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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Downey and Skinner (Royal Court : Hearing (Criminal)) [2025] JRC 074 (18 March 2025) URL: https://www.bailii.org/je/cases/UR/2025/2025_074.html Cite as: [2025] JRC 74, [2025] JRC 074 |
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Grave and Criminal Assault - reasons for judgment under Article 50
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Before : |
R. J. MacRae, Esq., Deputy Bailiff, sitting alone |
The Attorney General
-v-
Sean Downey
Kenneth Skinner
P. Lee, Esq., Crown Advocate.
Advocate G. F. Herold-Howes for Mr Downey.
Advocate O. A. Blakeley for Mr Skinner.
ARTICLE 50 JUDGMENT
THE DEPUTY BAILIFF:
1. On 25 February 2025, the jury, after a trial lasting four days, returned a verdict of not guilty in respect of both Defendants on the principal charge of grave and criminal assault on the complainant in this case, Mr Lawson, and a verdict of guilty in respect of the alternative charge, upon which they were directed, of common assault. Counsel for Skinner indicated that he wished to address the Court pursuant to Article 50 of the Criminal Procedure (Jersey) Law 2018. He was directed to file written submissions within fourteen days which he did the following day. Those submissions were adopted by counsel for Downey. The Crown then replied.
2. The principles in relation to the approach the Court should take under Article 50 have been considered on numerous occasions, including in AG v Williams [2022] JRC 103 and AG v Withe [2023] JRC 123. They were most recently considered in the case of AG v Maguire [2025] JRC 034. The Article is as follows:
"Sentencing where facts in dispute
(1) This Article applies where a defendant found guilty is to be sentenced, and the defence disputes the facts upon which the defendant was found guilty.
(2) Where this Article applies, the trial court -
(a) shall, if invited by the defence or prosecution to do so; or
(b) may, of its own motion,
communicate its view of the facts to the sentencing court.
(3) Where, under paragraph (2), the trial court has communicated its view of the facts to the sentencing court, the sentencing court may sentence the defendant on the basis of the facts so communicated.
(4) In this Article -
(a) "trial court" means -
(i) where the defendant was tried by the Royal Court sitting with a jury, the Bailiff, or
(ii) where the defendant was tried by the Inferior Number of the Royal Court sitting without a jury, the Bailiff and Jurats;
(b) "sentencing court" means the Royal Court sitting as the Inferior Number or Superior number, as the case requires."
3. Under Article 50, it is necessary for the judge, if there is more than one possible interpretation of the factual basis of the jury's verdict to make up their own mind to the criminal standard as to that factual basis and correspondingly, if the judge is unable to be satisfied so that they are sure of that basis to pass sentence on the interpretation most favourable to the defendant.
4. Turning to the facts of this case and the issues for the jury, the jury was directed on joint responsibility for a criminal offence in the following terms, which included a resumé of the relevant factual issues as follows:
"Joint responsibility for a criminal offence
25. The Crown say that this was a criminal offence in which both Defendants took part. The Crown says that after Mr Skinner was thrown out of the Oxford Public house, he contacted Mr Downey. Just over half an hour later they both appeared at the threshold to the Oxford Public House. Mr Skinner had just been banned from the pub and Mr Downey had gone with him. The Crown says that the two of them were looking for a fight and were both prepared to engage in unlawful violence if the occasion arose - and that this is what happened. The Crown must prove that the defendant whose case you are considering either alone or shared an intention with the other to commit the offence of grave and criminal assault and did something which contributed towards the commission of the offence. Taking part in an offence can include encouraging another, for example by lending support by being present, as well as taking a more active role. You must be sure before you can convict him that the defendant that you are considering was present and took some part in the offence.
Breaking that down:
(i) The Crown must prove so that you are sure that there was participation in the offence you are considering by the defendant with whom you are concerned.
(ii) An offence may be committed by a person acting alone, or by more than one person acting together with the same criminal purpose.
(iii) If two or more people act together to commit a criminal offence each is responsible for the offence and each is guilty. In the case of an assault, it does not matter that you cannot attribute the injuries caused to any particular defendant.
(iv) An agreement to act together need not be expressed in words. It may be the result of planning but equally there may be an unspoken agreement reached between defendants on the spur of the moment. That agreement may be inferred by you from the circumstances. You do not need to be sure when the agreement was made, simply that the defendant you are considering joined in (that is, that he took some part in the offence).
(v) A person is not guilty of an offence simply because he is present at the scene of an offence committed by someone else; he must take some part in it. Taking part could be by words or actions. It could be by being present and doing or saying nothing but intending by his supportive presence to ensure the joint plan takes place. So, if a defendant is simply present and not involved in any way, he is not guilty. If a defendant is present in order to lend his support to the commission of the offence by another then he is guilty.
(vi) A person can join in after the offence has begun; they would still be guilty of committing the offence they have taken a part in.
26. In this case the Crown say that both defendants were in this together. When they arrived at the Oxford Pub, Mr Skinner had been banned a short time before, Mr Downey was immediately aggressive and unlawfully (which he accepts) punched Mr Lawson. Mr Lawson left the public house and seconds later was punched by Mr Skinner with sufficient strength to knock him out, and Mr Downey joined in by kicking Mr Lawson whilst on the ground and ostensibly unconscious. They then left the scene together.
27. The Defence say that this was not a joint offence, that Mr Downey's acts of violence are ones for which he was solely responsible; there was no joint plan and that Mr Skinner was acting in lawful defence of another when he punched Mr Lawson."
5. The jury were subsequently directed in relation to the terms of the indictment, what the Crown needed to prove, self-defence in relation to the actions of Mr Skinner and the verdicts open to them, as follows:
"The indictment -� what the Crown must prove
28. The Defendants are jointly charged with grave and criminal assault.
29. An assault is committed if a person intentionally or recklessly applies force on another person with hostile intent. "Recklessly" means that a defendant knew there was a risk that his actions might cause some harm but nonetheless took that risk.
30. In Jersey there are two kinds of assault, common assault and grave and criminal assault. The Defendants are charged with the more serious of these, grave and criminal assault. The difference between the two kinds of assault is merely a question of degree. An assault becomes a grave and criminal assault if the nature and scale of the assault is grave, i.e., serious.
31. I have summarised the Crown and defence cases above when dealing with the question of joint responsibility. Mr Downey says that he is guilty of common assault but not guilty of grave and criminal assault because the assault that he committed was not serious, and the most serious act of violence (if you find that it was unlawful violence) was the punch by Mr Skinner which floored Mr Lawson, and Mr Downey was not a participant in that act. Mr Skinner says that when he punched Mr Lawson he was not acting as part of a joint plan with Mr Downey and he did so to protect Mr Downey who was being assaulted by Mr Lawson. If you are not sure that Mr Skinner was participating in an offence jointly with Mr Downey, then you must consider if Mr Skinner was acting in self-defence.
32. I will now direct you in relation to the law of defence of another in respect of Mr Skinner only.
33. The Crown must satisfy you that he was not acting in defence of Mr Downey when he used force on Mr Lawson.
34. You must ask yourself two questions when considering this matter.
35. First, you must ask yourself whether Mr Skinner honestly believed that it was necessary to use force to defend Mr Downey. If you are sure that he did not honestly believe that it was necessary to use force to defend Mr Downey, he cannot have been acting in self-defence, and you must return a verdict of guilty.
36. But if you think Mr Skinner did honestly believe, or may have honestly believed, that it was necessary to use force to defend Mr Downey, you must move on to the second question, which is to decide whether the type and amount of force the Defendant used was reasonable. A person who is under attack may react on the spur of the moment and cannot be expected to work out exactly how much force is needed to defend themselves or another. On the other hand, if they go over the top and use force all out of proportion to the anticipated attack upon them, or more force than is really necessary to defend themselves or another, the force used would not be reasonable.
37. So, you must take into account both the nature of any anticipated attack on Mr Downey and what he in fact did.
38. If you are sure that the force Mr Skinner used was unreasonable, then Mr Skinner cannot have used force in lawful defence of another, and you must return a verdict of guilty of grave and criminal assault (or common assault -� see paragraph 41 below).
39. If you think that the force Mr Skinner used was or may have been reasonable you must find him not guilty.
40. If you are satisfied so that you are sure that Mr Skinner was not acting in defence of Mr Downey, and that he and Mr Downey were both participants in a grave and criminal assault (having regard to the directions given above) you will find them both guilty of grave and criminal assault.
41. If you are satisfied in the case of Mr Skinner that he was not acting in self-defence but you are not sure that this was a serious assault, then your verdict in his case would be guilty of common assault.
42. Accordingly, there are a number of verdicts open to you in this case in that you may find;
(i) Either or both defendants guilty of grave and criminal assault;
(ii) Either or both defendants not guilty of grave and criminal assault but guilty of common assault;
(iii) Mr Skinner not guilty."
6. It is said by defence counsel that there are "four main possible factual bases for the jury's decision". These are as follows:
(i) There was a common plan between Downey and Skinner put in place on or about the time of the telephone call between them. The plan was to commit violence when they arrived at the Oxford pub. They carried out that plan and all the violent force by Downey and Skinner used against Lawson formed part of the attack. However, those attacks and the injuries suffered by the victim did not constitute a grave and criminal assault.
In broad terms, I agree that this is a possible factual basis for the jury's decision.
(ii) There was a common plan between Downey and Skinner put in place on or about the time of the telephone call between them. The plan was to commit violence when they arrived at the Oxford pub. They carried out that plan however the physical force against Lawson comprising the offence did not include the punch from Skinner because that was carried out by him in self-defence of Downey. Accordingly, it was only Downey who used physical force upon Lawson and that force did not constitute grave and criminal assault and / or the serious injuries suffered by Lawson were not caused by Downey.
I do not accept that this was a possible factual basis for the jury's decision, or at least I am sure that it could not have been the basis for the jury's decision. On the evidence I am satisfied that Mr Skinner was not acting in self-defence.
Further, and in any event, the jury were directed (bearing in mind that the temporal span of the acts of violence offered to Mr Lawson by the Defendants totalled about twenty-eight seconds) that if they were satisfied that there was joint participation in the alleged offence then the Defendants were jointly responsible for the assault upon Mr Lawson. Accordingly, if there was a common plan to avenge Mr Skinner's eviction from the public house pursuant to which both Defendants were prepared to engage in unlawful violence, then no issue of self-defence can have arisen.
(iii) There was no common plan agreed between Downey and Skinner before arriving at the Oxford pub. When they got there, Downey, acting alone, punched Lawson. Thereafter, Downey continued to assault Lawson. Skinner joined in with Downey's offending by either shouting at the doorway and thereafter punching Lawson or joined in only at the end only by punching Lawson. The injuries sustained and / or the violence used did not constitute grave and criminal assault.
This is a possible basis for the jury's verdict.
(iv) There was no common plan agreed between Downey and Skinner before arriving at the Oxford pub. When Downey got there, acting alone, he punched Lawson. Skinner joined in on Downey's offending by shouting at the doorstep and by remaining in the vicinity providing support. The punch by Skinner at the end was carried out in self-defence and did not form part of the offending. The violence forming the offence was therefore limited to things done by Downey alone. Downey's acts did not constitute grave and criminal assault and / or the injuries sustained by Lawson were not caused by Downey's acts.
On this basis, Mr Skinner's conviction by the jury could only be on the basis of him briefly joining Mr Downey for the purpose of committing an offence to which they were both jointly responsible by shouting at the doorstep after Mr Downey had punched Mr Lawson, and on that footing Mr Skinner was jointly responsible for that punch. I do not accept that on any basis the jury would have convicted Mr Skinner on this basis -� it would not be credible for them to have done so. In any event I have indicated that I am sure that Mr Skinner was not acting in self-defence.
Finally there is a fifth possible basis advanced on behalf of the Crown to the effect that there was a common plan between the Defendants to use violence when they arrived at the public house which Mr Downey acted upon by punching Mr Lawson whilst at the doorway and thereafter Mr Skinner withdrew from the plan with Mr Skinner acting in defence of Mr Downey when he punched Mr Lawson. I reject this as a basis for the verdict for a number of reasons, principally because as I have already set out, I am satisfied that Mr Skinner was not acting in self-defence when he assaulted Mr Lawson.
7. The defence goes on to submit that the Court can be sure that the jury must have found that Mr Lawson's injuries were serious. I do not accept that. That is not the experience of the Court (see the three recent cases cited above). If the issue was free from doubt, then the jury simply would not have been directed in relation to common assault. All parties agreed that the jury should be directed in relation to common assault. Such a direction is not given if it is not appropriate, for example if a defendant uses a knife to cause severe injury. Furthermore, defence counsel addressed the jury on the footing that Mr Lawson did not sustain substantial injuries. He suffered bruising, a laceration to the head caused by its impact on the ground which required stitching and no more, and the fracture to his leg was described as "hairline". Mr Lawson was not detained overnight in hospital and remarks were made by defence counsel about the evidence that he suggested going to another public house for a drink after his discharge from hospital approximately three hours after the assault. Indeed, on the Friday before the trial, at a directions hearing, I told counsel that I should not be surprised if the jury returned verdicts of guilty of common assault in this case. This they did. Accordingly, the verdicts cannot be regarded as surprising. So, the submission made on behalf of Mr Skinner to the effect that the jury must have concluded that the criminal responsibility of the Defendants ended before Mr Skinner punched Mr Lawson is rejected.
8. I also reject the assertion that the jury must have found that Mr Lawson kicked Mr Downey before or at the time Mr Skinner assaulted him. There was no evidence of this apart from Mr Skinner's evidence which the jury, by its verdict, must have at least in part rejected. The Crown did say that Mr Lawson kicked out at Mr Downey. The jury's verdict is equally consistent with them finding that Mr Lawson kicked out at Mr Downey, or that they were not sure whether he did or not. I do not think it is particularly relevant for the purpose of sentence whether or not Mr Lawson did kick out at Mr Downey before or at the time he was punched by Mr Skinner but, in the circumstances, I have no difficulty with the Defendants being sentenced on the footing that Mr Lawson did kick out at Mr Downey at this time.
9. As to the first and third basis set out above which I have agreed are both possible factual bases for the jury's verdict, the principal difference between the two bases is whether the Defendants agreed upon their enterprise during the telephone call that took place about half an hour before the assault, or did so on the spur of the moment at the doorway to the Oxford public house when they were both (on the unchallenged evidence of Mr Falle) shouting at the regulars prior to Mr Lawson and Mr Snell going to the door to meet them. In the circumstances I am not satisfied so that I am sure that the Defendants agreed upon their joint participation in this offence at the time alleged by the Crown and, accordingly, they will be sentenced on the footing that both the Defendants knew that Skinner had recently been ejected from the Oxford public house, that he was involved in a fight outside the Oxford pub immediately afterwards, that he was angry that he had been ejected, but that their joint participation in the offence of which they were both convicted only arose on the spur of the moment when they began shouting in the way Mr Falle described on the doormat of the Oxford, just within the pub. They are jointly responsible for their own actions and the actions of each other from that point onwards, including the two punches and kick delivered to Mr Lawson which were the principal features of the assault of which the jury convicted them. Accordingly, although I accept some elements of the third basis set out by defence counsel set out at paragraph 8.3 of his skeleton argument (referred to as basis 3 above), I reject the assertion that Mr Skinner only joined in at the end by punching Mr Lawson. They were both participants in this offending from the time described by Mr Falle in his evidence.
10. They will be sentenced on this basis.