Atta-Dankwa [2018] EWCA Crim 320, [2018] 2 Cr App R 124
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R v Atta-Dankwa [2018] EWCA Crim 320 was an appeal to the Court of Appeal (Criminal Division) before Lord Justice Holroyde, Mrs Justice Elisabeth Laing DBE and His Honour Judge Aubrey QC sitting as a judge of the CACD. The court granted leave to appeal and quashed the appellant’s conviction for wounding with intent, contrary to section 18 of the Offences against the Person Act 1861, ordering a retrial.
Ms Atta-Dankwa had been convicted on 3 January 2018 in the Crown Court at Northampton of assault by beating contrary to section 39 of the Criminal Justice Act 1988 (count 1) and wounding with intent contrary to section 18 of the Offences against the Person Act 1861 (count 2). The indictment also contained an alternative count 3, unlawful and malicious wounding contrary to section 20 of the 1861 Act, which the jury did not reach.
The facts concerned an incident on 11 October 2016 on a private road in Wellingborough where the appellant had parked her BMW. Mrs Mary Houston and her daughter Angela approached to ask the appellant to move. The prosecution case was that the appellant became verbally aggressive, pushed Mrs Houston from behind by her shoulders, then drove the vehicle directly at gates Mrs Houston was closing, striking them, and then drove the vehicle at Mrs Houston, knocking her down and causing a laceration to her right forearm, soft tissue damage to her wrist and injuries to her ribs. Mrs Houston required three days of in-patient treatment and suffered continuing pain and visible scarring. The appellant’s case was that she had parked only briefly to look for her son, that Mrs Houston and her daughter had been racially abusive to her, that she had touched Mrs Houston’s shoulder only to attract her attention, and that she had driven away and seen Mrs Houston trip over flower pots and fall. She denied driving at the gates or at Mrs Houston and denied causing any injury.
In his summing-up, the Recorder directed the jury on count 2 in terms which were not criticised. However, in relation to the alternative count 3, at page 6A-B of the transcript the Recorder directed the jury that if they decided so that they were sure that the appellant caused the injuries but that she did not intend to cause those injuries, then it was open to them to find her guilty on count 3 but not guilty on count 2. The court identified three problems with this passage: first, it misstated the standard of proof and was capable of being misunderstood as to the burden of proof; secondly, it omitted any explanation of the two different states of mind which might suffice for count 3, namely an intent to cause some injury however minor or recklessness as to the causing of injury; and thirdly, the use of the word “conversely” may have indicated to the jury that they could start with count 3 and work back to count 2 if necessary, though the Recorder had encouraged them to consider count 2 first.
After a period in retirement, the jury asked a question: “If the defendant drove at Mary intending to scare her rather than to injure her but the injury was the result of the ensuing collision, is she guilty of count 2? We need advice as to the requisite level of intent.” The Recorder discussed with both counsel how to answer this question. Ms Bradley for the prosecution was given time to consult the Crown Court Compendium to assist in drafting a direction on recklessness. Unfortunately, through what the court described as a collective muddle, all three participants became confused as to which count was which, apparently overlooking the less serious count 1 and proceeding on the assumption that the jury’s enquiry about count 2 (the section 18 offence) in fact related to count 3 (the section 20 offence).
When the jury returned to court, the Recorder told them at page 12G-13A that if they found so that they were sure that the appellant drove her car at Mrs Houston, knowing that there was a risk that Mrs Houston might be injured but nevertheless went on to take that risk in circumstances where it would be unreasonable for her to do so, that would amount to guilt on count 2. He added that they had to be satisfied that the appellant knew there was a risk in driving the car at Mrs Houston, the risk being that she might be injured, but nevertheless went on to take that risk with the resulting consequences. Thus the jury were wrongly directed that recklessness would be sufficient for a conviction of count 2, the section 18 offence, when wounding with intent is a crime of specific intent requiring nothing less than an intention to cause really serious injury.
Nobody recognised the error at the time. The jury retired again and a short time later returned guilty verdicts on counts 1 and 2. Sentencing was adjourned until the following day. By then Ms Jones for the defence had realised that there had been a misdirection. She raised her concerns with the Recorder, who adjourned sentencing and granted a certificate that the case was fit for appeal.
The court observed that although a trial judge has power under section 1(2)(b) and section 11(1A) of the Criminal Appeal Act 1968 to certify that a case is fit for appeal, it has long been established that the power should only be exercised in exceptional circumstances, citing R v Bansal [1999] Crim LR 484 and R v Inskip [2005] EWCA Crim 3372. The trial judge must first be satisfied that there is a compelling ground of appeal. Lord Justice Holroyde noted that in the circumstances of this case, where the Recorder was rightly persuaded that he himself had fallen into serious error, that requirement may be satisfied, but that did not mean a certificate should be granted. The court explained that the Registrar of Criminal Appeals has power to refer an application for leave to appeal directly to the full court very quickly and that the 28-day time limit for applying for leave is a maximum not a norm. In this case, a prompt application by Ms Jones could and would have been referred to the full court within a very short period. The court also expressed surprise that the Recorder had dismissed a pre-sentence report as unnecessary in view of the inevitability of a substantial term of imprisonment following a section 18 conviction, when the appellant was clearly the mother of at least one child. The court had no doubt that a report should have been obtained even if in the end it proved relevant only to the length of sentence. The court concluded that in the circumstances of this case the conventional appeal procedure could and should have been followed. The court added that there was in any event a procedural irregularity in the Recorder’s agreement to certify the case fit for appeal, as Criminal Procedure Rule 39.4 requires an oral application immediately after conviction or a written application, neither of which appears to have occurred. It was fortunate that the Registrar swiftly referred the case to the full court for the avoidance of doubt.
Ms Bradley for the respondent rightly did not resist the appeal. The court held that it was inevitable that the conviction on count 2 was unsafe and must be quashed, which it described as very regrettable. Ms Jones submitted that the appropriate course would be for the court upon quashing the section 18 conviction to exercise its power under section 3 of the Criminal Appeal Act 1968 to substitute a conviction of the alternative count alleging an offence contrary to section 20. Ms Bradley invited the court to order a retrial. The court reflected and held that a retrial must be ordered. Lord Justice Holroyde acknowledged that it was very regrettable that the appellant would again have to face a trial and that Mrs and Miss Houston and other witnesses would again have to give evidence and that there would inevitably be some delay before the retrial could be heard. However, the allegation put forward by the prosecution was a serious one. No one had suggested that there was not a case to answer on count 2. The reason the conviction must be quashed was that there had been a serious error in the manner in which counts 2 and 3 were laid before the jury by the Recorder. It followed that no jury had yet given proper consideration to those two alternative charges.
Before announcing its decision, the court made observations as to how the serious error could and should have been prevented. Lord Justice Holroyde referred to Criminal Procedure Rule 25.14(4), which states that jury directions, questions or other assistance may be given in writing. Research has shown that jurors are assisted by having written directions. The research is summarised in the Crown Court Compendium at paragraph 1.6 of the 2017 edition, where the authors conclude that the argument in favour of providing written directions is “overwhelming”. Numerous decisions of the court have made clear the importance and desirability of written directions. The provision of a written route to verdict was recommended by Sir Brian Leveson in his Review of Efficiency in Criminal Proceedings in 2015. The Criminal Practice Direction now makes specific reference to it at paragraph 26K.11-12, stating that save where the case is so straightforward that it would be superfluous to do so, the judge should provide a written route to verdict, which may be presented in the form of text, bullet points, a flowchart or other graphic. In R v Kay [2017] EWCA Crim 2214, the court has recently drawn attention to the importance of that part of the Criminal Practice Direction.
The court held that it was entirely clear that the circumstances giving rise to this appeal would not have occurred if written directions or a written route to verdict or both had been provided to the jury by the Recorder. In that way the jury would have had a clear record to which they could refer during their deliberations of the approach they should take in deciding their verdicts on counts 2 and 3. It would probably have obviated the need for the jury to ask a question about an intention to scare as opposed to an intention to cause serious injury. But even if they had still asked that question, neither the Recorder nor counsel would have fallen into error about which count was which, and the answer to the jury’s question could have been expressed with specific reference to the document which had been provided to them. The lesson to be learned was that one should never be too quick to assume that a case is so straightforward that a route to verdict would be superfluous. Experience shows that problems can arise even in cases which seem straightforward. In the present case, the criticism made of the Recorder’s initial direction as to count 3 showed that a written route to verdict would not have been superfluous even if the later events had not occurred. Moreover, quite apart from the assistance which the end product will provide to the jury, the mental discipline of drafting a route to verdict in itself assists the court to identify the essential ingredients of the offences charged and the issues on which the jury must focus. The court recognised the pressure of work on judges and recorders sitting in the Crown Court and accepted that some cases are so straightforward that no written materials for the jury are necessary, but such cases are in a minority and this case illustrated the general desirability of providing the jury with written directions, a written route to verdict, or both.
In short, a conviction for wounding with intent was quashed and a retrial ordered because the jury were wrongly directed that recklessness sufficed for the section 18 offence, an error that would have been avoided by providing a written route to verdict as the Criminal Practice Direction requires.
R v Bansal [1999] Crim LR 484
R v Inskip [2005] EWCA Crim 3372
K [2017] EWCA Crim 2214