Press & Anor v R.

This is an appeal against conviction with the leave of the single judge. The appellants faced an indictment containing three counts. In count 1 they were charged jointly with causing grievous bodily harm to Martin Jones with intent to cause him grievous bodily harm, contrary to section of the 18 Offences Against the Person Act 1861. In count 2 they were charged in the alternative with inflicting grievous bodily harm on Martin Jones contrary to section 20 of the 1861 Act. In count 3 they were charged with attempting to cause grievous bodily harm to Ray Simmons with intent to cause him grievous bodily harm.

On 24 November 2011 the appellant Press pleaded guilty to count 3. The trial commenced on 18 June 2012 at Plymouth Crown Court before Mr Recorder Geoffrey Still. On 26 June both men were convicted upon count 1 and the appellant Thompson was convicted upon count 3. No verdict was required upon count 2. Upon count 1 Press was sentenced to 6 years imprisonment and Thompson to 8 years imprisonment. Upon count 3 Press was sentenced to 4 years imprisonment and Thompson to 3 years imprisonment. The Recorder ordered that all sentences should be served concurrently.

Press has leave to advance a single ground of appeal, namely that the Recorder wrongly gave to the jury a qualified good character direction the effect of which was to undermine the credibility of Thompson. Since there was no conflict between the cases of the two appellants the Recorder’s misdirection had a consequential impact upon the safety of the verdict in Press’ case. He seeks to renew a further ground of appeal in respect of which the single judge refused leave, namely that the Recorder, having correctly directed the jury upon the issue of joint enterprise, gave a confused direction in response to a note from the jury in retirement defining a route by which they might find Press guilty upon count 1 on which the prosecution had not relied in the course of the trial.

Thompson has leave to advance grounds that the Recorder misdirected the jury upon the issue of his lies in interview, misdirected the jury upon the facts and wrongly provided the appellant with a qualified good character direction. Secondly, he renews his application for leave in respect of an allegation of judicial bias, a reference by prosecuting counsel to factual material which was not in evidence and the Recorder’s further direction to the jury on the issue of joint enterprise in response to the note from the jury. Thirdly, he seeks to advance a further ground of appeal, namely that the Recorder did not direct the jury as to the effect of intoxication and/or post-traumatic stress disorder upon the issue of intent in counts 1 and 3. Fourthly, the Criminal Appeal Office raised for counsel’s attention the question whether and to what extent expert evidence of the Thompson’s post-traumatic stress disorder was relevant to their consideration of the defence of self-defence, and whether the jury was provided with appropriate directions.

The appellants were soldiers in 9 Regiment REME, stationed at Bickley Barracks in Chippenham. On 1 December 2010 they travelled with other soldiers to HMS Raleigh in Plymouth for a one day training course. At the end of the day they were off duty in Plymouth. Transport was to return them to barracks some time after 3 am. The complainants, Martin Jones and Ray Simmons, were Royal Marines stationed in Plymouth who had also been out for the evening. All four men had been drinking.

Shortly before 3.30 am Jones and Simmons went to a burger vendor stall (during the trial called the “burger van”) situated in the street behind the Oceana club. Serving at the van was Robert Mackey. It was common ground that Mr Mackey was independent of all four men, serving in the normal course of his work, and sober. Mr Mackey gave evidence that two men, who must have been Jones and Simmons, approached the van and ordered food. At this time no-one else was in the vicinity. He handed a burger to Jones and was cooking chips for Simmons. About two minutes later the appellants arrived at the van. Mr Mackey heard no words exchanged between the four men until he heard a shout, “Do you want some?” Jones and Simmons were immediately attacked by the appellants. When Mr Mackey turned towards the sound of the raised voice the complainants were already on the floor being kicked. Mr Mackey made a radio call for security. Press ran away and Thompson was detained at the scene by security men, presumably from the Oceana club, wearing fluorescent jackets.

Street CCTV film captured the attack from a moment after the complainants went to the ground. Jones and Simmons were on the ground attempting to adopt protective positions while punches and kicks delivered with full force were aimed at them by the appellants. The camera is directed towards the serving hatch of the stall. Thompson is to be seen attacking Jones while Press is to be seen attacking Simmons. At one moment Press leaves Simmons to deliver a punch at Thompson. First on the scene appears to have been two off duty members from the same regiment as the appellants who attempted to pull Thompson and Press away from their victims. Thompson is to be seen detained by two security men. Press left the scene. So severe were fractures to Jones’ facial bones that he was permanently blinded in one eye.

Jones gave evidence that he was unaware of the arrival of the appellants at the burger van. He saw a punch delivered to Simmons from his right. Simmons went straight to the ground. As Jones turned to his right he was also felled by a blow to the face and he dropped to his knees. He then suffered several more blows to the head, one of which was of extreme severity. Jones said during his evidence-in-chief that he and Simmons had done nothing to provoke the attack.

Simmons had no memory of the attack. He told the jury that he and Jones were standing at the burger van and the next thing he could remember was waking up in an ambulance.

Thompson gave evidence that while he was being detained at the scene by the security men he suffered a blow to the head that knocked him out. He also suffered an injury to his hand. He was arrested and later interviewed under caution in the presence of his solicitor. He claimed that he had gone alone to the burger van. He said that he had felt a bit threatened at the burger van but he did not think that he had taken any action against those who had threatened him. When he was shown the CCTV film it depicted the simultaneous attacks made by Thompson and Press. Press was a friend of his whom he had known for at least two years. Thompson told the police that he did not remember who had “started the fight”. He did not know the man to be seen in the CCTV with him. He was “fazey” as to what happened. He next remembered being held by the bouncers. The interviewing officer saw a graze and reddening to Thompson’s left forehead, and a fracture to the scaphoid bone in his wrist was subsequently found on x-ray. Thompson insisted that both these injuries were caused while he was being detained and not during the violence which preceded it. Having been shown the CCTV film Thompson responded that he did not know why he would have behaved in that manner. It was not like him. There must have been some reason. However he continued, “There isn’t an excuse. I should have walked away”. He repeatedly said that he did not know the identity of the man with him.

Press gave evidence that when he and Thompson arrived at the burger van, he asked Thompson what he was going to order. Thompson replied, “A pint of chips”. Jones responded insultingly, “If you think you are so funny, you can buy us all chips”. Mr Mackey then handed a burger to Jones. Jones put ketchup on the burger and thrust it towards Thompson’s face. The burger fell to the floor as Thompson parried it, and Jones squared up to them. Press said that, believing he had no alternative, he punched Jones who fell to the ground. Simmons made an aggressive approach and Press punched him to the head or face. Simmons too went to the ground. The rest, Press said, could be seen on the CCTV film. He acknowledged that at the end of the incident he had intended to cause really serious harm to Simmons while Simmons was defenceless on the ground and Press was kicking him. That is why he had pleaded guilty to count 3. Accordingly, his defence to count 1 was that he had punched Jones in defence of Thompson and had punched Simmons in defence of them both; there was no pre-arrangement between the appellants to make a joint attack on the complainants and Press claimed that he was unaware what was happening between Thompson and Jones while he, Press, was occupied with Simmons.

Thompson gave evidence that he had undertaken a 6 month tour in Afghanistan, returning to the United Kingdom in April 2010. He claimed to have a good memory of the events at the burger van. In interview he had been shocked and scared. He denied that he had been lying. He agreed that he had been drinking but was tipsy and not drunk. Drink had no bearing on the way he behaved or upon his memory after the incident. Thompson confirmed that Jones had made a bad joke about the purchase of chips. Jones was handed a burger, placed the ketchup on it and thrust it towards his face. Thompson “swiped” towards the burger which went to the ground. Jones, he said, puffed out his chest and clenched his fist. Press struck Jones to the left side of his face. Simmons approached and Press punched him too. Thompson said that he went to Jones who was trying to get up and his subsequent actions were intended to keep him on the ground because he was scared what Jones would do if he regained his feet. He was acting in self-defence. He was unaware what was happening to Simmons. He had not intended to cause serious harm to Jones.

We have viewed the CCTV film. It is quite apparent that these two appellants were delivering savage kicks and punches at Jones and Simmons respectively while they were immediately alongside one another. It is, we conclude, inconceivable that the jury would have accepted their assertions that they each did not know what the other was doing.

On 16 June 2012 Thompson’s solicitors instructed a consultant forensic psychiatrist, Dr Michael Alcock, to examine Thompson and to make a psychiatric assessment, in particular as to whether Thompson was suffering post-traumatic stress disorder in consequence of his service in Afghanistan. Dr Alcock recommended that Thompson be referred for the opinion of a clinical psychologist. Thompson was seen by Dr Arthur Anderson on 26 August 2011. His report is dated 6 September 2011. Dr Anderson, by agreement between the prosecution and the defence, gave evidence to the jury. We are informed by counsel that there was no discussion with the Recorder as to the relevance of this evidence to the issues which arose in the trial either before the evidence was adduced or before speeches. Thompson explained in evidence that his job in Afghanistan was to maintain vehicles. He would see some vehicles coming into the base with bits blown off them. Although it was not his job to clean the vehicles he did see some of the bloody results of road side explosions. He said that overall he felt good about his experience in Afghanistan. He had come back safe and had not been involved in fighting.

Dr Anderson said in evidence that Thompson had described to him his intermittent fear while serving in Afghanistan. Thompson expressed to him increased levels of self-awareness and fear after mortar shelling and the effects of seeing the aftermath of explosions. He continued to experience anxiety, disturbance of appetite, disruption of sleep, occasional feelings of panic, a sense of doom and catastrophe, and periods of sadness. Dr Anderson observed no signs of exaggeration. He carried out psychological testing using several inventories and tests, in particular the FOA Post-traumatic Stress Diagnostic Scale. Thompson showed consistent scores for elevated anxiety and fear. Dr Anderson concluded that he was suffering a moderate level of post-traumatic stress disorder (“PTSD”). He explained to the jury his opinion as to the relevance of PTSD to the events at the burger van. He said that some people become hyper-vigilant and had a heightened awareness of potential threats. He did not conclude that the appellant had an explosive personality, but if he felt threatened he might over-react to protect himself, even if there was no objective reason for him to do so. Dr Anderson expressed the opinion that it was highly likely that this is the way Thompson reacted on 2 December 2010. In cross-examination he confirmed that his opinion was formed solely upon the information provided to him by Thompson himself. When it was pointed out that Thompson had given a different account in interview Dr Anderson expressed the opinion that the head injury may have caused Thompson short term memory loss. Dr Anderson could not speak about Thompson’s intention and could not conclude that he did not have the intention to cause serious harm. Once he had responded Thompson would have been adrenaline-fuelled. Alcohol, he said, would play a significant part in any attack. Its effect might be to decrease Thompson’s sensitivity to a threat. In re-examination he summarised his opinion: if there were threats, real or perceived, Thompson would have reacted in a way he would not have done but for his symptoms of PTSD.

We have already referred to the assertion made by Thompson that he had suffered a head injury following the incident in front of the burger van and Dr Anderson’s evidence that short term memory loss may have been the result. In the course of his summing up the Recorder (at page 17) reminded the jury that the officer in the case, Detective Constable Wood, had been recalled to deal with the contents of the custody record and the state of Thompson’s health and demeanour at the time of interview. The prosecution did not accept that Thompson’s ability to provide a truthful account of events had been affected by a blow to his head. The Recorder directed the jury that this evidence was relevant to the question whether the apparent discrepancies between Thompson’s account to the police and his evidence during the trial, particularly about the commencement of the outbreak of violence, was to be explained by partial memory loss or was the result of concoction of the account given at trial. He continued:

“Here I have to give you a careful direction about the significance you may or may not attach to any lies you find proved. The prosecution say that the defendant Thompson lied several times in his police interview and I will direct your attention to the possible passages: (a) that he went to the burger van alone at a time before he was shown the CCTV recording and (b) several times after he was shown the CCTV recording, when the CCTV record had shown that he was not alone, as to the identity of Press, who was at the time a good friend and colleague. And also (c) at page 6 before the CCTV, saying that after he felt ‘a bit threatened’ he didn’t think that he had taken any action at all against the people or the person threatening him.”

The Recorder proceeded to give a standard Lucas direction as to which there is no complaint. However it is common ground that at trial counsel for the prosecution, Mr Gittins, identified specifically as a lie upon which he relied only the several occasions during interview when Thompson failed to identify Press as his companion. He did not identify Thompson’s expression of belief that he had taken no action against the people who were threatening him, although the prosecution did not accept that Thompson’s head injury could have explained that assertion. Mr Lewin, for Thompson, contends that the Recorder’s addition of lie (c) (paragraph 16 above) was unfair to Thompson since he did not have the opportunity to deal with it in evidence or in his final address to the jury.

It seems to us that Thompson’s assertion that he did not think he had taken any action against the complainants was so obviously a subject for the jury’s examination (having regard to what they could see on the CCTV film) that we do not accept that the appellant was placed at any disadvantage by the Recorder’s inclusion of the subject in his Lucas direction. Indeed he could have been criticised for not doing so. It would, we agree, have been preferable for the matter to have been raised with the Recorder before speeches, but we do not consider that the absence of discussion could have had any effect upon the safety of the verdict. The real issue between the prosecution and the defence was whether the differences, of which there were several, between the account given by Thompson in interview and his account in evidence, could be accounted for by his head injury and a short term memory loss, some other innocent reason, a consciousness of guilt and/or concoction with Press. The judge provided the jury with appropriate directions as to the manner in which they should approach these differences.

In the course of reminding the jury of the evidence of Jones the Recorder informed them that in response to questions from Mr Lewin he replied “I was not aggressive to them. I didn’t puff up my chest”. It is submitted that to be accurate the Recorder should have stated that the witness could not remember being aggressive or puffing up his chest. We have been provided with an agreed note of the evidence. In examination-in-chief, Mr Jones was asked:

“Q: Had you done anything that night that might have caused that incident?

A: No.”

In cross-examination the following passage occurred:

“Q: Whilst at the burger van do you remember two other males coming to the van?

A: No.

Q: Thereafter a discussion took place between you and one of those males over him ordering a pint of chips?

A: I do not remember that.

Q: Do you remember being aggressive with him?

A: No.

Q: Puffing up your chest a bit?

A: No.”

We do not consider that the Recorder’s summary of the evidence was inaccurate. If it was, then it was of no consequence. The witness had already denied being in any way responsible for the violence which followed the arrival of the appellants. In response to a question whether there had been a discussion over a pint of chips the witness responded that he did not remember that. Commonly a witness will respond in this way as a denial. It was clearly of no consequence to Mr Lewin at the time since he did not elucidate in what sense the witness was giving his answer; neither did he raise it with the judge at a suitable break in his summing up.

Thompson complains that in setting the scene for his summary of the interview between the police and Thompson the judge informed the jury that the usual procedure, since the appellant was accompanied by a solicitor, would have been for the solicitor to be provided with an outline of the case and an opportunity to be given for legal advice before the commencement of the interview. The Recorder was pointing out to the jury that if there had been any doubt at the time that Thompson was fit to be interviewed there was an opportunity available for a protest to be made. We are surprised that this should be raised as a ground of appeal in the absence of any evidence that the appellant’s solicitor did not have the opportunity to which the Recorder was referring. In our view the Recorder was simply informing the jury about a procedure in police stations about which they would not have had knowledge but the lawyers did. We do not accept that any unfairness resulted.

At page 22 of the summing up the Recorder, when referring to Thomspon’s reply in interview, “I don’t know why I would have reacted like that for no reason”, reminded the jury of the defence case that Thompson may have been suffering from partial memory loss. He inaccurately added the words “being associated with PTSD”. This was clearly a slip of the tongue since the Recorder had in the preceding five pages of transcript made repeated references to the defence case that partial memory loss may have been caused by a head injury suffered while the appellant was being detained by the security men. This again is a complaint about which it does not appear to have occurred to Mr Lewin to make mention at the time.

The same observation applies to Mr Lewin’s reference to an error in which the Recorder suggested that it was Simmons who had made a threatening remark about the pint of chips when, clearly, in context he meant Jones. We fail to understand why an attempt has been made to elevate this to a ground of appeal. Again the Recorder’s slip of the tongue was not drawn to his attention at the time. Finally, Mr Lewin says that the Recorder summarised Thompson’s evidence of “wiping” his face after the burger had been thrust towards him. In fact the evidence was that Thompson had made a “swipe” towards the burger. This too was an error of no consequence.

The Recorder provided both appellants with a good character direction. In the case of Thompson he reminded them that he was a man with no convictions, warnings or cautions on his record and that the jury had heard testimonials “speaking of his fine qualities”. He continued:

“However, in Mr Thompson’s case you will have to decide what impact his lies, if you find them so to be, told to the police in interview have. He may, in your view of the evidence, have been protecting Press, who had escaped at that time, but why you may ask yourselves did he decline to answer when he could have?”

The Recorder proceeded to instruct the jury that they should treat Press also as a man of good character although he had committed a minor offence of public disorder in the past. Furthermore, in his case, he had pleaded guilty to a serious offence of attempting to cause grievous bodily harm to Simmons with intent to do him grievous bodily harm. The judge continued:

“That said, what should be your general approach to this evidence in relation to each defendant? It should be as follows. Good character cannot by itself provide a defence, but it can support a defendant’s credibility and should therefore be taken into account. It also may mean that a defendant is less likely than otherwise to have committed the offence. It is for you to decide what weight you give to a defendant’s good character, applying these guidelines and applying your commonsense to the evidence of alcohol in this case.”

Mr Lewin submits that the Recorder gave the appropriate good character direction but he added riders which rendered it qualified when it should have been unqualified. He acknowledges that had the Recorder completed the standard good character direction and only then invited the jury to consider the question of lies and the possible impact of alcohol when assessing the weight that they should give to good character, he could have had no complaint. We agree that it would have been preferable for the Recorder to have approached the good character direction as Mr Lewin submitted he should have. However, having read the passage in its entirety we are quite sure that no unfairness resulted. The jury will have understood that good character spoke in the appellants’ favour in the ways the Recorder explained. However, when it came to the value of that good character, his credibility as a witness (first limb) might be affected by their decision as to whether he had lied in the course of his interview. Their decision as to the value of good character in an assessment of whether the appellant may have committed an offence (second limb) may have been tempered by the knowledge that he had consumed a substantial quantity of alcohol.

We turn to examine those grounds of appeal in respect of which Thompson’s application for leave was refused by the single judge.

At the conclusion of Dr Anderson’s evidence in re-examination the Recorder indicated that he wished to ask some questions of his own. First, he reminded Dr Anderson that on three occasions in the course of his evidence he had used the word “fight” to describe the violence which had occurred. He asked Dr Anderson to confirm that he was aware that the prosecution case was that it was not a fight at all but an unprovoked attack by the defendants upon the complainants. Dr Anderson confirmed that he did. The Recorder asked the following question:

“If there were not any provocative words or provocative actions by the victims prior to what happened, does that mean that your findings really do not have much relevance for the jury?”

Dr Anderson replied that even if there were no words of provocation there may have been actions which were provocative. The judge asked Dr Anderson to assume that there had been neither words nor actions from the complainants which could have triggered any reaction from Thompson. Dr Anderson replied:

“… he … could have initiated an attack out of the blue based on some internal mechanism, some internal rage that was going on inside of him and something sparked it off. That’s the alternative view.”

When the Recorder asked whether this was guesswork or based on some scientific evidence Dr Anderson’s response was:

“I think it is at least as strong as stating, without video evidence, that there was no altercation, that there was no fight and that it was a straight beating, so let’s say it is a diametrically opposed view, but it is based on as much forensic evidence as assuming there was a fight with no provocation.”

With the benefit of hindsight, it seems to us that although Dr Anderson had become argumentative he was not claiming that “some internal rage” was a symptom of PTSD. He was saying that in the absence of any provocative words or conduct the alternative explanation was an attack out of the blue generated by internal rage rather than fearful hypersensitivity to perceived threat. The Recorder, thinking that Dr Anderson was attempting to excuse unprovoked conduct, went on to remark that if Dr Anderson was correct any soldier returning from a battle zone was liable to respond as Mr Thompson had done even without provocation. At this point Mr Lewin intervened to object to the Recorder’s questions. The jury left court. The judge indicated that he was well aware that he had for the moment taken over questioning of the expert but he informed counsel that he intended to ask a question which would undoubtedly spring to the mind of any juror in retirement. The jury returned to court and the Recorder repeated his question. Dr Anderson replied that of those who returned from battle zones not all had signs of PTSD. The judge proceeded to ask Dr Anderson whether, when he had spoken of short term memory loss as a possible effect of head injury, he was speaking of total or partial memory loss. Dr Anderson replied he was speaking of partial memory loss. The judge proceeded to deal with two questions to which the jury wanted an answer and no complaint is made in respect of them.

Mr Lewin contends that in these questions the judge was betraying an animosity towards Dr Anderson’s evidence which must have become evident to the jury. We do not agree. The Recorder was testing the limits of Dr Anderson’s opinion as to the effect that PTSD may have had upon Thompson’s appreciation of circumstances. It was clearly of the first importance to the jury’s assessment of his evidence whether he was saying that Thompson’s symptoms of PTSD may have caused not just a misinterpretation of actions or words from the complainants but a form of delusion in the absence of any relevant actions or words. In our judgment the Recorder was entitled to raise this issue which at the close of re-examination appears to have been an important lacuna in the evidence. It was open to any counsel to request permission to examine the doctor further. This is a matter which became relevant in his summing up to which we shall refer shortly.

The prosecution had from the start put its case on the basis of a joint enterprise by the appellants to cause grievous bodily harm to the complainants with intent. It was suggested that the motivation for the attack may have been inter-forces rivalry. The Recorder gave an explanation to the jury of the joint enterprise concept to which no exception is taken. The Recorder further explained that if one defendant joined in an attack on a complainant intending that the complainant should suffer really serious injury then he would be guilty of the section 18 offence if really serious injury was caused by the joint attack. The issue was whether the defendants were “in it together”. On the facts of the present case those directions were accurate: see Grundy and others [1989] 89 Cr App R 333.

However, in their retirement the jury sent to the Recorder a note in the following terms:

“Does intent have to be from the beginning of the action? Can intent come into play after the action has started, that is the mind set and culpability has changed for whatever reason when the opportunity presented itself to deliberately inflict grievous bodily harm they took it and with intent.”

The Recorder directed the jury as follows:

“This case has always been put on the basis of Jones and Mackey’s evidence that it was a 2 on 2 joint attack with both jointly intending grievous bodily harm, and both responsible for what happened to each victim thereafter, that is requiring intent to do grievous bodily harm from to use your words, ‘the beginning of the action’. If your question implies a later acquisition of an intention to cause grievous bodily harm (seizing the opportunity to cause grievous bodily harm which later presented itself) then that is not enough for a joint enterprise grievous bodily harm as alleged. But if one man is attacking another, and another man is attacking another man, and one man becomes possessed of an intent to do grievous bodily harm at some point later in the attack, and while so intending he causes grievous bodily harm, that would be sufficient to prove that offence against that person, if you are sure that that person was not acting with lawful excuse as I have defined it, that is self-defence either of oneself or another.”

Mr Lewin submits that the judge’s further direction was impenetrable to a layman. We note, however, that immediately after the Recorder had given his further direction he remarked “you are nodding”. He asked whether his direction sufficiently answered the jury’s question. Plainly, an indication was given that it did because the judge responded “thank you very much indeed”. We do not accept that the judge’s further direction was couched in terms which the jury were misunderstanding. He was dealing with a situation in which the jury may not be sure that there was a joint enterprise from the outset to cause really serious harm. They were concerned as to where the judge’s direction on joint enterprise would lead them if they were to rely only on the contents of the CCTV film. The judge instructed them that if one of the defendants, acting other than in self-defence, attacked one of the complainants so as to cause him grievous bodily harm with intent to cause him grievous bodily harm, that would suffice to prove the offence against that person. The Recorder specifically directed the jury that later acquired intent could not support a finding of joint enterprise to do really serious harm.

The jury retired at 1.52 pm after receiving this further assistance. They returned with guilty verdicts at 3.05 pm. It is plain that, notwithstanding the direction given by the judge just over an hour before, the jury convicted on the basis that there was a joint enterprise, since they convicted Press upon count 1 in the indictment and Thompson upon count 3.

We turn to consider the issues raised by the Criminal Appeal Office as worthy of further argument.

The conventional direction in a case where the prosecution is required to prove a specific intent and the evidence is that the defendant has taken alcohol (or drugs) is that the jury should consider whether the act was accompanied by the required intent even in drink. The fact that the defendant was intoxicated does not constitute a defence. In the present case the Recorder repeatedly emphasised the need for the prosecution to prove the specific intent alleged against both appellants but he did not give the conventional direction in this context. At the conclusion of his summing up, however, when summarising the issues the jury had to decide, he said, “an intention obviously formed in drink remains an intention”.

Furthermore, Thompson had been explicit in his evidence that alcohol played no role in his decision making or behaviour on the night of 2 December 2010. The Recorder correctly informed the jury that even if his intention was formed in drink it was nevertheless an intention. In our view, the direction given was adequate.

The issue raised by the case lawyer on which we have received argument is whether and to what extent Dr Anderson’s evidence that Thompson was suffering the effects of PTSD was relevant to self defence. In Keane and McGrath [2010] EWCA Crim 2514, the court (Hughes LJ, Vice President, Owen and Roderick Evans JJ) considered the effect upon the common law concept of self-defence of the statutory intervention made by section 76 of the Criminal Justice and Immigration Act 2008. The court confirmed that it was not the purpose of the section to change the common law but to specify in statutory form some of the requirements upon a tribunal considering self-defence. The Vice President made it clear that although the court intended to make some general observations it would not provide a comprehensive survey of the whole of the law of self-defence so as to deal with the exigencies of any particular case. At paragraph 5 he described “the basic building blocks” of the large proportion of cases in which self-defence is raised. The first stage of the jury’s consideration is to decide what happened to cause the defendant to use the violence he did. The facts must be established by application of the criminal burden and standard of proof. Second, if (and, we would add, only if) the defendant claims that something happened which caused him to act as he did, but the jury find it did not, the jury must resolve the question whether the defendant genuinely believed in the circumstances he asserted. If he did then the jury must judge his conduct against the circumstances as he honestly believed them to be, unless his erroneous belief was the result of voluntarily taken drink or drugs. The third stage of the analysis is of significance in the present case:

“5 (3) Once it has thus been decided on what factual basis the defendant’s actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate (which means the same thing)? Was it reasonable (or proportionate) in all the circumstances? Unlike the earlier stages which may involve the belief of the defendant being the governing factor, the reasonableness of his response on the assumed basis of fact is a test solely for the jury and not for him. In resolving it the jury must usually take into consideration what are often referred to as the ‘agony of the moment’ factors. That means that the jury must be reminded when it rises, as it very often does, that there is in a confrontation no opportunity for the kind of hindsight or debate which can take place months afterwards in court. The defendant must act on the instant, at any rate in a large number of cases. If he does so, and does no more than seems honestly and instinctively to be necessary, that is itself strong evidence that it was reasonable. It is strong evidence, not conclusive evidence. Whilst the jury’s attention must be directed to these factors if they arise, the jury must also be made to understand that the decision of what is a reasonable response is not made by the defendant, it is made by the jury. We should perhaps add that ‘in all the circumstances’ means what it says. There can be no exhaustive catalogue of the events, human reactions and other circumstances which may affect the reasonableness or proportionality of what the defendant did. That is explicitly recognised by section 76 (8).” [Emphasis added]

For present purposes it is sufficient to refer to a limited number of the sub-sections of section 76:

“(3)

The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and sub-sections (4) to (8) also apply in connection with deciding that question.

(4)

If D claims to have held a particular belief as regards the existence of any circumstances-

(a)

the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b)

if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not-

(i)

it was mistaken, or

(ii)

(if it was mistaken) the mistake was a reasonable one to have made.

(5)

But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

(6)

The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

(7)

In deciding the question mentioned in sub-section (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case) –

(a)

that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b)

that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8)

Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant in deciding the question mentioned in subsection (3).

(9)

This section is intended to clarify the operation of the existing defences mentioned in subsection (2). …”

In the present case the complainants asserted that they said and did nothing which could have provoked violence from the appellants, even that which could have been misconstrued. The appellants on the other hand maintained that Jones and then Simmons had acted aggressively towards them in the manner we have described. Assuming that the jury concluded the complainants had done nothing to justify force from the appellants, the second stage for the jury’s consideration (see paragraph 36 above), was whether Thompson nevertheless genuinely believed that their behaviour was sufficiently threatening to require force in response. It seems to us, as it did to the parties and to the judge, that Dr Anderson’s evidence that Thompson would have been hypersensitive to threatening situations was plainly relevant to the question whether he held an honest belief that he was being threatened. The reasonableness of that belief was relevant to the question whether he held it but it was not conclusive. Thompson’s PTSD was therefore relevant to the question whether Thompson held a genuine belief that he was under threat.

The third issue for the jury was the reasonableness of the force used either in the circumstances as the jury found them to be or as the jury found Thompson genuinely believed them to be. Assuming that the jury resolved the second question in favour of the appellant (namely, he genuinely believed he was under such a threat that a physical response was required), section 76(7) required them to consider whether Thompson “honestly and instinctively” thought that the force he used was necessary in defence of himself and, ultimately, whether the force used was proportionate in those circumstances (section 76(6)). At this stage of the assessment, the issue was not, we consider, whether a reasonable person would have thought the degree of force he used was necessary but whether Thompson did. A person suffering from a post-traumatic stress disorder may, by reason of its effects, hold such a belief when a reasonable person would not. As the Vice President emphasised in Keane and McGrath a belief honestly held by the defendant that he did only what was necessary in self-defence is to be treated as “strong evidence” that the degree of force used was reasonable, but it is not conclusive evidence. The ultimate decision is entirely objective: was the force used proportionate (and therefore reasonable) in the circumstances as the defendant believed them to be? It seems to us that the facts of the present case provide a useful example of circumstances in which the objective test was likely to resolve the ultimate question. Even if Thompson genuinely believed himself to be under threat from Jones and Simmons, the jury could assess for themselves from the contents of the CCTV film whether Thompson, even upon his understanding, had gone grossly beyond what was reasonable in the circumstances.

In B [2013] EWCA Crim 3 the court (Hughes LJ, Vice President, Macur and Maddison JJ) considered the question whether it was open to a defendant charged with rape contrary to section 1 of the Sexual Offences Act 2003 to rely upon a “deluded” belief in the consent of the complainant. At paragraph 36 the Vice President said:

“36.

Both the common law and statute law are well used to a rule which judges a defendant by his subjective state of mind. So, for example, in the case where self-defence is at issue the defendant is to be judged according to the facts as he genuinely believed them to be, whether his belief was reasonable or not, at least unless it was attributable to voluntary intoxication. Criminal damage, which arises also in the present case is not committed if the defendant honestly believes he had (or would have had) the consent of the owner of the property damage to do what he did, even if that belief was unreasonable. But the decisive indication as to the law of rape is, we think, that the Sexual Offences Act 2003 deliberately departs from this model. It deliberately does not make belief and consent enough. The belief must not only be genuinely held; it must also be reasonable in all the circumstances. This was a conscious departure from the former law. Under the former law a genuine belief in consent (reasonable or not) was a complete defence to rape; the reasonableness of the belief was material only as a factor to be considered en route to the decision whether it was genuinely held: see the Sexual Offences (Amendment) Act 1976.”

For these reasons the court concluded at paragraph 40:

“40.

We conclude that unless and until the state of mind amounts to insanity in law, then under the rule enacted in the Sexual Offences Act beliefs in consent arising from conditions such as delusional psychotic illness or personality disorders must be judged by objective standards of reasonableness and not by taking into account a mental disorder which induced a belief which could not reasonably arise without it. The defendant’s mental condition, and its impact on his behaviour, is of course extremely relevant to sentence. If punishment is inappropriate, a non-custodial sentence may result when otherwise there would have been a substantial sentence of imprisonment, and whether a hospital order is needed by the time of trial or not. In other cases it may significantly mitigate the punishment required. In yet others, it may result in a substantial custodial sentence recognising the danger which the defendant presents.”

It seems to us that section 76 of the Criminal Justice and Immigration Act 2008 represents a further occasion upon which Parliament has specified precisely the extent to which a subjective understanding both of circumstances and necessity by the defendant contributes to the decision whether the prosecution has proved its case.

In Martin [2001] EWCA Crim 2245, [2003] QB 1 the court (Lord Woolf CJ, Wright and Grigson JJ) ruled, at paragraph 67, that it would not be appropriate except in exceptional circumstances “which would make the evidence especially probative” to take into account, when deciding whether excessive force was used in self-defence, that the defendant was suffering from a psychiatric condition. Since the hearing of the present appeal, this court (Davis LJ, Keith and Lewis JJ) has handed down judgment in the appeal of Seun Oye [2013] EWCA Crim 1725. At paragraph 55 Davis LJ noted that the saving for exceptional circumstances in Martin had been considered in Canns [2005] EWCA Crim 2264 (Rose LJ, Vice President, Forbes and Calvert-Smith JJ). No member of that constitution could envisage circumstances in which a deluded understanding of circumstances arising from a psychiatric condition might be “especially probative” in resolution of the issue whether force used in self defence was reasonable. In Seun Oye, following Martin and Canns,the court concluded that in the assessment of reasonableness of force used in self defence, an honest and instinctive belief in the necessity for the force used, formed because the defendant was acting under an insane delusion as to the nature of the threat, was to be left out of account. To hold otherwise, the court concluded, would be to ignore the explicit terms of section 76(9) that section 76 was a clarification of existing law and not a change in it.

We emphasise it is common ground that it was not Dr Anderson’s evidence in the present case that Thompson did hold or may have held a “deluded” belief that he needed to use force. The essence of his evidence was that Thompson’s condition may have caused him to react over-sensitively to perceived threat. The issue that arose in the present case was not whether the appellant was acting under a psychotic or other delusion as to the nature of the threat he faced. It was whether, having perhaps mistakenly judged the need to use force at all (through the effects of PTSD), he then exceeded what was reasonable in the circumstances as he understood them to be. The Recorder correctly directed the jury that Dr Anderson’s evidence was relevant to the question whether the appellant Thompson held a genuine belief that he was under a threat such as required him to use force. Further, the Recorder correctly left to the jury the question whether there was any room for a finding that Thompson had a genuine belief in the need to defend himself if they were sure that nothing had been said or done that could have caused even an oversensitive reaction. As to the third question, whether the force used was reasonable in the circumstances, the Recorder correctly, in our view, invited the jury to consider the evidence of Dr Anderson when resolving the question whether Thompson did only what he believed was necessary in the circumstances. The Recorder made clear, however, that it was for the jury, not the defendant, to resolve the ultimate question whether the degree of force used was reasonable. In these circumstances, we agree with the parties that there was no misdirection to the jury upon the issue of self-defence.

Mr Lewin has raised the question whether the jury should have received a specific direction from the judge as to the possible impact of PTSD upon the issue of intent. In our judgment the Recorder properly reminded the jury of the evidence given by Dr Anderson which was relevant to the question. He summarised Dr Anderson’s evidence that a man suffering from PTSD had a tendency to over-react and “catastrophise”. It was possible that the reaction of fear or anger and adrenalin sustained the attack. On the other hand, he could not say that Thompson did not have the intent to cause grievous bodily harm. It seems to us that the jury must have had well in mind these features of the evidence before concluding that Thompson harboured the necessary intent. No further direction was necessary.

For the reasons we have earlier explained we conclude that no unfairness was suffered by Thompson in consequence of the “qualified” good character direction given by the Recorder in his case. It follows that there was no consequential unfair impact upon the case of Press.

Mr Linford, for Press, argued that the jury may have been misled by the judge’s further direction in response to the jury’s note to believe that it was open to them to convict Press of the section 18 attack upon Jones merely because he had delivered a punch to Jones in the course of Thompson’s attack upon Jones. As a matter of fact it would have been open to the jury, had they been so directed, to convict the appellant Press upon the basis that he joined in an attack upon Jones the consequence of which was to cause him really serious harm, with the intention of really serious harm, notwithstanding that Press’ single punch could not have occasioned that harm by itself. However, that is not the direction the jury received in response to their note. They were instructed that they could convict either man only if he caused grievous bodily harm to his victim with intent to do so. Upon that direction it was not open to the jury to convict Press of the count 1 offence unless they were sure that he was acting in a joint enterprise with Thompson to cause really serious injury to both men. Furthermore, Thompson could not have been convicted of attempted section 18 grievous bodily harm against Simmons unless he was party to a joint enterprise with Press to cause really serious harm to both men. It follows, in our judgment, that notwithstanding the jury’s question they must in the end have concluded that the joint enterprise was proved.

For the reasons we have given we conclude that there is no substance in the grounds of appeal advanced. The jury’s verdicts were safe and the appeals are dismissed.