J U D G M E N T

Wednesday, 21st July 2004

1. LORD JUSTICE ROSE: On 7th November 2003 at Exeter Crown Court, following a trial before Mr Recorder Still, the appellant was convicted on count 1 of causing grievous bodily harm with intent. He was subsequently sentenced initially to two years' imprisonment suspended for two years and thereafter sentence was deferred until 23rd July 2004.

2. Earlier today this court has dealt with an Attorney General's reference under section 36 of the Criminal Justice Act 1988 made on the basis that the sentencing process was unduly lenient, and this court has substituted a sentence of two years' imprisonment in relation to this offence.

3. The appellant appeals against conviction by leave of the single judge in relation to one ground, that is as to the terms of the summing-up. Mr Vaitilingam, on behalf of the appellant, has sought to renew a further ground in relation to the Recorder's refusal to withdraw the case from the jury when a submission was made at the end of the prosecution case.

4. The circumstances can be shortly rehearsed for present purposes. The facts are more fully set out in the judgment which the court has recently given on the Attorney General's reference.

5. On 19th May 2002 the appellant and a Mr Lumley, who became his victim, were drinking in a public house. There was an altercation. The landlord ejected them both. The appellant then, according to a number of eye witnesses, assaulted Mr Lumley, whose recollection of events was understandably limited, in a variety of ways, including the use of punches, shod feet and his teeth.

6. The effect of that attack, which was persisted in despite the attempted intervention of others and was observed to cause movement of the body by the force of kicks delivered to it, as well as biting of the victim's genital area through his trousers, was, as described by doctors who examined the victim on the day of the attack, as follows. Mr Lumley's left eye was extremely swollen with the lid closed. There was marked bruising and pain all around the eye socket, the floor of which may have been fractured. The left eye was unable to look up. The left pupil did not react to light. The injuries were compatible with blunt trauma such as can arise from the use of a fist or foot.

7. The victim gave evidence in amplification of the medical evidence as to his eye injury that he was, at the time of trial, suffering from continuing blurred vision and pain.

8. Mr Lumley also described, and this was not challenged by way of cross-examination, how his penis had lost a piece of skin measuring approximately four centimetres by two to three centimetres. That was not an injury which the doctors saw at the time because at the time Mr Lumley, in view of his other injuries, was not aware that he had sustained that injury. But it did give rise to scarring.

9. The appellant, in evidence, claimed that the incident was caused by Mr Lumley's aggression and hostility towards him, including an attack upon him, the appellant. The appellant, however, accepted that even if, as he claimed, he had himself kicked out in frustration at Mr Lumley's head, he had been stupid to bite him in the genital area.

10. The submission which is made by Mr Vaitilingam to this court is, in the first instance, critical of the summing-up, which he describes as cavalier, in two specific respects. First of all, the learned judge, in directing the jury as to the elements of the section 18 offence, used the words "serious harm" rather than "really serious harm". Furthermore, Mr Vaitilingam submits the learned Recorder used this terminology:

"... if you had suffered the injuries that you find were sustained, would you say to your friends: 'I was seriously hurt in this way', or would you say something which was less than that?."

That, submits Mr Vaitilingam, was a direction to the jury which invited them to apply, rather than the proper objective test, an improper subjective test; a course which was wrong in law having regard to the observations of this court, differently constituted, in Brown and Stratton [1998] Crim LR 485.

11. In the light of these two misdirections, as Mr Vaitilingam submits, the jury may not have applied the proper test when considering whether or not grievous bodily harm had been caused.

12. So far as the first part of Mr Vaitilingam's submission is concerned, as he recognises, he encounters some difficulty in the decision of this court in Saunders [1985] Crim LR 230. The constitution of the court on that occasion was Lord Lane, then Chief Justice, Russell J and Kennedy J, as they then were. As appears from the helpfully brief report, the court, in dismissing the appeal, identified the origin of the phrase "really serious injury" as the speech of Viscount Kilmuir LC in Smith [1961] AC 290 at 334. The court pointed out that the question then before the court had been previously considered in an unreported decision of the Court of Appeal in McMillan on 8th October 1984 in which the direction had omitted "really" before "serious bodily harm". Sir Ralph Kilner Brown gave the court's judgment in McMillan , and in the course of it said:

"... those words are entirely applicable to the facts of this case in which there was no need to use the phrase 'really serious harm', the omission of which was not significant. We see no substance in this ground of appeal."

13. In Saunders , the judgment of the court, having cited that passage from Sir Ralph Kilner Brown's judgment, went on to say that, if the omission of the word "really" was ever a proper ground of appeal, which was doubted, in that case it made no difference at all because a broken nose on any view was serious bodily harm; indeed, really serious bodily harm. It is not without interest that the commentary upon Saunders in the Criminal Law Review was provided by Sir John Smith. It was characteristically succinct. It is in these terms:

"The word 'really' is, as the Oxford Dictionary has it 'used to emphasise the truth or correctness of an epithet or statement'."

Sir John Smith went on:

"It means no more than 'actually' or 'as a matter of fact'. In the context it does not add anything to 'serious' but emphasises to the jury that the harm caused must be - actually or really - serious."

14. In the light of the decision in Saunders and that astute comment upon it, and bearing in mind Mr Vaitilingam's further submission based on Brown and Stratton , we turn to the relevant part of the summing-up, which is to be found in the transcript starting at page 4D. It is in these terms, first of all referring to the particulars of the offence and directing the jury to put on their copy of the indictment "where 'grievous' appears, put 'serious'":

"The prosecution bring this case and the prosecution have to prove it, and they have to prove it in terms of this indictment. Therefore in particular they have to satisfy you - and they have to satisfy you so that you are sure of it, each of you - that serious bodily harm was inflicted - was caused - by this defendant to Michael Lumley. I am not going to define it, because 'serious' is a commonplace English word. You know what is serious, and it is for you to say whether the evidence from both the man who was the victim of this attack, Mr Lumley, with the evidence from the doctors and from those who saw the injuries, amounts in your view, as members of the public, to serious harm. If, for instance, you had suffered - as a man in particular, obviously - if you had suffered the injuries that you find were sustained, would you say to your friends: 'I was seriously hurt in this way', or would you say something which was less than that?

If you were satisfied of that first thing then you would go on to decide whether or not those injuries which you have found to be serious were caused by the defendant with the intent that is set out in the particulars of offence - namely, with intent to do him serious bodily harm."

15. Two things are to be noted about that passage: first, that it includes the word "serious" no fewer than eight times; and, secondly, that the suggestion of a subjective test being put before the jury has to be gauged in the context of the whole of the rest of the passage.

16. In our judgment, not only do we reject Mr Vaitilingam's adjectival description of the summing-up as cavalier, we do not accept that there was any misdirection in relation to serious harm of the kind which he seeks to advance in its two facets.

17. The further ground, which Mr Vaitilingam did not obtain the leave of the single judge to pursue but which he seeks to pursue before us, is that the judge should have acceded to the submission to withdraw the case from the jury. That, with the greatest respect to Mr Vaitilingam, is hopeless. It would have been entirely inappropriate had the Recorder not left for the jury's consideration whether the injuries which we have described were serious injuries such as to amount to grievous bodily harm. Accordingly, despite Mr Vaitilingam's valiant attempts, this appeal against conviction fails.