When directing the jury, the judge should mention all alternative and appropriate lesser offences with explanations. The possibility of a conviction under section 47 for assault occasioning actual bodily harm should be offered to a conviction under section 20 for wounding.
Hobhouse LJ said: ‘We consider that, in a case such as this, where there is a factual situation which requires a jury to consider the extent of the joint enterprise and whether all the ingredients of the offence have been proved against one of the defendants, and the fact that the evidence was capable of showing that different offences may have been committed by him, the jury should have that opportunity to consider the alternatives. This is not a case, such as often occurs, where there is a single main clear count charging an offence, and the alternatives to it are not viable alternatives. This is a case where the alternatives were, on the evidence before the jury, clearly viable as regards the appellant . .
The present case undoubtedly involved disgraceful conduct on the part of this appellant. He had been identified as one of the men in the minicab. It was clear and undisputed on the evidence that he had taken part in a joint attack on the minicab driver in the early hours of the morning and had, on any view, inflicted some injuries upon him. Indeed, on one view, he was the person who had started the actual violence. It was disgraceful conduct, and it would cause outrage if the appellant, having been identified as one of the men involved, were to ‘get clean away’. If the jury were to have a proper opportunity to consider all the alternatives which were open to them in respect of the appellant, they should have had further directions from the Judge upon the alternative verdicts that were open to them. The Judge laid the ground in his directions about what was involved in a joint enterprise, and the different views that might be taken of how far the joint enterprise went. He referred to the facts, which indicated the increased gravity of the later parts of the incident, and the role of Oakley in aggravating the assault, as well as being involved in the robbery. But he did not then go on to direct the jury that there were alternative verdicts which were open to them.
In our judgment, that did amount to a material irregularity in the conduct of this trial, and makes the appellant’s conviction unsafe.’
Judges:
Hobhouse LJ, Garland and Curtis JJ
Citations:
Times 11-May-1994, [1994] Crim LR 848
Statutes:
Offences against the Person Act 1861 18
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Maxwell CACD 1988
The defendant admitted paying two others to burgle his partner’s home, but said he had not anticipated violence, and appealed against his conviction for robbery, saying the judge should have left the alternative verdict to the jury. The jury, during . .
Cited by:
Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 25 October 2022; Ref: scu.87298