R v BXQ

This is a prosecution application for leave to appeal, pursuant to section 58 of the Criminal Justice Act 2003, against a ruling by a trial judge that the respondent had no case to answer on charges of causing grievous bodily harm with intent and inflicting grievous bodily harm.

Reporting restrictions apply to this case by virtue of section 71 of the 2003 Act. For that reason, the case has been anonymised for listing purposes. In addition, we directed at the start of the hearing that there should be no live reporting whilst the hearing was continuing. We shall return to these various restrictions at the conclusion of this judgment.

We summarise the facts briefly. Meaning no disrespect we shall, for the most part, refer to the various persons involved by their surnames only. The relevant event took place in … on a night in September 2022. “A” was having drinks with others at a friend’s house. There appears to have been a disagreement and a man called “B”, who had been staying at the house, was asked to leave. He went to the house next door in which were “BXQ” and “C”. Sometime later, A went into the garden to smoke. BXQ came out into the garden of the adjacent house and spoke to A through a gap in the fence. He said: “Who do you think you are throwing people out of their houses?” BXQ then told A to come to the front of the house. A agreed to do so, and both men made their way through their respective houses and out onto the street at the front.

A’s evidence as to what then happened was summarised by the judge in his ruling:

“Once he [A] and the defendant were in the street, the defendant pushed him, he pushed back and then the defendant started to remove his jacket. It was at this point, [A] said, that the other man [C] suddenly appeared running from behind the defendant. [C] struck [A] to the leg with a golf club. He said this was when his leg broke - both bones he said ‘got broken’ and he fell to the floor. He said [C] continued to strike him with the golf club to his head and body - he said he injured his wrist as he was protecting his face. He said that whilst he was being struck in this way with the golf club, the defendant joined in and kicked him many times - to his back and his body. The defendant, he said, was telling [C] to ‘kill him’. He said he screamed that his leg was broken but they did not stop. The assault lasted until he decided to be quiet. The defendant then said ‘let's go, he’s dead’ and the two of them left him lying on the ground. He said that in addition to his broken leg, he sustained bruising to his body and face and had surgery on his wrist - he said he still suffered backache.”

In addition to that oral evidence given by A, the prosecution read an agreed statement of a neighbour, “D”. D described seeing a bald man and a taller man (said by the prosecution to be BXQ and C) respectively shouting at the front of the house. D said that it appeared that the taller man was trying to calm down the bald man. The bald man was not however calmed: he kicked a wheelie bin and walked out of D’s sight. D said that the shouting continued and he then heard loud noises as of someone being hit hard. He also heard someone screaming.

BXQ was charged on an indictment containing two counts, alleging in the alternative an offence contrary to section 18 of the Offences Against the Person Act 1861, and an offence contrary to section 20 of that Act. We understand that it has not yet been possible for the police to locate and arrest C. Thus it was that BXQ stood trial alone, though the prosecution made clear from the outset that it was the prosecution case that BXQ had been acting jointly with C throughout.

At the conclusion of the prosecution evidence a submission of no case to answer was made. [Counsel] representing BXQ submitted that A’s evidence showed that he had felt his leg break when he was first struck with the golf club by C; that that had had happened before BXQ became involved; and that accordingly, BXQ could not be guilty of causing or inflicting grievous bodily harm. [Counsel] further submitted that the injuries other than the broken leg could not amount to really serious injury, and that there was no basis on which the jury could find that BXQ was acting jointly with C when C came outside and immediately struck A with the golf club.

The prosecution opposed that submission. They submitted that, taking the prosecution case at its highest, it would be open to the jury, properly directed, to find that BXQ had from start to end been involved with C in a concerted assault, carried out with the requisite intention, in which A suffered really seriousinjury. In the alternative it was submitted that, even if the jury found that BXQ joined in an assault only after A’s leg had been broken, they could nonetheless convict BXQ on the basis that he had joined in a continuing assault which caused injuries which, taken together, amounted to really serious injury. The prosecution relied on the decisions of this Court in R v Grundy 89 Cr App R 333 and R v P [2003] EWCA Crim 1561.

The judge helpfully gave his ruling in written form. He considered R v Jogee [2016] UKSC and the other cases cited to him. He accepted that the case should be left to the jury if the jury could find, as a fact, that BXQ had in some way assisted or encouraged C to attack A before C first struck A with the golf club and broke his leg. The judge noted the prosecution submission that prior assistance or encouragement could be inferred from the speed with which C appeared in the street and attacked A with a weapon, and he referred to A’s evidence that it seemed to him that his two attackers “had already arranged it”. But, said the judge, there was no direct evidence of any intentional encouragement or assistance by BXQ before he and C were both in the street, and no basis on which the jury could be sure that BXQ had intended to encourage C to attack A. The judge concluded:

“I cannot see how a jury could reasonably draw the inference sought by the prosecution simply from the speed with which [C] appeared and from the speed with which the [defendant] then joined in the attack once [C] had struck [A]. The speed of it all is, in my judgment, equally consistent on the evidence with [A] acting spontaneously and alone - without any encouragement or assistance from [the defendant].”

The judge therefore rejected the first basis on which the prosecution had submitted that the jury would be able to convict.

As to the second basis, the judge considered the judgments in Grundy and P. He asked himself this question:

“If GBH is not inflicted by the two attackers when they are acting together, does the second attacker still bear responsibility for GBH because the first attacker had already inflicted grievous bodily harm when he was still acting alone?”

The answer to that question, said the judge, depended on the circumstances of each particular case. The evidence in this case, he said, showed a single “stand out” really serious injury inflicted by C acting alone, followed by a joint attack which caused no more than relatively minor additional injury. The judge concluded that there was no basis upon which the jury could be sure that this was a joint enterprise from the outset; that the jury could not be sure that grievous bodily harm was caused during the joint attack, which took place after C had first struck A with the golf club; and that by joining in, even if he added some further lesser harm himself or intentionally encouraged or instructed C to do so, BXQ would not in law be responsible for the really serious injury which C had already inflicted when acting alone. The judge accordingly ruled that there was no case for BXQ to answer on either count of the indictment.

The prosecution gave notice of their intention to appeal against that ruling. All necessary formalities were complied with including the giving of the “acquittal undertaking” required by section 58(that ) of the 2003 Act. No order for expedition was made and the jury were discharged.

By section 61 of the 2003 Act, this court may confirm, reverse, or vary any ruling to which the appeal relates.

By section 67, this court may not reverse a ruling unless it is satisfied:

“(a)

that the ruling was wrong in law,

(b)

that the ruling involved an error of law or principle, or

(c)

that the ruling was a ruling that it was not reasonable for the judge to have made.”

On behalf of the prosecution, [leading and junior counsel] have put forward three grounds of appeal. First, that the judge misapplied the law in respect of joint enterprise for an offence of causing grievous bodily harm: secondly, that even if the judge applied the law correctly, he made an error of principle in concluding that there was insufficient evidence for a jury properly directed to convict BXQ; and thirdly, that in his determination of the evidence, the judge applied the wrong legal test to a submission of no case to answer.

We have heard submissions from counsel on both sides, including, as we have indicated, [counsel] on behalf of BXQ. Their oral submissions, helpfully succinct and focused, substantially repeat the arguments addressed to the judge and set out clearly in written argument. We do not think it necessary to go into any further detail about the submissions, but we have taken into account all of the points made on each side.

We consider first the prosecution’s primary submission, that the evidence was sufficient for the jury to be able to infer that throughout the assault on A, including at the very outset, when he felt that his leg was broken by C’s first blow with the golf club, BXQ and C were jointly participating in an attack which resulted in really serious injury and were acting with the intention necessary for count 1.

Where the prosecution have advanced a circumstantial case, and there is an issue as to whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the accused, the proper approach to a submission of no case to answer is clear from the familiar cases of R v Turnbull [1997] QB 224 and R v G and F [2012] EWCA Crim 1756. The issue for the judge is whether a reasonable jury (not all juries) could, on one possible view of the evidence, be entitled to reach that adverse inference. If the judge concludes that a reasonable jury could be entitled to do so, properly directed, on the evidence, putting the prosecution case at its highest, then the case must continue.

In the present case, we regard the following features of the evidence as important:

In those circumstances, it was open to the jury to infer that both attackers had throughout been participating in a joint assault which was intended to, and did, cause really serious injury. With all respect to the judge, we are therefore satisfied that in rejecting the prosecution’s first submission the judge fell into error.

We turn to the second argument advanced by the prosecution.

In Grundy, three appellants had been convicted of a joint offence of inflicting grievous bodily harm on a police officer. It was alleged that two of them had been assaulting the officer when Grundy arrived, joined in the attack, and head-butted the officer, who was also kicked in the face by one of the other men. The officer sustained injuries including a broken nose, but could not say at what stage his nose had been broken.

On appeal against his conviction, Grundy argued that the jury should have been required to consider whether the police officer’s nose had been broken whilst Grundy was participating in the attack. This court dismissed the appeal. At page 339 the court said:

“We cannot accept the submission that the broken nose was the only injury that amounted to grievous bodily harm. In our judgment, the learned judge correctly directed the jury that it was the totality of the injury suffered which could amount to grievous bodily harm if the jury so thought. We do not think it matters that the attack on PC Oates by Patterson and Gerrard began a few seconds before Grundy joined in. He was aiding the commission of the offence and participating in it as soon as he joined in and there was ample evidence that the victim sustained grievous bodily harm in the attack in which all three appellants participated. The jury were correctly directed that they had to be satisfied that the grievous bodily harm was sustained in what the judge called ‘the first incident.’”

That case was considered in P, in which the appellant had been convicted of a number of offences of violence. It was argued on appeal that the approach indicated by the court in Grundy did not apply where the charge was wounding with intent rather than causing grievous bodily harm with intent. At paragraphs 17 to 19 the court said:

“17.

We emphasise that the merits of the point raised by [counsel] depend very much upon the facts of the particular case. If the offence of wounding is completed, and then a person punches the victim of the wounding without having previously formed any intention to be a party to the wounding offence, then the person who punches may be guilty of assault, he may be guilty of assault occasioning actual bodily harm, but he would not be guilty of wounding.

18.

This is so notwithstanding Grundy. Grundy was a case where the offence alleged was unlawfully and maliciously causing grievous bodily harm. There was an attempt to suggest that a person striking a blow after grievous bodily harm had already been caused to the victim would not be guilty of that offence. Dismissing his

appeal, this court held that the judge had correctly directed the jury that it was totality of the injuries suffered by the victim which could amount to grievous bodily harm if the jury so thought, not only the initial injury which in that case was a broken nose. The appellant Grundy aided and abetted the commission of the offence and participated in it as soon as he joined in. There was ample evidence in that case that the victim had sustained grievous bodily harm in the attack in which all three appellants were engaged. That case, as we understand it, is saying no more than if the offence is one involving grievous bodily harm, there may be a series of blows amounting to the offence being committed and that it is not right to take the view that once grievous bodily harm has occurred, that that means that somebody who adds to the grievous bodily harm by striking a blow as well is not also guilty of causing the total injuries which were inflicted upon the victim.

19.

The position in relation to wounding may be different. If there is a wound caused and then there is another injury which would not cause a wound and would not affect the wound, if the allegation made by the prosecution in the relevant count of the indictment is of wounding alone, then it may be that the subsequent conduct of a person in striking a blow might not be appropriately attributed to wounding. On the other hand, if the person who strikes the subsequent blow was already a participant in the offence in which the wounding occurred, the fact that the blow was struck after the wounding would not avoid his being a participant.”

In the light of those two cases, we think that where D1 and D2 are charged with causing grievous bodily harm with intent or with unlawfully and maliciously inflicting grievous bodily harm, the correct approach to a submission of no case to answer against D2 may be summarised as follows:

On the evidence adduced by the prosecution in this case, we are satisfied that the jury, even if not sure of joint participation by BXQ and C throughout, would be entitled to find that immediately after the initial blow, BXQ joined C in a single continuing attack and is therefore responsible in law for the really serious injury which A suffered as a result of that attack. We emphasise, of course, that we are concerned with findings which would properly be open to a jury properly directed. It would be a matter for the jury what conclusions they in fact reached.

It follows that we are satisfied that the judge, with respect to him, was wrong to reject the prosecution’s second submission. We conclude that, in the terms of section 67 of the 2003 Act, the judge’s ruling involved an error of law or principle and/or was a ruling which it was not reasonable for the judge to have made.

We therefore grant the prosecution leave to appeal. We allow the appeal. We reverse the judge’s ruling, and exercise our power under section 61(4) of the 2003 Act to order that proceedings on both charges may be resumed in the Crown Court. In practical terms that will involve a fresh trial. As is often done in appeals of this nature, and meaning no disrespect to the judge, we think it will be best for another judge sitting in the Crown Court at … to conduct that fresh trial. We ask the Honorary Recorder of … to allocate a judge accordingly.

We direct the prosecution to arrange, as soon as possible, a hearing in the Crown Court at which the court can be informed of this court’s decision and a date can be fixed for the fresh trial. BXQ, who has no previous convictions, remains on bail granted by the Crown Court. He must attend the hearing which we have just directed.

We pause our judgment there because we must return, as we said we would do, to the question of reporting restrictions.

THE VICE-PRESIDENT: Thank you very much. We will resume our judgment just to conclude it.

Having heard and considered further helpful submissions from counsel, we conclude that it would be appropriate for this report to be publishable in an anonymised form which avoids the naming of the persons involved. We therefore disapply the provisions of section 71 of the 2003 Act, to the extent that the anonymised version of the judgment which will shortly be produced, may be published exactly as it stands. We emphasise that any publication of the judgment must not be accompanied by or include anything which names or otherwise identifies the person involved.

We direct the prosecution to notify the Criminal Appeal Office when the Crown Court proceedings against BXQ have been concluded. At that stage the anonymised judgment will be replaced by the judgment in the form just delivered.

Finally, we should record that we have helpfully been told that a hearing to mention this case is already listed for tomorrow. We will be grateful if the Honorary Recorder would allocate an appropriate judge to conduct that hearing and fix the date for the fresh trial.