Ward, R. v

Factual and Procedural Background

On 31 March 2023 at the Central Criminal Court, following a trial before Mrs Recorder Dhaliwal and a jury, the Appellant was convicted of one count of assault occasioning actual bodily harm (count 3 on the indictment) and acquitted of three other counts. The conviction arose from an incident on 10 September 2022 in the complainant's bedroom, who was the Appellant's former partner. The dispute began after a planned outing was cancelled due to the Appellant’s broken phone, escalating into a physical altercation. The complainant alleged repeated physical assault, including being thrown onto the bed, threatened with punches, and strangled, leading her to call her mother for help. She sustained injuries including strangulation marks, bruises, and a mild laceration, which were documented at hospital the same day.

The Appellant's defence was self-defence, asserting that the complainant physically tried to stop him from leaving and that he only pinned her down to free himself without striking her or strangling her. Evidence included testimony from both parties, the complainant's mother, photographs of injuries, and WhatsApp messages between the parties post-incident.

The Appellant appealed against the conviction on the basis that the jury was misdirected regarding the burden of proof for the reasonableness of force used in self-defence, rendering the conviction unsafe.

Legal Issues Presented

1. Whether the jury was misdirected by the trial judge in the written "Route to Verdict" document by suggesting that the defence bore the burden to prove the reasonableness of the force used in self-defence to the criminal standard.
2. Whether such a misdirection rendered the conviction unsafe.
3. Whether a retrial should be ordered following quashing of the conviction.

Arguments of the Parties

Appellant's Arguments

• The conviction is unsafe due to a clear and obvious misdirection in the jury directions, specifically that the defence was required to prove the reasonableness of the force used in self-defence, which is incorrect.
• The correct legal test should have required the prosecution to prove beyond reasonable doubt that the degree of force used was unreasonable, not the defence to prove it was reasonable.
• The misdirection was not corrected before the jury retired, despite being identified by defence counsel after summing-up.

Prosecution's Arguments

• The prosecution acknowledged the misdirection but argued that the overall summing-up made clear that the burden was on the prosecution to prove guilt and that the defence had no burden to prove anything.
• Prosecuting counsel accepted that his closing speech reminded the jury that the prosecution bore the burden to prove unreasonableness of force, but accepted this would not cure the misdirection in the judge’s directions.
• The prosecution sought a retrial following quashing of the conviction, based on the instruction of the officer in the case (OIC), despite the absence of a clear public interest assessment or complainant’s views being shared with counsel.

Defence Counsel's Submission on Retrial

• Defence counsel submitted that a retrial would be otiose given the passage of time, the fact that the Appellant had served the custodial sentence, and that there was no objection to the restraining order continuing despite quashing the conviction.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court identified that the third question in the "Route to Verdict" document constituted a clear and obvious misdirection by implying that the defence had to prove the reasonableness of the force used in self-defence to the criminal standard. The correct test is that the prosecution must prove beyond reasonable doubt that the force used was unreasonable or disproportionate in the circumstances.

The misdirection was not identified or corrected before summing-up, and the Recorder proceeded to direct the jury in accordance with the flawed document, emphasizing adherence to the Route to Verdict questions as the proper method to reach a verdict. Although the Recorder repeatedly stated that the prosecution bore the burden of proof and the defence had no burden, this was insufficient to cure the misdirection embedded in the final instructions.

Prosecuting counsel failed to endorse the correction put forward by defence counsel when it was raised the following morning, which the court found regrettable and a missed opportunity to avoid the appeal.

The court inferred that the jury may have followed the Route to Verdict document, which contained the misdirection, and thus could have been misled. The acquittal on the strangulation charge suggested the jury did not fully accept the complainant’s account, but that did not negate the risk that the misdirection affected the verdict on count 3.

Given these circumstances, the court concluded the conviction was unsafe.

Regarding the request for a retrial, the court noted that the officer in the case had instructed the prosecution to seek a retrial if the conviction was quashed, but the Crown Prosecution Service had not independently considered public interest factors. The complainant’s views had been sought but not shared with counsel. Defence counsel opposed a retrial on grounds of proportionality and the restraining order remaining in place.

After considering the submissions and the specific circumstances, including the fact that the custodial sentence had been served, the court exercised its discretion to refuse a retrial but confirmed the restraining order would continue.

Holding and Implications

The court ALLOWED THE APPEAL and QUASHED THE CONVICTION on count 3 (assault occasioning actual bodily harm).

The court declined to order a retrial, considering the circumstances of the case, including the time elapsed, the sentence already served, and the continuation of the restraining order. No new precedent was established; the decision directly affected the parties by overturning the conviction and refusing a retrial.