Harvey v R.

This is an appeal which demonstrates the importance of fashioning directions to a jury to the issues of the case. The grounds of appeal are focussed on the directions which the judge gave in relation to self-defence.

On 14 April 2008 at Blackfriars Crown Court the appellant was convicted by a majority of an offence of assault occasioning actual bodily harm. She was acquitted of a racially aggravated assault. There was no dispute but that the appellant had bitten the nose of the complainant, Malika Assaouci, during the course of a drunken fight in the road outside the Hammersmith Palais. The real issue was at what stage she did so.

The accounts of what occurred were, inevitably, confusing. Malika Assaouci and others suggested that the appellant started the trouble in a cab office near the Hammersmith Palais by swearing and using insulting language.

After Malika Assaouci and others left the cab office a picture of events can be seen on a CCTV film. Unusually, the film is informative. Malika Assaouci and friends can be seen walking across the road and starting to climb inside a minicab. The time was about 3.00 a.m. The appellant can then be seen approaching that group either gesticulating or shouting towards them from the middle of the road. It is then clear that the complainant and the appellant started to fight, pulling each other’s hair.

When giving evidence the complainant said that the appellant pulled her down to the ground, there were people on top of her and she was scared. She said that the appellant was screaming at her and that it was at that stage the appellant bit her on the nose. Thus, the prosecution case, based on that evidence, was that the bite occurred when the appellant was on top of the complainant. But it did contend, in the alternative, that even if the defendant was, as she said, pinned to the ground, to bite in self-defence was to use excessive force. This alternative was founded on the defendant’s own version of events.

The defendant, when giving evidence, said that the complainant had lunged at her in the road and grabbed her hair. She had fallen and at some stage both had hold of each other’s hair. She continued:-

The film does not show when the appellant bit Malika Assaouci. But the film does show that both she and appellant went to the ground in the middle of the road. It shows both Malika Assaouci and the appellant within a confused mêlée which moved onto the pavement on the opposite side of the road. Once on the pavement Malika Assaouci can be seen on her feet continuing to involve herself in the fight. But thereafter, the appellant can be seen on the ground with a man in a red top, apparently on top of her.

As we have indicated, the grounds of appeal, with leave of the full court presided over by Hooper LJ, are directed at the summing up. The judge directed the jury as to the meaning of assault, referring to the Offences Against the Persons Act 1861. Since there was no dispute but that the appellant had deliberately bitten the complainant on the nose we query whether it was necessary to take over two pages of transcript in defining assault to the jury. But the judge then turned to the only issue in the case, self-defence. He pointed out that an assault in revenge is never capable of being self-defence. He said:-

The judge repeated those directions down to the reference to “no other means of escape”. He then directed the jury that one of the factors it should take into account was whether if the appellant was or might have been under unlawful attack it was possible and safe for her to retreat. He told the jury that if the appellant did not honestly believe that it was necessary to use force to defend herself, she cannot have been acting in self-defence. He continued:-

Thus far, the directions dealt with the law of self-defence without any reference to the factual conflict in the case. But the judge did then turn to applying those directions of law to the factual issues:-

The judge reminded the jury of the evidence. At the request of the jury, at the end of his summing up, he repeated many of the legal directions we have identified without further summarising the factual issues in the case.

In careful and forceful submissions Ms Zentler-Munro advances three criticisms of the passages in the judge’s directions which we have already cited. Firstly, that in directing the jury that self-defence does not apply unless the victim’s actions were so out of proportion that the defendant honestly believed she was in immediate danger the judge reversed the burden of proof. Secondly, she contends, as an associated ground, that read as a whole the directions were confused and confusing. They were unnecessarily lengthy and convoluted. Finally, as a third ground, she contends that the judge failed to direct the jury that they were required to assess the reasonableness of the appellant’s actions in biting the complainant’s nose on the basis of the facts as the appellant honestly believed them to be.

Although distinct grounds were advanced, their merits can only be judged by consideration of the summing up as a whole. The sense of the directions must be judged by the thrust of the summing up as a whole and not by analysis of isolated extracts. Did the judge adequately explain that the burden remained on the prosecution throughout to disprove self-defence? Did he make sufficiently clear the essential elements of the law as to self-defence as applicable to the factual issues of the case?

The law of self-defence has now been codified for the purposes of clarification and not reform (see s.76(9) of the Criminal Justice and Immigration Act 2008). The provisions of s.76 were not in force at the time of trial.

Prosecution counsel, who was not counsel instructed in this appeal, suggested that the jury ought to consider whether the appellant had been the instigator of the violence. This led to submissions as to the law of self-defence when applied to a situation in which the tables are turned on an initial aggressor.

There was no dispute as to the law either before the judge or before us, although Hooper LJ, in giving permission, seems to have believed that the law needed to be revisited. In R v Rashford[2005] EWCA Crim 377 this court applied the Scottish authority of Burns v HM Advocate [1995] SLT 1090 at 1093H in the which the Lord Advocate General said:-

This court said that that passage accurately represents English law and should be more widely known. Dyson LJ, giving the judgment of the court, said:-

The judge faithfully tried to follow Rashford. In our view he was not guilty of reversing the burden of proof. He explained to the jury why he used the word “unless”, namely, to steer the jury away from the erroneous belief that if the appellant was the initial aggressor she could not thereafter rely upon self-defence at all. He used the word “unless” to emphasise that in circumstances where the tables had been turned, the defendant could nonetheless rely upon the defence of self-defence. Accordingly, we reject the first ground of appeal.

But we do question whether it was necessary to deal with the law relating to reliance by an initial aggressor on self-defence. Whilst the appellant’s alleged initial abuse in the cab office might have provoked the complainant, there was no violence until both ladies approached each other in the middle of the road and started to pull each other’s hair. The real issue was not who started the fight but the circumstances in which the appellant bit Malika Assaouci’s nose.

The length of the directions founds the second ground of appeal in which Ms Zentler-Munro suggests that they were confused. She says that it would have been sufficient for the judge to follow her invitation to direct the jury that it:-

But such a direction would not have fitted the factual dispute in the case. It was plain from the CCTV that the start of the violence was when both ladies approached each other in the middle of the street. Whoever had provoked the fight in the first place, at the stage actual violence started the only fair view was that both ladies were equally responsible as they pulled each other’s hair. The real question was not whether the appellant had provoked the fight by shouting abuse but the circumstances in which she bit her opponent’s nose. If the jury were sure it had happened, as the prosecution suggested as Malika Assaouci was lying on the ground underneath the appellant, then the appellant was guilty. The defence did not suggest otherwise.

If, on the other hand, the defendant may only have bitten Malika Assaouci when pinned to the ground with one or more on top of her, then the only reasonable conclusion would have been that she may have honestly believed it was necessary to use force to free herself. In that event, the only question was whether the prosecution could prove that a bite in those circumstances amounted to a disproportionate act of violence.

We acknowledge that a confused and confusing direction is an oxymoron. If a judge is unclear he cannot be said to be directing the jury at all. We also recognise that it is the prime function of a judge’s directions to a jury to spare the jury from the law and not to inflict it upon them. No disquisition on the 19^th century statutory provisions was necessary. Nor was it necessary to give general directions on the law of self-defence without reference to the factual issues in the case.

If the jury was sure that Malika Assaouci’s account was correct then the appellant could not be said to have honestly believed it was necessary to bite her. Neither the defendant nor her counsel had suggested that if that was the jury’s conclusion, the defendant was not guilty.

On the other hand, if the jury reached the conclusion that the appellant may have bitten the complainant only when the man in the red top was above her as she lay pinned to the ground on her back, and when Malika Assaouci’s nose was near enough to be bitten, then the prosecution had not disproved the defendant’s account. The only issue was the amount of force used by the defendant to free herself. We suggest that on the facts of this case the directions to the jury could have been confined to the consequences of the rival factual versions of the circumstances in which the appellant bit her opponent, either the prosecution could prove the defendant was on top or it could not. If it could not, may it have been reasonable to bite her opponent’s nose, even allowing for stress and urgency at the moment of decision?

But although we suggest that the direction could have been far simpler and confined to the factual dispute it does not follow that we accept that the jury was misled by the confusing nature of the summing up. It was, perhaps, too long but it was not confusing nor was it confused. We reject that second ground of appeal.

The alternative way in which the prosecution put its case leads to the third ground of appeal. The final ground relates to the undisputed proposition of law that the jury must assess the reasonableness of the degree of force used on the basis of the defendant’s perception of the events and of the danger he believes he faces (see e.g. R Shaw –v- The Queen[2001] UKPC 26 § 19 and the commentary on Rashford by Professor Ormerod [2006] Crim LR 547-549).

In his directions the judge did not direct the jury to assess the reasonableness of the bite in the circumstances as the appellant honestly believed them to be. But the issue in this case had little, if anything to do with the appellant’s own perception. The essential factual issue was whether the appellant bit her opponent, when she was on top of her... If she did, she cannot honestly have believed it was necessary to do so. But if she bit her when she was pinned to the ground, she may well have believed it was necessary to do so to free herself and the only question was whether the bite was excessive, disproportionate force. Since the CCTV showed both the ladies pulling each other’s hair and the later stage, when the defendant was pinned on the pavement, but not the bite, the jury’s decision did not require any conclusion as to the defendant’s honest belief but rather a decision as to the circumstances of the bite. Either the defendant was on top or she may not have been.

If she may have bitten Malika Assaouci, when pinned to the ground, there was no difference between the circumstances in reality and the circumstances as she honestly believed them to be. Absent any difference between reality and perception, it could make no difference to ask whether the bite was reasonable in the circumstances as they may have been and the circumstances as the defendant may have believed them to be. Any assessment of whether the degree of force used was proportionate would be the same. It had to be judged on the basis that the defendant was pinned to the ground. In those circumstances the asserted omission made no difference.

The argument advanced in the third ground demonstrates the erroneous belief that in every case of self-defence all the elements are always relevant and must be mechanically recited to the jury. In any event in the passage we have cited at §10 the judge did make it clear that the defence was based upon the circumstances as the defendant honestly believed them to be.

As the Privy Council said in Shaw (§20) the rudiments of self-defence must be stated in clear and simple terms. The Privy Council was doing no more than repeating what has been said so many times before:

We have little doubt that both ladies regret the incident, induced, as it was, by drink. But the jury must have been sure, in the light of the way the judge identified the issues of fact, either that the bite had occurred at a stage when not even the defendant contended she honestly believed it was necessary to use force of that nature or that, despite the fact that the defendant may have been pinned to the ground, she used excessive force. In those circumstances, whilst we wish to emphasise that it is plain that the offence was wholly out of character in one described as “loyal, loving, kind, bright and intelligent”, we are driven to the conclusion that the verdict was safe and we dismiss this appeal.