Neutral Citation Number: [2009] EWCA Crim 469
Case No: 2008/2553/D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BLACKFRIARS CROWN COURT  
His Honour Judge Hillen QC
T20070523
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18 March 2009
Before :

LORD JUSTICE MOSES
MR JUSTICE HEDLEY
and
HIS HONOUR JUDGE RUSSELL, RECORDER OF PRESTON
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Between :

	Nadia Anne Harvey	Appellant	
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	The Crown	Respondent	

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Miss R Zentler-Munro (instructed by Rustem Guardian Solicitors) for the Appellant
Miss R Harris (instructed by the Crown Prosecution Service) for the Crown

Hearing date: 11th February 2009
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Judgment

Lord Justice Moses : 
1.	This is an appeal which demonstrates the importance of fashioning directions to a jury to the issues of the case.  The grounds of appeal are focussed on the directions which the judge gave in relation to self-defence.  
2.	On 14 April 2008 at Blackfriars Crown Court the appellant was convicted by a majority of an offence of assault occasioning actual bodily harm.  She was acquitted of a racially aggravated assault.  There was no dispute but that the appellant had bitten the nose of the complainant, Malika Assaouci, during the course of a drunken fight in the road outside the Hammersmith Palais. The real issue was at what stage she did so.
3.	The accounts of what occurred were, inevitably, confusing.  Malika Assaouci and others suggested that the appellant started the trouble in a cab office near the Hammersmith Palais by swearing and using insulting language.    
4.	After Malika Assaouci and others left the cab office a picture of events can be seen on a CCTV film.  Unusually, the film is informative.  Malika Assaouci and friends can be seen walking across the road and starting to climb inside a minicab.  The time was about 3.00 a.m.  The appellant can then be seen approaching that group either gesticulating or shouting towards them from the middle of the road.  It is then clear that the complainant and the appellant started to fight, pulling each other’s hair.  
5.	When giving evidence the complainant said that the appellant pulled her down to the ground, there were people on top of her and she was scared.  She said that the appellant was screaming at her and that it was at that stage the appellant bit her on the nose.  Thus, the prosecution case, based on that evidence, was that the bite occurred when the appellant was on top of the complainant.  But it did contend, in the alternative, that even if the defendant was, as she said, pinned to the ground, to bite in self-defence was to use excessive force.  This alternative was founded on the defendant’s own version of events.
6.	The defendant, when giving evidence, said that the complainant had lunged at her in the road and grabbed her hair.  She had fallen and at some stage both had hold of each other’s hair.  She continued:-
“At the last stage my arms were being held and my legs were freer, but I couldn’t lift them.  Malika was on top of me with her hair covering my face.  I was on my back on the ground.”
She felt pressure on her chest and abdomen, she was finding it difficult to breathe, she was trying to wriggle and it was at that stage she bit the complainant’s nose to get the complainant off her; it had the desired effect.  
7.	The film does not show when the appellant bit Malika Assaouci. But the film does show that both she and appellant went to the ground in the middle of the road.  It shows both Malika Assaouci and the appellant within a confused mêlée which moved onto the pavement on the opposite side of the road.  Once on the pavement Malika Assaouci can be seen on her feet continuing to involve herself in the fight.  But thereafter, the appellant can be seen on the ground with a man in a red top, apparently on top of her.
8.	As we have indicated, the grounds of appeal, with leave of the full court presided over by Hooper LJ, are directed at the summing up.  The judge directed the jury as to the meaning of assault, referring to the Offences Against the Persons Act 1861.  Since there was no dispute but that the appellant had deliberately bitten the complainant on the nose we query whether it was necessary to take over two pages of transcript in defining assault to the jury.  But the judge then turned to the only issue in the case, self-defence.  He pointed out that an assault in revenge is never capable of being self-defence.  He said:-
“…if you are sure that the accused, Nadia Harvey, was either the aggressor or had deliberately provoked the attack upon her by words and actions with the intention of assaulting the alleged victim, then self-defence does not arise unless the violence offered by the victim, or in this case the group to which she belonged, was or may have been so out of proportion to the accused aggressor’s attack or the provocative words and actions that she honestly believed she was in immediate danger and had no other means of escape.
The reason for the words following ‘unless’ is because in that case she would not have continued to be the aggressor.  To use Ms Zentler-Munro’s words that she used during her speech: ‘the tables would have been turned’.”
9.	The judge repeated those directions down to the reference to “no other means of escape”.  He then directed the jury that one of the factors it should take into account was whether if the appellant was or might have been under unlawful attack it was possible and safe for her to retreat.  He told the jury that if the appellant did not honestly believe that it was necessary to use force to defend herself, she cannot have been acting in self-defence.  He continued:-
“Were you to think that she did or may have believed honestly that it was necessary to use force to defend herself then you ask yourself a second question, which is whether the type and amount of force she 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 she needs to defend herself.”
He then gave the conventional extreme example of shooting someone who had raised their fist and continued:-
“You have got to ask yourselves therefore if whether the type and amount of force she used was reasonable.  If she goes over the top and uses force out of all proportion to the anticipated attack on her or more force than is really necessary to defend herself then the force would not be reasonable, and in making that judgment, as I say I have given you an extreme example, you will not be surprised to know that juries have to deal with situations where it is not so extreme, so maybe that judgment, coming from that decision, you have got to take into account the nature of the attacking; you find it to be on her, and what she actually did.
If you are sure that the force that she used was unreasonable then she cannot be acting in lawful self-defence but if it was or may have been reasonable she would be entitled to be acquitted.”
10.	Thus far, the directions dealt with the law of self-defence without any reference to the factual conflict in the case.  But  the judge did then turn to applying those directions of law to the factual issues:-
“The prosecution say that she (the defendant) was the aggressor and knew that she did not need to resort to violence.  They say that she did not honestly believe that it was necessary to use force to defend herself and that the reasonableness of the force does not arise.  But the prosecution say that if you thought it was or might be the case that she believed honestly that it was necessary to use force to defend herself, then the biting of the alleged victim’s nose with such force as to cause the injuries you can in the photograph, was disproportionate to the level of attack upon her, which consisted, they say, of hair-pulling and holding at the time of the bite, and therefore they say self-defence, if you have got to this question, is disproved because as Mr Coxhill opined to you a few days ago that the accused, Miss Nadia Harvey, went over the top.
On the other hand, the defence say that at the point at which she bit Malika Assaouci she was unable to move her arms, she tried but failed to move her legs, she could not breathe and was under attack.  She believed not only by the alleged victim, Malika Assaouci, but also by the large group of Malika Assaouci’s friends, and, the defence say, not being able to judge the precise degree of force necessary, did the only thing she could and bit the alleged victim.
If you are sure the force she used was unreasonable then she cannot have been acting in lawful self-defence, but if it was or may have been reasonable she is entitled to be acquitted.” (Our emphasis).
11.	The judge reminded the jury of the evidence.  At the request of the jury, at the end of his summing up, he repeated many of the legal directions we have identified without further summarising the factual issues in the case. 
12.	In careful and forceful submissions Ms Zentler-Munro advances three criticisms of the passages in the judge’s directions which we have already cited.  Firstly, that in directing the jury that self-defence does not apply unless the victim’s actions were so out of proportion that the defendant honestly believed she was in immediate danger the judge reversed the burden of proof.  Secondly, she contends, as an associated ground, that read as a whole the directions were confused and confusing.  They were unnecessarily lengthy and convoluted.  Finally, as a third ground, she contends that the judge failed to direct the jury that they were required to assess the reasonableness of the appellant’s actions in biting the complainant’s nose on the basis of the facts as the appellant honestly believed them to be.
13.	Although distinct grounds were advanced, their merits can only be judged by consideration of the summing up as a whole.  The sense of the directions must be judged by the thrust of the summing up as a whole and not by analysis of isolated extracts.  Did the judge adequately explain that the burden remained on the prosecution throughout to disprove self-defence? Did he make sufficiently clear the essential elements of the law as to self-defence as applicable to the factual issues of the case?
14.	The law of self-defence has now been codified for the purposes of clarification and not reform (see s.76(9) of the Criminal Justice and Immigration Act 2008).  The provisions of s.76 were not in force at the time of trial.
15.	Prosecution counsel, who was not counsel instructed in this appeal, suggested that the jury ought to consider whether the appellant had been the instigator of the violence.  This  led to submissions as to the law of self-defence when applied to a situation in which the tables are turned on an initial aggressor. 
16.	There was no dispute as to the law either before the judge or before us, although Hooper LJ, in giving permission, seems to have believed that the law needed to be revisited.  In  R v Rashford [2005] EWCA Crim 377 this court applied the Scottish authority of Burns v HM Advocate [1995] SLT 1090 at 1093H in the which the Lord Advocate General said:-
“It is not accurate to say that a person who kills someone in a quarrel which he himself started, by provoking it, or entering into it willingly, cannot plead self-defence if his victim then retaliates.  The question whether the plea of self-defence is available depends, in a case of that kind, on whether the retaliation is such that the accused is entitled then to defend himself.  That depends on whether the violence offered by the victim was so out of proportion to the accused’s own actings as to give rise to the reasonable apprehension that he was in immediate danger from which he had no other means of escape, and whether the violence which he then used was no more than was necessary to preserve his own life or protect himself from serious injury.”
17.	This court said that that passage accurately represents English law and should be more widely known.  Dyson LJ, giving the judgment of the court, said:-
“There may be a temptation whenever it is open to a jury to conclude that the defendant went to an incident out of revenge or was the aggressor to direct the jury that if they reached that conclusion then self-defence cannot avail the defendant.  If the judge wishes to give a direction along these lines the facts will usually require something rather more sophisticated where the possibility exists that the initial aggression may have resulted in a response by the victim which is so out of proportion to that aggression as to give rise to an honest belief in the aggressor that it was necessary for him to defend himself and the amount of force that he used was reasonable.” (§21)
No reference to that authority or to the situation in which the tables are turned upon an initial aggressor was to be found in the Crown Court Bench Book available to the judge.  Indeed, there is no reference in the current guidance either to Rashford or to Burns.
18.	The judge faithfully tried to follow Rashford.  In our view he was not guilty of reversing the burden of  proof.  He explained to the jury why he used the word “unless”, namely, to steer the jury away from the erroneous belief that if the appellant was the initial aggressor she could not thereafter rely upon self-defence at all.  He used the word “unless” to emphasise that in circumstances where the tables had been turned, the defendant could nonetheless rely upon the defence of self-defence.  Accordingly, we reject the first ground of appeal.
19.	But we do question whether it was necessary to deal with the law relating to reliance by an initial aggressor on self-defence.  Whilst the appellant’s alleged initial abuse in the cab office might have provoked the complainant, there was no violence until both ladies approached each other in the middle of the road and started to pull each other’s hair.  The real issue was not who started the fight but the circumstances in which the appellant bit Malika Assaouci’s nose.  
20.	The length of the directions founds the second ground of appeal in which Ms Zentler-Munro suggests that they were confused.  She says that it would have been sufficient for the judge to follow her invitation to direct the jury that it:-
“…must consider whether the defendant honestly believed she had to defend herself and whether her response was reasonable.  If the Crown has made you sure that she was the initial aggressor and that she remained the aggressor throughout, then you may think that she did not honestly believe she needed to defend herself.”
She bases that suggestion on Dyson LJ’s judgment in Rashford at §21.  In that case, the judge’s error, which did not affect the safety of the verdict, lay in failing to direct the jury that they could only reject the defence assertion that he honestly believed that it was necessary to defend himself if they concluded that he was the aggressor throughout.  
21.	But such a direction would not have fitted the factual dispute in the case.  It was plain from the CCTV that the start of the violence was when both ladies approached each other in the middle of the street.  Whoever had provoked the fight in the first place, at the stage actual violence started the only fair view was that both ladies were equally responsible as they pulled each other’s hair.  The real question was not whether the appellant had provoked the fight by shouting abuse but the circumstances in which she bit her opponent’s nose.  If the jury were sure it had happened, as the prosecution suggested as Malika Assaouci was lying on the ground underneath the appellant, then the appellant was guilty.  The defence did not suggest otherwise. 
22.	If, on the other hand, the defendant may only have bitten Malika Assaouci when pinned to the ground with one or more on top of her, then the only reasonable conclusion would have been that she may have honestly believed it was necessary to use force to free herself.  In that event, the only question was whether the prosecution could prove that a bite in those circumstances amounted to a disproportionate act of violence.
23.	We acknowledge that a confused and confusing direction is an oxymoron.  If a judge is unclear he cannot be said to be directing the jury at all.  We also recognise that it is the prime function of a judge’s directions to a jury to spare the jury from the law and not to inflict it upon them.  No disquisition on the  19th century statutory provisions was necessary.  Nor was it necessary to give general directions on the law of self-defence without reference to the factual issues in the case.
24.	If the jury was sure that Malika Assaouci’s account was correct then the appellant could not be said to have honestly believed it was necessary to bite her.  Neither the defendant nor her counsel had suggested that if that was the jury’s conclusion, the defendant was not guilty.
25.	On the other hand, if the jury reached the conclusion that the appellant may have bitten the complainant only when the man in the red top was above her as she lay pinned to the ground on her back, and when Malika Assaouci’s nose was near enough to be bitten, then the prosecution had not disproved the defendant’s account.  The only issue was the amount of force used by the defendant to free herself.  We suggest that on the facts of this case the directions to the jury could have been confined to the consequences of the rival factual versions of the circumstances in which the appellant bit her opponent, either the prosecution could prove the defendant was on top or it could not.  If it could not, may it have been reasonable to bite her opponent’s nose, even allowing for stress and urgency at the moment of decision?
26.	But although we suggest that the direction could have been far simpler and confined to the factual dispute it does not follow that we accept that the jury was misled by the confusing nature of the summing up.  It was, perhaps, too long but it was not confusing nor was it confused.  We reject that second ground of appeal.
27.	The alternative way in which the prosecution put its case leads to the third ground of appeal.  The final ground relates to the undisputed proposition of law that the jury must assess the reasonableness of the degree of force used on the basis of the defendant’s perception of the events and of the danger he believes he faces (see e.g. R Shaw –v- The Queen [2001] UKPC 26 § 19 and the commentary on Rashford by Professor Ormerod [2006] Crim LR 547-549).
28.	In his directions the judge did not direct the jury to assess the reasonableness of the bite in the circumstances as the appellant honestly believed them to be. But the issue in this case had little, if anything to do with the appellant’s own perception.  The essential factual issue was whether the appellant bit her opponent, when she was on top of her...  If she did, she cannot honestly have believed it was necessary to do so.  But if she bit her when she was pinned to the ground, she may well have believed it was necessary to do so to free herself and the only question was whether the bite was excessive, disproportionate force.  Since the CCTV showed both the ladies pulling each other’s hair and the later stage, when the defendant was pinned on the pavement, but not the bite, the jury’s decision did not require any conclusion as to the defendant’s honest belief but rather a decision as to the circumstances of the bite.  Either the defendant was on top or she may not have been.
29.	If she may have bitten Malika Assaouci, when pinned to the ground, there was no difference between the circumstances in reality and the circumstances as she honestly believed them to be.  Absent any difference between reality and perception, it could make no difference to ask whether the bite was reasonable in the circumstances as they may have been and the circumstances as the defendant may have believed them to be.  Any assessment of whether the degree of force used was proportionate would be the same.  It had to be judged on the basis that the defendant was pinned to the ground. In those circumstances the asserted omission made no difference.
30.	The argument advanced in the third ground demonstrates the erroneous belief that in every case of self-defence all the elements are always relevant and must be mechanically recited to the jury.  In any event in the  passage we have cited at §10 the judge did make it clear that the defence was based upon the circumstances as the defendant honestly believed them to be.    
31.	As the Privy Council said in Shaw (§20) the rudiments of self-defence must be stated in clear and simple terms. The Privy Council was doing no more than repeating what has been said so many times before:
“The directions must be tailored to the factual dispute.” 
The directions in law needed do no more than to guide the jury as to what the essential factual dispute was and the conclusions to be drawn from the different findings open to them on the evidence.
32.	We have little doubt that both ladies regret the incident, induced, as it was, by drink.  But the jury must have been sure, in the light of the way the judge identified the issues of fact, either that the bite had occurred at a stage when not even the defendant contended she honestly believed it was necessary to use force of that nature or that, despite the fact that the defendant may have been pinned to the ground, she used excessive force. In those circumstances, whilst we wish to emphasise that it is plain that the offence was wholly out of character in one described as “loyal, loving, kind, bright and intelligent”, we are driven to the conclusion that the verdict was safe and we dismiss this appeal.