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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kichens, R. v [2011] EWCA Crim 1626 (14 June 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/1626.html Cite as: [2011] Crim LR 873, [2011] 2 Cr App R 26, [2011] 2 Cr App Rep 26, [2011] EWCA Crim 1626

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14th June 2011

1. LORD JUSTICE GROSS: On 6th April 2011 in the Crown Court at Maidstone before His Honour Judge Patience QC the appellant, now aged 40, was acquitted of assault occasioning actual bodily harm but convicted of common assault and sentenced to 6 months' imprisonment. The appellant appeals against both conviction and sentence by leave of the single judge.
2. The facts are to a considerable degree untidy but may be summarised as follows. The complainant, Kathleen Brown, had a previous on-off relationship with one John Oliver which ended in June 2010. It was through Oliver that she met the appellant and offered him accommodation when he lost his hostel placement. The appellant moved into her flat around the 29th October but they did not have a sexual relationship.
3. On 4th November 2010 Oliver came to the flat and was said to be behaving abusively, threatening to beat up the appellant. He was given a warning under the Harassment Act. He returned the following morning again behaving abusively. The police came on both occasions, warning him to stay away and advising the complainant not to let him in if he returned. There had been a previous incident when he had come to the flat and there had been, on that occasion, a struggle on the sofa between him and the appellant.
4. The prosecution case was that during the evening of 5th November Oliver came again to the flat. The complainant wanted to let him in but was prevented from doing so by the appellant, who grabbed her right arm and threw her onto the sofa. He put his hand around her throat and used unlawful violence on her by exerting pressure, causing her to lose consciousness. He threatened to break her jaw.
5. The defence case was that he denied putting his hand round her throat but admitted slapping her face albeit he was not acting unlawfully. He did it because she would not listen to him when he was urging her not to let Oliver into the flat. The application of violence was to prevent the commission of crime, in that had Oliver entered the flat there might have been some altercation or violence between them; that is between Oliver and the appellant. The issue for the jury, on one view, was whether the complainant had been assaulted in the way she alleged.
6. We deal, first, with the appeal against conviction. This appeal essentially concerns the appellant's submission that he assaulted Kathleen Brown to prevent Kathleen Brown from letting Oliver into her flat because, had she done so Oliver might have assaulted the appellant or there might have been a breach of the peace. It is said that on such facts the appellant had a defence to the charge of common assault, that the judge wrongly directed a verdict of guilty or that he wrongly withdrew the appellant's defence or defences from the jury. Posed in more general terms, a question which arises in this case may be expressed as follows: can it be a defence to what would otherwise be an assault by X on Y for X to say that the "assault" was committed to prevent Z committing a crime against X or to restrain a breach of the peace? That question is essentially encapsulated in the written grounds of appeal - where it is said that the judge erred in ruling that the defences of self-defence, the use of reasonable force in the prevention of crime and necessity were not available to the appellant and the judge further erred in directing the jury to convict him of common assault.
7. As we shall indicate presently Mr Sinclair, who appeared both today and in the court below, realistically narrowed his grounds both to exclude the complaint of a direction to convict and to exclude reliance on the defence of necessity. We shall nonetheless deal but briefly with those matters in due course.
8. Going back to the trial, following the appellant's evidence, there was, unsurprisingly, a discussion on the law between the judge and counsel. The judge was concerned to explore the question of whether the appellant had any defence in law to the offence of common assault. It is unnecessary to take time over the contents of the discussion, in that, broadly speaking, the judge's views appear from the summing-up.
9. Following the discussion the judge proceeded to his summing-up. By way of explanation of the passages to which we are about to come, the count of assault occasioning actual bodily harm hinged on the prosecution making the jury sure that the appellant had put his hand round her throat, so that she blacked out.
10. As foreshadowed at the conclusion of the discussion with counsel, the judge said this, so far as is now relevant to the count of common assault:

"Members of the jury, I come back to the word 'unlawful'. When can violence be lawfully used? It can be used in a number of different circumstances, provided that it is reasonable. A person may use reasonable force to defend himself -- self-defence, a phrase well known to you. The law says that a person may use reasonable force to defend another person. If you see (A) attacking (B), you may intervene to protect (B) by using reasonable force to stop (A) in what he is doing.

The law also provides that a person may use reasonable force to prevent crime. I give you an example -- it is not from every day life. But imagine coming upon a circumstance where you see a person with a gun who is taking aim at another person. You fear that he is going to shoot that other person. Leaving aside folly or bravery, if you grabbed hold of the man's arm and twisted it to get the gun out of that man's hand, in order to prevent the crime, provided that was reasonable, you would not yourself be committing an offence. You would be preventing the commission of a crime.

Now, members of the jury, it would seem, from the way the defendant was describing the circumstances to you, that he says that he was not acting unlawfully when he slapped Kathleen Brown's face. You remember the reason he gave for it. 'She wouldn't listen and I was getting annoyed. She wasn't listening to me, when I was urging her not to let this man in. So I slapped her on the face.'

Members of the jury, if it is sought to say that that application of violence to her face was lawful, because it was used to prevent the commission of crime, there is difficulty there. No one is suggesting for a moment that Kathleen Brown was going to commit any crime. What is suggested is that if she -- as she was, it is conceded, fully entitled to do, it was her home after all -- was to let John Oliver into the flat, there might be at some stage some altercation or some violence between the two men. But, members of the jury, as is conceded, there is no certainty that such was going to take place. It might well have done, but equally it might not.

Bear in mind, as you weigh that up, the fact that -- and there seems to be no dispute about this -- John Oliver announced who he was, 'Its John,' or 'It's Johnny.' He did not kick the door, he did not make any threats. When told to go, and that the police were coming, he went.

So, members of the jury, there is real difficulty in justifying slapping her face, when all she wanted to do was to be polite and let in someone who had been asked to come round, in justifying that on the basis that it was necessary to prevent the possibility that some offence might be committed not by her but either the man doing the slapping, or the man coming in, if he was allowed to enter the flat.

So, members of the jury, if you came to the conclusion that it was or may have been the case that he had slapped her face, but were not sure that he had put his hand round her throat and rendered her blacked out for a short period of time, and if you are were sure that by slapping her face he was acting unlawfully, then, members of the jury, in those circumstances you must find him not guilty of assault occasioning actual bodily harm, but guilty of common assault -- the unlawful application of violence being in that case the slap on the face."

11. We have sympathy with the judge who was very much alive to the difficulties for the defence on the facts of this case but was most anxious to avoid directing the jury to convict. At all events later on the judge added this:

"Members of the jury, if you reach a position where you are not sure that she was rendered unconscious by having a hand put round her throat, and you are therefore considering the alternative offence open to you of common assault, you then have to bear in mind that such an assault would only be lawful if it was reasonable, and done to prevent the commission of crime."

Pausing there, thus far it seems that nothing that the judge has said could properly be criticised. He has pointed, as he was entitled to do, to the obvious difficulties in way of the various defences which counsel had flagged on the facts of the case. It cannot be said that thus far he had either directed the jury to convict or withdrawn those defences from the jury.

12. The jury went out and some time later there was a jury note. We do not have the note itself but according to Mr Sinclair it said in relevant part this:

"Our interpretation slap reasonable. Can this amount to prevention of crime?"

There then followed a further discussion between counsel and the judge. The judge was again understandably anxious to assist the jury, so far as he could. In the event, when the jury returned the judge said this:

"You seek clarification of what I had to direct you about, namely when the use of force is lawful. I directed you that a person may use reasonable force. 'Reasonable' is a plain English word. Obviously, force must not be excessive or, to use a homely phrase, 'over the top'. It must be reasonable force. A person may use reasonable force to prevent the commission of crime.

Now, members of the jury, that further means this. I gave you an example of a person about to shoot somebody, and a third party intervening by grabbing the person, whose hand held the gun, to prevent him committing a crime by shooting the other person. You will realise, from that example, that the law permits a person to use reasonable force against somebody who is about to commit a crime. Hence my example.

The difficulty which I was explaining to you in my Summing-Up in this case is this. I use a neutral phrase, because I do not want to know about your findings. But in having some sort of touching or contact with the complainant as you find to have occurred, she was not about to commit a crime. She was about to let someone into her flat, which she was lawfully entitled to do. The fact that there was a possibility -- not a certainty but a possibility -- that if he was admitted, a crime might be committed either by him, or by this defendant, is not sufficient in this context.

I hope I made that clear last time. I hope now my further directions make it clearer still...

Will you please retire and continue with your discussions."

13. The jury retired again and some 20 minutes later returned with its verdicts: not guilty on the count of assault occasioning actual bodily harm; guilty on the alternative count of common assault. It follows from the jury's verdicts that the jury rejected the prosecution case that the appellant had put his hand around Kathleen Brown's throat, causing her to blackout but accepted the prosecution case that the applicant had slapped Miss Brown unlawfully.
14. We turn to the rival cases. The appellant's case, attractively put, if we may say so, by Mr Sinclair, proceeded as follows. First, Mr Sinclair realistically did not press the argument that the judge had given a direction to convict. However, secondly, Mr Sinclair submitted that the judge had erred in withdrawing the appellant's defences to common assault from the jury. Thirdly, again realistically, Mr Sinclair did not press the defence of necessity. Fourthly, he did rely on the defences of self-defence, or the defence contained in section 3 of the Criminal Law Act 1967. As a matter of law he submitted that those defences were open to the appellant and should have been left to the jury. The law does not and should not preclude the application of force to an innocent third party where the use of such force and the degree of such force is reasonable in the circumstances.
15. Mr Sinclair gave three examples in his written advice, two of which we mention here. First, D shoves V (an innocent party) out of the way in order to be in a position to prevent an attacker reaching his vulnerable intended victim. Secondly, D restrains V who is about to release the locks on the door which might thereby permit the entry of a mob intent on harming D or committing some other crime. The matter, Mr Sinclair submitted, could not simply be left to the good sense of the prosecuting authorities. In any event the law needed to be certain. Here the force used was lawful. Both the use and the degree of force were reasonable in the circumstances and the matter should have been left to the jury.
16. For the prosecution today Mr Wicks, who did not appear at the trial below, advanced submissions along these lines:

First, he did not submit that there was a rule of law which meant that the application of force to an innocent third party could never be lawful. Secondly, however, he said that the judge had been entirely right to withdraw the possible self-defence and related defences from the jury, in that on the evidence, they never arose. Mr Wicks' submission in this regard placed emphasis on the appellant's answers in cross-examination as to why he had slapped Miss Brown and in what circumstances. On those facts the defences simply never got off the ground and there was nothing to leave to the jury. Thirdly, if he was wrong about that, then nonetheless he submitted that there was no "sufficient immediacy" for those defences to be made good. But he accepted in this regard that ultimately that was a jury question. Fourthly, if therefore the judge had been wrong to withdraw the defences from the jury, he submitted that nonetheless the conviction was safe; a reasonable jury, properly instructed, was bound to convict.

17. So far as concerns the nature of the appellant's defences, Mr Wicks added, fifthly, that the question was partly subjective but also partly objective. We were grateful to Mr Wicks for his submissions.
18. As it seems to us the appeal against conviction gives rise to the following issues:

1. Did the judge direct the jury to convict?

2. Did the judge withdraw the appellant's defence/defences from the jury?

3. If the answer to issue 2 is "yes", was the judge right to do so?

4. If the answer to issue 3 is "no", was the conviction in any event safe?

19. Issue 1: did the judge direct the jury to convict? The law in this regard is plain. There are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty: see R v Wang [2005] UKHL 9, [2005] 1 WLR 661. It follows that if the judge did direct the jury to convict the appellant of common assault then he erred in law.
20. Did the judge do so? We have already recorded that Mr Sinclair realistically did not press the point. We think he was right not to press it. We do not think that the judge did give any such direction. He did not expressly do so, and we do not think that any such direction was to be inferred from the wording he used. Earlier in his summing-up the judge had carefully drawn the orthodox distinction between the role of the judge and that of the jury. After his answer to the jury's note, he expressed the hope that the answer had been of help and he invited the jury to continue its deliberations. Had Mr Sinclair pursued this ground of appeal, we would have had no doubt in rejecting it.
21. Issue 2: did the judge withdraw the appellant's defence or defences from the jury? As already observed we do not think the judge did so in the course of his summing-up. But for our part, we think that the judge did do so in his answer to the jury question, set out at pages 36D to 37C and already recorded above.
22. In short, the judge there said that the facts relied on by the appellant did not disclose a defence in law to the charge of common assault. They were not sufficient to do so. The judge did not, as we have already held, go further and direct a verdict of guilty. Therefore we answer issue 2, "yes".
23. Issue 3: if the answer to issue 2 is "yes", was the judge right to do so? At this point it is necessary to look separately at (i) the defence of necessity; (ii) the defence of self-defence at common law, together with the defence furnished by section 3 of the Criminal Law Act 1967 ("the CLA 1967"), both these defences to be read in light of section 76 of the Criminal Justice and immigration Act 2008, ("the CJIA 2008").
24. We begin with the defence of necessity, taking it very briefly indeed - as, again realistically, Mr Sinclair did not press it. We are entirely satisfied that, in withdrawing the defence of necessity from the jury, there was no error on the part of the judge. English law recognises a defence of necessity but, for obvious reasons, only in very limited circumstances, as the alternative would be to encourage lawlessness (see Archbold at paragraphs 17-127 to 132, Smith and Hogan 12th edition, at pages 345 and following and at page 606.) Traditionally the nature of the harm forestalled must be death or serious injury. Neither was at all a realistic possibility in the present case. In any event and on no view was it necessary for the appellant to act as the jury found he did.
25. We come therefore to self-defence at common law and the defence furnished by section 3 of the Criminal Law Act 1967, both defences to be read in the light of section 76 Criminal Justice and Immigration Act 2008. For present purposes there is no material difference between the common law and the statutory defences.
26. Section 3 Criminal Law Act 1967 provides as follows:

"(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

27. It is unnecessary to read into this judgment the lengthy provisions of section 76 of the Criminal Justice and Immigration Act 2008. It suffices for present purposes to set out the very helpful summary contained in Archbold at paragraph 19-39b:

"... the provisions of this section are not intended to change the law, but to clarify it; and, as the following paragraphs reveal, it does indeed do nothing other than restate the common law principles in particular as to (i) a defendant being entitled to be judged on the facts as he believed them to be even if he made an unreasonable mistake, (ii) the defendant not being entitled to rely on a mistake as to the facts that was induced by his own voluntary intoxication, (iii) the reasonableness or otherwise of any claimed mistake going only to the issue of whether or not the claim was genuine,(iv) the force used having to be proportionate, (v) there being no expectation that in an emergency a person should weigh to a nicety the force required, and (vi) a person doing only what he instinctively and honestly thought was necessary being strong evidence that only reasonable force was used."

28. At this point it is convenient to remind ourselves of the factual context. The prospective defences cannot be considered in a vacuum:

1. The flat was Miss Brown's. It was a decision for her, not for the appellant as to whom she should admit into the flat. 2. In his evidence the appellant said that Miss Brown did not seem to be listening to him. That made him annoyed, so he slapped her across the face to get her to listen to him. If that answer stood in isolation it is plainly fatal to all of the appellant's various defences. We are however prepared, perhaps generously to the appellant, to consider the answer in the wider context, in the totality of the evidence, as Mr Sinclair put it and to treat it as meaning that he had slapped Miss Brown to prevent her letting Oliver into the flat. There are, it should be noted, one or two other oddities in the evidence which we put to one side, again making all assumptions favourable to the appellant.

3. If, however, the correct interpretation of the appellant's own evidence is that for which Mr Sinclair contended, then obvious responses to his concerns included (a) leaving so as to avoid a confrontation, (b) calling the police from the flat while blocking the door and (c) shouting out to Oliver that the police were coming.

4. The appellant did neither (a) nor (b). It is not apparent why not. It was not disputed on the evidence that the appellant knew for some time that Oliver would be coming to the premises - perhaps for an hour before the incident. Mr Sinclair sought to submit that Oliver's actual arrival was a surprise - perhaps it was - but there was ample time before then for the appellant to have acted in either of these fashions. In the event someone did call out to Oliver while he was waiting outside the flat that the police were coming and, as is common ground, Oliver went away. For that matter Oliver's approach to the flat was not accompanied by any threatening noises or shouting. His arrival could not be equated with that of a baying mob - a phrase used by Mr Sinclair.

5. It is not or not seriously capable of dispute that at the highest there was a possibility of a criminal offence being committed or of a breach of the peace taking place, should Oliver have been admitted into the flat. A criminal offence was not being committed at the time the appellant slapped Miss Brown, nor was there any certainty that one would take place should Oliver be admitted into the flat.

29. A recital of these facts makes it at once plain that, even on the most favourable view of the facts for the appellant, the prosecution case was overwhelming. First, Miss Brown was manifestly not committing or threatening to commit any crime herself. Secondly, at the time of the slapping no crime was being committed and there was no certainty that any crime would be committed should Oliver enter the flat. Thirdly, notwithstanding Mr Sinclair's submission as to surprise, the appellant had known that Oliver might be coming to the flat for some time. He was not confronted with Oliver's imminent arrival.
30. It is next convenient to focus on two separate strands. The first is whether self-defence at common law and section 3 Criminal Law Act 1967 is capable of extending to the use of force, against an innocent third party, to prevent a crime being committed by someone else. If and in so far as the judge thought that these defences were not capable of extending to the use of force against an innocent third party, we respectfully disagree and indeed Mr Wicks did not seek to contend otherwise. Although we suspect that the facts capable realistically of giving rise to such a defence will only rarely be encountered, examples can be adduced and two will suffice:

1. A police constable bundles a passerby out of the way to get at a man he believes about to shoot with a firearm or detonate an explosive device.

2. Y seeks to give Z car keys with Z about to drive. X, believing Z to be unfit drive through drink, knocks the keys out of Y's hands and retains them.

As ever that the defence is capable of being advanced is of course a very different question from that of whether it would succeed.

31. The second and related strand concerns the degree of likelihood and imminence, or immediacy, of the crime being committed - what might be called a question of remoteness. Even given, as we have concluded, that there is no rule of law that violence to an innocent person must, in all cases be unlawful, the question of remoteness remains to be considered. Plainly both the common law and statutory defences have greater scope for operation where it is certain or nearly certain that a crime will be committed immediately if action is not taken. Conversely, the lower the degree of likelihood of a crime being committed and the greater the time between awareness of the risk and the time when the crime might be committed, so the scope for any defence to have any realistic prospect of success will be correspondingly reduced, even recognising, as we of course do, the subjective element in these defences.
32. Pulling the threads together, we have much sympathy for the judge's reaction to these defences on the facts we have outlined. But it remains the case that the difficulties facing these defences, manifestly formidable though they were, were essentially difficulties of fact rather than law. For our part, therefore, we prefer the judge's approach in the body of the summing-up where he perfectly properly focussed on the difficulties in the way of the defences. When however, in answer to the jury's note, it came to withdrawing the defences of self-defence, and the use of force in the prevention of crime (section 3 Criminal Law Act 1967) from the jury, we somewhat reluctantly and with respect conclude that he was wrong to do so. We accordingly answer the question posed by issue 3 "no" in respect of these defences though not, as already recorded, in respect of the defence of necessity.

Issue 4. If the answer to issue 3 is "no", was the conviction in any event safe? Here, and with respect to Mr Sinclair's submissions, we confess to no real difficulty in answering the question "yes" almost summarily. We have already indicated our view of the relevant law and outlined the salient facts. We remind ourselves of the subjective element in both the common law and statutory defences though it must not be forgotten that there is an objective element as well (see most recently R v Keane; R v McGrath [2011] Crim LR 393). Even so, we are wholly unable to contemplate a reasonable jury, properly directed, with a suitable and forceful emphasis on the question of remoteness, acquitting the appellant. Even on the most favourable view of the evidence for the appellant, we underline (i) Miss Brown was doing what she was perfectly entitled to do, whether wisely or not; (ii) there was no risk to the appellant from Miss Brown, the victim of the slapping; (iii) there was at the most, a possibility of a crime being committed by Oliver should he be admitted to the flat; (iv) at the time of the slapping no crime was being committed and Oliver was not in the flat; (v) the appellant had known that Oliver might be coming to the flat for some time before the incident; (vi) the appellant had obvious options including calling the police or leaving the flat and, in our judgment, ample time to exercise them. It follows that the appeal against conviction must be dismissed. We have no doubt that the conviction was safe.

33. We therefore turn to the appeal against sentence. The judge, when passing sentence said this. The appellant had a bad record for violence going back to 1999. His attitude to women with whom he had an association was that he thought, when situations arose, he was entitled to control them and, if need be, use violence upon them. On this occasion he had other options. The judge then outlined various options, along the lines of those we have just summarised. Believing, the judge said, that there might be a disturbance, although there was only a possibility because it took two to make a fight between two people, the appellant sought to persuade the complainant not to open the door. When she appeared not to be listening to him or doing what he said, he pushed her onto the sofa and slapped her face. No woman seeking to exercise her rights in her own home as she is entitled to do deserved to be treated in that way. Despite his repeated convictions the appellant did not seem prepared to change. The judge then imposed the maximum penalty which the magistrates could have passed to reflect the aggravating feature of his bad record and attitude to women.
34. Mr Sinclair, in his grounds of appeal, submitted that the sentence passed for a single offence of common assault was manifestly excessive and wrong in principle. Today, he submitted to this court, as he did to the judge, that if he was wrong in relying on the facts which he had advanced by way of a defence, then they nonetheless amounted to good mitigation.
35. Here, the judge did impose the maximum sentence in respect of common assault. On one view it seems a little startling and certainly, if regard was had to a single slap in isolation, it would be. In those circumstances we might well have regarded the sentence as manifestly excessive. But we do not see that the matter was resolved in that fashion. The judge had the benefit of conducting the trial for a surprising period of some three days. The judge, accordingly, had the benefit of seeing and hearing the appellant. The sentence passed, as we interpret it, was one taking cognisance of all the circumstances of this unfortunate incident, including the very noteworthy element of the appellant seeking to control the actions of the complainant in her own home. When that feature is considered in conjunction with the appellant's bad record in the self-same regard, then, for our part, we are unable to say that the sentence was manifestly excessive. We therefore decline to interfere and dismiss the appeal against sentence as well.