|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Charles, R (On the Application Of) v Criminal Cases Review Commission  EWHC 1219 (Admin) (25 May 2017)
Cite as:  EWHC 1219 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SINGH
| THE QUEEN OF ON THE APPLICATION OF ASHLEY CHARLES
|- and -
|CRIMINAL CASES REVIEW COMMISSION
Danny Friedman QC and Marc Brown (instructed by Criminal Cases Review Commission) for the Defendant
Hearing dates: 09 May, 2017
Crown Copyright ©
Lord Justice Gross :
" (1) A reference of a conviction ….shall not be made under any of sections 9….unless –
(a) the Commission consider that there is a real possibility that the conviction….would not be upheld were the reference to be made.
(b) the Commission so consider –
(i) in the case of a conviction….because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it….
(c) an appeal against the conviction….has been determined or leave to appeal against it has been refused."
i) On the 4th April, 2012, the Claimant was involved in an incident at a London nightclub with Mr Phillip Sherriff. In the course of the incident, the Claimant struck Mr Sherriff in the neck with a bottle causing serious wounds and bleeding. On the 8th April, Mr Sherriff died in hospital.
ii) In November 2012, the Claimant was tried for Mr Sherriff's murder at the Central Criminal Court, before HHJ Worsley and a jury. The Claimant's primary defence at trial was self-defence. If that defence was rejected, then the Claimant maintained that he never intended to cause really serious harm to Mr Sherriff, so that he was guilty of manslaughter rather than murder.
iii) On Friday 9th November, 2012 and after lengthy jury deliberation, the Claimant was convicted of murder by a 11-1 majority. The Judge passed the mandatory sentence of life imprisonment with a minimum term of 14 years' imprisonment.
iv) The Claimant sought leave to appeal against conviction and sentence. The Single Judge refused leave to appeal against conviction and granted leave to appeal against sentence. On the 16th December, 2013, the CACD dismissed the Claimant's renewed application for leave to appeal against conviction and dismissed his appeal against sentence. Giving the judgment of the Court, Jackson LJ observed that both the Claimant and Mr Sherriff ("the deceased") had been men of unblemished character, who had been strangers to one another until their chance meeting close to the bar at the nightclub. The whole incident had been a tragedy; the deceased lost his life and the Claimant had to serve the sentence imposed upon him.
v) Following an advice given by Mr Henry Blaxland QC, dated 21st May, 2014 ("the Blaxland Advice"), on the 14th December, 2014, the Claimant applied to the CCRC for his case to be referred to the CACD.
vi) As already recorded, on the 7th April, 2016, the CCRC gave its Decision – refusing to refer the Claimant's case to the CACD.
vii) Thereafter, the CCRC treated the case as closed and further submissions from the Claimant were unavailing.
"These grounds raise also the arguable issue as to the approach of the court on a judicial review when a challenge is made to the Commission's decision not to refer, on the ground that it took a view of the substantive criminal law which was wrong. Does the court on a judicial review consider the legal position for itself or will it decline to interfere so long as the view taken by the Commission was a tenable one and not irrational?"
THE TRIAL AND THE APPEAL
" Q. ….. Is this fair, it is unlikely to cause a really serious injury if it is wielded against the face and it does not break?
A. Yes, I would agree."
If, however, the bottle was broken, it would require only fairly moderate force to cause the injury sustained by the deceased.
"….whether at the time of the blow the defendant realised that he had the bottle in his hand which had in fact been broken? The defendant says he deliberately and instinctively swung his arm at Mr Sheriff, but says that he did not appreciate in that moment that he was holding the bottle, which seconds earlier he had grabbed from the hand of Mr Sheriff."
" Now a word about intent, how do you determine what is going on in a man's head, you cannot cut his head open and look inside?
You determine the defendant's intent by looking at all the surrounding circumstances as you find them to be, namely what the defendant did and said before, during and after that fatal blow, and what he reliably said to the police and the custody nurse later on.
And this is important in the context of this case; an intent does not have to be a long formed intent. It can be formed in a flash of temper or in a split second. It can immediately be regretted afterwards……"
"…which by the time it had struck Mr Sherriff's neck had been broken. No one has suggested precisely how it must have been broken, but you may think that it is common ground that by the time it went into his neck the bottle must have been broken in order to provide the very sharp jagged edge which in fact caused the injury….."
" Yeah, I know. I bottled him. He retaliated me. I didn't mean to harm him. I'm sorry. Is he all right?"
The Claimant continued to talk about the incident as other officers arrived. PC Davies reminded the Claimant that he was under arrest and under caution but the Claimant continued, accepting responsibility and saying:
" I hit the guy with a glass. I felt intimidated so I just lashed out. I had a glass in my hand and it cut him, as I turned away he was bleeding from the head area. I no way intended to cause him that damage…."
The Claimant repeatedly expressed his regret and continued to ask about the deceased. PC Davies further recorded the Claimant saying this:
" ….the man had been pushing past him; he had spoken to him and asked him to stop. He moved away slightly, but then the man pretended to use his mobile phone, and whilst doing this he was basically 'taking the mick' out of Mr Charles. This intimidated Mr Charles even more and he, Mr Chales, remembered slashing out at him and seeing lots of blood…."
" I saw the bottle in his hand. I panicked and took the bottle off him. I grabbed it by the neck of the bottle with my right hand and it came out of his hand. I moved backwards with my arm across me and I instinctively 'flapped' … a slapping motion. My arm went forward and it hit him. I wasn't conscious of the bottle coming in contact with anything. I wasn't conscious of having the bottle in my hand. I was slapping with my hand, that's what I thought."
" ….I do not know that I can give you much more help than to say that the words mean really what they say; so 'really serious harm' means really serious harm, 'some harm' is harm which is short of really serious harm. You set the standard. You decide what is really serious harm and what is serious harm. I do not think that I can help you any more than that, and I am sorry if that is not much help to you…."
" What you did was caught on CCTV. You had behaved responsibly throughout the evening. You had caused no trouble. You had drunk, but not excessively, but you clearly became annoyed at what you perceived was the conduct of Mr Sherriff, and lost your temper when he may have pushed against you at the bar.
I have seen, as the jury have, the CCTV footage which show you provoking him, and attempting to seize his mobile phone, which he was using. Then, having done that, you disarmed him by taking the bottle which he was holding in his left hand. You swung it back (it is accepted by the prosecution that you did not deliberately smash the bottle, but smashed it was) and with you holding the neck of that bottle, you brought it up into his neck. It was a lethal weapon.
The risk of his death by the use of a bottle by you was considerable."
" (a) firstly, to decide whether they were sure that he knew the bottle was in his hand when he struck the fatal blow.
(b) if so, secondly, to decide whether they were sure that he knew the bottle was broken.
(c) if not, to consider whether they could be sure that he intended to cause really serious injury with an unbroken bottle."
It was further submitted that, in considering (c), the jury should have been specifically reminded of the forensic pathologist's evidence, outlined above.
"(i) The beer bottle was intact when the appellant grabbed it from Mr Sherriff.
(ii) By the time the beer bottle struck Mr Sherriff's neck it was already broken.
(iii) That single blow from the broken beer bottle cut the carotid artery. This led to a massive blood loss and was the cause of death."
The prosecution did not allege that the Claimant had deliberately broken the bottle. The bottle must therefore have broken accidentally in a fraction of a second before the Claimant struck the fatal blow (at [31 (i)]).
" Mr Hall presents this renewed application for leave to appeal against conviction very clearly and very fairly. He did not make a submission of 'no case' to the judge at trial and in our view he was right not to do so. The judge correctly told the jury that the prosecution did not allege intention to kill. The jury could only convict the appellant of murder if they were sure that when he struck the fatal blow he intended to cause really serious harm. The judge went on to elaborate upon intent, using the phraseology suggested in the Judicial College Bench Book. None of that can be criticised. "
The real thrust of the application went to the response to the jury note. Mr Hall submitted that it was to be inferred from the jury note that they were grappling with the question whether the Claimant could have had the requisite intent for murder if he believed the bottle to be intact. Asked what direction the Judge should have given, Mr Hall essentially repeated the formulation contained in the Grounds of Appeal (set out above).
" 35. … First, it is pure speculation as to what conclusions the jury had reached when they sent their note to the judge. Secondly, the note only asked the judge to elucidate the phrase 'really serious harm'. It was not a request for any further guidance. The judge was quite correct not to deliver further guidance and Mr Hall was quite correct not to ask the judge to do so.
36. Thirdly, Dr Jerreat was an experienced pathologist…. What Dr Jerreat thought was likely was not the issue. The issue before the jury was what the appellant intended when he struck Mr Sherriff with a beer bottle on a vulnerable part of his body. The jury decided that the appellant intended to cause really serious harm.
37. ….on the evidence, the jury were fully entitled to reach that conclusion and they received all proper assistance from the judge…."
THE BLAXLAND ADVICE
"…that in those circumstances no jury could reject the realistic possibility that AC did not intend to cause really serious harm. Given the speed with which the incident happened, it was impossible for a jury to be sure that in hitting the deceased with a small unbroken bottle, he had formed the requisite intent."
" It is strongly arguable that a Nedrick direction was required in this case. The jury had to decide the critical question of what was in the defendant's mind in the split second that he hit out at the deceased, with what he believed was an unbroken bottle. His reactions in the aftermath of the incident indicated he was shocked about what had happened and had not foreseen the consequences. A simple direction to the jury that they had to be sure that he intended to cause really serious injury provided them with insufficient guidance on how to resolve this difficult issue. Most importantly, AC was entitled to the protection from wrongful conviction of a more developed direction, in order to ensure that the jury properly understood how to approach the issue of intent on the facts of this case. "
"15. …the jury was entitled to take into account all matters, including the expert opinion on the degree of force used, when deciding Mr Charles' intent when he struck Mr Sherriff. Given that it is possible (even if not likely) that a blow of moderate force with an unbroken bottle could cause really serious injury, it cannot be said that it was impossible for a jury to conclude that Mr Charles formed the intent to cause really serious harm."
The CCRC emphasised the distinction drawn by the CACD between what Dr Jerreat thought was likely and what the Claimant had intended.
"19. …. A Nedrick direction on foresight of consequences is required in cases of oblique intent. This arises where a defendant alleges that his actions were intended to achieve some result other than death or serious harm, but that death or serious harm occurred as a secondary consequence.
20. Mr Charles admitted 'deliberately and instinctively' swinging his arm at Mr Sherriff and claimed it was in self defence. Mr Charles did not allege that this aim or purpose was to achieve some other result. This was therefore a case of direct intent, i.e., Mr Charles' primary purpose or aim was to strike Mr Sherriff. Therefore the question as to whether he intended serious harm, or something less than that, was correctly put to the jury with the simple direction."
" the degree of harm Mr Chales intended, not the type of harm. The CCRC remains of the view that this does not give rise to the rare and exceptional case where the simple jury direction is not enough."
i) Issue I: The role of the CCRC and the role of the Court ("Roles");
ii) Issue II: Submission of no case to answer;
iii) Issue III: A Nedrick direction;
iv) Issue IV: The approach of the Court when the CCRC is said to have taken an erroneous view of the substantive criminal law ("The approach of the Court").
ISSUE I: ROLES
"Thus the Commission's power to refer under s9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else……
The 'real possibility' test prescribed in s.13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.
The judgment required of the Commission is a very unusual one, because it inevitably involves a prediction of the view which another body (the Court of Appeal) may take…."
" The provision is worded in a manner which reserves a residual discretion to the Commission not to refer, albeit that the case is one where there is a real possibility the Court of Appeal would not uphold the conviction. The language of the section applies in the same way irrespective of whether the application is on a question of law or a question of fact."
" ….it is important that this court restricts attempts to raise grounds for challenging the decision of the Commission unless a proper basis is established, justifying the consideration of the allegation by this court. It is to be remembered that the Commission only becomes involved after the exercise by an applicant to the Commission of his rights in the court below and, if he seeks this, on appeal. It is a residual, but a very important jurisdiction which the Commission exercises. It imposes a heavy burden on the Commission..…. It is a jurisdiction which requires the Commission carefully to exercise the discretion which it is given by Parliament. In these circumstances it is important that the courts should not in inappropriate cases allow the Commission to be sucked into judicial review proceedings which are bound to distract it from fulfilling its statutory role….. "
i) The CCRC exercises an important residual jurisdiction in the interests of justice.
ii) The decision whether or not a case satisfies the threshold conditions and is to be referred to the CACD is for the CCRC and not the Court; it is not for the Court to usurp the CCRC's function.
iii) The judgment required of the CCRC is unusual, carrying with it the predictive exercise as to the view the CACD might take.
iv) The threshold conditions serve as an important filter, not least in preventing the CACD from inundation with threadbare cases; they also assist in striking the right balance between the interests of justice on the one hand and those of finality on the other.
v) Even if the threshold conditions are satisfied, the CCRC retains a discretion not to refer a case to the CACD.
vi) Though the decisions of the CCRC, whether or not to refer cases to the CACD, clearly are subject to judicial review (see recently, R v Neuberg  EWCA Crim 1927, at  – ): (1) the CCRC should not be vexed with inappropriate applications impacting on scarce resources; the Court's scrutiny at the permission stage is thus of importance; (2) on a judicial review, CCRC reasons should not be subjected to a "rigorous audit" to establish that they were not open to legal criticism.
ISSUE II: SUBMISSION OF NO CASE TO ANSWER
" …It is …necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference…"
" Where a key issue is whether there is sufficient evidence on which a reasonable jury would be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the question is whether a reasonable jury could, on one possible view of the evidence, reject all realistic possibilities consistent with innocence and so reach that adverse inference, not whether all reasonable juries would do so…."
The two authorities relied upon by Mr Blaxland (and Mr Cragg), Hedgecock and G and F, are amongst others cited in support of this passage of text. There is nothing new about it. The facts of Hedgecok and G and F, are, however, very far removed from the facts of the present case. Both decisions involved allegations of the most serious conspiracies to rape and, in the case of Hedgecock, to murder as well. The Crown relied on the exchanges between the alleged conspirators as proving the necessary intention; in both cases, the essential defence was that those exchanges were no more than the perverted fantasies of the alleged conspirators.
i) After the incident, the Claimant spoke to various police officers of "bottling" the deceased, of "lashing out" and of doing so because the deceased had been "taking the mick" out of him.
ii) The Judge's simple direction as to determining intention had reminded the jury (in orthodox terms) that an intent did not have to be long formed; that it could be formed in a flash of temper or a split second; and that it could immediately be regretted thereafter.
iii) On the basis of the CCTV and as recorded in his sentencing observations, the Judge formed the view that the Claimant had lost his temper and struck the deceased. The "risk of death" from the Claimant's use of the bottle was "considerable".
iv) The CACD had, in terms, expressed its view that counsel at trial had been right not to make a submission of "no case" at trial. Moreover, the CACD had underlined the difference between the expert's view as to the likelihood of causing really serious injury with an unbroken bottle and the question of the Claimant's intention when he struck the blow.
ISSUE III: A NEDRICK DIRECTION
" (a) When a judge is directing a jury upon the mental element necessary in a crime of specific intent (such as murder), he should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent.
(b) Foresight of the consequences which it must be proved that the accused intended (in murder….), is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight of consequences may be a fact from which the jury may think it right to infer the necessary intent.
(c) The probability of the result is an important matter for the jury to consider and can be critical in their determining whether the result was intended. It will only be necessary to direct the jury by reference to foresight of consequences if the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation is necessary to avoid misunderstanding.
(d) Where, exceptionally, it is insufficient to give the jury the simple direction that it is for them to decide whether the defendant intended to kill or do serious bodily harm, they should be told that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case; they should always be told that the decision is theirs to be made on a consideration of the whole of the evidence.
(e) In appropriate cases, it will be necessary to explain to the jury that intent is something quite different from motive or desire."
" ….It may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act."
However, as Lord Steyn immediately went on to add:
" But I accept the trial judge is best placed to decide what direction is required by the circumstances of the case. "
Even with this qualification, some care is needed in applying Lord Steyn's observation. First, it has never been suggested that a Nedrick direction is anything but exceptional and (with respect) I cannot imagine that Lord Steyn was of a different view. Secondly, it is of the first importance that desire – if different from intent – is judged at the moment the act is committed. As is hornbook law, remorse immediately after the incident is neither here nor there and is not to be confused with desire (or intent) at the relevant time.
ISSUE IV: THE APPROACH OF THE COURT
Mr Justice Singh :