Regina v Green

Factual and Procedural Background

On 22 August 2018, at the Crown Court at Snaresbrook, the Appellant was convicted of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. He was sentenced to 26 weeks' imprisonment on 19 September by the trial judge. The Appellant now appeals against conviction by leave of the single judge, having already had a previous appeal against sentence dismissed and having served the sentence.

The incident occurred at about 4:00 am on 23 December 2017 in Brick Lane, London, and was captured on CCTV. The footage showed the Complainant and another man making deliberate contact with a car driven by the Appellant's father, with the Appellant as a passenger. After the car stopped, the Appellant punched the Complainant, causing him to fall unconscious. The Appellant's father also exited the vehicle and approached the Complainant's companion, who then threw a bottle striking the Appellant. The Appellant armed himself with a wooden walking stick but did not use or brandish it.

The police were called, and the Appellant cooperated, expressing concern for his father. The Complainant was taken to hospital with bruising, a loose tooth, and fractures to the right eye socket.

The Appellant was arrested and interviewed under caution with a solicitor present. The interviewing officer inaccurately summarized the event, mistakenly stating that the car had crashed and that the Appellant had picked up a metal pole, which was incorrect as the Appellant only had a wooden walking stick and the car had not crashed. During the interview, the Appellant declined to comment despite being shown the CCTV footage and invited to provide an account.

The Appellant's defence was that he acted in defence of his father and defence of property (the car), claiming he acted instinctively to prevent further damage or attack. He relied on his solicitor's advice to remain silent during the interview and presented character evidence of good prior conduct.

The jury was tasked with determining whether the Appellant genuinely believed it was necessary to act to defend his father or prevent damage to the car, and if so, whether his actions were reasonable in the circumstances.

Legal Issues Presented

1. Whether the trial judge was correct to give the jury an adverse inference direction under section 34 of the Criminal Justice and Public Order Act 1994 despite the absence of specific questions in the Appellant’s police interview.
2. Whether the terms of the adverse inference direction given by the judge were adequate and correctly framed.
3. Whether the judge erred in failing to direct the jury on the Appellant’s defence of property as part of his self-defence claim.

Arguments of the Parties

Appellant's Arguments

• No adverse inference direction should have been given because the Appellant did not fail to answer any identifiable question; the interview consisted largely of commentary rather than questioning.
• The adverse inference direction given was inadequate, particularly because it did not properly instruct the jury that they could only draw an adverse inference if the Appellant’s silence could only be attributed to having no credible answer.
• The judge failed to direct the jury on the defence of property, which was a part of the Appellant’s case and should have been left for the jury’s consideration.

Appellee's Arguments

• The judge was correct to give the adverse inference direction as the Appellant was effectively invited to give his account during the interview, even if no specific questions were asked.
• Even if the direction was inadequate, the conviction was not unsafe because failure to answer questions was not a central part of the prosecution case.
• The judge was justified in focusing the jury on the defence of the Appellant’s father rather than defence of property, as the former was the principal issue.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered whether the Appellant was "questioned under caution" for the purposes of section 34 of the Criminal Justice and Public Order Act 1994. It held that the absence of specific questions did not preclude the Appellant being questioned, as the officer’s commentary and invitations to comment on the CCTV footage amounted to an implied invitation to give an account. The Appellant’s refusal to comment was therefore a failure to answer when questioned.

Regarding the adequacy of the adverse inference direction, the court found several deficiencies. The judge did not clearly explain to the jury that an adverse inference could only be drawn if the Appellant failed to mention facts which he could reasonably have been expected to mention. The usual direction that the jury should only draw such an inference if it is fair and proper to do so was omitted. The judge also failed to warn the jury not to convict wholly or mainly on the failure to mention facts, only cautioning against convicting solely on that basis. Furthermore, the judge conflated the strength of the prosecution case with the reason for failure to mention facts, which could mislead the jury.

The court noted the absence of written legal directions and the lack of discussion with counsel about the terms of the adverse inference direction, which might have prevented these shortcomings.

On the issue of defence of property, the court found that the judge had effectively withdrawn this defence from the jury’s consideration without prior warning, despite it being part of the Appellant’s case and addressed by counsel. The judge deliberately confined the defence to the defence of the Appellant’s father, which was not justified given the facts and the Appellant’s evidence. This omission was likely to have misled the jury and undermined the fairness of the trial.

Given these deficiencies, the court concluded that the conviction was unsafe.

Holding and Implications

The court QUASHED THE CONVICTION and allowed the appeal.

The direct consequence is that the Appellant’s conviction for inflicting grievous bodily harm is overturned. The Appellant had already served the sentence, and the court declined to order a retrial. No new precedent was established, but the decision underscores the importance of proper jury directions regarding adverse inferences and the necessity to fairly present all aspects of a defendant’s defence, including defence of property when raised.