No: 98/6778/X5

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Monday 22nd February 1999
 
                    B E F O R E :

                LORD JUSTICE MANTELL
 
                   MR JUSTICE GRAY
 
                         and
 
            THE COMMON SERJEANT OF LONDON
            HIS HONOUR JUDGE DENISON QC
(Acting as a Judge of the Court of Appeal Criminal Division)
 
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                     R E G I N A

                       ‑ v ‑

                     JOHN CAIRNS
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HG
    Tel No: 0171 421 4040   Fax No: 0171 831 8838
        (Official Shorthand Writers to the Court)
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MR R SMITH QC appeared on behalf of the APPELLANT
MR JR AITKEN appeared on behalf of the CROWN
 
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                      JUDGMENT
             (As approved by the Court)
 
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                    Crown Copyright
                               Monday 22nd February 1999
LORD JUSTICE MANTELL:  We say at once that this appeal will be allowed.  We shall not be ordering a retrial, not having been asked to do so by the Crown.
      On 12th September 1997, shortly before midnight, a tragic incident occurred in which a young man, Anthony Allen, suffered truly grievous injuries.  He had been out with some friends that evening in a respectable suburb of Newcastle.
      The appellant had been asked by a woman friend to go out in his car and bring her some cigarettes.  He was returning when he came upon the group of young people which included Mr Allen.  Mr Allen (whom, it is fair to say, has little or no recollection of the events of that evening) presented himself in front of the car being driven by the appellant and somehow or other managed to clamber onto the bonnet, spread‑eagled, so it has been described to us, with his face hard up against the windscreen, a frightening occurrence so far as the appellant was concerned, who is, so we are told, and I dare say could observe if we glanced in his direction, a small man and also somewhat timid.
      The appellant thought it wise to drive on.  That he did for a significant distance, with Mr Allen in the  posture which we have described.  There came a time when he came to a speed hump in the road, and he applied his brakes, either before doing so or immediately after going over the speed hump, with the consequence that Mr Allen was dislodged from where he was on the bonnet and, so it appears from the photographs, deposited somewhere in front of the appellant's motorcar.  The appellant drove over Mr Allen.
      We have said that the consequences were dire; indeed they were.  Mr Allen suffered a fracture to his spine which has rendered him paraplegic, which means that he will spend the rest of his life in a wheelchair.
      All this was observed by the group of young people who had been with Mr Allen.  From the evidence that they were to give at the trial it seems that they did not wish to be associated with Mr Allen's conduct; indeed, were doing all that they reasonably could to prevent him from behaving in the way we have described.  They followed after the car, shouting and gesturing.  It may have been thought by that they were hostile towards him.  At all events, that is what he was to say later when interviewed by the police.
      The appellant did not stop.  He drove home and told those who were waiting for him very little about  what had happened.  But the next day he was interviewed by the police, when he made it plain that he had felt threatened, not only by Mr Allen on his bonnet, but by the other young people who were chasing after his car, and it was for that reason that he had not stopped.  He had not appreciated that he had run over Mr Allen.  It had been an accident.
      In due course he was charged with causing grievous bodily harm with intent to cause grievous bodily harm and with dangerous driving.  There were two counts placed in the indictment to reflect those charges. He stood his trial in September and October 1998 at Newcastle Upon Tyne before a jury and His Honour Judge Whitburn QC.  He was acquitted by the jury of causing grievous bodily harm with intent to cause grievous bodily harm but was convicted of the alternative, not separately indicted of causing grievous bodily harm, that is to say without intent to cause grievous bodily harm.  He was also convicted of dangerous driving.
      So far as the first count in the indictment was concerned and the alternative under section 20 of the Offences Against the Person Act, his defence at trial was one of accident and in addition to that, one of duress of circumstances.  His defence to the charge of dangerous driving had been simply one of duress of  circumstances.  Having allowed that the facts as presented rendered both defences available for consideration by the jury, it was necessary for the judge to give appropriate directions in the course of summing up.  It is in relation to those directions that leave to appeal has been granted by the single judge and upon which this appeal has been based.
      The judge chose to deal first with the charge of dangerous driving and directed the jury in terms as to which no complaint is made or could be made.  He said at page 2 of the transcript of the summing‑up:
"A person is to be regarded as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous." 
He then went on to say that the Crown were relying upon the driving for the distance which he did with Mr Allen on the bonnet as constituting the dangerous driving.  In fact at different stages during the summing‑up the judge brought to the jury's attention other matters which might constitute dangerous driving, one being the application of the brakes which caused Mr Allen to be dislodged (if that was the view the jury took of the facts), and the second being, rather obviously, the driving over Mr Allen after he had fallen off the bonnet.  It would have been open for the prosecution to  present its case and for the judge to sum the matter up on the basis that here had been a course of driving embracing all three of those incidents, which the jury would be entitled to consider as a whole and come to a conclusion (if they thought it right) that that driving was dangerous and not excused by any matter put forward by way of defence.  It was not done in that way, and some criticism is made of the judge for introducing these differing factual bases for a conviction of dangerous driving at different times in the course of his summing‑up.
      We take the view that it would have been better had he brought the matters together in one place and given a composite direction in relation to those matters, perhaps on the basis that here was a course of driving which included driving properly characterised as dangerous.  He did not do that; but we would not have been disposed to allow this appeal in relation to the conviction on dangerous driving on that account alone.
      So far as count 1 was concerned, the judge correctly identified for the jury the constituents of causing grievous bodily harm with intent to cause grievous bodily harm.  He pointed out what had to be proved:  firstly, that the act which caused the grievous bodily harm was deliberate; secondly, of course, that the harm so caused amounted to grievous bodily harm (and  there was really no issue on that in the trial); and thirdly, that the defendant intended to cause grievous bodily harm.
      Count 1, reflecting an offence contrary to section 18 of the Offences Against the Person Act, depended upon the allegation that the appellant had deliberately driven over the prostrate body of Mr Allen.  The judge then offered the alternative on the basis that the jury might not be satisfied, that what had been done had been done with intent to cause grievous bodily harm.  It is perfectly true to say that an alternative contrary to section 20 of the Offences Against the Person Act is normally available on a count laid under section 18. What the judge did, however, was to identify for the jury the act of braking and the subsequent dislodgment of Mr Allen as being the act forming the basis of the alternative charge on count 1, and that was, of course, a quite distinct act from that relied upon by the Crown on count 1 as laid.
      The alternative to convict of section 20 will only arise where the act relied upon in the main count and the alternative count are one and the same.  Here, the judge was giving the jury the opportunity to convict of the alternative offence, where the act relied upon was quite separate and distinct.  That, in the view of this  Court, was an error.
      But it is in relation to the judge's directions on the defence raised of duress of circumstances or duress of necessity that this appeal is principally based.  The judge dealt with it at page 6 of the transcript.  He dealt with it as referring to all charges which the appellant faced.  It may be that it would have been more conveniently dealt with otherwise, but, once again, we would not have allowed this appeal on that ground alone.  What he said was:
"I now turn to the defence.  The defence in broad terms is this:  I did this.  I could do no other.  Was the defendant constrained by circumstances to drive as he did to avoid death or serious bodily harm to himself? Duress of circumstances, as it is sometimes called, is available only if from an objective standpoint the defendant can be said to be acting in order to avoid death or serious injury.  Was the accused, or may he have been impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result.  That is the first part.
 
If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to the situation as the accused acted." 
Then this sentence:
"Was what the defendant did actually necessary to avoid the evil in question?  It will not assist the defendant that he believed or may have believed what he did to have been necessary to avoid the evil if objectively it was unnecessary, or although necessary was disproportionate." 
      Mr Smith QC, for the appellant, complains of two matters in that passage.  First of all, he says that it  was wrong for the judge to say that duress of circumstances as a defence is only available "if from an objective standpoint the defendant can be said to be acting in order to avoid death or serious injury", when he should have said, on authority that it 'is only available if, from an objective standpoint, the defendant can be said to be acting reasonably and proportionately in order to avoid death or threat of serious injury', and in the sentence which we have underlined already, that the judge was wrong to use the expression "actually necessary to avoid the evil in question".
      What Mr Smith points out on authority, and in particular the case of Martin (1989) 88 Cr App R 343, is that what the jury had to be concerned with was the defendant's perception of the threat with which he was confronted and to consider whether or not in relation to that perceived threat he acted reasonably and proportionately in responding as he did, and the question of whether or not there was actually a threat to justify his response is neither here nor there.  What Mr Smith submits, in the view of this Court quite correctly, was that, in expressing it as he did, the learned judge departed from the guidance given by this Court in the case of Martin, subsequently affirmed in  the case of Abdul‑Hussain, unreported, December 17, 1998, to this effect.  We quote from the judgment of the Court given by Simon Brown J (as he then was):
"The principles may be summarised thus.  First, English law does, in extreme circumstances, recognise a defence of necessity.  Most commonly this defence arises as duress, that is pressure upon the accused's will from the wrongful threats of violence of another.  Equally, however, it can arise from other objective dangers threatening the accused or others.  Arising thus it is conveniently called 'duress of circumstances'.
 
Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
 
Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions:  first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result?  Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?  If the answer to both those questions was yes, then the jury would acquit:  the defence of necessity would have been established."     (pp 345‑346.) 
      Mr Smith points out that nowhere in the direction suggested in the case of Martin does it appear that the threat perceived by the defendant relying upon the defence must, in the event, prove to be an actual or real threat.  Mr Smith gives by way of example the situation which may have obtained in this case, where the driver of the car perceived a threat coming from those who were pursuing the car and shouting as they did  so, whereas in fact it may have been the case that those people were not intent upon attacking the appellant but rather to discourage their friend, who, in his drunken state, had placed himself upon the bonnet of the car. In the judgment of this Court, the criticism which Mr Smith makes is well founded and it seems to have been accepted as such, realistically, if we may say so, by Mr Aitken, who appears today on behalf of the Crown.
      But that is not all, the summing‑up was concluded on a Friday.  Before reaching a verdict and departing for the weekend, the jury asked to be helped further with definitions of the offences contained in the indictment.  The judge, sensibly enough, suggested that that might be better done on the Monday morning.  On the Monday he did remind them of the constituents of the offences, but, in so doing, neglected to remind them that it was incumbent upon the prosecution in the case of count 1 or any alternative under count 1 to discount accident, and secondly, in relation to both counts on the indictment, neglected to remind the jury that it was incumbent upon the Crown to disprove the defence advanced, namely that of duress of circumstances.  To our minds that was a significant omission, and one which, taken together with the other matters to which we have adverted in this judgment, lead us to the  conclusion that the convictions were unsafe.  For that reason, as we indicated at the beginning, these appeals must be allowed.
      We would have considered, had the application been made, whether or not it was necessary or right in this case to order a retrial.  But Mr Aitken, who did not appear at the trial, has taken instructions, as we understand, upon the matter and does not invite the Court in the circumstances of this case to order a retrial, and consequently we decline to do so.
 
MR SMITH:  May I first of all apply for the appellant to be discharged?
 
LORD JUSTICE MANTELL:  Yes.
 
MR SMITH:  Secondly, there is the issue of costs.  The position is that he had the assistance, I am instructed, of legal aid in part before the justices and in part before the Crown Court, but part of his costs below were privately funded and part of his costs since have been funded by insurers who are behind him.
 
LORD JUSTICE MANTELL:  You ask for costs out of central funds?
 
MR SMITH:  I do, my Lord, yes.
 
LORD JUSTICE MANTELL:  In giving the judgment of the Court what I neglected to say, I think, is that as a result of the appeal being allowed the convictions are quashed.  I say it now, Mr Smith.
 
MR SMITH:  Yes.
 
LORD JUSTICE MANTELL:  Costs ‑‑ is it appropriate to say central funds these days?
 
MR SMITH:  It is, my Lord, as I understand, central funds.
  
LORD JUSTICE MANTELL:  In so far as not covered by legal aid?
 
MR SMITH:  For the avoidance of doubt, may he have returned to him any legal aid contributions that he has made, and secondly, as far as costs are concerned out of central funds, both here and below, to include proceedings before the justices, where not covered by legal aid?
 
LORD JUSTICE MANTELL:  Yes.
 
MR SMITH:  Thank you.