This week’s Digest considers two recent judgments, one from the Court of Appeal (Criminal Division) and one from the Divisional Court. In the former, the Court of Appeal considered whether a conviction for gross negligence manslaughter was unsafe on the basis of the ratio of R v Honey Rose [2017] EWCA 1168. In the latter, the Divisional Court considered the question of whether a finding that an officer was acting in execution of his duty (in the context of a conviction under s. 89(1) of the Police Act 1996) could stand when the detention with which he was assisting was unlawful; the Court also suggested that, in some circumstances, prosecutors should consider charging common assault in the alternative.
R v Winterton [2018] EWCA Crim 2435
The judgment, available here, was handed down by Macur LJ on 06.11.18.
The issue in this appeal was whether the appellant’s conviction for gross negligence manslaughter could stand, on the basis of R v Honey Rose [2017] EWCA 1168, if he did not know about the circumstances which gave rise to the death of the victim but should have known. The Court dismissed the appeal; there was sufficient evidence in this case for the jury to conclude that the appellant must have in fact known about or wilfully close his eyes to circumstances which were intrinsically dangerous and led to the victim’s death.
The appellant was convicted for the gross negligence manslaughter of Shane Wilkinson (SW) and three counts alleging breaches of ss. 7 and 37 of the Health and Safety at Work etc Act 1974 (“the 1974 Act”). SW was a labourer on a building site, of which the appellant was construction site manager. SW was standing at the end of an L-shaped trench, which had been dug for the purposes of laying drainage, when the trench collapsed, burying him. The prosecution case at trial was that the accident was entirely foreseeable and preventable and had been caused by the gross negligence of the appellant; the trench was dug vertically and was unsupported and, as such, was an obvious risk about which the appellant either knew or should have known. The judge, when rejecting a submission of no case to answer on the basis that there was no evidence that the appellant knew about the trench, had replied ‘he should have’: this formulation was included in the written route to verdict. The appellant appealed against his conviction on the limited grounds that, on the basis of the ratio in R v Honey Rose [2017] EWCA 1168, he could not have been convicted if he did not know the trench was being constructed in an unsafe manner but should have known.
The Court dismissed the appeal. According to the Court, the ratio in Honey Rose is that “[t]he question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach” ([26], citing Honey Rose at [80]). The evidence in this case regarding the manner in which the trench had been constructed and dangerous workmanship was evidence from which the jury could have concluded that the appellant had actual knowledge of the same, or otherwise adopted a wilful blindness to the excavation of what would necessarily be a deep drainage trench in unstable ground and therefore intrinsically dangerous. Thus, the factual matrix in this case was a question of when, not if; consequently, there was reasonable foreseeability of a serious and obvious risk of death to anyone near or in the trench. The facts of the case did not permit the appellant to argue that but for the collapse, no objective observer would have been aware of the risk.
Dixon v Crown Prosecution Service [2018] EWHC 3154 (Admin)
The judgment, available here, was handed down by Leggatt LJ on 20.11.18.
The issue in this case was whether a finding that a police constable was acting in the execution of his duty when he was assaulted could stand in light of the fact that the detention with which he was assisting was unlawful. The Court held that, on the facts found by the Crown Court in this case, it could. The Court also offered guidance on whether it would be appropriate to charge common assault in such cases in the alternative to avoid similar difficulties.
This was an appeal by way of case stated from the Crown Court which raised the question of whether a police constable was acting in the execution of his duty when he was assaulted by the appellant. The facts, as found by the Crown Court, were as follows: three police constables on patrol in an unmarked vehicle spotted the appellant, who fitted the description of a person who might be carrying drugs or weapons, while cycling home. They asked the appellant to stop and, when the appellant failed to do so, PC Haroon, who was not exercising his power of arrest or stop and search, took hold of his arm; a fight ensued in which the other officers became involved. In the struggle, the appellant bit PC Dolling, who believed the other officers were trying to detain the appellant, and had tried to restrain the appellant’s arm in the belief he might be reaching for a weapon. The appellant was charged under s. 89(1) of the Police Act 1996 of assaulting each of the three constables in the execution of his duty; he was only convicted of the offence in relation to PC Dolling. The appellant submitted on appeal that a police constable who assists in an unlawful detention is himself acting unlawfully, even if the PC’s proximate purpose in using force is to prevent a breach of the peace or the commission of a crime. Thus, the argument went, the Crown Court was not entitled to find that PC Dolling was acting in the execution of his duty.
The Court rejected that submission, holding that the Crown Court was entitled to find as it did. On the facts found, PC Dolling reasonably believed that the appellant might be about to use force which was excessive and which would constitute an unlawful assault, even if the attempt to detain him was itself unlawful. Whether a police officer is acting lawfully and in the execution of his duty depends on the reasonable beliefs and intentions of the officer; it does not depend on the knowledge or beliefs of the defendant. On this basis, the Crown Court was entitled to find that PC Dolling was acting in the execution of his duty when he was assaulted by the appellant.
There are two further matters to note about the Court’s judgment in Dixon.
First, the Court highlighted the tension between two authorities referred to by the appellant in argument – Cumberbatch v Crown Prosecution Service; Ali v Director of Public Prosecutions [2009] EWHC 3353 (Admin) on the one hand and Joyce v Hertfordshire Constabulary (1985) 80 Cr App R 298 on the other. Although it was not necessary to resolve the issue for the purposes of this case, the Court said that the “court in Ali may have been misled by [an] error in the report of Joyce” ([27]), such that the facts of both cases were not distinguishable but on all fours with one another.
Second, the Court highlighted that difficulties can arise in identifying when a police officer is acting in the execution of his duty and continued:
“[t]his underlines the importance of the point made by Donaldson LJ in Bentley v Brudzinski (1982) 75 Cr App R 217, 226, that prosecutors should consider making an alternative charge of common assault when they have reason to think that there may be an issue as to whether a police constable was acting in the execution of his duty but that the defendant may nevertheless be guilty of a common assault by reason of having used unjustified force. Unlike on a trial on indictment, magistrates at a summary trial have no power unless provided specifically by statute (e.g. section 24 of the Road Traffic Offenders Act 1988) to find an accused not guilty as charged but guilty of a lesser offence, even if (as in the case of common assault and assaulting a constable in the execution of his duty) the lesser offence is wholly encompassed within the offence charged. Unless, therefore, there is an alternative charge of common assault, a finding that a constable was not acting in the execution of his duty when assaulted by the defendant must lead to the defendant’s complete acquittal if the only offence charged is an offence under section 89(1) of the Police Act 1996.” ([34])
A summary of the Court’s decision is available here.
Scrap juries in rape trials., Labour MP suggests
In a debate in parliament, Ann Coffey called for an independent inquiry into what she describes as ““the crisis engulfing the criminal justice system’s approach to rape cases”. The debate comes after the Guardian revealed in September that less than a third of prosecutions brought by the CPS against young men result in conviction.
The full piece can be read here and an opinion piece on the topic, by Julie Bindel, co-founder of the law-reform group Justice for Women, here.
‘Dilapidated’ courts need millions of pounds in repairs, says top judge
Lord Burnett of Maldon, giving evidence to a Commons select committee, said that the Courts of England and Wales are suffering from decades of neglect and need an injection of hundreds of millions of pounds for the repairs.
The full piece can be read here.
Let terminally ill man choose when he dies, Supreme Court told
A retired lecturer who is paralysed from the neck down should, it has been argued, be able to preserve his dignity by choosing the time of his death. In an emergency appeal for permission to bring the case before the Supreme Court, it was contended that the Suicide Act 1961 is incompatible with human rights.
The full piece can be read here.
