terms with the complainant.
One evening in a public house she threw beer from a pint glass over the F
complainant. She also let go of the glass, which broke and cut the
complainant's hand. She was charged under section 20 and convicted.
The recorder directed the jury, post, p. 716:
"If ... she let go of the glass unintentionally, but in doing this
unlawful act she let go of the glass and it struck Miss Beal, then
that is a consequence of her unlawful action. If a wound resulted G
from it then that is unlawful wounding."
In reliance on Reg. v. Mowatt [1968] 1 Q.B. 421 the court held that this
was a misdirection and that the conviction must be quashed. The court
then raised the question whether it would be possible to substitute an
alternative verdict of guilty either of common assault or of an offence
under section 47. It was conceded that there was a common assault, in H
the shape of the intentional throwing of beer onto the clothing or flesh
of the complainant, but that this alternative was no longer available in
the light of sections 39 and 40 of the Criminal Justice Act 1988. In a
79
709
A judgment delivered by Glidewell L.J. the court went on to say, post,

pp. 717-718:
"The same is not true of assault occasioning actual bodily harm
which is, of course, an indictable offence. The question that arises
is, could they have found her guilty of that offence? The first
question is, does the allegation of wounding import or include an
B allegation of assault? In our view, in the ordinary way, unless there
are some quite extraordinary facts it inevitably does. Certainly, in
the circumstances of this case, what was admitted-that is to say the
throwing of the beer over the complainant-constituted, in law, a
battery which was an assault within section 47. The question then
follows, did that assault, albeit unintentionally, occasion actual
bodily harm?
C "On the way in which the recorder left the matter to the jury-
that is to say, even if the jury concluded that the appellant
accidentally let go of her glass but the glass shattered on the table
or that in the action of throwing she, whilst still holding it, broke it
on the table and then a piece of the broken glass cut the
complainant-on either of those bases, it would follow that the
D assault did occasion the actual bodily harm, albeit unintentionally.
"Mr. Fleming argued, first, that it may be that these were not
one but two actions on the appellant's part-the throwing of the
beer and then a possible breaking of the glass. But there is no
evidence of that and indeed we do not find that referred to in the
recorder's summing up. Secondly, he invited us to the view that
some element of recklessness had to be established for the offence
E of assault occasioning actual bodily harm to be proved.
"That submission, in our view, seeks to relate the concept of
recklessness to the wrong element of the offence. The mens rea
required is that which is a necessary element in the assault. In this
case the assault was the intentional throwing of the beer over
Tracey. Thus, there was no need to consider recklessness. The
remaining question is, did the assault occasion the actual bodily
F harm which Tracey undoubtedly suffered? This is· a question of
causation, in relation to which recklessness is irrelevant. The test is
objective-was the cut on Tracey Beal's wrist a natural consequence
of the appellant's deliberate action in throwing the beer? In our
view the answer to this question could only be 'Yes.' "
G What do these cases decide? We understand them as follows.
A. Reg. v. Spratt
1. The decision on the particular facts was that where the defendant
did not intend to bring about any kind of physical contact with the
complainant, and did not recognise that there was a risk of contact, the
offence under section 47 was not made out.
H 2. The decision also establishes (or reiterates in the light of Reg. v.
Venna (1976] Q.B. 421) that so far as intent is concerned the test is the
same for section 47 as it is for section 20, i.e. the Reg. v. Cunningham
[1957) 2 Q.B. 396 test, which requires an intention to do "the particular
80
710
Reg. v. Parmenter (C.A.) (1992]
kind of harm." Although the court in Reg. v. Spratt (1990] 1 W.L.R. A

1073 did not refer to Reg. v. Mowatt [1968] 1 Q.B. 421, it must, we
believe, follow that this expression has the same meaning for the
purposes of section 47 as it was given in Mowatt for the purposes of
section 20, i.e. "any physical harm."
B. Reg. v. Savage
1. The decision on the particular facts was that where the defendant B
intended to do act A amounting to an assault and in the course of it
unintentionally did act B, which caused the actual bodily harm of which
the complaint is made, all the elements of an offence under section 47
were present.
2. The case did not decide anything about the position where the
defendant did not intend to make any contact with the complainant. C
This brings us to the question whether the two decisions are in
conflict. It seems to us that they are not in conflict as regards a case
where the defendant neither intends nor adverts to the possibility that
there will be any physical contact at all. (This case is governed by Reg.
v. Spratt [1990] 1 W.L.R. 1073 and not by Reg. v. Savage (Note), post,
p. 714. Nor is there any conflict where the defendant does advert
to the possibility of harm, albeit not necessarily of the kind which D
actually happened. But in the intermediate case we are driven to
conclude that there is a conflict, for if the glass slipped from the
defendant's hand in Savage by mistake, there would not (even under the
wide interpretation given by Reg. v. Mowatt (1968] 1 Q.B. 421) have
been the mental element as regards the physical harm which is called for
by Spratt. E
We are obliged to resolve this conflict in order to decide the present
appeal, and after careful consideration must prefer Spratt, which was
founded on a line of authority leading directly to the conclusion there
expressed: whereas these authorities are not mentioned in Savage, and
cannot have been brought to the attention of the court.
How do we apply this conclusion to the present case? We must first
acknowledge the limits of our powers under section 3 of the Criminal F
Appeal Act 1968, which reads:
"(l) This section applies on an appeal against conviction, where the
appellant has been convicted of an offence and the jury could on
the indictment have found him guilty of some other offence, and on
the findings of the jury it appears to the Court of Appeal that the
jury must have been satisfied of facts which proved him guilty of G
the other offence. (2) The court may, instead of allowing or
dismissing the appeal, substitute for the verdict found by the jury a
verdict of guilty of the other offence, and pass such sentence in
substitution for the offence passed at the trial as may be authorised
by law for the other offence, not being a sentence of greater
severity." H
We are therefore required to consider whether, within the verdict of
the jury, facts can be taken as established which prove the necessary
degree of intent. For this purpose the evidence of what (according to
81
711
A the evidence for the prosecution) the appellant was said to have told the
police is immaterial, since the jury was never called upon to consider
what this evidence amounted to in terms of the appellant's state of
mind: and the dangers of looking at the statements are exemplified by
the fact that although they were the foundation of the prosecution case
under section 18 the appellant was acquitted of all charges under this
section.
B Thus we must ask ourselves whether there is implicit in the verdicts
on section 20--verdicts given in the light of a direction in terms of
objective intent-a finding that the appellant subjectively intended or
recognised the risk of physical harm. One has only to ask the question
to see that the answer must be "No."
One further issue must be addressed. We ourselves encouraged
C counsel to consider whether in some way the admissions made to the
police, not challenged by evidence from the appellant at the trial, might
found a decision adverse to the appellant under the proviso to section
2(1) of the Criminal Appeal Act 1968. That this idea had even a degree
of plausibility for a short time shows what a quagmire this branch of the
criminal law has become, for in truth the idea is nonsense. The proviso
may be used to save a conviction for a particular offence if
D notwithstanding an irregularity there has been no miscarriage of justice.
It might be that if the appellant had been charged under section 47 and
convicted there would have been grounds for applying the proviso. But
he never was so charged, and we cannot use section 3 of the Act of 1968
to posit that he had actually been charged with an offence and was
convicted, whereas he was never so charged and never so convicted.
E The question of the proviso therefore cannot arise: and we should add
that even if the proviso were available, we would not in the circumstances
of this case have decided to apply it.
So we must allow this appeal, substituting no verdicts on those
counts where we have quashed the convictions.
Some concluding remarks may be appropriate. The first is prompted
by some observations from Mr. Jafferjee. Although the maximum
F sentences for offences under section 20 and 47 are the same, and
although the sentences imposed in practice for the worst section 47
offences will overlap those imposed at the lower end of section 20,
nobody could doubt that the two offences are seen in quite different
terms, whether by defendants and their advisers contemplating pleas of
guilty, or by judges passing sentences under section 47 on defendants
G whose pleas of not guilty of section 20 have been accepted by the
prosecution, or by subsequent sentencers casting an eye down lists of
previous convictions. Yet if the Cunningham subjective test combined
with the low level of intent prescribed by Mowatt is applied to section 47
in the same way as section 20, the moral overtones of the two offences
become indistinguishable, and the differences between the two depend
upon variations between the levels of physical injury suffered in the
H individual case which may often be the result of chance.
Second, it is impossible to contemplate this appeal without dismay.
At a time when "middle-rank" criminal violence is a dismal feature of
modern urban life, and when convictions and pleas of guilty on charges
82
712
under section 47 occupy so much of Crown Court lists it seems scarcely A

credible that 129 years after the enactment of the Offences against the
Person Act 1861 three appeals should come before this court within one
week which reveal the law to be so impenetrable. We believe that the
authorities can no longer live together, and that the reason lies in a
collision between two ideas, logically and morally sustainable in
themselves, but mutually inconsistent, about whether the unforeseen B
consequences of a wrongful act should be punished according to the
intent (Reg. v. Cunningham [1957] 2 Q.B. 396) or the consequences
(Reg. v. Mowatt [1968] 1 Q.B. 421). Conscious as we are that even with
the benefit of law reports and transcripts most unlikely to be available in
the courts where these crimes are tried as a matter of routine we have
found it hard to reach a conclusion about what the cases decide, we
should have been glad to proffer a few simple formulae, stripped of C
jargon, with which judges could tell juries how to weigh up the facts. In
the end, we. think it better not to attempt any such task, having no
confidence of achieving a result which would be at once doctrinally
accurate and of any practical value. Until the whole subject has been
reviewed by a higher court we can do no better than suggest to trial
judges that subjective intent and subjective appreciation of the risk are D
the touchstones for which the jury should look, and that for as long as
Reg. v. Mowatt [1968] 1 Q.B. 421 remains the possibility of any physical
harm is what the jury, when assessing this subjective element, should be
invited to consider.
We do not disguise our opinion that the law so stated will in
marginal cases be as unworkable in practice as it is objectionable in E
theory. We can do nothing about this. Only the House of Lords can
now put the subject on an even keel.
In conclusion, we wish to acknowledge the candid and helpful
submissions of all three counsel concerned with this case.
We allow the appeal, quash the convictions under section 20, and
substitute no other verdicts. F
We add a word of explanation. It is well possible that this case may
be taken further and that either the original verdicts, or substituted
verdicts under section 47, will be validated. We are very conscious of
the importance, when an onward appeal by the prosecutor is in
contemplation, that the defendant should not be released from custody
when there is a possibility that he may have to be recalled to complete
G
his sentence if the original convictions, or convictions in substitution,
may be restored. In this particular case we have had in mind the
substantial period during which the appellant has already been in
custody, the imminence of his eligibility for parole on the sentences
imposed in the Crown Court and the fact that, in the very special
circumstances of this case, even if we had been persuaded to substitute
verdicts of guilty under section 47 of the Act of 1861 we would not have H
imposed in respect of those verdicts sentences longer than those which
would, on the occasion of the second argument before us, have secured
the appellant's immediate release. It was for this reason that we ordered
83
713
A at the conclusion of the second argument that the appellant should be
discharged.
Appeal allowed.
Convictions quashed.
6 November. APPLICATIONS for a certificate under section 33(2) of
B the Criminal Appeal Act 1986 and for leave to appeal.
MusTILL L.J. We have had before us today applications to certify a
point of law and to grant leave to appeal to the House of Lords. It will
be apparent from a reading of our judgment that a curious situation has
arisen because of the almost contemporaneous decisions of three appeals
by different divisions of this court on what are essentially the same
C issues. In our judgment we had felt that we had to make a choice
between the reasoning in Reg. v. Savage, post, p. 714 and the reasoning
in Reg. v. Spratt [1990] 1 W.L.R. 1073 and preferred the latter.
Superimposed on this choice was the question raised by the decision in
Reg. v. Mowatt [1968] 1 Q.B. 421, a case which is binding on this court.
It is quite apparent from the difficulties which this court has experienced
D in these three cases that a situation has arisen which must in the
interests of the orderly administration of justice round the country be
resolved sooner rather than later. It has come to our knowledge from a
number of sources that the profession and judges are perplexed to know
how juries should properly be directed in relation to sections 20 and 47
of the Offences against the Person Act 1861. We are not surprised and
confess that we are ourselves equally perplexed. In those circumstances
E it seemed appropriate that we should take the exceptional course of
ourselves granting leave to appeal to their Lordships' House, rather than
following the usual practice of certifying a question of law and allowing
their Lordships to decide for themselves whether the matter should be
taken into their hands.
The position today has been complicated by the fact that we are
aware that although questions of law were certified in Reg. v. Spratt,
F leave to appeal was refused. In Reg. v. Savage the court was minded to
grant leave and has already formulated points of law for certification.
Unfortunately, we have been unable to ascertain whether leave has been
granted yet. We believe it has not. And whether, if so, an appeal will
actually be prosecuted. In all the circumstances, faced, as we were
today, not only by a request by the Crown to certify questions and to
G grant leave but also an undertaking by the Crown to prosecute the
appeal, and to do so with maximum dispatch, it seemed to us
appropriate, notwithstanding the pendency of the application in Reg. v.
Savage, that we ourselves should grant leave. We are conscious of the
fact that the questions certified in Reg. v. Savage are not those which we
ourselves have sent up to their Lordships' House. We have only very
recently seen them. Nevertheless we feel that the questions we certify
H are those appropriate to the circumstances of the case now before us.
We hope that it will be understood that we are endeavouring to simplify
the task of their Lordships rather than complicate it by not trying to
marry the Savage points of law with our own.
84
714
We thought it right to give this judgment in order that it should be A

understood by those who present the case, and by their Lordships
themselves, why we have chosen to take the course that we have. We
grant legal aid for two counsel. That does not mean that those instructing
will ask for leading counsel but the opportunity should be there. There
will also be legal aid for solicitors.
Certificate granted under section 33(2) of the Criminal Appeal Act B

1968 that the following questions of law of general public importance
were involved in the decision, namely: "l(a) Whether in order to
establish an offence under section 20 of the Offences against the Person
Act 1861 the prosecution must prove that the defendant actually foresaw
that his act would cause the particular kind of harm which was in fact
caused, or whether it is sufficient to prove that (objectively) he ought so C
to have foreseen? (b) The like question in relation to section 47 of the
Act. 2(a) For the purposes of the answer to question l(a), whether the
particular kind of harm to be foreseen may be any physical harm, or
harm of (i) the nature, or (ii) the degree, or (iii) the nature and degree
of the harm which actually occurred? (b) The like question in relation to
section 47 of the Act."
D
Leave to appeal.
Certificate for two counsel
and solicitor.
Solicitors: Crown Prosecution Service, Essex.
[Reported by EIRA CARYL-THOMAS, Barrister] E
NOTE
[COURT OF APPEAL]
REGINA V. SAVAGE
G
The appellant, Susan Savage, was convicted on 3 October 1989 in the Crown
Court at Durham before Mr. Recorder Williamson Q.C. and a jury on a count
charging unlawful wounding contrary to section 20 of the Offences against the
Person Act 1861, the allegation being that she intentionally threw beer over the
complainant, and while doing so she let go of the glass with the result that the
complainant's wrist was cut by the glass or a splinter from it. She was made H
subject to a community service order of 120 hours. She appealed against
conviction on the ground that the conviction was unsafe and unsatisfactory in
the light of the recorder's direction on unlawful wounding.
85
714
We thought it right to give this judgment in order that it should be A

understood by those who present the case, and by their Lordships
themselves, why we have chosen to take the course that we have. We
grant legal aid for two counsel. That does not mean that those instructing
will ask for leading counsel but the opportunity should be there. There
will also be legal aid for solicitors.
Certificate granted under section 33(2) of the Criminal Appeal Act B

1968 that the following questions of law of general public importance
were involved in the decision, namely: "l(a) Whether in order to
establish an offence under section 20 of the Offences against the Person
Act 1861 the prosecution must prove that the defendant actually foresaw
that his act would cause the particular kind of harm which was in fact
caused, or whether it is sufficient to prove that (objectively) he ought so C
to have foreseen? (b) The like question in relation to section 47 of the
Act. 2(a) For the purposes of the answer to question l(a), whether the
particular kind of harm to be foreseen may be any physical harm, or
harm of (i) the nature, or (ii) the degree, or (iii) the nature and degree
of the harm which actually occurred? (b) The like question in relation to
section 47 of the Act."
D
Leave to appeal.
Certificate for two counsel
and solicitor.
Solicitors: Crown Prosecution Service, Essex.
[Reported by EIRA CARYL-THOMAS, Barrister] E
NOTE
[COURT OF APPEAL]
REGINA V. SAVAGE
G
The appellant, Susan Savage, was convicted on 3 October 1989 in the Crown
Court at Durham before Mr. Recorder Williamson Q.C. and a jury on a count
charging unlawful wounding contrary to section 20 of the Offences against the
Person Act 1861, the allegation being that she intentionally threw beer over the
complainant, and while doing so she let go of the glass with the result that the
complainant's wrist was cut by the glass or a splinter from it. She was made H
subject to a community service order of 120 hours. She appealed against
conviction on the ground that the conviction was unsafe and unsatisfactory in
the light of the recorder's direction on unlawful wounding.
86
715
I A.C. Reg. v. Savage (C.A.)
A Paul Fleming (assigned by the Registrar of Criminal Appeals) for the
appellant.
Simon E. Wood for the Crown.
Cur. adv. vult.
10 May. GLIDEWELL L.J. read the following judgment of the court. On 3

B October 1989 in the Crown Court at Durham this appellant, Susan Savage, was
convicted of unlawful wounding contrary to section 20 of the Offences Against
the Person Act 1861. The particulars of the offence were that on 31 March 1989
she unlawfully and maliciously wounded Tracey Beal. She was ordered to
undertake 120 hours of community service and we have been told that she has
satisfactorily completed that. She now appeals against conviction by leave of the
single judge.
C The complainant, Tracey Beal, was a former girlfriend of the appellant's
husband. Both young women, at the relevant time, were in their very early
twenties and there had been some bad feeling between them. On the evening of
31 March 1989 they were both in the same public house but not together.
Tracey Beal was sitting at a table with some friends including her then current
boyfriend. Her evidence was that she saw the appellant push her way through to
the table with a pint glass, nearly full, in her hand. The appellant said, "Nice to
D meet you darling" and, from just across the table, threw the beer from the glass
over Tracey. Tracey briefly shut her eyes but she heard the glass break. When
she opened her eyes she saw blood on her hand and the blood was from a cut
on her wrist.
One of Tracey Beal's friends, a young man called Kevin Hodgson, was
standing by the table. He saw the appellant push her way through and, again,
his evidence was that she said, "Nice to meet you darling." He saw her throw
E the liquid from the glass and let go of the glass all in the same action. The glass
bounced off the table, broke into pieces and Tracey was cut on the wrist. The
appellant's evidence and that of some of her friends, although not entirely
identical, was to the effect that she did intend to pour the beer over Tracey. She
accepted that she went up to the table where Tracey was sitting, that she had
some beer in her pint glass and that she threw the contents of the glass over
Tracey. She said she did not let go of the glass or break it, nor did she hear the
F glass break. She turned away with the glass still in her hand and put it down on
another table a few yards from Tracey's table. She did not know how Tracey
came to be wounded.
The jury must have concluded by their verdict that they did not accept the
appellant's evidence that she had not let go of the glass, nor that she had placed
it on a table some yards away from Tracey Beal. The jury must have concluded
that the appellant did let go of the glass and that it was the glass or a splinter
from it which cut Tracey's wrist. That could have been on one of two bases.
G One was that the appellant deliberately threw not merely the beer but also the
glass at Tracey. The other was that the appellant deliberately threw the beer
over Tracey but the glass accidentally slipped from her grasp and struck Tracey's
wrist, with no intention that the glass should hit or cut Tracey.
The recorder summed up in the following terms:
"It is alleged that on 31 March Mrs. Savage unlawfully and maliciously
H wounded Tracey Beal. What does that mean? First of all it means that you
must find that Susan Savage did some unlawful action, unlawful in the sense
that it was not in self-defence and it was not a mere accident; malicious in
the sense that it was deliberate and aimed against Tracey Beal, and that as
a result of that unlawful, deliberate act aimed against Trac y Beal, Tracey
87
716
Reg. v. Savage (C.A.) [1992]
Beal suffered a wound. Now let us see where we are. You know that on A
that night the doctor found that Miss Beal had a wound. You know from
the evidence from (the appellant's] own mouth that she undertook an
unlawful action aimed against Tracey Beal. She went up to her, or within
feet of her, and threw deliberately the contents of a pint glass at her. That
is an assault, that is an unlawful action aimed deliberately against Tracey
Beal. (The appellant] admits it. She asserts that is what she did. The
question and the problem is, and it is a big one, how did that unlawful
action-we know it caused, albeit indirectly, the wound that Miss Beal B
has-how did that occur? If you were sure that in throwing the liquid from
the glass she let go of the glass unintentionally, but in doing this unlawful
act she let go of the glass and it struck Miss Beal, then that is a consequence
of her unlawful action. If a wound resulted from it then that is unlawful
wounding. Another way it is put, particularly relying on Miss Hodgkiss's
evidence; if she had the glass and in throwing the liquid she inadvertently
strikes the table, or some other object, so that the glass breaks completely, C
and thus Miss Beal is wounded, then again that wound would be a
consequence of her unlawful action and unlawful wounding would occur.
But you have got to identify this wound with the unlawful action of (the
appellant]."
He said there was one other way partly canvassed in the evidence but, in the
view of this court, it really amounts to another way of putting the first of those D
alternatives.
The issue for this court on this appeal was-in relation to the meaning of the
word "maliciously" in the offence-is that summing up correct? In Reg. v.
Mowatt (1968] l Q.B. 421 in this court Diplock L.J., giving the judgment of the
court, said, at p. 426:
"In the offence under section 20, and in the alternative verdict which may
be given on a charge under section 18, for neither of which is any specific E
intent required, the word 'maliciously' does import upon the part of the
person who unlawfully inflicts the wound or other grievous bodily harm an
awareness that his act may have the consequence of causing some physical
harm to some other person. That is what is meant by 'the particular kind of
harm' in the citation from Professor Kenny. It is quite unnecessary that the
accused should have foreseen that his unlawful act might cause physical
harm of the gravity described in the section, i.e., a wound or serious F
physical injury. It is enough that he should have foreseen that some physical
harm to some person, albeit of a minor character, might result. In many
cases in instructing a jury upon a charge under section 20, or upon the
alternative verdict which may be given under that section when the accused
is charged under section 18, it may be unnecessary to refer specifically to
the word 'maliciously.' "
Despite doubts which are expressed about that expression of view in Smith & G
Hogan, Criminal Law, 6th ed. (1988) it is binding on us and, so far as that
passage goes, it is still good law. In other words the test imported by the word
"maliciously" is subjective, not objective as, for instance, the test in manslaughter.
It follows that the recorder, in our view, was wrong to direct the jury- that
"malicious" meant deliberate and aimed against Tracey Beal with the result that
a wound occurred. The recorder omitted to direct the jury that they had to find
that the appellant foresaw that some physical harm would follow as a result of H
what she did. Clearly, if the jury accepted that she intended to do no more than
throw beer over Tracey Beal, I suppose they might have considered whether
that was likely to amount to physical harm, but, almost certainly, we think they
would have concluded that it did not in any real sense. Thus the question as to
88
717
I A.C. Reg. v. Savage (C.A.)
A whether she foresaw that her act was likely to cause some harm other than the
wetting with the beer was a question they should have been asked to consider.
In our view, with respect to the recorder, there was a misdirection and the
conviction as such must be quashed as, indeed, we indicated at the conclusion of
the hearing ten days ago.
However, that then raised the question whether it is possible for this court to
substitute any other verdict. If we do so, we shall act under section 3 of the
Criminal Appeal Act 1968, subsection (1) of which reads:
B "This section applies on an appeal against conviction, where the appellant
has been convicted of an offence and the jury could on the indictment have
found him guilty of some other offence, and on the finding of the jury it
appears to the Court of Appeal that the jury must have been satisfied of
facts which proved him guilty of the other offence."
C We have canvassed the possibility of two alternative verdicts, common

assault and assault occasioning actual bodily harm contrary to section 47 of the
Act of 1861.
Mr. Fleming, for the appellant, conceded that on the facts admitted by his
client, she was guilty of common assault. In our view, this concession was rightly
made. The intentional throwing of the beer over Tracey Beal was in law a
battery, which, if Miss Beal had suffered nothing worse than a wetting, would
have amounted to a common assault.
D After we had heard this appeal we heard an appeal in Reg. v. Mearns [1991]
1 Q.B. 82, which directly raised the question whether a verdict of common
assault as an alternative in that case to a count alleging assault occasioning
actual bodily harm is one which is now open to a jury without a specific count of
common assault on the indictment. We concluded in that appeal that, as a result
of the coming into force of the Criminal Justice Act 1988, sections 39 and 40,
common assault is no longer a possible alternative verdict on a trial on
E indictment for a more serious offence unless, originally or by way of amendment,
a specific count alleging common assault is added to the indictment. That being
the case, and since there was no count of common assault in this indictment, it
follows that that alternative was not one of which the jury could have found this
appellant guilty.
The same is not true of assault occasioning actual bodily harm which is, of
course, an indictable offence. The question that arises is, could they have found
F her guilty of that offence? The first question is, does the allegation of wounding
import or include an allegation of assault? In our view, in the ordinary way,
unless there are some quite extraordinary facts it inevitably does. Certainly, in
the circumstances of this case, what was admitted-that is to say the throwing of
the beer over the complainant-constituted, in law, a battery which was an
assault within section 47. The question then follows, did that assault, albeit
unintentionally, occasion actual bodily harm? •
G On the way in which the recorder left the matter to the jury-that is to say,
even if the jury concluded that the appellant accidentally let go of her glass but
the glass shattered on the table or that in the action of throwing she, whilst still
holding it, broke it on the table and then a piece of the broken glass cut the
complainant-on either of those bases, it would follow that the assault did
occasion the actual bodily harm, albeit unintentionally.
Mr. Fleming argued, first, that it may be that these were not one but two
H actions on the appellant's part-the throwing of the beer and then a possible
breaking of the glass. But there is no evidence of that and indeed we do not find
that referred to in the recorder's summing. up. Secondly, he invited us to the
view that some element of recklessness had to be established fot the offence of
assault occasioning actual bodily harm to be proved.
89
718
Reg. v. Savage (C.A.) [1992]
That submission, in our view, seeks to relate the concept of recklessness to A

the wrong element of the offence. The mens rea required is that which is a
necessary element in the assault. In this case the assault was the intentional
throwing of the beer over Tracey. Thus, there was no need to consider
recklessness. The remaining question is, did the assault occasion the actual
bodily harm which Tracey undoubtedly suffered? This is a question of causation,
in relation to which recklessness is irrelevant. The test is objective-was the cut
on Tracey Beal's wrist a natural consequence of the appellant's deliberate action
in throwing the beer? In our view the answer to this question could only be B
"'Yes."
It follows that, in our view, we can, and we therefore propose to, substitute
a verdict of guilty of assault occasioning actual bodily harm. I should say that if
one reads the passage of the recorder's summing up to which I have referred
and substitutes in appropriate parts of it references to assault occasioning actual
bodily harm, it would then be an immaculate summing up and the phraseology
he used would be entirely appropriate in our view. C
Appeal allowed.
Conviction quashed.
Conviction of assault occasioning actual
bodily harm, contrary to section 47 of
the Offences against the Person Act
I861, substituted. D
Appeal against sentence dismissed.
10 October. The Court of Appeal certified that the following points of law
of general public importance were involved in the decision, namely: "1. Whether
a verdict of guilty of assault occasioning actual bodily harm is a permissible
alternative verdict on a count alleging unlawful wounding contrary to section 20
of the Offences against the Person Act 1861? 2. Whether a verdict of guilty of E
assault occasioning actual bodily harm can be returned upon proof of an assault
and of the fact that actual bodily harm was occasioned by that assault? 3. If it be
proved that an assault has been committed and that actual bodily harm has
resulted from that assault, whether a verdict of assault occasioning actual bodily
harm may be returned in the absence of proof that the defendant intended to
cause some actual bodily harm or was reckless as to whether such harm would
be caused." F
Leave to appeal.
Solicitors: Crown Prosecution Service, Newcastle upon Tyne.
[Reported by EIRA CARYL-THOMAS, Barrister]

G
90
719
A APPEALS from the Court of Appeal (Criminal Division).

The defendant appealed in Reg. v. Savage (Note) and the Crown
appealed in Reg. v. Parmenter.
The facts relating to both appeals are stated in the opinion of
Lord Ackner.
B Alan Goldsack Q. C. and Paul Fleming for the defendant in the first
appeal. The two appeals raise the same question relating to section 47 of
the Offences against the Person Act 1861, namely, whether a verdict of
guilty of assault occasioning actual bodily harm is a permissable
alternative verdict on a count alleging unlawful wounding contrary to
section 20 of the Offences against the Person Act 1861. The Court of
Appeal came to a conclusion precisely opposite to that reached in Reg.
C v. Spratt [1990] 1 W.L.R. 1073.
Section 20 unlawful wounding requires proof of a deliberate unlawful
act with foresight that some harm may result and in fact does result
from it. There is no requirement that there should be an assault,
although in most cases there is an assault.
Assault and battery are two distinct crimes at common law; but it is
common in ordinary usage, and even in statutes, to use the term "assault"
D to cover both: see section 47 of the Act of 1861 and Reg. v. Beasley (1980)
73 Cr.App.R. 44, 47. At one time it was considered that wounding must
be the result of a battery but it probably now suffices that the wound be
directly inflicted whether by battery or not: see Reg. v. Wilson (Clarence)
[1984] A.C. 242, 260F; Smith & Hogan, Criminal Law, 6th ed. (1988),
p. 398 and Blackstone's Criminal Practice (1991), pp. 141-142.
E On the assumption that there can be an unlawful wounding without
an assault, the jury's powers are to be found in section 6(3) of the
Criminal Law Act 1967. The relevant expression is "allegations in the
indictment." The jury should consider the language of the indictment
and not the evidence given at the trial. The Act was intended to set out
the existing common law approach to alternative verdicts. It was not
intended to change the law. Restricting the test to the allegations in the
F indictment enables a simple test to be applied. The ingredients of the
alternative offence must be found in the main offence. There was such a
simple test until the House effectively changed the law in Reg. v. Wilson
(Clarence) [1984] A.C. 242. [Reference was made to Reg. v. Springfield
(1969) 53 Cr.App.R. 608; Reg. v. Lillis [1972] 2 Q.B. 236; Reg. v.
Austin (1973) 58 Cr.App.R. 163; Reg. v. Lambert (John)· (1976) 65
G Cr.App.R. 12 and Reg. v. McCready (1978] 1 W.L.R. 1376.]
The law was clear until Reg. v. Wilson (Clarence) [1984] A.C. 242, in
which the House of Lords considered the Australian decision of Reg. v.
Salisbury [1976] V.R. 452. Difficult practical problems arise out of the
decision in Wilson's case. Thus, most offences of burglary will result in
damage to the house burgled, and many offences of robbery will involve
the defendant carrying an offensive weapon. [Reference was made to the
H commentary on Reg. v. Wilson by Professor J. C. Smith [1984] Crim.LR.
37 et seq.] That part of Wilson's case concerned with the present question
is wrong and should be reconsidered. The law was correctly stated by Sachs
L.J. in Reg. v. Springfield (1969) 53 Cr.App.R. 608.
91
720
Reg. v. Savage (H.L.(E.)) (1992]
It is paramount that the law should be consistent. Up to 1983 it was. A

The answer to the first of the certified questions should be in the
negative.
As to certified questions 2 and 3, the wound in the Savage case
resulted from a deliberate but very minor unlawful act. The wound was
unintended, unforeseen, and, arguably unforeseeable. Inflicting bodily
harm inadvertently by means of an action amounting to an assault is not
sufficient to found a conviction for assault occasioning actual bodily B
harm. The correct test is subjective and requires a jury to be satisfied
that the occasioning of some bodily injury was intended or foreseen by
the defendant before they can convict and to be so directed: see Reg. v.
Cunningham [1957] 2 Q.B. 396 and Reg. v. Venna [1976] Q.B. 421; cf.
Reg. v. Mowatt [1968] 1 Q.B. 421.
Smith & Hogan, Criminal Law, 6th ed., p. 397; Archbold, Criminal C
Pleading Evidence and Practice, 43rd ed. (1988), vol. 2, p. 1983, para.
20-117 and Blackstone (1991), p. 137 do not support Glidewell L.J.'s
judgment in the Savage case.
The Offences against the Person Act 1861 provides for a maximum
sentence of five years for actual bodily harm: section 47. The Act also
provides for the same maximum sentence for a person convicted of
unlawful wounding contrary to section 20. Parliament cannot have D
intended that a "mere" assault without any intention or foresight that
some harm might result should expose an accused to the same maximum
sentence. Reg. v. Spratt [1990] 1 W.L.R. 1073 and Reg. v. Parmenter,
ante, pp. 704B et seq. were correctly decided since the mens rea of
every type of offence against the person under the Act of 1861 requires
either actual intent or recklessness, in the sense of taking the risk of E
harm with foresight that it may happen. [Reference was also made to
Reg. v. Nash, The Times, 11 June 1991.]
Anthony Scrivener Q. C. and Simon Wood for the Crown in both
appeals. The test propounded by Sachs L.J. in Reg. v. Springfield, 53
Cr.App.R. 608, 610-611 is an invented test, it does not use the words of
the statute, and it has caused problems: see Reg. v. Wilson (Clarence)
[1984] A.C. 242, 257-258, 261F-G. F
The indictment in the present case contained a perfectly valid charge
of unlawful wounding contrary to section 20 of the Offences against the
Person Act 1861. The modern practice is to have a short indictment.
The accused can always ask for particulars: see rules 5 and 6 of the
Indictment Rules 1971 (S.I. 1971 No. 1253 (L. 31)).
Professor Smith's commentary [1984] Crim.LR. 37 on Reg. v. Wilson G
is misconceived. The whole purpose of Lord Roskill's citation of Reg. v.
Lillis [1972] 2 Q.B. 236 was to place it in its historical context. The
criticism of Lord Roskill's construction of section 6(3) of the Act of 1967
in Wilson's case [1984] A.C. 242, 261 can be met by substituting for the
word "may" in that construction the phrase "does not necessarily involve
but can." In analysing a judgment the correct approach is to consider
the judgment as a whole. H
In Reg. v. Salisbury [1976] V.R. 452 the Supreme Court of Victoria
considered the two conflicting lines of authority and held that in cases
such as the present it was not open to a jury to return an alternative
92
721
A verdict under section 47 of the Act of 1861. But the House of Lords in
Reg. v. Wilson (Clarence) [1984] A.C. 242, where all the relevant
authorities were considered, declined to follow Salisbury's case. It
cannot be said, therefore, that Reg. v. Wilson was decided per incuriam.
It was correctly decided.
Reg. v. Savage is concerned only with section 47 but Reg. v.
Parmenter concerns both section 20 and section 47 of the Act of 1861.
B
Reg. v. Savage
The Court of Appeal approached it as a very simple case. It in effect
posed five questions. (1) Was there an assault? The answer is "Yes."
(2) Was it a "reckless" case or was there an intention to throw the
contents of the glass over the victim? The answer is that there was an
C intention to do the act that amounted to the offence. (3) Was it
necessary to prove an intention to cause the actual consequence? The
answer is "No." (4) Had the prosecution proved that the assault
occasioned the actual bodily harm? This is a matter of causation.
Archbold, 43rd ed., vol. 2, pp. 1980-1981 gives the conventional
definition of an assault. An alternative verdict can be given under
D section 47 if there are affirmative answers to the three questions: was
there an assault, did the defendant intend to assault the victim, and did
the assault occasion actual bodily harm? If there has to be foresight as
to consequences this makes section 47 unworkable.
It is relevant for present purposes to place various provisions of the
Offences against the Person Act 1861 into three categories: (i) provisions
which require a specific intent (sections 11 to 14, 18, 21, 22, 24, 29 to
E 33, 38 to 40); (ii) provisions which use the words "unlawfully" and
"maliciously" in connection with a positive act (sections 17, 20, 23, 28);
(iii) provisions which do not use the words "maliciously" or "unlawfully"
at all (sections 34-37, 41, 47).
As to section 47, a body of law has been built up relating to the use
of the word "maliciously" and the requirement of foresight. This
necessarily brings in the concept of recklessness. At the end of this line
F
of authorities is Reg. v. Spratt [1990] 1 W.L.R. 1073, which has brought
the requirement of some harm into section 47. The principal authority is
Reg. v. Cunningham [1957] 2 Q.B. 396, where reference was made to
Reg. v. Pembliton (1874) L.R. 2 C.C.R. 119. But none of the judges in
Pembliton was seeking to give a definition of recklessness. For subsequent
cases see Reg. v. Mowatt [1968] 1 Q.B. 421; Reg. v. Venna [1976] Q.B.
G 421; Reg. v. Majewski [1977] A.C. 443 and Reg. v. Caldwell [1982] A.C.
341. Reg. v. Spratt [1990] 1 W.L.R. 1073 is wrong and cannot be
supported.
To constitute the offence against the defendant the Crown had to
establish that he had committed an assault. There was an assault in fact
and the assault was intentional. An assault can be committed recklessly
but this was not a relevant consideration on the facts. There is nothing
H in section 47 which requires the words to be given any other than their
plain and ordinary meaning. No specific intent is provided for in the
section and the word "maliciously" is omitted. As a matter of
construction the intent required relates solely to the assault and not to
1 A.C. 1992--29
93
722.
Reg. v. Savage (H.L.(E.)) (1992]
the consequence of the assault. Whether the assault occasioned the A
consequential harm is a matter of causation and irrelevant to intent. In
the circumstances, the requirements of section 3(1) of the Criminal
Appeal Act 1968 were satisfied.
Reg. v. Parmenter
The rough handling of the child led to the injuries. The defence was B
that the injuries were not intentional, but not to consider the blindingly
obvious is a state of mind.
There is nothing to prevent the House of Lords reconsidering the
Reg. v. Cunningham line of cases. There is nothing in Reg. v. Caldwell
[1982) A.C. 341 to prevent the House taking that course and there is a
certain amount of support for such a course being taken: see Reg. v.
Majewski [1977) A.C. 443. C
Reg. v. Caldwell is to be relied upon for the meaning to be given to
the word "maliciously." It is to be borne in mind that in section 20 of
the Act of 1861 no specific intent is required. "Unlawfully" means
"without lawful excuse" and "maliciously" is clearly dealing with a
general intent-a straight intent or recklessness. In the ordinary meaning
of "maliciously" there is nothing which requires a narrow meaning to be D
given to "recklessness." The courts were therefore wrong in Reg. v.
Cunningham [1957) 2 Q.B. 396 and Reg. v. Mowatt [1968) 1 Q.B. 421 in
holding that the word "reckless" should have an artificially restricted
meaning.
In view of the decision in Reg. v. Majewski [1977) A.C. 443 the way
is clear for the law to apply a plain and single test by using the Caldwell
test of recklessness. [Reference was also made to Director of Public E
Prosecutions v. K. (A Minor) [1990) 1 W.L.R. 1067; Reg. v. Bradshaw
(1878) 14 Cox C.C. 83 and Reg. v. Ward (1872) L.R. 1 C.C.R. 356.)
Stephen Sedley Q. C. and Aftab Jafferjee for the defendant in the
second appeal. In spite of its heterogeneous character and eccentric
arrangement, the Offences against the Person Act 1861 is in part an
attempt to codify non-fatal assaults according to their gravity. In doing
this it often adopts or assumes common law concepts such as mens rea, F
or recites others such as assault or malice, without expansion. Nowhere,
however, does it use the word "reckless" or "recklessly."
Although the certified questions concern both section 20 and section
47, the principal issue is whether, given the faulty direction on section
20, section 47 on its proper construction allows a conviction for actual
bodily harm to be substituted. Although the construction of section 20 is G
also an issue, the Crown undertook to the Court of Appeal that it would
not be seeking to restore those convictions.
The Crown's case assumes, without arguing, that the single possible
meaning of section 47 is that foresight attaches solely to assault and the
consequence is tested on objective remoteness principles. This is the
conventional view taken in Reg. v. Roberts (1971) 56 Cr.App.R. 95,
which was decided, however, without reference to either Reg. v. H
Cunningham [1957) 2 Q.B. 396 or Reg. v. Mowatt [1968) 1 Q.B. 421.
But it is to be noted that even the hard line represented by Reg. v.
Roberts on actual bodily harm and by Reg. v. Caldwell [1982) A.C. 341
94
723
A and Reg. v. Lawrence (Stephen) (1982] A.C. 510 on recklessness attaches

foreseeability to the consequences, not merely to the act; and, further,
that Reg. v. Roberts is authority for a common test for section 20 and
section 47, since it applies Reg. v. Beech (1912) 7 Cr.App.R. 197, a
section 20 decision. Today this line of authority is subsumed in Reg. v.
Cunningham and section 8 of the Criminal Justice Act 1967.
If all assaults require subjective foresight, then "an assault occasioning
B actual bodily harm" may mean: (a) a foreseen assault which in the event
occasions harm, or (b) a foreseen assault which occasions foreseen
harm. In the context of a presumption that mens rea extends to the
essential ingredients of all crimes, both meanings are linguistically
possible and the second is legally preferable. Whichever meaning it is,
section 8 restores the view prior to Director of Public Prosecutions v.
C Smith [1961] A.C. 290 that the test of intent, and hence of foreseeability,
is subjective: did this accused foresee the risk?
Neither section 47 itself nor its antecedents lend support to the
Crown's position. [Reference was made to section 29 of the Criminal
Procedure Act 1851 (14 & 15 Viet. c. 100) and Reg. v. Court [1989]
A.C. 28, 45-46.] The Offences against the Person Act 1861 is both a
consolidating and an amending statute, and by section 47 assault
D occasioning actual bodily harm is made a discrete offence, analogous to
indecent assault now found in section 14 of the Sexual Offences Act
1956. It is a principle of construction that the provision of a separate
penalty for a specified version of a known offence creates a new and
discrete offence: Reg. v. Harrow Justices, Ex parte Osaseri (1986] Q.B.
589, 598E and Reg. v. Courtie (1984] A.C. 463, 4710.
The underlying principle of criminal law is that people are to be
E exposed to conviction only for harmful acts which it is in their power
not to do: Sweet v. Parsley [1970] A.C. 132, 148, 162. Crimes of strict
liability, because they are an exception to this basic rule, require plain
statutory wording. The Crown's argument on section 47 makes it a
crime of strict liability for consequences.
It follows from section 8 of the Act of 1967 stupidity, even if it
F causes harm, is not in itself culpable; pure accident as in Reg. v. Savage,
even more so. This is why thoughtlessness has had to be separately and
specifically criminalised in certain modern revising statutes in which
"recklessness" is specifically included. Such a provision was construed in
Reg. v. Caldwell [1982] A.C. 341 and Reg. v. Lawrence (Stephen) (1982]
A.C. 510 as including thoughtlessness. But even where "recklessness" is
G specified in the statute this construction is not universal: see Large v.
Mainprize (1989] Crim.LR. 213; Archbold, 43rd ed., vol. 2, p. 1346,
para. 17-25 and Elliott v. C. (1983] 1 W.L.R. 939. There is no simple
choice between Caldwell recklessness and Cunningham recklessness.
As to the extent of foresight, there is no doctrine of law, even in
relation to civil liability, which makes a wrongdoer responsible for all
the consequences of his act, however unpredictable. Reg. v. Roberts, 56
H Cr.App.R. 95, for example, requires that the consequences be foreseeable
to a reasonable observer. Not even civil liability attaches to the
consequences of negligence, i.e. thoughtlessness, which are not of a
foreseeable kind: Hughes v. Lord Advocate [1963] A.C. 837, 845. Thus,
95
724.
there can be no warrant for any stricter criminal liability in the absence A
of compelling words. It is possible, therefore, to establish that (a) the
foresight required by section 47 extends to the consequences of the
assault; (b) the test of such foresight is subjective; (c) it must include
harm of the kind charged: see Reg. v. Nash, The Times, 11 June 1991.
Put as a jury question, it is: did this defendant realise that what he was
doing would or might cause the kind of harm set out in the indictment?
The Offences against the Person Act 1861 sets out to codify non-fatal B
assaults according to their gravity, but the Crown seeks to introduce a
different classification according to the ambit of the requisite intent by
building on the specific intent sections (section 18 etc.) and seeks to
distinguish (a) sections requiring unlawfulness and malice from
(b) sections such as section 47 which require a bare assault. In proving
this the Crown proves too much: it is constrained to argue that C
"maliciously" means non-accidentally and is limited to the act of assault;
or that it means having objectively foreseeable consequences. If these
fail, it falls back on Reg. v. Mowatt (1968] l Q.B. 421. These two
principal contentions are contrary to all authority and principle, but they
are necessary both to the Crown's attempt to isolate section 47 as an
offence of "half strict liability" and to its argument that the section 20
convictions were right notwithstanding the misdirection. D
If "maliciously" in section 20 means what the Crown's first submission
suggests, it would have the unfortunate effect, from the Crown's point
of view, of collapsing into a single category the offences created by
section 20 and section 47 respectively, making both depend solely on
intent to assault without regard to consequences. If "unlawfully" means
"without legal excuse," "maliciously" means "with criminal intent." It is E
needed because, unlike section 47, section 20 does not use the word
"assault." As the Crown has conceded, where ''.assault" is used, as in
section 47, it automatically carries a presumption of intent with it. This
is a part, therefore, of the symmetry for which the defendant contends,
and of the gradation of non-fatal assaults according to culpable gravity.
The alternative is the near merging of sections 20 and 47 described by
the Court of Appeal in Reg. v. Savage (Note), ante, p. 714. F
"Maliciously" cannot have the alternative meaning put forward by
the Crown. First, the whole historic use of the word has been to
describe the subjective state of the accused. Secondly, since it is
expressly posited by the Crown on foresight of consequence, section 8 of
the Criminal Justice Act 1967 precludes this construction of it. Thirdly,
the proposed meaning is indistinguishable from the test of common law G
negligence. Fourthly, even Reg. v. Mowatt [1968] 1 Q.B. 421 states that
it is wrong. Fifthly, and perhaps decisively, the House of Lords in Reg.
v. Caldwell [1982] A.C. 341, 351F-G approved the passage in Kenny,
Outlines of Criminal Law, 1st ed. (1902), and set out in the 16th ed.
(1952), p. 186, as adopted in Reg. v. Cunningham [1957] 2 Q.B. 396 as
a correct exegesis of "maliciously" in both the Offences against the
Person Act 1861, section 23 of which parallels section 20 in this respect, H
and the Malicious Damage Act 1861 (24 & 25 Viet. c. 97).
If these arguments of the Crown fail, so does the attempt to classify
assaults coming within the Offences against the Person Act 1861
96
725
A according to the language in which they are provided for. "Maliciously"

in section 20 supplies what, ex concessis, "assault" supplies in section
47: this is one aspect of the symmetry of the provisions. The other is
that inescapably in section 20 the act and the consequences are
indistinguishable: the requirement of malice is applied directly to the
consequence; it is the intervening assault which has to be inferred. Reg.
v. Wilson (Clarence) [1984] A.C. 242 on which the Crown relies in Reg.
B v. Savage, is strong authority for the proposition that section 47 and
section 20 are successive steps on a scale of gravity, and the Crown
cannot now respectably argue the converse.
Reg. v. Spratt [1990] 1 W.L.R. 1073 was rightly decided, either on
the basis of Reg. v. Venna [1976] Q.B. 421 or because Reg. v.
Cunningham [1957] 2 Q.B. 396 represents the law on section 20 as well
C as section 47.
It is wrong to suggest that the decision in Caldwell's case left
Cunningham's case undisturbed for both were essentially concerned with
exactly the same topic. The House had two possible paths to its
conclusion on the meaning of "recklessly" in the Criminal Damage Act
1971: (a) to hold that Cunningham's case and Mowatt's case were
wrongly decided and to introduce a single, "objective," test of culpable
D state of mind whenever recklessness was in issue: this the House
manifestly declined to do; or (b) to accept that Cunningham's case
correctly states the law in relation to the Offences against the Person
Act 1861 and similar statutes which depend upon traditional concepts of
malice and intent, but to distinguish it from the construction of the word
"recklessly" in the modern "revising" statute then before the House: this
E is manifestly the course the House took.
It is inconceivable that the House would have steered such a careful
path around Cunningham's case when, if Cunningham's case was bad
law, the House had the power to override it and would have felt obliged
to do so to avoid creating a false double standard of recklessness. It is
also significant that Lord Diplock in Caldwell's case never suggested that
his own judgment in Mowatt's case was now obsolete or in doubt
F because of Caldwell's case. That there are now two standards is not the
doing of Cunningham's case but of Caldwell's case. The solution is not
to sacrifice Cunningham's case, which represents an elementary legal
principle, on the altar of Caldwell's case, which represents a construction
of a word in a particular modern statute: it is to restrict Caldwell's case
and Reg. v. Lawrence (Stephen) [1982] A.C. 510 to the statutes to which
they related. Reg. v. Majewski [1977] A.C. 443, relied on by the Crown,
G adopts
a formulation from the American Model Penal Code which directly
controverts the Caldwell decision and plainly requires Cunningham
recklessness.
Section 20 and section 47 both carry maximum penalties of five
years. If section 47 requires no mens rea for the harm done by the
assault, as the Crown contends, then the defendant who consciously
H risks and inflicts grievous bodily harm is placed on a par with one who
commits a common assault without any foresight of possible harm but
accidentally inflicts the identical injury: since all grievous bodily harm is
actual bodily harm, section 47 would apply to any case of grievous
97
726
bodily harm or actual bodily harm in which foresight cannot be A

established, and so would produce convictions on facts incapable of
establishing malice under section 20. This is why the Crown cannot shift
the locus of section 47 without also shifting the locus of section 20 so as
to prevent the two sections changing places in the scale of gravity. But,
unless the House of Lords is able and prepared to rewrite the entire
criminal law by reinterpreting "maliciously" to include Caldwell
recklessness, section 20 will not budge. B
Reg. v. Mowatt [1968] 1 Q.B. 421, which was the source of the
discretion in the present case on section 20, in purporting to explain the
Cunningham decision in reality propounds a narrower test of mens rea
affording the prosecution a lower threshold of proof. If it is necessary to
choose between the two, Cunningham is to be preferred, because (a) it
already has the approval or acceptance of the House of Lords in C
Caldwell; (b) it can be seen from such cases as Reg. v. Morrison (1988)
89 Cr.App. R. 17, 19-20 that it affords a fairer test and one which
accords with well established authority; (c) Mowatt not only produces
the unhappy result described by the Court of Appeal in Reg. v.
Parmenter, ante, pp. 704B et seq., but also it does so unnecessarily
because the issue there was self-defence and the facts made self-defence
untenable, with the result that there was no need to place a gloss on D
Cunningham; (d) Cunningham exposes a defendant to punishment for
what he foresaw and was therefore in a position to abstain from, and
not for a harmful consequence of a kind which never entered his mind.
In the present case the judge inadvertently misquoted Mowatt so as
to produce a direction which, instead of requiring proof that the accused
foresaw at least some harm to the child, suggested that it was enough if E
he ought to have foreseen it. Unless the House now holds that by pure
chance this misquotation represented the law, neither the section 20
conviction nor, for the reason summarised by the Court of Appeal,
ante, p. 711E-H, a section 47 conviction can be sustained.
The report of the Law Commission on a Criminal Code for England
and Wales (1989) (Law. Com. No. 177), in particular clause 18, reflects
the jurisprudence of Cunningham, and paragraphs 8.17-8.21 of the F
commentary explains the Commission's approach on principled and
practical grounds.
Scrivener Q.C. in reply. The analogy which has been drawn with
indecent assault is not helpful. It is a quite different concept from an
ordinary assault which has different consequences.
As to section 20 of the Offences against the Person Act 1861 and the G
contention that the Caldwell test is unsatisfactory and should not be
further imported into English law and that it supports Cunningham,
Cunningham is based on insecure grounds going back to Reg. v.
Pembliton, L. R. 2 C.C.R. 119. The key to the Caldwell test is that it is
based on the question: did the accused do an action which was an
obvious risk? The prosecution have to prove that to any one
contemplating doing the act complained of it was obvious that there was H
a risk of it doing harm. This test does away with carelessness. In
Caldwell it was held that the Cunningham test was unsatisfactory. True,
the House did not overrule Cunningham for that did not arise since the
98
727
A House was concerned with a particular statute, the Criminal Damage

Act 1971, in which the word "maliciously" did not occur.
Many sections of the Offences against the Person Act 1861 use both
"maliciously" and "with intent" and therefore in such a context the word
"maliciously" is concerned with intention. There is no reason why the
word should be given a general and wide meaning. It means "deliberately
or intentionally and not by accident" and embraces recklessness within
B the Caldwell test. Further, there is no reason why "maliciously" should
be given the restricted Cunningham meaning. If Caldwell lays down the
correct test for recklessness and "maliciously" incorporates recklessness
then section 20 should be given its ordinary plain meaning.
The defendant in Reg. v. Parmenter was not contending that Caldwell
should be overruled but merely that it should not be extended. There
C has been no attempt to construe section 20.
As to Elliot v. C. [1983] 1 W.L.R. 939, the Crown concedes that it is
a hard case. The defence should have been that the risk there was not
an obvious risk. The Cunningham test is plainly defective and if Caldwell
is right then there is no reason why it should not apply to section 20.
Hughes v. Lord Advocate [1963] A.C. 837 is concerned with causation
D and is not relevant.
"Intent" in section 20 means "deliberately." As regards section 8 of
the Criminal Justice Act 1967, its effect is stated in the commentary in
Archbold, 43rd ed., vol. 2, p. 1430. Section 8 is of very limited help in
the present case, which is concerned with section 47 of the Offences
against the Person Act 1861.
The Spratt approach to section 47 is to read it as though the word
E "maliciously" is in the section but it is not, and there is no reason to
import the word into it. None of the cases support that approach.
Without the word "maliciously" the section makes sense. The section
has a well established meaning and "intent" includes recklessness.
As to Reg. v. Morrison, 89 Cr.App.R. 17, it is an example of a
section 18 case and followed Cunningham as it was bound to do as the
F section uses the word "maliciously." The same observations apply to
W. (A Minor) v. Dalbey (1983) 88 Cr.App.R. 1. In so far as these two
decisions applied Cunningham they were wrong. They would have
reached the same result if they had applied Caldwell.
The following model directions may be suggested in relation to
section 20. In order to establish an offence under section 20 the
prosecution must prove that: (1) the defendant in fact caused a wound
G
or grievous bodily harm; and (2) the defendant acted unlawfully; and
(3) in so doing the defendant either (a) intended to cause some physical
harm; or (b) was reckless as to whether some physical harm was caused
in that he did an act which created an obvious risk that some physical
harm would be caused to a person and that at the time of doing the act
he either did not give any thought to the risk of some such harm being
H caused or that he recognised that there was such a risk involved but
nevertheless went on to do the act. The foregoing definition incorporates
both straightforward intent and recklessness. [Reference was made to
Reg. v. Mowatt [1968] 1 Q.B. 421.)
99
728
Reg. v. Savage (H.L.(E.)) [1992)
As to section 47, what is envisaged there is an assault: the ingredients A

of an assault have to be read into the section. The word "maliciously"
connotes a general intention. Where the Act of 1861 requires a specific
intention to be proved the Act so states as in section 18. Nothing can be
deduced from the law relating to manslaughter. The Act draws a clear
distinction between fatal and non-fatal cases.
Goldsack Q. C. in reply. These appeals highlight the illogicality,
inconsistencies and practical difficulties that still persist under the B
Offences against the Person Act 1861. The effect of the certified
questions 2 and 3 on the Crown's approach is wrong in general principle.
There is a presumption that mens rea applies to every element of an
offence unless the contrary appears. There is no contrary indication
here. The authorities do not support the Crown's case: see Reg. v.
Mowatt [1968] 1 Q.B. 421,426. C
Logic is with the defendant. It is the height of illogicality, since
section 20 and section 47 have the same maximum penalty, to say that
the mens rea required should be different for the two sections. If there
be doubt on the correctness of Reg. v. Cunningham [1957] 2 Q.B. 396,
it is now so entrenched in the law that it would need an Act of
Parliament to overrule that decision.
D
Their Lordships took time for consideration.
7 November. LORD KEITH OF KINKEL. My Lords, I have had the

opportunity of considering in draft the speech to be delivered by my
noble and learned friend, Lord Ackner. I agree with it, and for the
reasons he gives would dismiss the appeal in Savage's case and allow E
that in Parmenter's case to the extent which he proposes.
LORD BRANDON OF OAKBROOK. My Lords, for the reasons given in

the speech of my noble and learned friend, Lord Ackner, I would
dismiss the appeal in Savage's case and allow the appeal in Parmenter's
case but only to the extent indicated by him. F
LORD AcKNER. My Lords, these two appeals have been heard

together, because they each raise the issue of the mental element which
the prosecution have to establish in relation to offences under two
sections of the Offences against the Person Act 1861, viz. section 20,
unlawfully and maliciously wounding or inflicting grievous bodily harm
and section 47, assault occasioning actual bodily harm. G
REG. V. SAVAGE
The facts and the decision of the Court of Appeal
On 3 October 1989 in the Crown Court at Durham the appellant,
Mrs. Savage was indicted and convicted on a single count of unlawful
wounding contrary to section 20 of the Act, the particulars of the H
offence being that on 31 March 1989 she unlawfully and maliciously
wounded Miss Beal. She was ordered to undertake 120 hours of
community service. The victim, Miss Beal, was a former girlfriend of
100
729
I A.C. Reg. v. Savage (H.L.(E.)) Lord Ackner
A Mrs. Savage's husband. There had been some bad feeling between
these two young women, although they had never previously met. On
the evening of 31 March 1989 they were both in the same public house,
but not together. Mrs. Savage pushed her way through to the table
where Miss Beal was sitting with some friends. She had in her hand a
pint glass which was nearly full of beer. Having said "Nice to meet you
darling," she then threw the contents of the glass over Miss Beal.
B Unfortunately, not only was Miss Beal soaked by the beer, but, contrary
to Mrs. Savage's evidence, she must have let go of the glass, since it
broke and a piece of it cut Miss Beal's wrist. The jury, by their verdict,
concluded either that the appellant had deliberately thrown not only the
beer but also the glass at Miss Beal or, alternatively, that while
deliberately throwing the beer over Miss Beal, the glass had accidentally
C slipped from her grasp and it, or a piece of it, had struck Miss Beal's
wrist, but with no intention that the glass should hit or cut Miss Beal.
The material words of section 20 read: "20. Whosoever shall unlawfully
and maliciously wound or inflict any grievous bodily harm upon any
other person ... " In the course of his summing up the recorder said:
"It is alleged that on 31 March Mrs. Savage unlawfully and
maliciously wounded Tracey Beal. What does this mean? First of
D all it means that you must find Susan Savage did some unlawful
action, unlawful in the sense that it was not in self-defence and it
was not a mere accident; malicious in the sense that it was deliberate
and aimed against Tracey Beal, and that as a result of that unlawful,
deliberate act aimed against Tracey Beal, Tracey Beal suffered a
wound. . . . She went up to her . . . and threw deliberately the
E contents of a pint glass at her. That is an assault, that is an
unlawful action aimed deliberately against Tracey Beal. Mrs.
Savage admits it. ... If you were sure that in throwing the liquid
from the glass she let go of the glass unintentionally, but in doing
this unlawful act she let go of the glass and it struck Miss Beal, then
that is a consequence of her unlawful act. If a wound resulted from
it then that is unlawful wounding."
F
In the Court of Appeal reference was made to Reg. v. Mowatt
(1968] 1 Q.B. 421 and to the following statement in the judgment of
Diplock L.J., giving the judgment of the court, at p. 426:
"In the offence under section 20, and in the alternative verdict
G which is any specific intent required, the word 'maliciously' does
wound or other grievous bodily harm an awareness that his act may
person. That is what is meant by 'the particular kind of harm' in
the citation from Professor Kenny. It is quite unnecessary that the
H physical harm of the gravity described in the section, i.e., a wound
that some physical harm to some person, albeit of a minor character,
might result. In many cases in instructing a jury upon a charge
101
730
Lord Ackner Reg. v. Savage (H.L.(E.)) [1992]
under section 20, or upon the alternative verdict which may be A
given under that section when the accused is charged under section
18, it may be unnecessary to refer specifically to the word
'maliciously.'"
The Court of Appeal observed that despite doubts which had been
expressed about the above statement of the law, it was binding on the
court and that the test imported by the words "maliciously" is a B
subjective and not an objective one. In the opinion of the Court of
Appeal, it accordingly followed that the recorder was wrong to direct
the jury that "malicious" meant deliberate and aimed at Tracey Beal
with the result that a wound occurred. The recorder omitted to direct
the jury that they had to find that Mrs. Savage foresaw that some
physical harm would follow as a result of what she did. The question as
to whether she foresaw that her act was likely to cause some harm, C
other than wetting Miss Beal with the beer, was a question they should
have been asked to consider. In view of this misdirection, the Court of
Appeal quashed the verdict and then went on to consider whether they
should substitute another verdict. The powers of the Court of Appeal
so to do are contained in section 3 of the Criminal Appeal Act 1968
which reads: D
"(1) This section applies on an appeal against conviction, where the
appellant has been convicted of an offence and the jury could on
the indictment have found him guilty of some other offence, and on
the finding of the jury it appears to the Court of Appeal that the
jury must have been satisfied of facts which proved him guilty of
the other offence. (2) The court may, instead of allowing or E
dismissing the appeal, substitute for the verdict found by the jury a
verdict of guilty of the other offence, and pass such sentence in
substitution for the sentence passed at the trial as may be authorised
by law for the other offence, not being a sentence of greater
severity."
It was, of course, common ground that Mrs. Savage was guilty of F
common assault. But in Reg. v. Mearns [1991] 1 Q.B. 82 the Court
of Appeal had concluded that as a result of the coming into force of
Criminal Justice Act 1988, sections 39 and 40, common assault is no
longer a possible alternative verdict on a trial on indictment for a more
serious offence unless, originally or by way of amendment, a specific
count alleging common assault is added to the indictment. There was
no such count in the indictment. G
The court then considered the offence under section 47, which is an
indictable offence. The material words of this section are as follows:
"Whosoever shall be convicted upon an indictment of any assault
occasioning actual bodily harm shall be liable ... " Could the jury have
found Mrs. Savage guilty of that offence? Section 6(3) of the Criminal
• La..y Act 1967 provides: H
"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
102
731
A 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."
This raised two questions for the court. (1) Did the allegation of
B wounding import or include an allegation of assault? In the view of the
Court of Appeal, ante, p. 717F "in the ordinary way, unless there are
some quite extraordinary facts it inevitably does." (2) Did that assault,
albeit unintentional, occasion actual bodily harm? The jury might have
concluded that Mrs. Savage accidentally let go of her glass, but the glass
shattered on the table or that in the action of throwing she, while still
holding it, broke it on the table and then a piece of the broken glass cut
C Miss Beal. However in neither case had it been suggested that as a
matter of causation, the assault did not occasion the actual bodily harm,
albeit unintentionally. Nevertheless, counsel for Mrs. Savage invited the
court to decide that some element of recklessness had to be established
for the offence of assault occasioning actual bodily harm to be proved.
The Court of Appeal rejected this invitation in the following terms,
D ante, p. 718:
"That submission, in our view, seeks to relate the concept of
recklessness to the wrong element of the offence. The mens rea
required is that which is a necessary element in the assault. In this
case the assault was the intentional throwing of the beer over
Tracey. Thus, there was no need to consider recklessness. The
E remaining question is, did the assault occasion the actual bodily
harm which Tracey undoubtedly suffered? This is a question of
causation, in relation to which recklessness is irrelevant. The test is
objective-was the cut on Tracey Beal's wrist a natural consequence
of the appellant's deliberate action in throwing the beer? In our
view the answer to this question could only be 'Yes'."
F The certified questions

The Court of Appeal, accordingly, substituted a verdict of guilty of
assault occasioning actual bodily harm, contrary to section 47 of the
Act. On 28 November 1990* the Court of Appeal gave leave to appeal,
certifying the following points of law to be of general public importance:
"(l) Whether a verdict of guilty of assault occasioning actual bodily
G harm is a permissible alternative verdict on a count alleging unlawful
wounding contrary to section 20 of the Offences against the Persons
Act 1861. (2) Whether a verdict of guilty of assault occasioning
actual bodily harm can be returned upon proof of an assault and of
the fact that actual bodily harm was occasioned by the assault.
(3) If it is proved that an assault has been committed and that
H actual bodily harm has resulted from that assault, whether a verdict
of assault occasioning actual bodily harm may be returned in the
• Reporters note. The Court of Appeal certified and granted leave on 10 October the
order being dated 28 November.
103
732
absence of proof that the defendant intended to cause some actual A

bodily harm or was reckless as to whether such harm would be
caused."
It is perhaps convenient at this stage to observe that in order for
Mrs. Savage to succeed in relation to the first certified question your
Lordships must conclude that the decision of this House in Reg. v.
Wilson (Clarence) [1984] A.C. 242 was wrong. As regards the second B
certified question, that the intent required in section 47 relates not only
to the assault, but also to the consequences of the assault this clearly
overlaps with the third certified question.
REG. V. PARMENTER
The facts and the decision of the Court of Appeal C
Paul Parmenter was born on 8 February 1988. Between that date
and 11 May 1988 his father, the appellant, Philip Mark Parmenter
caused his baby son to suffer injuries to the bony structures of the legs
and right forearm. He was indicted on eight counts, six represented
three paired alternatives, laid under section 18 and 20 of the Act, the
seventh count alleged a separate offence under section 20, and the
eighth count to which he pleaded guilty from the outset, alleged cruelty D
to a person under the age of 16. The only issue before the jury was
whether Mr. Parmenter had acted with the relevant intent, his case
being that he did not realise that the way he handled the child would
cause injury. At the conclusion of the trial in "February I989 at the
Chelmsford Crown Court, Mr. Parmenter was acquitted of the three
section 18 offences and convicted of all four section 20 offences. E
On the crucial issue of intent, the trial judge directed the jury as
follows:
"Let me tell you what 'maliciously' means. First of all, let me tell
you what it does not mean. If you and I meet in the corridor
outside and we were discussing the word maliciously, one I rather
expect would say, and I expect you would too, it means something
F
like spiteful, something like that. That does not apply in the
framework of this section of the Act of Parliament. Let me tell you
what maliciously means, because in the circumstances of this case it
is very important indeed. It is quite unnecessary that the accused
harm of the type described in the section-and here comes the
important part-it is enough that he should have foreseen that some G
physical harm to some person, albeit of a minor character, might
result. Two of you are writing it down, I see. I say it again, like a
shipping forecast; it is enough that he should have foreseen that
some physical harm to some person, albeit of a minor character
might result. That is what you have to consider. So, members of
the jury, the questions that you have to ask yourselves on counts
four, five and six only arise if he is not guilty on counts one, two H
and three, and they are these. Are we sure that he inflicted
grievous bodily harm of the nature described in the indictment? If
the answer to the question is yes then: are we sure that he should
104
733
A have foreseen that some physical harm, albeit of a minor character,

might result? If the answer to that question is yes, he is guilty. If
the answer to that question is no, he is not guilty."
This direction was founded on Reg. v. Mowatt [1968] 1 Q.B. 421 and
in particular the following passage in the judgment, at pp. 425-426:
"No doubt upon these facts the jury should be instructed that they
B must be satisfied before convicting the accused that he was aware
of his unlawful act in wrenching off the gas meter. In the words of
doubt. But the court in that case also expressed approval obiter of
C a more general statement by Professor Kenny, Kenny, Outlines of
Criminal Law, 18th ed. (1962), p. 202 which runs as follows: 'in any
statutory definition of a crime, "malice" must be taken not in the
old vague sense of wickedness in general, but as requiring either
was done, or (2) recklessness as to whether such harm should occur
or not (i.e. the accused has foreseen that the particular kind of
D harm might be done, and yet has gone on to take the risk of it). It
is neither limited to, nor does it indeed require, any ill will towards
the person injured.'
"This generalisation is not, in our view, appropriate to the
specific alternative statutory offences described in sections 18 and 20
of the Offences against the Person Act 1861, and section 5 of the
E Prevention of Offences Act 1851, and if used in that form in the
summing-up is liable to bemuse the jury. In section 18 the word
'maliciously' adds nothing. The intent expressly required by that
section is more specific than such element of foresight of
consequences as is implicit in the word 'maliciously' and in directing
a jury about an offence under this section the word 'maliciously' is
best ignored.
F "In the offence under section 20, and in the alternative verdict
which is any specific intent required, the word 'maliciously' does
wound or other grievous bodily harm an awareness that his act may
G person. That is what is meant by 'the particular kind of harm' in
the citation from Professor Kenny. It is quite unnecessary that the
physical harm of the gravity described in the section, i.e., a wound
might result."
H
It will be recalled that the final paragraph of the above quotation is that
to which the Court of Appeal made specific reference in the Savage
case.
105
734
Lord Ackner Reg. v. Savage (H.L.(E.)) [1992)
The Court of Appeal then observed that at first sight it appeared A
that the direction given by the trial judge was quite unexceptionable,
containing as it did a verbatim quotation from the Mowatt case [1968] 1
Q.B. 421. However, on closer inspection it was apparent that he had
inadvertently imparted a fundamental change to the principle laid down
in Mowatt's case. The Court of Appeal said, ante, p. 706:
"It seems to us clear, when the judgment in Mowatt is read as a B
whole, that the court was stating two propositions, one positive and
one negative. The positive proposition was that to found a
conviction under section 20 it must be proved that the defendant
actually foresaw that physical harm to some other person would be
the consequence of his act. This is subject to a negative
qualification, that the defendant need not actually have foreseen
that the harm would be as grave as that which in the event C
occurred.
"If one now returns to the summing up in the present case we
find the judge posing the crucial question as follows: 'Are we sure
that he inflicted grievous bodily harm of the nature described in the
indictment? If the answer to the question is yes, then: are we sure
that he should have foreseen that some physical harm, albeit of a D
minor character, might result? If the answer to that question is yes,
he is guilty. If the answer to that question is no, he is not guilty.'
"In the judgment in Mowatt the words 'should have foreseen'
were, we believe, intended to bear the same meaning as 'did
foresee' or simply 'foresaw.' Read out of context, however, the
ordinary meaning of the words 'should have' is 'ought to have.' By
reading the passage to the jurors in isolation from its context the E
judge thus inadvertently created a real risk that the jurors would
believe that they were being directed to ask themselves, not whether
the appellant actually foresaw that his acts would cause injury, but
whether he ought to have foreseen it. Indet:d we would be prepared
to go further and say that this is the natural understanding of the
passage which we have just quoted. At any rate, whether we are F
right in this or not there was an ambiguity which went to the heart
of the case, for while there was a possibility that the jury might feel
doubt about whether the appellant actually intended to injure the
child, there seems on the evidence to have been little room for
question that, judged objectively, he 'should have' realised that
what he did would lead to injury."
G
The Court of Appeal accordingly quashed the conv1ct1ons on the
four counts under section 20 (the trial judge had in fact fallen into the
same error as that made by the judge in Reg. v. Grimshaw [ I 984]
Crim.LR. 108). The court then had to consider whether they could
and should substitute for the convictions which they had quashed,
alternative verdicts of guilty under section 47 of the Act.
They then discovered that a curious situation had emerged, namely, H
that two different divisions of the Court of Appeal (Criminal Division)
had, contemporaneously but unwittingly, delivered judgments on the
necessary intent in section 47, but had unfortunately reached opposite
106
735
A conclusions. Savage was one of those cases and the other is Reg. v.
Spratt [1990] 1 W.L.R. 1073.
Reg. v. Spratt: the facts and the decision of the Court of Appeal
A young girl was struck twice whilst playing in the forecourt of a
block of flats by two airgun pellets, which had been fired from a window
B by the appellant. He admitted to the police that he had fired a few
shots out of the window, not in order to hit anyone, but to see how far
the pellets would go. He was duly charged with an offence under
section 47 of the Act to which he pleaded guilty. The basis of that plea,
as was explained to the trial judge, was that the appellant accepted that
he had been reckless, and that his recklessness took the shape of a
C failure to give any thought to the possibility of a risk. However, it was
contended on his behalf that if he had known there were children in the
area, he would not have fired the shots. The judge imposed a sentence
of 30 months' imprisonment, against which the appellant appealed.
When the matter came before the full court, the court itself raised the
question whether, if the facts asserted on the appellant's behalf were
true, he had in law committed the offence to which he had pleaded
D guilty. Subsequently leave was given to pursue an appeal against
conviction. On the appeal it was argued for the Crown that the
appellant ought objectively to have appreciated that there was a risk,
and that this was enough to establish an offence under section 47, albeit
that in the light of the decision of the Court of Appeal in Reg. v.
Cunningham [1957] 2 Q.B. 396, to which further reference will be made
E hereafter, this would not be sufficient for the purpose of section 20.
The court, having considered a number of subsequent cases, including in
particular three decisions of your Lordships' House, namely, Reg. v.
Caldwell [1982] A.C. 341, Reg. v. Lawrence (Stephen) [1982] A.C. 510
and Reg. v. Seymour (Edward) [1983] 2 A.C. 493 concluded that the
"subjective type of recklessness" furnished the test for sections 20 and
F 47 alike and that this had been decided by the Court of Appeal in Reg.
v. Venna [1976] Q.B. 421, also a case to which further reference will be
made hereafter.
In Reg. v. Spratt [1990] 1 W.L.R. 1073 McCowan L.J. giving the
judgment of the court said, at pp. 1082-1083:
"Finally, Mr. Arlidge argues that while Reg. v. Venna [1976] Q.B.
G 421 says that Cunningham recklessness will amount to guilt under
section 47, it does not say that nothing else will do. In other
words, it is now possible to add on failure to give thought to the
possibility of risk as also qualifying for guilt. We do not accept that
interpretation of the decision in Reg. v. Venna. Moreover, we are
not attracted by what would be the consequence of accepting Mr.
Arlidge's argument, namely that responsibility for the offence of
H assault occasioning actual bodily harm (in respect of which
Parliament used neither the word 'maliciously' nor 'recklessly')
would be wider than for the offence of unlawful wounding (in
respect of which Parliament used the word 'maliciously')."
107
736
Lord Ackner Reg. v. Savage (H.L.(E.)) ( 1992)
In relation to these two decisions, Savage and Spratt, the Court of A
Appeal in the Parmenter case, ante, pp. 704s et seq. concluded that in
one respect they were in harmony. Where the defendant neither
intends nor adverts to the possibility that there will be any physical
contact at all, then the offence under section 47 would not be made out.
That is because there would have been no assault, let alone an assault
occasioning actual bodily harm. Further there was no conflict where the
B
defendant does advert to the possibility of harm, albeit not necessarily
of the kind which actually happened. In such a case there clearly would
be an assault. However, the two decisions were in conflict as to
whether an intent is required in relation to the consequences of the
assault. The Court of Appeal having decided to prefer the decision in
the Spratt case, asked themselves whether there was implicit in the
section 20 verdicts (given in the light of a direction in terms of "objective C
intent") a finding that the appellant subjectively intended or recognised
the risk of physical harm. Understandably they concluded that the
answer must be in the negative. Accordingly the court allowed the
appeal, declining to substitute any other verdict on those counts where
the convictions were quashed. The court concluded by observing, ante,
p. 712, that the authorities on the intent required in sections 20 and D
47:
"can no longer live together, and that the reason lies in a collision
between two ideas, logically and morally sustainable in themselves,
but mutually inconsistent, about whether the unforeseen consequen-
ces of a wrongful act should be punished according to the intent
(Reg. v. Cunningham [1957] 2 Q.B. 396) or the consequences (Reg. E
v. Mowatt [1968] 1 Q.B. 421)."
On 6 November 1990 the Court of Appeal granted leave to appeal to

your Lordships' House and certified the following points of law to be of
general public importance, ante, p. 714:
"(l)(a) Whether in order to establish an offence under section 20 of F
the Offences against the Person Act 1861 the prosecution must
prove that the defendant actually foresaw that his act would cause
the particular kind of harm which was in fact caused, or whether it
is sufficient to prove that (objectively) he ought so to have foreseen?
(b) The like question in relation to section 47 of the Act. (2)(a) For
the purposes of the answer to question (1)(a), whether the particular G
kind of harm to be foreseen may be any physical harm, or harm of
(i) the nature, or (ii) the degree, or (iii) the nature and the degree
of the harm which actually occurred? (b) The like question in
relation to section 47 of the Act.''
It will be observed that some of the certified questions 111 Parmenter H

overlap with those in Savage.
My Lords, I will now seek to deal with the issues raised by these
appeals seriatim.
108
737
A 1. Is a verdict of guilty of assault occasioning actual bodily harm a
permissible alternative verdict on a count alleging unlawful wounding
contrary to section 20 of the Act?
The single count in the case of Savage was in common form. It read
as follows:
"Statement of Offence. Unlawful wounding, contrary to section 20
B of the Offences against the Person Act 1861.
"Particulars of offence. Susan Savage on 31 March 1989
unlawfully and maliciously wounded Tracey Beal."
The Indictment Rules 1971, rule 5 provides:
"5(1) Subject only to the provisions of rule 6 of these Rules, every
indictment shall contain, and shall be sufficient if it contains, a
C statement of the specific offence of which the accused person is
charged describing the offence shortly, together with such particulars
as may be necessary for giving reasonable information as to the
nature of the charge."
Brief though the particulars of the offence were, the indictment can
D in no way be said to be defective. Clearly, if an accused considers that
he is entitled to further particulars of the offence with which he is
charged, he can seek those from the prosecution and if unreasonably
refused, he can obtain an order from the court.
In Reg. v. Wilson (Clarence) [1984] A.C. 242 the defendant was tried
on an indictment containing a single count alleging an offence of
contravening section 20 of the Act, the particulars being that he
E "maliciously inflicted grievous bodily harm on L." (the second limb of
section 20). The jury were directed that, if they were not satisfied that
the harm inflicted was grievous bodily harm but were satisfied that it
was actual bodily harm, they could convict of the alternative offence of
assault occasioning actual bodily harm contrary to section 47 of the Act.
The jury having convicted the defendant on this lesser offence, he
appealed against his conviction to the Court of Appeal (Criminal
F
Division). Being bound by its decision in Reg. v. Springfield (1969) 53
Cr.App.R. 608, it held that the alternative verdict was not open to the
jury, allowed the appeal and quashed the conviction. The appeal by the
Crown to your Lordships' House was allowed and the conviction
restored, your Lordships holding that the allegations in the charge under
section 20 of the Act, at least, impliedly included allegations of assault
G occasioning actual bodily harm which constituted "another offence"
within the ambit of section 6(3) of the Criminal Law Act 1967, the
terms of which I have set out earlier in this speech.
Since Mr. Goldsack on behalf of Mrs. Savage sought to persuade
your Lordships that the decision in Springfield was correct and should
never have been overruled· by your Lordships. it is necessary to set out
at some length the reasoning of Lord Roskill, with whose speech Lord
H Fraser of Tullybelton, Lord Elwyn-Jones, Lord Edmund-Davies and
Lord Brightman all agreed.
What had to be determined was the true construction of the following
words in section 6(3) set out above, "the allegations in the indictment
109
738
amount to or include (expressly or by implication) an allegation of A
another offence." The starting point was accepted to be the historical
background to the legislation. This had been correctly stated in Reg. v.
Lillis [1972] 2 Q.B. 236, a five-judge Court of Appeal (Criminal
Division), in a judgment delivered by Lawton L.J. who described the
purposes and effect of section 6(3), at p. 240:
"Before the passing of the Criminal Law Act 1967 the law applicable B
to the kind of problem which presented itself to the trial judge in
this case was partly to be found in the common law and partly in a
number of statutes. At common law on an indictment charging
felony the accused could be convicted of a less aggravated felony of
which the ingredients were included in the felony charged and
similarly as regards misdemeanours: but except under statute a
conviction for a misdemeanour was not allowed on a charge of C
felony. The object of section 6(3) of the Criminal Law Act 1967
was to provide a general rule continuing and combining the rules of
common law and the provisions of most of the statutes which
enabled alternative verdicts to be returned in specific cases or types
of cases."
D
In dealing with the position prior to the Act of 1967 Lord Roskill
observed [1984] A.C. 247, 256:
"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, Criminal Pleading, Evidence and Practice, 36th ed. E
(1966), para. 575."
Having set out the statement in that paragraph Lord Roskill continued,
at pp. 256-257:
"It will be within the recollection of those of your Lordships who
have in the past sat, either as recorders or chairmen of quarter F
sessions, that this statement in Archbold accurately stated the
practice, at least before 1967. If this be right, it is not easy to see
why in principle such a defendant should not equally, at common
law, be liable to conviction under section 47. The current edition
of Archbold, 41st ed. (1982), at para. 20-145, states that upon an
indictment under section 20 either for unlawful wounding or for
G
inflicting grievous bodily harm, the defendant may be convicted of
common assault. Thus, long after 1967, the same view was
expressed as I have already quoted from the 36th edition, published
in 1966. These two passages justify the statement by Mr. Hill Q.C.
for the prosecution, in opening these appeals, that both before and
after 1967 the view was widely held that assault, whether common
assault or assault occasioning actual bodily harm, was available at H
common law as an alternative charge to inflicting grievous bodily
harm contrary to section 20 in the event of an acquittal upon that
latter charge."
110
739
A Lord Roskill then considered the crucial passage in the judgment of

Sachs L.J. in the Springfield case, 53 Cr.App.R. 608, 610-611, which
reads:
"The question accordingly arises as follows. 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
B 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?"
In commenting on this passage, Lord Roskill observed [1984] A.C.
C 247, 258:
"First, the words 'major offences' and 'lesser offences' nowhere
appear in the subsection. Secondly, the subsection says nothing
about it being 'a necessary step' towards establishing the 'major
offence' to prove the commission of the lesser offence, so that the
so-called lesser offence has to be an 'essential ingredient' of the
D major offence. Neither the adjective 'necessary' nor the adverb
'necessarily' appears anywhere in the subsection."
It had been submitted by Mr. Hill that what the Court of Appeal
had done in Springfield was to hold that the expressions "amount to"
and "include" in section 6(3) were synonymous but they are alternatives
and must in fact be meant to apply to different concepts. The necessary
E step test can apply to the expression "amount to" but it did not fit with
the word "include." As to this, Lord Roskill said, at pp. 258-259:
"There is, in my view, a clear antithesis in the subsection between
'amount to' and 'include;' the word 'or' which joins those two
words is clearly disjunctive and must not be ignored. If either limb
of the phrase is satisfied, then the stated consequences can
F follow.... In the present case, the issue to my mind is not
whether the allegations in the section 20 charge, expressly or
impliedly, amount to an allegation of a section 47 charge, for they
plainly do not. The issue is whether they either expressly or
impliedly include such an allegation. The answer to that question
must depend upon what is expressly or impliedly included in a
charge of 'inflicting any grievous bodily harm.' ... What, then, are
G the_ allegations expressly or impliedly included in a charge of
'inflicting grievous bodily harm.' Plainly that allegation must, so far
as physical injuries are concerned, at least impliedly if not indeed
expressly, include the infliction of 'actual bodily harm' because
infliction of the more serious injuries must include the infliction of
the less serious injuries. · But does the allegation of 'inflicting'
H include an allegation of 'assault'?"
Having reviewed the relevant authorities Lord Roskill was content to
accept that there can be an infliction of grievous bodily harm contrary to
section 20 without an assault being committed. For example, grievous
111
740
bodily harm could be inflicted by creating panic. Another example A
provided to your Lordships in the course of the argument in the current
appeals was interfering with the braking mechanism of a car, so as to
cause the driver to be involved in an accident and thus suffer injuries.
These are somewhat far-fetched examples. The allegation of inflicting
grievous bodily harm or for that matter wounding, as was observed by
Glidewell L.J., giving the judgment of the court in the Savage case
[1991] 2 W.L.R. 418, 421, inevitably imports or includes an allegation of B
assault, unless there are some quite extraordinary facts.
The critical question remained-do the allegations in a section 20
charge "include either expressly or by implication" allegations of assault
occasioning actual bodily harm. As to this, Lord Roskill concluded
(1984] A.C. 247, 261:
"If 'inflicting' can, as the cases show, include 'inflicting by assault,' C
then even though such a charge may not necessarily do so, I do not
for myself see why on a fair reading of section 6(3) these allegations
do not at least impliedly include 'inflicting by assault.' That is
sufficient for present purposes though I also regard it as also a
possible view that those former allegations expressly include the
other allegations."
D
I respectfully agree with this reasoning and accordingly reject the
submission that Reg. v. Wilson was wrongly decided. I would therefore
answer the first of the certified questions in the Savage case in the
affirmative. A verdict of guilty of assault occasioning actual bodily harm
is a permissible alternative verdict on a count alleging unlawful wounding
contrary to section 20 of the Offences against the Persons Act 1861. E
1. Can a verdict of assault occasioning actual bodily harm be returned
upon proof of an assault together with proof of the fact that actual bodily
harm was occasioned by the assault, or must the prosecution also prove
that the defendant intended to cause some actual bodily harm or was
reckless as to whether such harm would be caused?
F
Your Lordships are concerned with the mental element of a particular
kind of assault, an assault "occasioning actual bodily harm." It is
common ground that the mental element of assault is an intention to
cause the victim to apprehend immediate and unlawful violence or
recklessness whether such apprehension be caused: see Reg. v. Venna
[1976] Q.B. 421. It is of course common ground that Mrs. Savage
committed an assault upon Miss Beal when she threw the contents of G
her glass of beer over her. It is also common ground that however the
glass came to be broken and Miss Beal's wrist thereby cut, it was, on
the finding of the jury, Mrs. Savage's handling of the glass which caused
Miss Beal "actual bodily harm." Was the offence thus established or is
there a further mental state that has to be established in relation to the
bodily harm element of the offence? Clearly the section, by its terms,
expressly imposes no such a requirement. Does it do so by necessary H
implication? It neither uses the word "intentionally" or "maliciously."
The words "occasioning actual bodily harm" are descriptive of the word
"assault," by reference to a particular kind of consequence.
112
741
A In neither Savage, nor Spratt, nor in Parmenter, was the court's

attention invited to the decision of the Court of Appeal in Reg. v.
Roberts (1971) 56 Cr.App.R. 95. This is perhaps explicable on the basis
that this case is not referred to in the index to the current edition of
Archbold, Criminal Pleading, Evidence and Practice, 43rd ed. (1988).
The relevant text, at vol. 2, p. 1983, para. 20-117 states: "The mens rea
required [for actual bodily harm] is that required for common assault"
B without any authority being provided for this proposition.
It is in fact Roberts' case which provides authority for this proposition.
Roberts was tried on an indictment which alleged that he indecently
assaulted a young woman. He was acquitted on that charge, but
convicted of assault occasioning actual bodily harm to her. The girl's
complaint was that while travelling in the defendant's car he sought to
C make advances towards her and then tried to take her coat off. This
was the last straw, and although the car was travelling at some speed,
she jumped out and sustained injuries. The defendant denied he had
touched the girl. He had had an argument with her and in the course of
that argument she suddenly opened the door and jumped out. In his
direction to the jury the chairman of quarter sessions stated "If you are
satisfied that he tried to pull off her coat and as a result she jumped out
D of the moving car then your verdict is guilty."
It was contended on behalf of the appellant that this direction was
wrong since the chairman had failed to tell the jury that they must be
satisfied that the appellant foresaw that she might jump out of the car as
a result of his touching her, before they could convict. The court
rejected that submission. The test, said the court, at p. 102:
E "Was it [the action of the victim which resulted in actual bodily
harm] the natural result of what the alleged assailant said and did,
in the sense that it was something that could reasonably have been
foreseen as the consequence of what he was saying or doing? As it
was put in one of the old cases, it had got to be shown to be his
act, and if of course the victim does something so 'daft,' in the
F words of the appellant in this case, or so unexpected, not that this
particular assailant did not actually foresee it but that no reasonable
man could be expected to foresee it, then it is only in a very remote
and unreal sense a consequence of his assault, it is really occasioned
by a voluntary act on the part of the victim which could not
reasonably be foreseen and which breaks the chain of causation
between the assault and the harm or injury."
G
Accordingly no fault was found in the following direction of the
chairman to the jury, at p. 103:
"if you accept the evidence of the girl in preference to that of the
man, that means that there was an assault occasioning actual bodily
harm, that means that she did jump out as a direct result of what
H he was threatening her with, and what he was doing to her, holding
her coat, telling her he had beaten up girls who had refused his
advances, and that means that through his acts he was in law and in
fact responsible for the injuries which were caused to her by her
113
742
decision, if it can be called that, to get away from his violence, his A
threats, by jumping out of the car."
Thus once the assault was established, the only remaining question
was whether the victim's conduct was the natural consequence of that
assault. The words "occasioning" raised solely a question of causation,
an objective question which does not involve inquiring into the accused's
state of mind. In Reg. v. Spratt [1990] 1 W.L.R. 1073 McCowan L.J. B
said, at p. 1082:
"However, the history of the interpretation of the Act of 1861
shows that, whether or not the word 'maliciously' appears in the
section in question, the courts have consistently held that the mens
rea of every type of offence against the person covers both actual
intent and recklessness, in the sense of taking the risk of harm C
ensuing with foresight that it might happen."
McCowan L.J. then quotes a number of authorities for that
proposition. The first is Reg. v. Ward (1872) L.R. l C.C.R. 356, but
that was a case where the prisoner was charged with wounding with
intent (section 18) and convicted of malicious wounding (section 20);
next, Reg. v. Bradshaw (1878) 14 Cox C.C. 83, but that was a case D
where the accused was charged with manslaughter, which has nothing to
do with a section 47 case. Then Reg. v. Cunningham [I 957] 2 Q.B. 396,
is quoted, a case under section 23 of the Act concerned with unlawfully
and maliciously administering, etc., a noxious thing which endangers
life. And finally Reg. v. Venna [1976] Q.B. 421 in which there was no
issue as to whether in a section 47 case, recklessness had to extend to
actual bodily harm. Thus, none of the cases cited were concerned with E
the mental element required in section 47 cases. Nevertheless, the
Court of Appeal in Reg. v. Parmenter, ante, p. 710E, preferred the
decision in Reg. v. Spratt [1990) 1 W.L.R. 1073 to that of Reg. v. Savage
(Note), ante, p. 714 because the former was "founded on a line of
authority leading directly to the conclusion there expressed."
My Lords, in my respectful view, the Court of Appeal in Parmenter F
were wrong in preferring the decision in Spratt's case. The decision in
Roberts' case, 56 Cr.App.R. 95 was correct. The verdict of assault
occasioning actual bodily harm may be returned upon proof of an
assault together with proof of the fact that actual bodily harm was
occasioned by the assault. The prosecution are not obliged to prove
that the defendant intended to cause some actual bodily harm or was
reckless as to whether such harm would be caused. G
3. In order to establish an offence under section 20 of the Act, must the

prosecution prove that the defendant actually foresaw that his act would
cause harm, or is it sufficient to prove that he ought so to have foreseen?
Although your Lordships' attention has been invited to a plethora of
decided cases, the issue is a narrow one. ls the decision of the Court of H
Criminal Appeal in Reg. v. Cunningham [1957) 2 Q.B. 396 still good
law, subject only to a gloss placed upon it by the Court of Appeal
Criminal Division in Reg. v. Mowatt [1968) 1 Q.B. 421, or does the later
114
743
A decision of your Lordships' House in Reg. v. Caldwell [1982] A.C. 341
provide the answer to this question? These three decisions require
detailed consideration.
Reg. v. Cunningham [1975] 2 Q.B. 396

As previously stated this case concerned a charge brought under
B section 23 of the Act, which makes it an offence "unlawfully and
maliciously" to administer etc., to any person any poison or other
noxious thing so as to endanger life or inflict grievous bodily harm.
Cunningham, in stealing a gas meter and its contents from the cellar of
a house fractured a gas pipe, causing coal gas to escape. This percolated
through the cellar wall to the adjoining house, entered a bedroom with
the result that Mrs. Wade, who was asleep, inhaled a considerable
C quantity of the gas, with the result that her life was endangered.
Cunningham's conviction was quashed because of the misdirection by
the trial judge as to the meaning of "maliciously" in section 23 of the
Act.
Byrne J., in a reserved judgment given on behalf of the court
accepted as accurate the following statement of the law as set out by
Professor Kenny in his Outlines of Criminal Law, 1st ed. (1902):
D "In any statutory definition of a crime, malice must be taken not in
the old vague sense of wickedness in general but as requiring either
was done; or (2) recklessness as to whether such harm should occur
or not (i.e., the accused has foreseen that the particular kind of
harm might be done and yet has gone on to take the risk of it). It
E is neither limited to, nor does it indeed require, any ill will towards
the person injured."
The court held that the jury should have been left to decide whether,
even if the appellant did not intend the injury to Mrs. Wade, he foresaw
that the removal of the gas meter might cause injury to someone but
nevertheless removed it.
F
Reg. v. Caldwell /1982] A.C. 341
Mr. Sedley has not invited your Lordships to reconsider the majority
decision of your Lordships' House. He chose a much less ambitious
task. He submits that Reg. v. Cunningham cannot be bad law, since it
is inconceivable that your Lordships' House, in its majority judgment,
G would have steered such a careful path around it. Your Lordships
having power to overrule it, would, so he submits, have felt obliged to
do so in order to avoid creating a false double standard of "recklessness."
He further submits that it is significant that Lord Diplock, whose speech
represented the views of the majority of your Lordships, nowhere
suggests that his own judgment in Reg. v. Mowatt [1968] 1 Q.B. 421
which clarified or modified Cunningham, was of doubtful validity.
H In the light of these submissions it is necessary to deal in some detail
with the Caldwell decision [1982] A.C. 341.
The case was principally concerned with the meaning of the word
"reckless" in a statute enacted less than 10 years before the decision of
115
744
Lord Ackner Reg. v. Savage (H.L.(E.)) (1992]
your Lordships' House. Caldwell was indicted upon two counts of arson A
under section 1(1) and (2) respectively, of the Criminal Damage Act
1971. That section reads:
"(1) A person who without lawful excuse destroys or damages any
property belonging to another intending to destroy or damage any
such property or being reckless as to whether any such property
would be destroyed or damaged shall be guilty of an offence. (2) A
B
person who without lawful excuse destroys or damages any property,
whether belonging to himself or another-(a) intending to destroy
or damage any property or being reckless as to whether any
property would be destroyed or damaged; and (b) intending by the
destruction or damage to endanger the life of another or being
reckless as to whether the life of another would be thereby
endangered; shall be guilty of an offence. (3) An offence committed C
under this section by destroying or damaging property by fire shall
be charged as arson."
Count 1 contained the charge of the more serious offence under
section 1(2), which required intent to endanger the life of another or
recklessness as to whether the life of another would be endangered. To
this count Caldwell pleaded not guilty. He relied upon his self-induced D
drunkenness as a defence, on the ground that the offence under
subsection (2) was one of "specific intent" in the sense in which that
expression was used in speeches in your Lordships' House in Reg. v.
Majewski [1977] A.C. 443. Count 2 contained the lesser offence under
section 1(1) to which he pleaded guilty.
The recorder directed the jury that self-induced drunkenness was not
a defence to count 1, and the jury convicted him on this count. The E
recorder sentenced him to three years' imprisonment on count 1 but
passed no sentence on count 2, the lesser offence, to which he had
pleaded guilty. On appeal, the Court of Appeal held that her direction
to the jury as to the effect of self-induced drunkenness on the charge in
count 1 was wrong. They set aside the conviction on that count; but left
the sentence of three years' imprisonment unchanged as they considered F
it to be an appropriate sentence on count 2.
The question of law certified for the opinion of Your Lordships'
House was:
"Whether evidence of self-induced intoxication can be relevant to
the following questions-(a) whether the defendant intended to
endanger the life of another; and (b) whether the defendant was
reckless as to whether the life of another would be endangered,
G
within the meaning of section 1(2)(b) of the Criminal Damage Act
1971."
Your Lordships (Lord Diplock, Lord Keith of Kinkel and Lord
Roskill) dismissed the appeal holding, that if a charge under section I (2)
of the Act was so framed as to charge the defendant only with the intent
to endanger life, evidence of self-induced drunkenness could be relevant H
as a defence, but (Lord Wilberforce and Lord Edmund-Davies dissenting)
not when the charge included a reference to being reckless as to
whether life would be endangered.
116
745
I A.C. Reg. v. Savage (H.L.(E.)) Lo.rd Ackner
A At the outset of his speech Lord Diplock, at p. 350, drew attention

to the fact that the certified question recognised that under section
1(2)(b) there are two alternative states of mind as respects endangering
the life of another, and that the existence of either of them on the part
of the accused is sufficient to constitute the mens rea needed to convert
the lesser offence under section 1(1) into the graver offence under
section 1(2). One intention is that a particular thing should happen in
B consequence of the actus reus, viz. that the life of another person should
be endangered and the other intention is recklessness as to whether that
particular thing should happen or not. His Lordship then continued:
"My Lords, the Criminal Damage Act 1971 replaced almost in their
entirety the many and detailed provisions of the Malicious Damage
Act 1861. Its purpose, as stated in its long title, was to revise the
C law of England and Wales as to offences of damage to property.
As the brevity of the Act suggests, it must have been hoped that it
would also simplify the law.
"In the Act of 1861, the word consistently used to describe the
mens rea that was a necessary element in the multifarious offences
that the Act created was 'maliciously'-a technical expression, not
readily intelligible to juries, which became the subject of considerable
D judicial exegesis. This culminated in a judgment of the Court of
Criminal Appeal in Reg. v. Cunningham [1957] 2 Q.B. 396, 399
which approved, as an accurate statement of the law, what had
been said by Professor Kenny in the first edition of his Outlines of
Criminal Law published in 1902: 'In any statutory definition of a
crime, malice must be taken ... as requiring either (1) an actual
E intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (i.e.,
the accused has foreseen that the particular kind of harm might be
done and yet has gone on to take the risk of it).'
"My Lords, in this passage Professor Kenny was engaged in
defining for the benefit of students the meaning of 'malice' as a
term of art in criminal law. To do so he used ordinary English
F
words in their popular meaning. Among the words he used was
'recklessness,' the noun derived from the adjective 'reckless,' of
which the popular or dictionary meaning is: careless, regardless, or
heedless, of the possible harmful consequences of one's acts. It
presupposes that if thought were given to the matter by the doer
before the act was done, it would have been apparent to him that
G there was a real risk of its having the relevant harmful consequences;
but, granted this, recklessness covers a whole range of states of
mind from failing to give any thought at all to whether or not there
is any risk of those harmful consequences, to recognising the
existence of the risk and nevertheless deciding to ignore it.
Conscious of this imprecision in the popular meaning of recklessness
as descriptive of a state of mind, Professor Kenny, in the passage
H quoted, was, as it seems to me, at pains to indicate by the words in
brackets the particular species within the genus reckless states of
mind that constituted 'malice' in criminal law. This parenthetical
restriction on the natural meaning of recklessness was necessary to
117
746
an explanation of the meaning of the adverb 'maliciously' when A

used as a term of art in the description of an offence under the
Malicious Damage Act 1861 (which was the matter in point in Reg.
v. Cunningham [1957) 2 Q.B. 396); but it was not directed to and
consequently has no bearing on the meaning of the adjective
'reckless' in section 1 of the Criminal Damage Act 1971. To use it
for that purpose can, in my view, only be misleading."
B
The distinction which his Lordship was drawing between the meaning
of the adverb "maliciously" when used as a term of art in the description
of an offence under the Act of 1861 and that of the adjective "reckless"
in section 1 of the Act of 1971 was re-emphasised by him in the
following passage, at pp. 351-352:
"My Lords, the restricted meaning that the Court of Appeal in Reg. C
v. Cunningham had placed upon the adverb 'maliciously' in the
Malicious Damage Act 1861 in cases where the prosecution did not
rely upon an actual intention of the accused to cause the damage
that was in fact done, called for a meticulous analysis by the jury of
the thoughts that passed through the mind of the accused at or
before the time he did the act that caused the damage, in order to D
see on which side of a narrow dividing line they fell. If it had
crossed his mind that there was a risk that someone's property
might be damaged but, because his mind was affected by rage or
excitement or confused by drink, he did not appreciate the
seriousness of the risk or trusted that good luck would prevent its
happening, this state of mind would amount to malice in the
restricted meaning placed upon that term by the Court of Appeal; E
whereas if, for any of these reasons, he did not even trouble to give
his mind to the question whether there was any risk of damaging
the property, this state of mind would not suffice to make him
guilty of an offence under the Malicious Damage Act 1861.
"Neither state of mind seems to me to be less blameworthy than
the other; but if the difference between the two constituted the F
distinction between what does and what does not in legal theory
amount to a guilty state of mind for the purposes of a statutory
offence of damage to property, it would not be a practicable
distinction for use in a trial by jury. The only person who knows
what the accused's mental processes were is the accused himself-
and probably not even he can recall them accurately when the rage G
or excitement under which he acted has passed, or he has sobered
up if he were under the influence of drink at the relevant time. If
the accused gives evidence that because of his rage, excitement or
drunkenness the risk of particular harmful consequences of his·acts
simply did not occur to him, a jury would find it hard to be satisfied
beyond reasonable doubt that his true mental process was not that,
but was the slightly different mental process required if one applies H
the restricted meaning of 'being reckless as to whether' something
would happen, adopted by the Court of Appeal in Reg. v.
Cunningham.
118
747
A "My Lords, I can see no reason why Parliament when it decided

to revise the law as to offences of damage to property should go out
of its way to perpetuate fine and impracticable distinctions such as
these, between one mental state and another. One would think
that the sooner they were got rid of, the better."
Lord Diplock then reviewed decisions which had been made under
B section 1(1) of the new Act in which the prosecution's case was based
upon the accused's having been "reckless as to whether . . . property
would be destroyed or damaged." Reg. v. Stephenson [1979) Q.B. 695
was the last of such cases in which the Court of Appeal (Criminal
Division) itself reviewed a number of cases, mainly in the field of civil
law, which cases did not disclose a uniform judicial use of the terms.
Lord Diplock concluded that the court had made the assumption that
C although Parliament in replacing the Act of 1861 by the Act of 1971 had
discarded the word "maliciously" as descriptive of the mens rea of the
offences of which the actus reus is damaging property, in favour of
the more explicit phrase "intending to destroy or damage any property
or being reckless as to whether any property would be destroyed," it
nevertheless intended the words to be interpreted in precisely the same
D sense as that in which the single adverb "maliciously" had been construed
by Professor Kenny in the passage that received the subsequent approval
of the Court of Appeal in the Cunningham case. His Lordship then
continued, at p. 353:
"My Lords, I see no warrant for making any such assumption in an
Act whose declared purpose is to revise the then existing law as to
E offences of damage to property, not to perpetuate it. 'Reckless' as
used in the new statutory definition of the mens rea of these
offences is an ordinary English word. It had not by 1971 become a
term of legal art with some more limited esoteric meaning than that
which it bore in ordinary speech-a meaning which surely includes
not only deciding to ignore a risk of harmful consequences resulting
from one's acts that one has recognised as existing, but also failing
F to give any thought to whether or not there is any such risk in
circumstances where, if any thought were given to the matter, it
would be obvious that there was.
"If one is attaching labels, the latter state of mind is neither
more nor less 'subjective' than the first. But the label solves
nothing. It is a statement of the obvious; mens rea is, by definition,
G a state of mind of the accused himself at the time he did the
physical act that constitutes the actus reus of the offence; it cannot
be the mental state of some non-existent, hypothetical person.
"Nevertheless, to decide whether someone has been 'reckless' as
to whether harmful consequences of a particular kind will result
from his act, as distinguished from his actually intending such
harmful consequences to follow, does call for some consideration of
H how the mind of the ordinary prudent individual would have reacted
to a similar situation. If there were nothing in the circumstances
that ought to have drawn the attention of an ordinary prudent
individual to the possibility of that kind of harmfu consequence,
119
748
the accused would not be described as 'reckless' in the natural A

meaning of that word for failing to address his mind to the
possibility; nor, if the risk of the harmful consequences was so slight
that the ordinary prudent individual upon due consideration of the
risk would not be deterred from treating it as negligible, could the
accused be described as 'reckless' in its ordinary sense if, having
considered the risk, he decided to ignore it. (In this connection the
gravity of the possible harmful consequences would be an important B
factor. To endanger life must be one of the most grave.) So to this
extent, even if one ascribes to 'reckless' only the restricted meaning,
adopted by the Court of Appeal in Reg. v. Stephenson [1979] Q.B.
695 and Reg. v. Briggs (Note) [1977] l W.L.R. 605, of foreseeing
that a particular kind of harm might happen and yet going on to
take the risk of it, it involves a test that would be described in part C
as 'objective' in current legal jargon. Questions of criminal liability
are seldom solved by simply asking whether the test is subjective or
objective."
His Lordship then considered what should be the proper direction to
the jury where a person charged with an offence under section 1(1) of
the Criminal Damage Act 1971 is alleged to have been "reckless" as to D
whether any such property would be destroyed or damaged. He
concluded that the jury should be directed that such a person is reckless
within the meaning of section 1(1) if: (1) he does an act which in fact
creates an obvious risk that property will be destroyed or damaged; and
(2) when he does this act he either has not given any thought to the
possibility of there being any such risk or has recognised that there was
E
some risk involved and has nonetheless gone on to do it.
In his dissenting speech with which Lord Wilberforce concurred,
Lord Edmund-Davies said, at p. 357: "In time, what was originally the
common coinage of speech acquires a different value in the pocket of
the lawyer than when in the layman's purse." He concluded that the
draftsman of the Act of 1971 had in mind the Law Commission's
definition of recklessness to be found in their Working Paper No. 31, F
Codification of the Criminal Law, General Principles, The Mental
Element in Crime issued in June 1970 and in "the much respected
decision of Reg. v. Cunningham [1957] 2 Q.B. 396." Thus in his view,
unlike negligence, which has to be judged objectively, recklessness
involves foresight of consequences, combined with an objective judgment
of the reasonableness of the risk taken. Accordingly if a defendant says G
of a particular risk, "It never crossed my mind," a jury could not on
those words alone properly convict him of recklessness simply because
they considered that the risk ought to have crossed his mind, though his
words might well lead to a finding of negligence.
A few weeks after hearing the argument in Reg. v. Caldwell [1982]
A.C. 341, your Lordships in Reg. v. Lawrence (Stephen) [1982] A.C.
510 had to consider the word "recklessly" in sections 1 and 2 of the H
Road Traffic Act 1972 as amended. Judgment in that appeal was in fact
given on the same day as judgment in the Caldwell case. It was a
unanimous decision of the House, the leading speech again being given
120
749
A by Lord Diplock. I need not trouble your Lordships with the facts of
that case. Lord Diplock in referring to Reg v. Caldwell [1982] A.C. 341
said that the conclusion reached by the majority of your Lordships was
that the adjective "reckless" when used in a criminal statute, i.e. the
Criminal Damage Act 1971, had not acquired a special meaning as a
term of legal art, but bore its popular or dictionary meaning of careless,
regardless or heedless of the possible harmful consequences of one's
B acts. The same must be true of the adverbial derivative "recklessly"
when used in relation to driving a motor vehicle. As to the mens rea of
the offence, he said [1982] A.C. 510, 526-527:
"I turn now to the mens rea. My task is greatly simplified by what
has already been said about the concept of recklessness in criminal
law in Reg. v. Caldwell [1982] A.C. 341. Warning was there given
C against adopting the simplistic approach of treating all problems of
criminal liability as soluble by classifying the test of liability as being
either 'subjective' or 'objective.' Recklessness on the part of the
doer of an act does presuppose that there is something in the
circumstances that would have drawn the attention of an ordinary
prudent individual to the possibility that his act was capable of
D causing the kind of serious harmful consequences that the section
which creates the offence was intended to prevent, and that the risk
of those harmful consequences occurring was not so slight that an
ordinary prudent individual would feel justified in treating them as
negligible. It is only when this is so that the doer of the act is
acting 'recklessly' if before doing the act, he either fails to give any
thought to the possibility of there being any such risk or, having
E recognised that there was such risk, he nevertheless goes on to do
it. In my view, an appropriate instruction to the jury on what is
meant by driving recklessly would be that they must be satisfied of
two things: First, that the defendant was in fact driving the vehicle
in such a manner as to create an obvious and serious risk of causing
physical injury to some other person who might happen to be using
the road or of doing substantial damage to property; and Second,
F that in driving in that manner the defendant did so without having
given any thought to the possibility of there being any such risk or,
having recognised that there was some risk involved, had nonetheless
gone on to take it."
Some two years later in Reg. v. Seymour (Edward) [1983] 2 A.C.
G 493 your Lordships' House again considered the Caldwell decision, as
followed in Reg. v. Lawrence, in a case in which a defendant was
convicted of manslaughter when driving a lorry. An appeal was made
to the Court of Appeal upon the ground that the trial judge had
misdirected the jury in that where manslaughter was charged, and the
charge arose out of the reckless driving on the highway, the direction
propounded in Lawrence which he applied was inadequate, and that in
H such circumstances the jury should be directed that the prosecution must
prove that the defendant recognised that some risk was involved and
had nevertheless proceeded to take the· risk. The appeal was dismissed
by the Court of Appeal and by your Lordships.
121
750
Lord Ackner Reg. v. Savage (H.L.(E.)) (1992)
Before returning to the submission made by Mr. Sedley, to which I A

have referred above, I think it is now convenient to go back in time to
the decisions of the Court of Appeal in Reg. v. Mowatt (1968] 1 Q.B.
421, to which reference has already been made. The facts of that case
were simple. On 30 September 1966 in the early hours of the morning
the defendant and a companion stopped a third man in the street and
asked him whether there was a pub anywhere nearby. The defendant's
companion then snatched a £5 note from the third man's breast-pocket B
and ran off. The third man chased him without success and returned to
the defendant, grasping him by the lapels and demanding to know
where his companion had gone. The defendant then struck the third
man, knocking him down. Two police officers saw the defendant sit
astride the third man and strike him repeated blows in the face, pull him
to his feet and strike him again, knocking him down and rendering him C
almost unconscious. The defendant admitted inflicting the first blow but
claimed it was self-defence. He was tried on an indictment which
included a count for wounding with intent to do grievous bodily harm
contrary to section 18 of the Offences against the Person Act 1861. In
summing up on this count the trial judge told the jury they were entitled
to return a verdict of unlawful wounding under section 20 of the Act.
However in his summing up, while explaining the meaning of the word D
"unlawfully" so far as it was relevant to the defence of self-defence, he
gave no direction as to the meaning of "maliciously."
The importance of this case is that the Court of Appeal considered
Reg. v. Cunningham and although modifying or explaining an important
feature of that decision, in no way queried its validity. The judgment of
the Court of Appeal to which I have already made references was, as E
previously stated, given by Diplock L.J. It is of course one of Mr.
Sedley's points, that although Mowatt was not referred to in Caldwell, it
was most unlikely that its existence was overlooked, particularly by Lord
Diplock. Diplock L.J. observed [1968] l Q. B. 421, 425, that "unlawfully
and maliciously" was a fashionable phrase of parliamentary draftsmen in
1861. It ran as a theme, with minor variations, through the Malicious
Damage Act 1861 (24 & 25 Viet. c. 97), and the Offences against the F
Person Act passed in that year. He then referred to the "very special"
facts in Cunningham and observed:
"No doubt upon these facts the jury should be instructed that they
must be satisfied before convicting the accused that he was aware
of his unlawful act in wrenching off the gas meter. In the words of G
doubt." (Emphasis added.)
Subsequently he added, at p. 426:
"In the offence under section 20, an in the alternative verdict which
may be given on a charge under section 18, for neither of which is H
any specific intention required, the word 'maliciously' does import
upon the part of the person who unlawfully inflicts the wound or
other grievous bodily harm an awareness that his act may have the
122
751
A consequence of causing some physical harm to some other person.

That is what is meant by 'the particular kind of harm' in the citation
from Professor Kenny. It is quite unnecessary that the accused
harm of the gravity described in the section, i.e., a wound or
serious physical injury. It is enough that he should have foreseen
B might result." (Emphasis added.)
Mr. Sedley submitted that in Caldwell's case your Lordships' House
could have followed either of two possible paths to its conclusion as to
the meaning of "recklessly" in the Act of 1971. These were: (a) to hold
that Cunningham (and Mowatt) were wrongly decided and to introduce
a single test, wherever recklessness was an issue; or (b) to accept that
C Cunningham, (subject to the Mowatt "gloss" to which no reference was
made), correctly states the law in relation to the Offences against the
Person Act 1861, because the word "maliciously" in that statute was a
term of legal art which imported into the concept of recklessness a
special restricted meaning, thus distinguishing it from "reckless" or
"recklessly" in modern "revising" statutes then before the House, where
D those words bore their then popular or dictionary meaning.
I agree with Mr. Sedley that manifestly it was the latter course which
the House followed. Therefore in order to establish an offence under
section 20 the prosecution must prove either the defendant intended or
that he actually foresaw that his act would cause harm.
E 4. In order to establish an offence under section 20 is it sufficient to prove

that the defendant intended or foresaw the risk of some physical harm or
must he intend or foresee either wounding or grievous bodily harm?
It is convenient to set out once again the relevant part of the
judgment of Diplock L.J. in Reg. v. Mowatt [1968) 1 Q.B. 421, 426.
Having considered Professor Kenny's statement, which I have quoted
above, he then said:
F "In the offence under section 20 ... for ... which [no] specific
intent is required, the word 'maliciously' does import . . . an
awareness that his act may have the consequence of causing some
physical harm to some other person. That is what is meant by 'the
particular kind of harm' in the citation from Professor Kenny. It is
quite unnecessary that the accused should have foreseen that his
G unlawful act might cause physical harm of the gravity described in
the section, i.e., a wound or serious physical injury. It is enough
that he should have foreseen that some physical harm to some
person, albeit of a minor character, might result." (Emphasis added.)
Mr. Sedley submits that this statement of the law is wrong. He
contends that properly construed, the section requires foresight of a
H wounding or grievous bodily harm. He drew your Lordships' attention
to criticisms of the Mowatt decision made by Professor Glanville-
Williams and by Professor J. C. Smith in their text books and in articles
or commentaries. They argue that a person should not be criminally
123
752
liable for consequences of his conduct unless he foresaw a consequence A

falling into the same legal category as that set out in the indictment.
Such a general principle runs contrary to the decision in Roberts'
case, 56 Cr.App.R. 95 which I have already stated to be, in my opinion,
correct. The contention is apparently based on the proposition that as
the actus reus of a section 20 offence is the wounding or the infliction of
grievous bodily harm, the mens rea must consist of foreseeing such
wounding or grievous bodily harm. But there is no such hard and fast B
principle. To take but two examples, the actus reus of murder is the
killing of the victim, but foresight of grievous bodily harm is sufficient
and indeed, such bodily harm, need not be such as to be dangerous to
life. Again, in the case of manslaughter, death is frequently the
unforeseen consequence of the violence used.
The argument that as section 20 and section 47 have both the same C
penalty, this somehow supports the proposition that the foreseen
consequences must coincide with the harm actually done, overlooks the
oft repeated statement that this is the irrational result of this piece-meal
legislation. The Act "is a rag-bag of offences brought together from a
wide variety of sources with no attempt, as the draftsman frankly
acknowledged, to introduce consistency as to substance or as to form:"
Professor Smith in his commentary on Reg. v. Parmenter [1991) Crim. D
L.R. 43.
If section 20 was to be limited to cases where the accused does not
desire but does foresee wounding or grievous bodily harm, it would
have a very limited scope. The mens rea in a section 20 crime is
comprised in the word "maliciously." As was pointed out by Lord
Lane C.J., giving the judgment of the Court of Appeal in Reg. v. E
Sullivan on 27 October 1980 (unreported save in [1981] Crim.LR. 46),
the "particular kind of harm" in the citation from Professor Kenny was
directed to "harm to the person" as opposed to "harm to property."
Thus it was not concerned with the degree of the harm foreseen. It is
accordingly in my judgment wrong to look upon the decision in Mowatt
[1968] 1 Q.B. 421 as being in any way inconsistent with the decision in
Cunningham [1957] 2 Q.B. 396. F
My Lords, I am satisfied that the decision in Mowatt was correct and
that it is quite unnecessary that the accused should either have intended
or have foreseen that his unlawful act might cause physical harm of the
gravity described in section 20, i.e. a wound or serious physical injury.
It is enough that he should have foreseen that some physical harm to
some person, albeit of a minor character, might result. G
In the result I would dismiss the appeal in Savage's case but allow
the appeal in Purmenter's case, but only to the extent of substituting, in
accordance with the provisions of section 3(2) of the Criminal Appeal
Act 1968, verdicts of guilty of assault occasioning actual bodily harm
contrary to section 47 of the Act for the four section 20 offences of
which he was convicted.
H
LORD JAUNCEY OF TuLLICHETrLE. My Lords, I have had the
opportunity of considering in draft the speech to be delivered by my
noble ·and learned friend, Lord Ackner. I agree with it, and for the
124
753
I A.C. Reg. v. Savage (H.L.(E.)) !; 1{::, u
A reasons which he gives I, too, would dismiss the appeal in Savage's case
and allow that in Parmenter's case to the extent which he proposes.
LORD LOWRY. My Lords, I have had the opportunity of considering

in draft the speech to be delivered by my noble and learned friend,
Lord Ackner. I agree with it, and for the reasons which he gives I, too,
would dismiss the appeal in Savage's case and allow that in Parmenter's
B case to the extent which he proposes.
First appeal dismissed.

Second appeal allowed.
Convictions of assault occasioning
actual bodily harm substituted for
C convictions of inflicting grievous
bodily harm.
Solicitors: Judge Sykes & Harrison for J.P. Hall & Co., Spennymoor;
Crown Prosecution Service; Crown Prosecution Service; E. Edwards
Son & Noice, Billericay, Essex.
D J. A.G.
1 A.C. 1992--30
125
Tab 9
126
14
224
Lawton L.J. Buchanan & Co. v. Babco Ltd. (C.A.) [1977]
so as to bring them within the same genus if not the same species, is
dissipated by the use of different words in the French text It is pertinent A
to remember that the courts of many of the High Contracting Parties to
this Convention would tum to the French text. not the English. It would
be a sorry state of affairs if, because of differences of construction, the
owner of whisky and tobacco being carried in a container lorry from the
United Kingdom to a continental destination could not in the English
courts claim from the carrier repayment of the excise duty on the whisky B
stolen in England but might be able to do so in the French courts in
respect of the sums, if any, payable on tobacco stolen in France, where
there is a state monopoly in that commodity.
The French phrase "encourus a l'occasion,. conveys the concept of
"arising from,'' "occasioned by" or "resulting from." The French text
has convinced me that the words in the English version of paragraph 4 of C
article 23 should be construed as meaning " any other expenses which the
owner of the goods bas to pay as a result of the carriage of the goods."
The payment by the plaintiffs of excise duty was just such an expense.
I too would dismiss the appeal.
Appeal dismissed with costs.
Leave to appeal.
D
Solicitors: Elborne, Mitchell & Co.; lngledew, Brown, Bennison
Garrett.
A.H. B.
[COURT OF APPEAL]
REGINA v. TURNBULL AND ANOTHER
REGINA v. WHITBY F
REGINA v. ROBERTS
1976 July 6, 7; 9 Lord Widgery C.J., Roskill and
Lawton L.JJ., Cusack and May JJ.
Crime-Summing up-Evidence of identity-Prosecution's case G

solely or substantially evidence of identification - Defence of
mistaken identity - Quality of evidence - Guidelines to be
followed in summing up-Whether case to be withdrawn from
jury
Whenever a case against a defendant depends wholly or
substantially on the correctness of one or more identifications
of the defendant, which the defence aUeges to be mistaken, H
[Reported by ROBERT WILLIAMS, EsQ., Barrister-at-Law]
128
225
1 Q,B. Rea. v. Turnbull (C.A.)
the direction to the jury should inc1ude a warning of the special
A need for caution before convicting the defendant and the
reasons for that caution (post, p. 228c-o).
Further, the quality of the identification should be con-
sidered and the jury should be directed to examine closely
the circumstances in which the identification was made. Where
the quality of the identification is good, the jury can safely be
left to assess the value of the evidence, but, where the quality
is poor, the case should be withdrawn from the jury unless
B there is other evidence capable of supporting the identification.
The judge should direct the jury on the evidence that is capable
of supporting the identification (post, pp. 228u-229B, H-230a.
E-F).
Where therefore the appellants bad been convicted wholly
or substantially on evidence of identification:-
Held, that the trial of the first two appellants having
correctly followed the practice necessary in cases depending
C on identification, thei,r appeals would be dismissed, but that,
the practice not having been followed in the trials of the third
and fourth appellants, their appeals would be allowed.
Per curiam. In setting out guidelines the court has not used
the phrase "exceptional circumstances" to describe situations
in which the risk of mistaken identity is reduced because the
use of such a phrase is likely to result in case law as to what
circumstances can properly be so described; such case law is
D likely to be a fetter on the administration of justice when so
much depends on the quality of the evidence in each case
(post, p. 231A-C).
The following case is referred to in the judgment:

Reg. v. Long (1973) 57 Cr.App.R. 871, C.A.
E No additional cases were cited in argument
APPEALS against conviction.

On October 13, 1975. the defendants, Raymond Turnbull and Joseph
Nicholas David Camelo, were convicted at the Newcastle-upon-Tyne
Crown Court of conspiracy to commit burglary and were each sentenced
F by Judge Smith to three years' imprisonment They appealed against
conviction on the ground that the verdict of the jury was unsafe and un-
satisfactory, being based upon the identification of Turnbull by a single
detective constable who knew him previously, who was in a moving car
looking across a road at night and who caught a glimpse of hlm as be
momentarily turned his head. The defendant, Turnbull, also applied for
leave to appeal against sentence.
G On November 13, 1974, the defendant, Christopher John Whitby, was
convicted of robbery at the Central Criminal Court and sentenced by
Judge Argyle to six years' imprisonment He appealed against con-
viction on the ground, inter alia, that the identification of him was
unsatisfactory in that, of the three witnesses who identified him at an
identification parade one had originally told the police that he could not
H describe him or assess his age, but had named the defendant before the
parade, a second had seen the robber alleged to be the defendant only
from the rear, and the third had in his original witness statement given a
description of a man which in no way fitted the defendant.
129
226
Rea:, v. Turnbull (C.A.) (1977)
On February 11, 1976, the defendant, Graham Francis Roberts, was
convicted at the Plymouth Crown Court of unlawful wounding and A
sentenced by Judge Lavington to three months in a detention centre and
ordered to pay £18·50 compensation. He appealed against conviction on
the ground that the verdict of the jury was unsafe and unsatisfactory in
that the only evidence against him was the identification of two witnesses
made after a Japse of four and a ha1f months; they had given descriptions
which were not consistent with the description of the defendant. and a B
third witness who had an equally good view of the incident giving rise
to the charge had failed to pick out the defendant.
On July 6, 1976, the court dismissed the appeals against conviction of
Turnbull and Camelo, and refused Turnbull's application for leave to
appeal against sentence. On July 7, 1976, the court allowed the appeals
of Whitby and Roberts and quashed their convictions. In all the cases,
the court stated that it would give its reasons in a reserved judgment. C
Denis Orde for the appellant Camelo. The only evidence of identi-
fication in this case was that of a police constable who caught a fleeting
glimpse of Turnbull, the co-accused, whom he knew, outside the bank.
The finding of the jury involved a decision that this identification was D
genuine and accurate. It was alleged at the trial that it was merely put
in to bolster up an otherwise weak case. That submission is repeated.
As to the accuracy of the identification, there is the possibility of a
mistake because it was a fleeting glimpse, albeit of a face known to the
witness. A mistake is just as likely as in the case of a longer look at an
unknown face. The fleetingness of the glimpse puts this on the same E
plane as any ordinary identification case.
Reasonable doubt arises unless there are other substantiai matters to
dispel it. If the nature of the evidence had come out earlier a submission
would have been made that there was no case to go to the jury on the
ground that evidence of identification alone, although honest, is not sufficient
to ground a conv-iction.
Gerard Harkins for the appellant Turnbull, adopted the arguments put F
forward on behalf of Camelo. It is relevant in view of the " fleeting
glimpse " to know how well the police constable knew Turnbull. In the
absence of some sort of corroboration or additional evidence the conviction
should not stand. Corroboration means additional evidence or exceptional
circumstances. Here there is no forensic evidence connecting the appellants
with the crime. G
John Mathew and Martin Bell for the Crown. The focal point is the
evidence of identification by the police constable. If the case stood on
that alone, the Crown might not be seriously upholding the conviction.
There is substantial additional evidence which supports it. (i) There was
actual recognition of someone the witness knew. (ii) Turnbull was in the
area where he was said to have been seen at about the time the police H
constable said he saw him. (iii) There was a van in the car park behind
the bank ltired by Camelo which was later seen with both appellants in it.
This is very substantial additional evidence. If the jury had been directed
130
\
227
1 Q,B. Reg. v. Turnball (c.A.)
A in the way suggested by the Devlin Committee exceptional circumstances
were present.
The jury should look at the evidence of identification, whether it is
strong or weak, a long look or a fleeting glimpse, and then look at the
surrounding circumstances. Fleeting recognition without exceptional circum•
stances would mean withdrawal of the case from the jury. The judge
should indicate to the jury what may constitute exceptional circumstances.
B Orde and Harkins in reply.
Ronald Grey and Hugh Allardyce for the appeJJant Whitby. This case
depends on the evidence of three eye-witnesses. One of them said he
could not describe the robber or assess his age, but subsequently identified
the defendant by name and address and picked him out at a parade. The
defence was aHbi, and the appellant caHed bis wife in supJX)rt. The evidence
corroborating the eye-witnesses was unsatisfactory. Theirs was the only
C reaJ evidence against the appellan·t, and could not be relied on.
John Mathew and Richard Hawkins for the Crown. This is an unusua1
case because there is positive identification by three witnesses. There are
no exceptional circumstances, no additional evidence. substantial or other-
wise, which would support the identification. The Crown does not seek
to uphold the conviction, and the case could either be dealt with on the basis
D of the unsatisfactory identification evidence or, following the Devlin
Committee recommendation, on the basis that there are no exceptional
circumstances.
Michael Selfe for the appellant Roberts. The only issue at the trial
was identification. There were two witnesses apart from the victim. The
assault took place in a very short space of time, in dark surroundings. The
identification was not made until four and a half months later, when one
E witness failed to pick out the appellant at an identity parade. One witness,
a transparently honest one, was convinced that the appellant was guilty.
but there were no exceptional circumstances, such as rejection of an alibi,
on which to rely. In obvious cases, such as father-daughter incest cases,
or kidnapping, there is no need for anything more, but they are exceptional.
John Mathew and Anthony Donne for the Crown. Although one must
F be wary of drawing a bold line as suggested by the Devlin Committee, if
a bold line is drawn it must be subject to two matters: first, the jury
must rely on the expertise and experience of the tribunal and, secondly,
the rule may be broken if there are exceptional circumstances. These may
vary widely. Every case must be judged on its own facts. The judge can
direct the jury as necessary in the light of his experience. The Devlin
Committee proposals are perhaps aimed at genuine "fleeting glimpse"
G cases.
Selfe in reply.
Cur. adv. vult.
July 9. LoRD WIDGERY C.J. read the following judgment of the court.
H On October 13, 1975, at Newcastle-upon-Tyne Crown Court the appel-
lants Turnbull and Camelo were convicted of conspiracy to burgle. They
were each sentenced to three years' imprisonment They both appeal
against conviction by leave of the single judge. On November 13, 1974,
131
228
Reg. v. TumbuU (C.A.) (1977]
at the Central Criminal Court the appellant Whitby was convicted of A
robbery and sentenced to six years' imprisonment He appeals against
his conviction by leave of this court. On February 11, 1976, at Plymouth
Crown Court the appellant Roberts was convicted of unlawful wounding
and sentenced to three months' detention which he bas served. He appeals
against his conviction by leave of the single judge.
Each of these appeals raises problems relating to evidence of visual
identification in criminal cases. Such evidence can bring about mis- B
carriages of justice and bas done so in a few cases in recent years. The
number of such cases, although small compared with the number in which
evidence of visual identification is known to be satisfactory, necessitates
steps being taken by the courts, including this court, to reduce that number
as far as is possible. In our judgment the danger of miscarriages of
justice occurring can be much reduced if trial judges sum up to juries in C
the way indicated in this judgmenl
First, whenever the case against an accused depends wholly or sub-
stantially on the correctness of one or more identifications of the accused
which the defence alleges to be mistaken, the judge should warn the jury of
the special need for caution before convicting the accused in reliance on the
correctness of the identification or identifications. In addition be should
instruct them as to the reason for the need for such a warning and should D
make some reference to the possibility that a mistaken witness can be a
convincing one and that a number of such witnesses can all be mistaken.
Provided this is done in clear terms the judge need not use any particular
form of words.
Secondly, the judge should direct the jury to examine closely the
circumstances in which the identification by each witness came to be E
made. How long did the witness have the accused under observation?
At what distance? In what light? Was the observation impeded in any
way, as for example by passing traffic or a press of people? Had the
witness ever seen the accused before? How often? If only occasiona11y,
had he any special reason for remembering the accused? How long
elapsed between the original observation and the subsequent identification
to the police? Was there any material discrepancy between the description F
of the accused given to the police by the witness when first seen by them
and his actual appearance? If in any case, whether it is being dealt with
summarily or on indictment, the prosecution have reason to believe that
there is such a material discrepancy they should supply the accused or
his legal advisers with particulars of the description the police were first
given. In aU cases if the accused asks to be given particulars of such G
descriptions, the prosecution should supply them. Finally, be should
remind the jury of any specific weaknesses which had appeared in the
identification evidence.
Recognition may be more reliable than identification of a stranger;
but even when the witness is purporting to recognise someone whom be
knows, the jury should be reminded that mistakes in recognition of close H
relatives and friends are sometimes made.
All these matters go to the quality of the identification evidence. If
the quality is good and remains good at the close of the accused's case,
132
229
1 Q.B. Reg. v. Tumbull (C.A,)
the danger of a mistaken identification is lessened; but the poorer the
A quality, the greater the danger.
In our judgment when the quality is good, as for example when the
identification is made after a long period of observation, or in satisfactory
conditions by a relative, a neighbour,. a close friend, a workmate and the
like, the jury can safely be left to assess the value of the identifying
evidence even though there is no other evidence to support it: provided
B always, however, that an adequate warning has been given about the
special need for caution. Were the courts to adjudge otherwise, affronts
to justice would frequently occur. A few examples, taken over the whole
spectrum of criminal activity, will illustrate what the effects upon the
maintenance of law and order would be if any law were enacted that
no person could be convicted on evidence of visual identification alone.
Here are the examples. A bad been kidnapped and held to ransom
C over many days. His captor stayed with him all the time. At last he
was released but he did not know the identity of his kidnapper nor where
he had been kept Months later the police arrested X for robbery and
as a result of what they had been told by an informer they suspected him
of the kidnapping. They had no other evidence. They arranged for A
to attend an identity parade. He picked out X without hesitation. At
D X's trial, is the trial judge to rule at the end of the prosecution's case
that X must be acquitted?
This is another example. Over a period of a week two police officers,
B and C, kept observation in turn on a house which was suspected of
being a distribution centre for drugs. A suspected supplier, Y, visited it
from time to time. On the last day of the observation B saw Y enter the
house. He at once signalled to other waiting police officers, who had a
E search warrant to enter. They dld so; but by the time they got in, Y
had escaped by a back window. Six months later C saw Y in the street
and arrested him. Y at once alleged that C had mistaken him for some-
one else. At an identity parade he was picked out by B. Would it
really be right and in the interests of justice for a judge to direct Y's
acquittal at the end of the prosecution's case?
F A rule such as the one under consideration would gravely impede
the police in their work and would make the conviction of street offenders
such as pickpockets, car thieves and the disorderly very difficult But it
would not only be the police who might be aggrieved by such a rule.
Take the case of a factory worker, D, who during the course of his work
went to the locker room to get something from his jacket which be had
forgotten. AJ; he went in he saw a workmate, Z. whom he had known
G for years and who worked nearby him in the same shop, standing by D's
open locker with his hand inside. He hailed the thief by name. Z
turned round and faced D; he dropped D's wallet on the floor and ran
out of the locker room by another door. D reported what he had seen
to his chargehand. When the chargehand went to find Z, he saw him
walking towards his machine. Z alleged that D had been mistaken. A
H directed acquittal might well be greatly resented not only by D but by
many others in the same shop.
When, in the judgment of the trial judge, the quality of the identifying
evidence is poor, as for example when it depends solely on a fleeting
133
230
Reg. v. Turnbull (C.A.) [1977)
glance or on a longer observation made in difficult conditions, the situation A
is very different The judge should then withdraw the case from the jury
and direct an acquittal unless there is other evidence which goes to
support the correctness of the identification. This may be corroboration
in the sense lawyers use that word; but it need not be so if its effect is
to make the jury sure that there has been no mistaken identification: for
example, X sees the accused snatch a woman's handbag; he gets only a
fleeting glance of the thiefs face as he runs off but he does see him B
entering a nearby house. Later he picks out the accused on an identity
parade. If there was no more evidence than this, the poor quality of
the identification would require the judge to withdraw the case from the
jury; but this would not be so if there was evidence that the house into
which the accused was alleged by X to have run was his father's. Another
example of supporting evidence not amounting to corroboration in a C
technical sense is to be found in Reg. v. Long (1973) 57 Cr.App.R. 871.
The accused, who was charged with robbery, had been identified by three
witnesses in different places on different occasions but each had only a
momentary opportunity for observation. Immediately after the robbery
the accused had left his home and could not be found by the police.
When later he was seen by them he claimed to know who had done the
robbery and offered to help to find the robbers. At bis trial be put D
forward an alibi which the jury rejected. It was an odd coincidence that
the witnesses should have identified a man who had behaved in this way.
In our judgment odd coincidences can, if unexplained, be supporting
evidence.
The trial judge shouJd identify to the jury the evidence which he
adjudges is capable of supporting the evidence of identification. If there B
is any evidence or circumstances which the jury might think was supporting
when it did not have this qua1ity, the judge should say so. A jury, for
example, might think that support for identification evidence could be
found in llhe fact that the accused had not given evidence before them.
An accused's absence from the witness box cannot provide evidence of
anything and the judge should tell the jury so. But he would be entitled
to tel1 them that when assessing the quality of the identification evidence F
they could take into consideration the fact that it was uncontradicted by
any evidence coming from the accused himself.
Care should be taken by the judge when directing the jury about the
support for an identification which may be derived from the fact that they
have rejected an alibi. False alibis may be put forward for many reasons:
an accused, for example, who bas only his own truthful evidence to rely G
on may stupidly fabricate an alibi and get ly-ing witnesses to support it out
of fear that his own evidence will not be enough. Further, alibi witnesses
can make genuine mistakes about dates and occasions like any other
witnesses can. It is only when the jury is satisfied that the so1e reason for
the fabrication was to deceive them and there is no other explanation for
its being put forward can fabrication provide any support for identification H
evidence. The jury should be reminded that proving the accused has told
1ies about where he was at the material time does not by itself prove that
he was where the identifying witness says he was.
134
231
1 Q.B. Reg. v, Turnbull (C.A.)
In setting out these guidelines for trial judges, which involve only
A changes of practice, not law, we have tried to foUow the recommendations
set out in the Report which Lord Devlin's Committee made to the
Secretary of State for the Home Department in April 1976. We have not
followed that report in using the phrase .. exceptional circumstances " to
describe situations in which the risk of mistaken identification is reduced.
In our judgment the use of such a phrase is likely to result in the build
B up of case law as to what circumstances can properly be described as
exceptional and what cannot Case Jaw of this kind is likely to be a
fetter on the administration of justice when so much depends upon the
quality of the evidence in each case. Quality is what matters in the end.
In many cases the exceptional circumstances to which the report refers will
provide evidence of good quality, but they may not: the converse is also
C true.
A failure to follow these guidelines is likely to result in a conviction
being quashed and will do so if in the judgment of this court on al] the
evidence the verdict is either unsatisfactory or unsafe.
Having regard to public disquiet about the possibility of miscarriages
of justice in this class of case, some explanation of the jurisdiction of this
court may be opportune. That jurisdiction is statutory: we can do no
D more than the Criminal Appeal Act 1968 authorises us to do. It does not
authorise us to re•try cases. It is for the jury in each case to decide which
witnesses should be believed. On matters of credibility this court will only
interfere in three circumstances: first, if the jury has been misdirected as
to how to assess the evidence; secondly, if there bas been no direction at
all when there should have been one; and thirdly, ·if on the whole of the
E evidence the jury must have taken a perverse view of a witness, but this is
rare.
The limitations, such as they are, upon our jurisdiction do not mean
that we cannot interfere to prevent miscarriages of justice. In 1966 Par•
liament released appellate jurisdiction in criminal cases tried on indictment
from the limitations ,which the Criminal Appeal Act 1907 and the case law
based upon it had put upon the old Court of Criminal Appeat The
F jurisdiction of this court is wider. We do not hesitate to use our extended
jurisdiction whenever the evidence in a case justifies our doing so. In
assessing a case, however, it is our duty to use our ex{)Crience of the
administration of justice. In every division of this court that experience
is likely to be extensive and helps us to detect the specious, the irrelevant
and what is intended to deceive.
G We turn now to consider the facts of these appeals in the light of those
observations.
First, the Turnbull and Camelo appeal: these two appellants were
convicted on a re•trial. The case for the Crown in short was that the
two appeilants had devised a scheme whereby they could induce shop-
keepers, customers of the Gosforth Branch of Lloyds Bank Ud., to post
H their night safe waUets containing their day's takings through the ordinary
letter•box in the main front door of the bank instead of into the night safe.
The appellants then intended that in the course of the following night or
week-end they would break into the bank through a window at the rear of
135
232
Reg. v. Tumbull (C.A.) (1977)
the branch which was unprotected by any burg1ar alarm, and remove the A
wallets which would be conveniently lying on the floor just within the
bank's front door.
The first step in the conspiracy was to put the night safe out of action
by inserting a bent nail into its lock. A notice typed on bank notepaper
and purporting to be signed by a non-existent area manager was then fixed
above the night safe. This notice informed customers that owing to
vandalism the night safe was out of order and advised them to put their B
deposits through the bank letter-box. Over the latter a card was fixed
upon which was boldly printed the message .. Night Safe here."
Between about 5.30 p.m. and 6.30 p.m. on December 21, 1974, a
number of unsuspecting shopkeepers and the employees of one security
firm, following the instructions on the two notices, posted wallets con-
taining over £5,000 takings through the bank's letter-box. One shopkeeper, c
however, became suspicious, and got in touch with the police. In the
result, at 7.10 p.m. the bank manager, Mr. Salkeld, and his assistant, Mr.
1
Alderson, accompanied by two police constables went to the bank. They

waited outside until the police constables were relieved by Detective
Sergeant Wakenshaw, and then the two bank officials and the detective
sergeant went inside. They then set about making preparations to entrap
whoever might be the -intended burglars. D
Mr. Alderson gave evidence that at about 8 p.m. be was by the front
door substituting empty for the fuU night safe wallets, when he heard
a rustling sound just outside and dose to the letter-box. He opened
the door and found that the notice that had been fixed just above the
letter-box had been removed. He shouted to alert Mr. Salkeld and
Detective Sergeant Wakenshaw, and while just outside the front door saw E
a man waJlcing close to the outside wall of the bank in which the night safe
was installed. He described this man as about five feet eight inches tall,
as ihaving dark hair, and as wearing a three-quarter length coat similar to
the coat which the appellant Turnbull was subsequently shown to have
been wearing that night, and which was produced as an exhibit at the
trial. Mr. Alderson, however, did not see the man's face. Nevertheless, F
the description of the man which he did give fitted the appellant Turnbull
so far as it went.
In his turn Mr. Salkeld gave evidence that when he heard Mr. Alder-
son's shout be went out of the bank's front door and walked clockwise
round the bank by way of the main road on to which it faced, a small
back lane, and a side road which entered the main road close to the front G
door of the bank. As be did this he saw a van in that side road and took
its number. There was no dispute at the trial that that van had been hired
by the appeUant Camelo shortly before these events and that he was
driving it that night. On reaching the main road, the van turned Jeft
away from the bank and in the direction of Newcastle. Mr. Salkeld him•
self had been unable to recognise anyone who may have been in the van.
However, by <this time Sergeant Wakensbaw was outside 11he ban.k's front H
door and he gave unchallenged evidence to the effect that two or three
minutes after 8 p.m. he had there seen a van with the appel1ant Came)o at
136
233
1 Q.B. Rei:. v. Turnbull (C.A.)
A the wheel drive past fairly slowly down the side road and turn left into
the main road.
The principal witness on identity, however, for the Crown was a
Detective Constable Smith. He gave evidence that on the relevant night
he had signed off duty at Gosforth Police Station. which was not far from
the bank, at 8 p.m. He went to the car park at the rear of the police station
and drove into the main road to which reference bas been made and along
B it towards the bank. As he did so, and at a point which it was agreed was
some 62 yards from the front door of the bank, Smith said that he saw a
man in that doorway who seemed to be taldng a notice from the door of
the bank. The man 1eft the doorway and started to walk to his left
along the pavement with bis shoulders hunched to the point in the wall
of the bank where the night safe was. There he pulled another notice
quickly off it and as he did so be glanced briefly to his right, that is to say
C along the main road in the direction from which Detective Constable Smith
had been coming.
At the time Smith•s car was just passing the bank, some IO yards or so
from the night safe and Detective Constable Smith's evidence was that as
the man turned his head he (Smith) recognised him and recognised him as
the appellant Turnbull. The latter was a man whom the officer had known
D for some time. Detective Constable Smith said that it was a well lit street
and tba1 he had no difficulty in recognising Turnbull. Very shortly after
this, Smith saw two men run from the side road into the main road and
recognised one of tbem as Detective Sergeant Wakenshaw. The other in
all probability was Mr. Salkeld. Detective Constable Smith then drove
in a wide sweep round the bank in an attempt to intercept Turnbull, but
E did not see him. He did, however, meet another police officer and, ·having
spoken to him, drove home. He said that about half an hour Jater he
spoke on the telephone to Detective Sergeant Wakenshaw, and that on the
following morning, as soon as he reported for duty at the police station,
he entered in ·his notebook that which he •had seen on the previous night.
Naturally, Detective Constable Smith was cross-examined strongly by
counsel for each appellant; various criticisms and matters arising out of
F bis evidence were put to him, but it is not necessary for the purposes of
this judgment to go into them in detail.
The action then moved to another part of Gosfortb, about a mile
away from the bank. Woman Police Constable Thompson gave evidence.
which was not disputed, that at 8.05 p.m. she was on duty in a police
vehicle with a Police Constable Sewell. They saw a blue van with two
G people in it travelling at a fast speed. Having received a wireless message
they followed it and ultimately were able to stop it. As they did so she
saw the appellant Turnbull stepping on to the pavement from -the side
of some bushes nearby. The appellant Camelo was in the driver's seat of
the van. She went across and searched the bushes and there she found
a number of housebreaking implements.
H In the result both appellants were then arrested. taken to the police
station and cautioned. In the course of subsequent questioning Camelo
purported not to know Turnbull, but it was suggested that if Camelo
had said this to the police officer it was said in a purely flippant manner,
137
234
Reg. "· Turnbull (C.A.) (1977]
for it was admitted by the defence at the trial that the two appellants A
did in fact know each other at all material times.
On the facts as outlined, the case against both appellants of course
rested principa11y upon Detective Constable Smith's evidence of his
identification of Turnbull. Before the jury could convict either defendant
they had to be satisfied of both the honesty and the correctness of this
identification. Each of these aspects was challenged not only in the court
below, but also in this court. The first can be disposed of short1y. The B
jury saw and heard Detective Constable Smith giving evidence, and being
cross-examined, and the criticisms made of his evidence were fully put to
them in the course of the summing up, of which no criticism bas been or
indeed could be made. By their verdict the jury clearly indicated that they
thought this police officer to be an honest witness and there is no ground
whatever upon which this court could come to any contrary conclusion.
On the question of the correctness of the identification, the judge did C
warn the jury of the special need for caution and also explained to them
the reason for this. On the other hand. as the appellants' counsel con-
tended before this court, Smith only had a brief fl.eeting view of the side
of Turnbull's face at night, albeit in a well lit street, from a moving motor
car. His identification in suoh circumstances, it was submitted, could not
be relied upon and consequently he contended that the jury's verdict should D
be set aside as unsafe and unsatisfactory.
Counsel for the Oown accepted that what we have called the quality
of the identification by Detective Constable Smith could not be said
to have been good, and indicated that had there been no other supporting
evidence he would not have been disposed to argue that the appellants'
convictions should stand. In the circumstances of the present case, how• E
ever, and seeking to apply the general principles to which we have referred,
he contended that there was ample other evidence which went to support
the correctness of Smith's identification.
He pointed out that Smith already knew Turnbull and that his was
more recognition than mere identification. Both Smith and Alderson gave
a general description of the man they each saw and of the coat which
he was wearing that night which was consistent with the facts. A van F
recently hired by Camelo was in the vicinity at the relevant time and
Sergeant Wakenshaw had recognised Camelo at the wheel as the van passed
the bank. A few minutes later, when the van was stopped a mile or so
away, both Camelo and Turnbull were in it and there was substantial
evidence that at about that time the Jatter at least bad been in possession
of housebreaking implements. G
We agree. All this was in our judgment clearly evidence whlch went
to support the correctness of Smith's identification of Turnbull, and
thus the implication that both he and Camelo had conspired as charged.
Given the honesty of Smith's identification which, as we have said, the
jury must have accepted, our opinion is that there can be no real doubt
about its accuracy. In the result we do not think that it can be said that H
the verdicts in this case were in any way unsafe or unsatisfactory and
these appeals against conviction are therefore dismissed.
In so far as Turnbull's renewed application for leave to appeal against
138
235
1 Q.B. Reg. v. Turnbull (C,A.)
A sentence is concerned, we have already indicated that this too is dismissed.
This was a sophisticated plan to burgle bank premises, and had it
succeeded the appellants would have stolen over £5,000. The sentences
passed can be criticised neither in principle nor extent and it was for
these reasons that Tumbull's further application was dismissed.
Then we pass to Roberts's appeal. The offence was alleged to have
taken place on the evening of July 26, 1975, at a dance hall in Plymouth
B in a passageway behind the stage. According to the victim, a man named
Taylor, somebody bumped into him and then butted him on the nose.
This led to an exchange of blows and then Taylor's assailant hit him
on the top of the head with a pint beer glass. There is some conflict as
to whether the glass was broken on Taylor's head or whether it was
deliberately smashed against a wall before being used on his head, but in
C the result he bad to have 20 stitches in his bead and shoulder. His
assailant ran away.
Nothing further material occurred until December 13, 1975, approxi-
mately five months later, when the appellant was at the dance hall where
the wounding bad taken place. Taylor was there too and claimed to
recognise the appellant as the man who had attacked him the previous
July. The appellant at once denied that he knew anything about it.
D On December 18, 1975, the appellant was put on an identification
parade. A Miss Kennedy who had witnessed the attack picked him out
as the assailant. Her boy friend, one Inman, who had been with her at
the material time picked out somebody quite different who certainly had
nothing to do with the matter.
At the trial Taylor and Miss Kennedy again identified the appellant.
E At the end of the prosecution case a submission was made inviting the
judge to withdraw ·the case from the jury, but he rejected thls and in
due course the jury convicted. No criticism is made of the summing up
save that it was said there was an error in not pointing out that Inman
admitted in cross-examination that he had as good a view as Miss
Kennedy. This court is, however, asked to hold that the verdict was
p unsafe and unsatisfactory.
The case for the appellant can be summarised in this way. First, that
the identifying witnesses did not claim to have known the assailant before
the attack. Secondly, that the attack was all over in a few moments.
Thirdly, that the place where the attack took place was dark, lit only
by flashing lights of the kind popular in dance balls. Fourthly, that the
appellant's conduct after he had been accused was consistent with the
G honesty of bis denial and that in particular be did not deny that he might
have been at ,the dance hall on the evening in question or seek to set up
an alibi. He simply said that it was so long ago that he could not
remember where he was. Fifthly, it was pointed out that Inman, who had
as good a view as Miss Kennedy, could not identify the appeUant.
FinaUy, there were discrepancies and contradictions in the descriptions of
H the assailant given by the identifying witnesses. As to this last matter
Taylor's original description of his attacker was that he bad thick black
curlyish hair which was collar length, long -thick sideburns which appeared
to be joined like a beard and that be was wearing a white lightweight
139
236
Rea. V, Turnbull (c.A.) [1977)
jumper with a design on it. In evidence-in-chief he described the hair A
as shou1der length and the clothing as a white floppy jumper. He claimed
to have seen the man for a couple of seconds. In cross-examination be
described the garment as a white heavyweight cardigan. He did not think
his attacker had a beard, though be was not sure, but he was positive
the man had a moustache.
Miss Kennedy described the man as having Jightish bushy shoulder
length hair and as wearing a white T-shirt. In cross-examination she was B
positive he had a beard and moustache.
There were also discrepancies about the assailant's height. There was,
moreover, evidence that the appellant had never had a beard and had
not grown a moustache until after the date of the attack.
No suggestion was made that the identifying witnesses were dishonest
It is conceded that Miss Kennedy in particular was an impressive witness. C
But the quality of the identifications was not good. indeed there were
notable weaknesses in it and there was no evidence capable of suppor-ting
the identifications made.
We think it would have been wiser for the trial judge to have withdrawn
the case from the jury. In the circumstances the verdict was unsafe and
unsatisfactory and for that reason we have allowed the appeal, applying
the general principles enumerated earlier in this judgment. D
Then, finally, there is the Whitby appeal The case against this
appellant was based principally upon evidence of identification. A man
called Lenik was indicted with Whitby: he was acquitted.
On March 15, 1975, leave to appeal against conviction and sentence
was originally refused by the single judge. On March 24, 1975, these
applications were renewed. For the purposes of this appeal it is sufficient
to say that over the ensuing months information was received and E
investigated by the Metropolitan Police with the result that they were
satisfied that there had been an incorrect identification in this case and
that the appellant bad not in fact committed the offence of which he had
been convicted.
On November 11, 1975, the Director of Public Prosecutions informed
the registrar of this court by letter that he had taken over the conduct F
of this case on behalf of the Crown. The appellant's renewed appli-
cations ultimately came before this court on May 13, 1976. On that
occasion counsel for the Crown indicated that those concerned with the
prosecution bad by then grave doubts about the justice of the conviction
and that in consequence his instructions were to assist the court in any
way that he could rather than actively to respond to the appellant's appeal.
In those circumstances this court granted leave to appeal and adjourned 0
the hearing to a date to be fixed. It was in fact this particular case
which led to the convening of this ful1 court to consider the various
problems which have arisen relating to identification evidence in criminal
cases, and which has resulted in the judgment which this court is now
delivering.
The brief facts of the case are that on February 14, 1974, a number H
of men attempted to steal some £23,000 from the wages office of E.M.I.
Ltd. in Uxbridge Road, Hayes. This was money to pay employees' wages
and had been delivered to the premises shortly before. Two men entered
140
237
1 Q.B. Reg. v. Turnbull (C.A.)
A the office next to that in which the money had been placed. One, and
possibly both of them, were wearing balaclava helmets. One man was
carrying a wooden cosh, the other a pistol. With these they threatened
two clerks in the wages office, a Mr. Byrne and a Mr. Marshall, and
taking the wages bags in holdalls which they were also carrying they made
off down a corridor. There they were confronted by another E.M.I.
employee. He managed to snatch the holdall from one man before he hit
B him with a hammer and the other robber struck at him with the wooden
cosh. The two men then ran on towards the works entrance, and before
they escaped in a stolen motor car driven by a third man they were seen
in different circumstances by a number of other witnesses. In a11, including
Mr. Byrne and Mr. Marshall, the robbers were seen by a total of 14
witnesses.
When Marshall was first seen by the police very shortly after the
C robbery he told them that he could not describe the man whom it was
alleged was this appellant. Whitby. nor assess his age. Nevertheless. he
subsequently decided that he did know the man with the balaclava who
had threatened him. He decided that it had been this appellant. whom he
knew as a fellow employee with E.M.J., and he consequently gave the
police Whitby's name and address.
D Both Whitby and Lenik were employed by E.M.I. at that time. They
worked together on the night shift and had finished work that morning at
about 7 a.m. The appellant's evidence was that he took Lenik: home in
his car and then went on to his own home where he went to bed.
Later that day, however, having been given his name and address by
Marshall, the police arrested the appellant and took him to the local
police station. He at once denied that he was in any way concerned in
E the robbery and maintained this denial throughout. He contended that
at the time the robbery was being committed he was in bed at home. In
this he was supported by his wife who gave evidence to this effect at the
tria1. The appellant's house was searched, but the only articles of rele-
vance found were a number of toy guns which he said were his children's.
One of them was a somewhat realistic imitation of a pistol
p In the course of interrogation at the police station the appellant gave
two answers which at one stage at the trial it was suggested could be
considered as admissions, notwithstanding that overall he was denying
any complicity on his part. We were told, however. that counsel for the
Crown did not rely upon them in his final address to the jury at the
Central Criminal Court.
Forensic examination of the appellant's clothing revealed a small frag-
0 ment of glass which was similar to that of the windscreen of the get-away
car used by the robbers and which was shattered by one of the witnesses
trying to prevent their escape.
Finally, the day after his anest, the appellant was put on an identity
parade. Of the 14 witnesses to the robbery 12 attended, and three purported
to identify the appellant.
H This essentially was the evidence led against this appel1ant at the trial
and, as will be clear, it was founded upon the identification said to have
been made by the three witnesses of him on the identification parade.
In the course of bis summing up the judge did warn the jury that
141
238
Reg. v. Turnbull (C.A.) (1977}
mistakes in identification are possible, but in our opinion the warning that A
he gave was inadequate. Further, any effect that it might have had upon
the jury was, we think, nullified by his final comment on the point:
" Nevertheless, make no bones about it, there is a massive block of
prosecution evidence implicating these two accused in this robbery,
three people have identified each of them."
Further, the judge gave the jury no help about the quality of the identifi- B
cation of this appellant, which in our view was meagre in the extreme.
In so far as Marshall was concerned, as we have already said, he had
decided that this appellant had been one of the robbers before he attended
any identification parade, and some time after he bad told the police he
was unable to describe him. That in these circumstances Marshall picked
out this appellant on the parade, when his mind was already made up,
clearly added nothing to the case against this appellant The judge put C
this point before the jury merely as an argument raised by the defence. In
our view this was not sufficient: the jury should have been given a clear
direction about Marshall's purported identification of the appellant on the
parade.
In so far as the identification of the appellant by the other two wit-
nesses on the parade was concerned, one of them had at the robbery only D
seen the man whom he said had been the appe11ant from the rear. The
other had given to the police before the parade a description of a man
which in no way fitted the description of the appe11ant in fact. In addition
one must remember that all these identifications were of a man wearing a
balaclava helmet who was only seen for a short time in the hurly-burly of
a robbery and subsequent chase. Clearly the quality of the identifications
in this case was very poor. E
Was there any supporting evidence? In the course of his summing up
the judge in effect put before the jury the three matters to which we
bav already referred. First, what were said to amount to admissions in
the course of the questioning of this appe11ant by the police. Counsel for
the respondent in this court told us that he did not rely upon these any
more than did counsel for the Crown at the trial when all the evidence p
had been cal1ed and he was addressing the jury at the end. We agree
and in our view nothing that was said by this appellant to the police could
in any way be said to be evidence supporting the identifications.
Secondly, the toy gun. There was no real evidence that the man thought
to have been this appellant even had a gun at any time during the robbery
and in any event we do not think that the discovery of an imitation pistol
among bis children's toys when his house was searched was in any way 0
supporting of the poor quality of the identifications which were made.
Thirdly, the fragment of glass found on the appellant's coat. As we
have said, there was evidence that this was similar to the glass of the
windscreen of the get•away car. The forensic witness giving this evidence.
however, also accepted that this was a very common type of windscreen
glass. Further, there was substantial evidence called on behalf of this H
appellant that the windscreen of his own similar car had shattered two
or three months earlier and that the small piece of glass might well have
come from tbis. In the result the evidence on this point was entirely
142
239
1 Q.B. Reg. v. Tumbull (C.A.)
neutral. This was accepted by counsel for the Crown in the course of
A the argument on this appeal. In these circumstances we do not think that
evidence of the finding of a fragment of glass on the appellant's coat in
any way went to support the correctness of the identifications by the three
witnesses.
Finally. we feel that we should refer briefly to the way in which the
judge dealt with the appellant's wife's evidence at the trial. She was called
B to support his alibi, as such it effectively was. that at the time of the
robbery he was in bed asleep at home. Of her evidence the judge said:
"Let me say straight away, one hates to pry into these things as
between husband and wife, it is extremely distasteful, and what can the
poor wife do other than back her husband up as much as she possibly
can. This is not a criticism of her evidence at all, and you must
C approach her evidence on the same basis as that of all the other
witnesses."
In the first place, the two sentences just quoted were mutually inconsistent
What else was the first other than a criticism of the appellant's wife's
evidence?
Secondly, we think that the comment as it was left was unfortunate in
0 that the judge did not go on to point out to the jury that as the appellant's
alibi was that he was at home with obis wife, who else could he have called
to support h? This is a situation which not infrequently arises. In such
circumstances it will almost certainly be present in the jury's mind that
the witness is the defendant's wife and they will no doubt make what they
think is the proper allowance for this fact. They should, however, be
warned in most, if not all, similar cases that they should not necessarily
E regard •the fact that the witness is the defendant's wife as derogating from
the worth of her evidence when the nature and content of the defence
is such that anyone would expect •her to be called as a witness in any event.
In the result we think that the quality of the identification evidence
in this case was very poor and that there was no evidence of the nature
to which we have referred put before t•he jury which could be said to
F support the correctness of the identifications. It follows, in our judgment,
that the statement by the judge that there was a « massive block of
evidence" implicating the appellant was factually incorrect and in con-
sequence a serious misdirection. In these circumstances we have no doubt
that this conviction was both unsafe and unsatisfactory, and it was on
these grounds that we allowed this appeal.
G Appeals of defendants Turnbull and
Camelo dismissed.
Application of defendant Turnbull for
leave to appeal against sentence
refused.
Appeals of defendants Whitby and
Roberts allowed.
H
Solicitors: Registrar of Criminal Appeals; Director of Public Prose-
cutions.
143
Tab 10
144
16
R. v Walsh (Andrew), (1990-91) 12 Cr. App. R. (S.) 243 (1990)

*243 R. v Andrew Walsh and Alistair Mark Young
Court
Judgment Date
10 May 1990
Report Citation
(1990-91) 12 Cr. App. R. (S.) 243
Court of Appeal
( Lord Justice Mustill , Mr. Justice Waterhouse and Mr. Justice Swinton Thomas ):
May 10, 1990
Detention in a young offender institution—affray—length of sentence.
Sentences of 20 months' detention in a young offender institution for affray reduced to nine months.
The appellants pleaded guilty to affray. The appellants broke into the home of a man whom they believed to be a drug dealer,
cut off the electricity and one appellant struck the man. Sentenced to 21 months' detention in a young offender institution.
Held, a custodial penalty was appropriate, but the maximum sentence for the offence was three years, and the appellants were
entitled to credit for their pleas and good character. If the appellants had been over 21, the court would have imposed a sentence
of imprisonment of about 15 months and suspended all but nine months of it: as the Court could not suspend part of a sentence of
detention in a young offender institution, the sentence would be reduced to nine months' detention in a young offender institution.
*244
References: detention in a young offender institution, Current Sentencing Practice E2.4.
M. Gledhill for the appellant.
SWINTON THOMAS J.:
On February 19, 1990, in the Crown Court sitting at Middlesex Guildhall these two appellants, Andrew Walsh and Alistair
Mark Young, who are aged 20, pleaded guilty to an offence of affray. They were each sentenced to serve 21 months' detention
in a young offender institution. They now appeal against sentence by leave of the single judge.
On October 17, 1989, these two young men went out drinking. They quite clearly had much too much to drink. For some reason
it had entered into their heads that the occupier of a flat which was nearby the place where they were drinking was a drugs
dealer. In those circumstances, having taken much too much to drink, they decided that they would teach this man a lesson.
Accordingly they broke into his home by kicking in the door. They went in. Young was then serving in the Royal Marines and
he said to the owner of the flat: “We are Royal Marines and we can do what we want.”
The electricity had already been cut off by the appellants. The owner of the flat attempted to telephone the police but was
prevented from doing so, and Young threw a punch at him which caught him a glancing blow. There followed some conversation
between the owner of the flat and the two appellants and in due time the two young men were convinced that he was not a
drugs dealer.

R. v Walsh (Andrew), (1990-91) 12 Cr. App. R. (S.) 243 (1990)
The owner was then taken to another flat in the building, and he was told he must break open the door of the other flat, apparently
on the basis that the appellants thought they had come to the wrong flat and that there was a drugs dealer in the other flat. With
the amount of noise that was going on, one of the occupants of another flat in the building telephoned the police. The police
came to the premises and the two appellants were arrested.
They said to the police that they had both had too much to drink. Walsh said that he was not able to remember very much of
what occurred and Young admitted that he was involved in breaking into a flat. Both of them in due time pleaded guilty.
The learned judge when she came to sentence these appellants, not surprisingly, took the view that this was a serious offence.
The learned judge said, rightly, that the unfortunate owner of the flat must have been terrified. She said to the appellants: “You
proceeded to bully and threaten him.” She then went on to say—and this in the judgment of this court is an important feature
of this case—“Fortunately for you you did not harm him—physically, I mean.”
It is right and it is important that apart from the glancing blow, no other violence was used and the owner of the flat was not
in any way injured.
These two strong young men accordingly broke into a flat and the occupant in the circumstances which we have described must
have been quite terrified. It was undoubtedly an exceedingly unpleasant episode and one which called for a custodial penalty.
On the other side, the two appellants pleaded guilty and were entitled to credit for that. It has been pointed out by counsel,
rightly, that the maximum sentence in relation to an offence of affray is one of three years' imprisonment. Each of the two
appellants is of excellent character. We have been supplied with a number of testimonials in respect of both of them which speak
very highly of them. There is no doubt that this incident was entirely out of character. One of them was serving in the Royal
Marines at the time and the other was hoping to enlist in the Royal Navy.
In those circumstances we are persuaded that the sentence imposed by the learned judge was too long. We take the view that
if these two appellants had been *245 over the age of 21 we would have imposed a longer sentence than the one which we
propose to impose upon them but would have suspended a part of that sentence. As they are under the age of 21 it is not of
course possible to suspend the whole or any part of a sentence imposed upon them. In those circumstances we have come to
the conclusion that we will impose a sentence which is substantially lower than the sentence which we would have imposed
but would have suspended in part if they had been over 21. We have come to the conclusion that an appropriate sentence to
pass on a man over 21 in a case such as this would be of the order of 15 months, with a part of that (six months) suspended,
leaving nine months to be served. As we cannot suspend a part, we consider that it would not be just to impose a longer sentence
merely by reason of the fact that the two appellants are under the age of 21. Accordingly the sentence which will be imposed
upon them is one of nine months to be served in a young offender institution in place of the 21 months which was imposed
upon them by the learned judge.
In the context of what we have been told by counsel we hope that the authorities may be able to take a favourable view in
relation to Young continuing his service in the Royal Marines and Walsh joining the Royal Navy. That of course is entirely
a matter for them.
The sentences of 21 months' in a young offender institution will be quashed and sentences of nine months will be substituted.
To that extent this appeal is allowed.

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BUNDLE ON BEHALF

Tab 7 .................................................................................................................................... .63

Tab 8 .................................................................................................................................... .69

Tab 9 .................................................................................................................................... 126

Tab 10 .................................................................................................................................. 143

Facts of the case

11. Burton refused to give evidence for the prosecuHon at trial.

Second Ground of Appeal

Police and Criminal Evidence Act 1984

EVIDENCE IN CRIMINAL PROCEEDINGS—GENERAL

78 Exclusion of unfair evidence.

Modifications etc. (not altering text)

Youth Justice and Criminal

GIVING OF EVIDENCE OR INFORMATION FOR PURPOSES OF CRIMINAL PROCEEDINGS

COMPETENCE OF WITNESSES AND CAPACITY TO BE SWORN

53 Competence of witnesses to give evidence.

Modifications etc. (not altering text)

For educational use only

Court of Appeal (Criminal Division)

[2010] EWCA Crim 4, 2010 WL 19952

Hearing date: 24th November 2009

Miss Sally O'Neill QC for the Crown.

The Lord Chief Justice of England and Wales:

© 2024 Thomson Reuters. 15 1

© 2024 Thomson Reuters. 16 2

© 2024 Thomson Reuters. 17 3

A. B got hurt me.

Q. B hurt your bottom and how did he hurt your bottom?

A. Cos he gave me his willy.

Q. Say that again.

A. He gave me his willy.

A. He got hurt me.

Q. How did he do it. Show me?

A. Well he put it in me.

Q. He put it in you whereabouts?

A. He didn't …he didn't put his hand in there.

© 2024 Thomson Reuters. 18 4

Q. What did he put there?

A. He just put his willy in there.”

“A. I was laying down.

Q. You was laying down, where were you laying down?

A. Mummy was downstairs.

Q. She was downstairs.”

Q. And who did you tell B had hurt your bottom?

Q. And what did she say again?

© 2024 Thomson Reuters. 19 5

A. E and social workers.

A. And her Sarah.

Q. Sarah, that's right.

A. And I talked to Sarah.”

A. We was lying down.

Q. You was lying down or he was?

A. He was and I was.

A. Not very well.

A. He was lying down like that too.”

The child demonstrated.

Q. So you were both lying on your tummy?

© 2024 Thomson Reuters. 20 6

Q. Like penguins do?

“A. Over the top of me.

Q. There, OK or was it more round the back?

A. Round the back.