Neutral Citation Number: [2009] EWCA Crim 1590
Case No: 2008/05280/C1, 2008/00522/C1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  9  July  2009

B e f o r e:

LORD  JUSTICE  KEENE

MR  JUSTICE  HOLMAN

and

THE  RECORDER  OF  NOTTINGHAM
(Sitting as a Judge of the Court of Appeal, Criminal Division)

- - - - - - - - - - - - - - - - - - - - -

R E G I N A

- v -

DANIELLE  HODSON
- - - - - - - - - - - - - - - - - - - - -

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr A Abell appeared on behalf of the Appellant

Mr M Shaw appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T

LORD JUSTICE KEENE: 
1.  On 21 August 2008, following a four day trial at Southwark Crown Court, before Mr Recorder Enoch QC and a jury, the appellant was convicted of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861.  On 12 September 2008 she was sentenced to five years' imprisonment (less 22 days spent on remand).  She now appeals against conviction by leave of the single judge.

2.  The events which gave rise to the conviction took place in a London night club in March 2007.  In the course of the evening the victim, Simmone Cooper, had been involved in a heated discussion with Sarah Black, a friend of the appellant.  The appellant became involved and at some point the victim was struck in the face by a glass which the appellant had been holding.  All the evidence was that the glass had been intact until the blow was struck, but that it broke on impact.  The victim suffered a very nasty 10cm laceration to her face.  This required surgical repair and further surgical intervention when a salivary duct was found to be leaking.

3.  The prosecution's case was that the appellant had deliberately struck the victim with the glass.  An independent witness gave evidence that the victim had done nothing to the appellant.  The defence case was that the victim had been aggressive and had grabbed the appellant by the throat, whereupon the appellant's hand had involuntarily flown up in some form of instinctive motion.  This had brought the glass into contact with the victim's cheek.  This account had some support from Sarah Black, who was a prosecution witness.  The defence was therefore one of self-defence or accident.

4.  There was evidence from a consultant plastic surgeon called by the Crown that the injury could easily have occurred from one blow in an upward movement.  He did not want to be drawn on the level of force required to cause the injury which was sustained.

5.  Given the defence being run, it was not easy for those acting for the appellant to put forward an argument in the alternative that this was a deliberate blow struck by her but without the intention to cause grievous bodily harm.  Certainly, as it transpired, the Recorder did not leave the alternative verdict of section 20 wounding to the jury.  The difference between the two is that section 20 wounding does not require a specific intent to cause grievous bodily harm.  Indeed, in summing up the Recorder suggested to the jury that if it was a deliberate blow, they might think that "anybody smashing a glass into the face of another person cannot intend trivial harm, but is likely to intend serious harm".

6.  In due course the jury convicted the appellant of the only offence which was left to them, namely that of the section 18 wounding.  It was the Recorder's failure to leave the alternative offence of section 20 wounding that appealed to the single judge and which now forms the basis of this appeal. 

7.  On the appellant's behalf Mr Abell, who did not appear at trial but who has lodged a helpful skeleton argument, relies upon the now well-known House of Lords' decision in R v Coutts [2007] 1 Cr App R 6.  He draws attention to their Lordship's emphasis upon the fact that, irrespective of the wishes of counsel on either side, it is the trial judge's responsibility to ensure that the relevant options are put before the jury in the form of verdicts which they can return.  This is done by leaving for the consideration of the jury any "obvious" alternative verdict which there was evidence to support.  The test of whether an alternative verdict is obviously raised by the evidence is whether such an alternative verdict should have suggested itself to an ordinary knowledgeable and alert criminal judge.  It is submitted on behalf of the appellant that on the facts of this case section 20 wounding was an obvious alternative verdict which there was evidence to support, such that it should have been left for the consideration of the jury.

8.  For the prosecution Mr Shaw argues that to have left section 20 wounding as an alternative possible verdict would have distracted the jury from the real issues in the case.  He emphasises that neither the Crown nor the defence had run section 20 wounding as part of its case.  The real issue was one of self-defence.  Moreover, he points out that the glass shattered on impact, so it must have been a blow wielded with at least some force.

9.  However, in the course of argument Mr Shaw acknowledged that it was open to a jury properly to conclude on the evidence in this case that the blow with the glass was a deliberate one (not accidental and not in self-defence), but that the appellant did not have the necessary intent for section 18, that is to say, the intent to inflict grievous bodily harm.  Mr Shaw also tells us that there was no discussion at the end of the trial (or indeed earlier) with the Recorder about whether section 20 should be left to the jury.  It appears that there were some discussions between counsel, which resulted in the conclusion that it should not; but at no stage did counsel discuss with the Recorder the propriety of not leaving such a verdict.  Nor was his attention drawn to the House of Lords' decision in Coutts, to which we have just referred.

10.  We bear in mind the commentary on Coutts, which is contained in this court's decision in R v Foster [2008] 1 Cr App R 38.  There is no automatic requirement on a judge to leave an alternative verdict if such a verdict would not properly reflect the facts of the case, when judged realistically, or would not do justice to the gravity of the case.  This court stressed that whether it is necessary to leave such a verdict, even when legally available as an alternative, will depend on the facts of the individual case.  But if it is a realistically available verdict on the evidence, as an interpretation properly open to the jury, without trivialising the offending conduct, then it should be left.

11.  It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not.  Even then there may be circumstances where the issue of specific intent does not truly arise.  For example, if a man is shot at point-blank range in the head and the defence is simply that the defendant was not present, there is no requirement on the judge then to leave the alternative of manslaughter by way of killing without the necessary intent for murder.  However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether.  That may give rise to a miscarriage of justice.

12.  In the present case it seems to this court that it was properly open to the jury to have found on the evidence that the appellant had not acted in self-defence and had intended to hit the victim with the glass, unbroken as it was, but had not intended to cause her serious bodily harm (or at least may not have had that specific intent).  As we have pointed out, the prosecution on this appeal accept that that would have been a proper interpretation available to the jury on the evidence they heard.

13.  The issue as to intent was something which the jury were going to have to decide by way of inference from the appellant's actions, and in particular her act in striking the blow.  It must be borne in mind that such actions not infrequently do produce an offence of section 20 wounding, rather than section 18.  The law reports contain numerous examples of section 20 glassing in a public house or a club: see, for example R v Robertson [1998] 1 Cr App R(S) 21 and R v Singleton [1998] 1 Cr App R(S) 200.  We take those only as two of many possible examples.  Singleton was a case where a verdict of section 20 wounding was returned on an indictment charging solely a section 18 offence.

14.  In the present case the Recorder's course of action seems to us to have presented the jury with that stark choice of either convicting the appellant of section 18 wounding -- a very serious offence -- or of acquitting her completely.  We can well understand why they decided against the latter, once they had decided that self-defence and accident were not feasible.  But there must be a concern that they may have convicted of section 18 wounding rather than permitting the appellant to go scot-free when, had they had a section 20 verdict available to them, they would not have decided to convict on the more serious charge.

15.  That being so, we can only regard the conviction in this case as being unsafe.  The appeal is therefore allowed and the conviction is quashed.  The appeal against sentence falls with it.

16.  We cannot conclude this judgment, however, without emphasising the duty upon counsel, at a trial such as this, to ensure that they raise with the judge, if he has not raised it of his own volition, the need at least to consider the propriety and necessity of leaving an alternative verdict such as section 20 to the jury if it is available on the facts.  Particularly where there has been a fairly recent House of Lords' decision such as Coutts, it is the duty of counsel to draw such matters to the judge's attention to ensure that things do not go wrong, as they went wrong in this case. 

17.  In any event, the upshot is that the appeal against conviction is allowed.  Where do the Crown stand in that situation?

MR SHAW:  There will be a retrial, with the leave of the court.

LORD JUSTICE KEENE:  Well, you say there will be a retrial.  You are asking us to order a retrial, I take it?

MR SHAW:  I apologise.  I was saying that with your Lordships' leave there will be a retrial.  I have canvassed the possibility.  That is our preferred course of conduct.  This is clearly a serious matter.  The victim is scarred and will be scarred for life.  It has had a traumatic effect on her personal and her professional life.  It is in the public interest that this matter should be re-litigated.

LORD JUSTICE KEENE:  Yes.  The appellant has served about ten-and-a-half months so far, I think, in custody?

MR SHAW:  Yes.

LORD JUSTICE KEENE:  Any more on that?

MR SHAW:  My Lord, no.

LORD JUSTICE KEENE:  Yes, Mr Abell?

MR ABELL:  My Lord, there is plainly little I can say.  My Lord has made the point that the appellant has been in custody now for some ten-and-a-half months -- nearly a year, approaching a year, which equates to, approaching, a two year sentence.

LORD JUSTICE KEENE:  Twenty-one months it equates to, does it not?

MR ABELL:  Yes.

LORD JUSTICE KEENE:  Yes.  That is certainly an argument for any retrial being heard with some dispatch, and we will say that as a note to the directions we give.  Thank you.

	(The court conferred)

LORD JUSTICE KEENE:  Yes, we are satisfied that it is in the interests of justice that there should be a retrial in this case.  We will make the usual orders in that situation.  We will direct that a fresh indictment be preferred on which the appellant is to be arraigned within two months of today; the venue to be as directed by the Presiding Judge of the South-Eastern Circuit.  You will presumably want a representation order, Mr Abell?

MR ABELL:  Indeed, my Lord, yes.

LORD JUSTICE KEENE:  To cover solicitor as well as counsel?

MR ABELL:  Yes, please.

LORD JUSTICE KEENE:  Is there any problem about the reporting of these appeal proceedings pending retrial?  We have been dealing with a fairly narrow legal issue.

MR ABELL:  We have.  I would be inclined to submit: better safe than sorry.  I would respectfully submit it may be sensible to delay any public reporting of proceedings until the retrial has taken place.

LORD JUSTICE KEENE:  Do you have any views on that, Mr Shaw?

MR ABELL:  Only that your Lordships' judgment needs to be widely disseminated to the criminal bar as soon as possible, but I have no representations to make.

	(The court conferred)

LORD JUSTICE KEENE:  We cannot see any need for reporting restrictions here, Mr Abell.  Insofar as we have recounted the facts, they are not facts which are in any way prejudicial to your client.  The basic ones will come out at trial anyway.  So there will be no reporting restrictions.

You presumably have an application?

MR ABELL:  I do, my Lord, for bail.  My learned friend may be able to assist more than I can as to what the conditions were.  In my respectful submission, she is a young lady of hitherto good character and she was, as I understand it, on bail prior to the trial being heard.  I would ask that she be re-admitted to bail. 

LORD JUSTICE KEENE:  There must have been conditions?  Probably one as to residence?  I suspect another one not to contact any of the witnesses.

MR ABELL:  I am afraid I cannot assist.  I was not in the trial.

MR SHAW:  My recollection is that there was a condition that she was not to contact the Crown witnesses -- in particular the three main witnesses: the complainant, Sarah Black and Donkas.  We would also like a condition of residence to assist us because she will have to be notified in due course of the date and the venue of the re-arraignment.

LORD JUSTICE KEENE:  Yes.  Can I just be clear?  You have moved on very rapidly at my prompting to the question of conditions -- those that she was under before --

MR SHAW:  Yes.

LORD JUSTICE KEENE:  -- when she was awaiting trial.  Does the Crown seek to oppose bail on appropriate conditions?

MR SHAW:  No.

LORD JUSTICE KEENE:  Very well.  We will grant bail on those conditions, but let us just make sure we are clear about them.  Does she have a place to which the condition of residence can now relate?

MR ABELL:  Yes, indeed, my Lord.  I am just having instructions taken as to the address.  Perhaps I can hand it to my Lord's associate in due course?

LORD JUSTICE KEENE:  Yes, please.  Would you do that, rather than doing it in open court?

MR ABELL:  My Lord, yes.

LORD JUSTICE KEENE:  There will be a condition clearly that she is not to contact those three named witnesses, which again the associate can obtain from Mr Shaw.  Was there any reporting requirement -- reporting to a police station?

MR SHAW:  There was not, as I recall, no.

LORD JUSTICE KEENE:  Are there any other conditions the Crown would be seeking?

MR SHAW:  No.  She is a woman of good character.  We do not think she will flee the jurisdiction.

LORD JUSTICE KEENE:  Yes.  We do not think that any further bail conditions are required.  (To the defendant)  Miss Hodson, you have heard what has been happening.  You are going to be granted bail up until the retrial which will take place in this matter.  There are conditions attached to that: a condition of residence and a condition not to contact Simmone Cooper, Sarah Black and David Donkas, the three prosecution witnesses.  It will be in your own interests to observe those conditions.  But equally, your bail can be revoked were you to break them and you would then find yourself in custody again awaiting your trial.  Do you understand all of that?

THE DEFENDANT (DANIELLE HODSON):  I do.

LORD JUSTICE KEENE:  Anything further that we need to do with?

MR SHAW:  Nothing further from the Crown.

LORD JUSTICE KEENE:  Thank you very much indeed.

	________________________________________