Morris, R v [2004] EWCA Crim 2907

Case No 2004/4713/B2

[2004] EWCA Crim 2907

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 2 November 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE CLARKE

MR JUSTICE GIBBS

HIS HONOUR JUDGE FABYAN EVANS

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

-v-

Between

JESS MORRIS

Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR D HAROUNOFF appeared for APPELLANT

MR T ADEBAYO appeared for CROWN

J U D G M E N T

LORD JUSTICE CLARKE:

[1]On 16th July 2004, in the Crown Court at Lewes, after a five day trial before His Honour Judge Scott-Gall and a jury, the appellant, who was 29, was convicted on two counts. On count 1 he was unanimously convicted of wounding with intent to cause grievous bodily harm and was sentenced to five years' imprisonment. On count 2 he was convicted by a majority of 10 to 2 of common assault and was sentenced to four months' imprisonment concurrent. The jury had deliberated for some ten-and-a-half hours. He appeals against his conviction and sentence by leave of the single judge, Bean J.

[2]We give first an overview of the facts. On Saturday 17th November 2003 Nathan Hunt and his friend Simon Annis went for a night out in Brighton. Some time after 2.00 am they met up with Mr Annis's girlfriend Sara Heath and made their way home. The appellant and his girlfriend, Lola Gray had been out to the theatre that evening and later met Donna Beadle, a friend of Lola's. They had a meal together and then went on to a nightclub. The appellant and Lola left the club in the early hours of the morning, a little before Miss Beadle, and decided to book into a hotel or a bed and breakfast for the night. We will refer to the principal protagonists by their Christian names, as the judge did in the course of his summing-up.

[3]CCTV footage shows the appellant and Lola walking westwards down Russell Road by 2.20 am. According to the appellant, on the way he and Lola saw Nathan, Simon and Sara, as they proved to be, in Russell Road, although they denied having seen the couple at that stage. CCTV shows the appellant and Lola walking back eastwards along Russell Road some 28 minutes later. They had by then changed their plan and decided to return home.

[4]Nathan, Simon and Sara were sitting on the kerb in Russell Road when they saw the appellant walking on the opposite side of the road with Lola. They appeared to be arguing. CCTV showed Nathan and Simon approach the couple, with Sara following. Some time later a confrontation took place during which Nathan's ear was bitten, indeed bitten off in part, and Sara was punched in the mouth. During the attack Lola had retreated and was some distance away. After the incident the appellant left the scene. Donna Beadle then saw Lola and Sara together outside a pub. She lent Sara her phone to make a call and then left with Lola in a taxi. As a result of the incident, Nathan was taken to hospital to have his ear treated. A third of it had been completely severed. There was no other injury to either Nathan or Simon. The appellant sustained bruising to his eye, his legs and to his head, to which we will return later.

[5]It was the prosecution case that the appellant made an unprovoked attack on Nathan who had intervened to protect Lola. He then turned his attention to Sara and punched her in the face. It was the defence case that the appellant had enquired about the welfare of Sara, as a result of which Nathan and Simon pursued him and mounted an unprovoked attack on him. The appellant responded only in self-defence. Whilst being held in a bear hug by Nathan, he was receiving blows and kicks and bit Nathan's ear to stop the attack. He did not punch Sara in the face or if he did it was purely by accident. The defence argued that the accounts given by the prosecution witnesses were inconsistent.

[6]Two grounds of appeal are advanced by Mr Harounoff on behalf of the appellant. The first ground is that the judge's summing-up was materially defective in that:(1) his review of important factual detail was wrong;

(2) he purported to give the jury "directions" on issues of fact in dispute in a manner that was prejudicial to the appellant's case;

(3) he omitted to refer to significant and salient features of the defence case; and

(4) his review of the evidence was heavily partial towards the prosecution case and disparaging of aspects of the defence case. Mr Harounoff submits that the cumulative effect of these deficiencies was to make the appellant's conviction unsafe.

[7]The second ground of appeal is that the judge was wrong to refuse to give a full or modified good character direction after the appellant had introduced his prior spent convictions for dissimilar and dated offences into evidence. Further, the appellant's case was prejudiced by the fact that the trial judge had by way of contrast given what may have appeared to be a good character direction in respect of the complainant Nathan.

[8]We consider the second point first. On 8th November 1994, when the appellant was 18, he had pleaded guilty to three offences of handling, possessing a false instrument and theft. The offences arose as a result of his finding $500 worth of travellers cheques. He tried to cash them with the use of a false document. He was sentenced to 80 hours community service. It was submitted to the judge that he should give the jury either a full or modified good character direction since the convictions were spent and were dissimilar to the allegations with which the jury were concerned. The judge was told that the defence would call a number of character witnesses and would introduce the spent convictions in evidence. It was submitted that at least a full propensity direction should be given. The judge refused the application or applications.

[9]Mr Harounoff correctly accepts that the judge had a discretion whether to give a direction of the kind suggested -- see Nye 75 Cr.App.R 247, Archbold 2004 paragraph 8-184 to 186. He had a discretion whether to give a good character direction. The judge directed the jury in these terms, beginning at page 10 line 19:

"The next direction concerns your approach to the fact that the defendant has the three previous convictions. It has been given in evidence the fact that he has convictions for theft, handling stolen property and having a forged instrument, those convictions recorded in November 1994, for two reasons. First, he has attacked the character of the three primary prosecution witnesses and he has established, or sought to establish, that he is a man of good character. So what is the relevance of the defendant's convictions in this case? The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant may assist you to judge the truthfulness of his evidence when you come to consider this matter. You must not automatically assume either that the defendant is guilty or that he is not telling the truth just because he has these previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which, if at all, his previous convictions help you about that. He pleaded guilty at the Magistrates Court, you have been told, and has called a body of evidence, which I will summarise in due course, from witnesses who have spoken very positively about him."

As he said he would, the judge later summarised the evidence as to good character from no less than seven witnesses whose evidence was put before the jury either orally or in statement form.

[10]Mr Harounoff submits that the judge should have given a full good character direction. That would classically have involved two limbs. It would have involved telling the jury that the applicant was a man of good character, which was evidence that they should take into account in his favour in two ways: first, as to credibility, and second, as to dispensation.

[11]The standard Judicial Studies Board direction proposes this formula:

"In the first place, the [appellant] has given evidence, and as with any man of good character it supports his credibility. This means it is a factor which you should take into account when deciding whether you believe his evidence. In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit this crime now."

We shall call those the "credibility limb" and the "propensity limb" respectively.

[12]In the instant case, the judge decided to give neither limb of that direction because he decided that in the light of the appellant's previous convictions he was not a man of good character, even though the convictions were spent. Mr Harounoff correctly accepts that the judge was entitled to treat the appellant as a person who was not of good character; he had a discretion how to treat him. In our judgment the judge was entitled to give the direction which he did in place of the credibility limb. The defence put the appellant's convictions before the jury. They really had no alternative but to do so given the fact that, quite apart from the defence attack on the prosecution witnesses, it had entirely understandably been decided to adduce positive evidence as to good character before the jury. The judge did not think it appropriate to give the jury a modified good character direction. It was well within the ambit of his discretion whether to do so or not, at any rate in relation to the credibility limb. Although the convictions were spent and even though the appellant had pleaded guilty to them at the time, the 1994 offences were offences of dishonesty. In these circumstances, in our judgment, the judge was entitled in the exercise of his discretion to direct them as he did that they were entitled to take the previous convictions into account in assessing the truthfulness of the appellant's evidence.

[13]However, Mr Harounoff submits that the judge should have given the propensity limb of the standard good character direction in full. He submits that the judge was wrong to refuse to do so and instead to give what is part of the standard bad character direction namely:

"You must not automatically assume either that the defendant is guilty or that he is not telling the truth just because he has these previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which, if at all, his previous convictions help you about that."

That is a quotation from the standard bad character direction and, as can be seen, the judge included it in his summing-up word for word. Mr Harounoff submits that the judge should have given a positive propensity direction along the lines of the propensity limb which we quoted a little earlier.

[14]Mr Harounoff submits that given that the previous convictions were for dishonesty and quite apart from their age were of an entirely different type of offence, the judge should have directed the jury that the fact that, apart from those historic offences of dishonesty, he was of good character might mean that he was less likely than otherwise might have been the case to commit the crimes alleged now. Mr Harounoff relies upon a number of decisions including R v MacDonald (unreported) 25th March 1999 and R v Gray

[2004] EWCA Crim. 1074

and the cases there cited including Vye

[1993] 97 Cr.App.R 134

; R v Teasdale

[1994] 99 Cr.App.R 80

; R v Challenger [1994] Crim LR 202; R v H [1994] Crim.L.R 205; R v Heath (unreported) 1st February 1994; R v Durbin

(1995) 2 Cr.App.R 84

; R v Zoppola-Barrazza [1994] Crim.L.R 833; R v Aziz

[1996] 1 AC 41

; R v Martin

[2000] 2 Cr.App.R 42

; and Shaw v The Queen

[2001] 1 WLR 1519

[15]In Gray the facts were startling in that the conviction the subject of the appeal was for murder, whereas some time earlier, on 28th November 2000, the defendant had pleaded guilty to driving with excess alcohol.

[16]In MacDonald the defendant was charged with indecent assault but had a previous conviction for shoplifting in 1984. The conviction was put before the jury but the judge did not mention character at all in the course of his summing-up. In giving the judgment of this court in MacDonald, Roch LJ said at page 5:

"Two matters are not in doubt. First, where an accused has a spent conviction or spent convictions the judge has a discretion to allow him to be treated as a person of good character. That is the case of Nye... Second, that in such situations it is not permissible to represent the accused as a person with no previous conviction because to do so is to mislead the jury and the jury must never be misled. That is to be found in the judgment of this court in the same case. Normally the jury should either be told that the defendant has the previous conviction or convictions, that it, or they, are spent (if indeed they are spent convictions); that they are (if this is so) of an entirely different character from the offence or offences for which the defendant is being tried, and (if again it is so) that they are offences to which the defendant pleaded guilty. The judge can then direct the jury - and in our judgment should direct the jury - that the jury may think it right to treat the defendant as a person of good character. If the jury do think that to be right and fair, then that is a matter to be taken into account in the defendant's favour when considering his value as a witness and the weight of his evidence. Moreover, it is a matter to be taken into account in his favour when considering whether he is the sort of person who is likely to have committed the offence or offences for which he is being tried. Once the judge, in the exercise of his discretion, does rule that a defendant with previous spent convictions may be treated as a person of good character, the judge should give the type of direction we have indicated as part of his summing-up. However, that is not, as Mr Green submitted, an end of the appeal. The question still remains whether the omission to mention good character in the summing-up renders these convictions unsafe."

[17]In that case the court held that the conviction was unsafe. That was not, however, a case quite like this where, as we have held, the judge was entitled to hold that the appellant was not a man of good character. The focus of the debate in Gray can be seen from paragraph 39 of the judgment of Rix LJ giving the judgment of the court, as follows:

"On this appeal, Mr Lodge takes a slightly different position. He does not found himself so much on the discretion referred to in Nye in relation to spent convictions, but on the more recent authorities deriving in particular from R v Vye...Durbin...and Aziz...(see Archbold, 2004 at paras 4-406/9) relating to the importance of the second, propensity, limb of the good character direction and to the need to give a full good character direction, covering both credibility and propensity in cases where past misconduct can be regarded as irrelevant or of no significance in relation to the offence charged. He submits that the judge therefore erred in giving only a reluctant direction as to credibility and none at all as to propensity, and that only after rather than before he reviewed the evidence for the jury."

[18]It can be seen that again Gray was not a case quite like this. In Gray the court analysed the authorities between paragraphs 41 and 55. So far as we can see, there is no case in which the court has held that the propensity limb of the good character direction should have been given even where the judge properly regarded the defendant as otherwise than of good character. However that may be, the principle identified in the cases seems to us to be point to the conclusion that, albeit suitably modified in a case of this kind, the propensity limb should be given -- see the statement from the judgment of Roch LJ in MacDonald, which we have quoted above, and see the summary of the principles set out by Evans LJ, giving the judgment of the court in R v Durbin and quoted by Rix LJ in paragraph 50 in Gray, especially at paragraph 50(2) and (3); and see also R v Aziz per Lord Steyn at page 50G to 51A quoted by Rix LJ at paragraph 52.

[19]In paragraph 52, Rix LJ said this:

"Lord Steyn, in giving the leading speech said that 'in recent years there has been a veritable sea-change in judicial thinking' in this area and that Vye was the culmination of a development from discretion to rules of practice. He also posed the question: 'why should a judge be obliged to give directions on good character?' and said: 'The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence case before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and to repeated appeals."

Rix LJ summarised the principles to be derived from the authorities in paragraph 57, although he was not there considering a case quite like this.

[20]It appears to us in this case that the judge should have given a propensity direction of the kind identified by Mr Harounoff, namely that apart from the historic offences of dishonesty he was of good character which may mean that he was less likely than otherwise might have been the case to commit the assaults alleged. The judge did not go so far.

[21]Is the conviction nevertheless safe? We are conscious that there are now many cases in which this court has held that the failure to give a full character direction is of such potential significance that it would be wrong to hold that the conviction was nevertheless safe. However, each case depends on its own facts. Here we have reached the conclusion that, subject to the points raised in ground one of the appeal, the conviction is safe. We do so for this reason. The judge set out the character evidence called on behalf of the appellant in considerable detail at page 27 and pages 34 and 35 of his summing-up. In each case the judge highlighted the evidence of kindness, honesty and lack of violence or aggression in the appellant's make-up or character. Typical examples were that he was never violent and never lost his temper. Although the judge did not spell out the consequences of this evidence, it must have been entirely apparent to the jury what its relevance was. It was relevant and can only have been relevant to the likelihood, or more accurately the unlikelihood, of the appellant acting in the violent way suggested by the Crown. Thus it led to the conclusion that it was unlikely that the appellant committed the offences alleged. That, in our opinion, was sufficiently obvious that it does not appear to have occurred to anyone that it was necessary to spell it out separately in relation to the character evidence.

[22]In these circumstances, we have reached the clear conclusion that the propensity limb which we think should have been given could not conceivably have made any difference to the verdict of the jury. We have no doubt that the jury would have reached the same conclusion. That is subject to two points. The first is that Mr Harounoff further submits that by way of contrast with his direction as to the appellant the judge gave what appeared to be a good character direction in respect of the complainant. The passage complained of was in these terms at page 40 line 23 of the summing-up:

"In considering count 1 you should, with respect, ignore what Mr Harounoff concluded his submissions to you with yesterday, when he said, somewhat inelegantly: 'The yob ended up worse off'. That, you may think, is a most unhelpful assertion. There is nothing in the evidence to suggest that culturally, socially or by disposition Nathan Hunt is a yob, whatever 'a yob' means in the context of this case, when or whether compared to the defendant or anybody else. That was not, you may think, a very helpful assertion."

[23]The submission is that that amounted to a good character direction so far as Nathan Hunt was concerned. However, in our view it did not. To say that someone is not a yob is to say very little about his character. A person may be honest or dishonest, telling the truth or lies, whether or not he can fairly be described as a "yob".

[24]Mr Harounoff further submits that the reference to disposition in the passage just quoted is objectionable on the same basis that it is objectionable for the Crown to call positive evidence as to the credit of its witnesses. We of course accept that there is such a principle -- see for example R v Crane (unreported) 18th January 2000; and R v Errol Hamilton (unreported) 26th January 1998. That principle does not however, in our judgment, apply here because the judge was not pointing to the complainant's good character.

[25]The second point raises all the issues raised by ground one of the appeal to which we now turn. It is in short that the summing-up was defective. The first point made under this head, as amplified in Mr Harounoff's advice and indeed in his oral submissions, is that the judge's review of important factual detail was wrong and that despite correction by counsel for both the prosecution and the defence the judge persisted in giving an inaccurate summary of the evidence. There is, in truth, a considerable overlap between the four aspects of ground 1 of the appeal which we set out earlier.

[26]In considering detailed factual points of the kind relied upon here, it is important to have in mind the function of the judge in summing-up a case to the jury. It is not to repeat all the evidence, or to analyse each of the points made on the evidence by counsel. It is to put the facts and evidence fairly before the jury in the context of the issues as they have emerged so that the jury can perform their function which is to determine where the truth lies and to determine the issues in order to decide whether or not they are sure of guilt on each count.

[27]To this end, at the very beginning of his summing-up, the judge entered this standard but important caveat, having told the jury that it was for them alone to decide the facts:

"If, during my summary of the evidence, and I will not repeat everything that has been said in the trial, I appear to you either to have a view of the evidence or of the facts, or even a perceived view, with which you as a jury do not agree, well reject my view or my perceived view. You are not here to rubber-stamp what you think the judge might be thinking. If I mention or emphasise evidence that you consider to be unimportant, then again, disregard that evidence. It is your judgment on the weight of the evidence that counts, again, not what you think my judgment might be. Again, if I leave out a fact or a body of evidence that you consider to be important, follow your own view and take that evidence very much into account."

Mr Harounoff makes a number of detailed complaints about the summing-up, to which we should briefly refer. We take them in the order in which they appear in his advice, although he put them in a somewhat different order in the course of his extremely helpful oral submissions made yesterday.

[28]One. He correctly says that a central issue for the jury was who was the primary aggressor. The judge identified this key issue near the beginning of his summing-up. He also set out the substance of the evidence of the witnesses on either side. However, Mr Harounoff complains that the judge failed to deal adequately with the absence of injury to Nathan, other than the fact that his ear was bitten off. He had submitted to the jury in his closing speech that the absence of such injuries was inconsistent with the Crown case that Nathan and Simon were the victims of a violent attack by the appellant. He relies upon this statement of principle in the judgment of Henry LJ giving the judgment of the court in R v Amado-Taylor (unreported) 27th March 2000:

"... counsels' closing speeches are no substitute for a judicial and impartial review of the facts from the trial judge who is responsible for ensuring that the defendant has a fair trial."

We entirely endorse that principle; just as we accept the statements of principle to similar effect by Rose LJ giving the judgment of the court in R v Farr (unreported) 8th December 1998, where this court allowed an appeal in a case where the summing-up was unbalanced and generally unfair in tone to the defence and which, as Rose LJ put it at page 7:

"... has many characteristics of a speech for the prosecution: prosecution witnesses who assisted the defence were belittled; prosecution points were made hard on the heels of such aspects of the defence as were referred to; several important aspects of the defence were not referred to at all."

Each case however depends on its own facts. The judge is not obliged to reiterate every point made by either the prosecution or defence, but as we have indicated must put the case, including the defence, fairly before the jury.

[29]In this case the judge recited the evidence of the Crown witnesses on the one hand and the evidence of the appellant on the other as to how the fight began. We shall consider some further specific aspects of the evidence in a moment, but in our judgment he was not obliged to go further than he did. So far the injury to the Crown witnesses was concerned, there is no suggestion in the summing-up that with the important exception of Nathan's ear which was bitten off, they sustained any injuries at all.

[30]Two. Mr Harounoff complains that the judge failed to correct a factual error relating to the motivation behind the intervention of Nathan and Simon which he made in the course of his summing-up. The judge first said this at page 6:

"The victim, Mr Hunt, and his friend, Simon, the Crown say intervened to protect the defendant's girlfriend, who they thought was either being assaulted or was about to be, and that during the course of that intervention, which was entirely placid, the defendant completely flipped, that he lost control of himself, attacking first Simon and then Nathan, and that whilst grappling with Nathan, having grabbed him in a bear-hug, he quite deliberately fastened on to Mr Hunt's left ear and chewed the top third of it off, a process, the Crown submit, requiring considerable force, application and deliberation. The Crown submit that act is the clearest evidence of an intention to do grievous bodily harm, albeit bitterly regretted later."

[31]At the end of the day on which the summing-up began, during which

the judge had summarised the evidence, he said this:

"Mr Harounoff, have I missed out anything that I ought to remind the jury of, or, more importantly, misstated a fact? MR HAROUNOFF: There are two matters of fact. JUDGE SCOTT-GALL: Yes, tell me about them. MR HAROUNOFF: The first matter is that Nathan Hunt, both in chief and in cross-examination, did state the reason for his intervention was because he thought the defendant was about to attack Sara Heath and he gave evidence that Sara Heath had gone on ahead. JUDGE SCOTT-GALL: Yes. Let me just consider that, because I do not think that is my note. I do not have a note of that, but I reminded the jury of how Sara tried to attend to the female, that is Lola, 'and the female said: "

Okay, there is no problem here" and he then turned his attention on us.' If that is wrong I accept it from you if I have wrongly noted it. MR HAROUNOFF: I am grateful. ... MR ADEBAYO: I will look in cross-examination. JUDGE SCOTT-GALL: Mr Harounoff, if that is your note, I do not maintain that my note is verbatim and perfect. MR HAROUNOFF: I am grateful. The other matter is this. Your Honour indicated that Sara Heath had denied that she had had an argument with Simon Annis, which, of course, is correct, she did deny it, but Simon Annis, when he gave evidence, accepted that he had had an argument with Sara Heath. JUDGE SCOTT-GALL: Yes. 'We had an argument. Sara was sitting on the kerb because me and Sara had had an argument', and when she was asked about it she said:

'We were having a talk, it wasn't an argument.'

So there we are. MR HAROUNOFF: I am grateful. JUDGE SCOTT-GALL: Mr Adebayo? MR ADEBAYO: Your Honour, that is correct. Can I just confirm that I have a note in cross-examination of Mr Hunt, who said:

'He ran to Sara Heath and thought going to hit her, so we followed him'

. JUDGE SCOTT-GALL: There we are, members of the jury, counsel have rightly put the record straight." The whole of that exchange occurred in the presence of the jury.

[32]In the course of his submissions Mr Harounoff has submitted that the summing-up indicates bias in favour of the Crown on the part of the judge. We are bound to say that the extract from the summing-up and the exchanges which we have just quoted, strongly contradicts the suggestion of bias. We there see the judge being anxious to ensure that the evidence was correctly put before the jury. We see no basis upon which the judge could be criticised for his approach to that particular part of the evidence. However, Mr Harounoff submits that the judge again misinformed the jury the next morning. On the next morning, before sending the jury out, the judge posed eight questions which he said "May help you on your steps towards reaching a verdict."

[33]In this particular regard Mr Harounoff complains about the judge's third question.

The judge put the third question thus (page 38 line 13):

"Three. It is the evidence of Mr Hunt, Mr Annis and Miss Heath that they became genuinely concerned by what they saw and heard going on. Were they telling you the truth when they said that they went to help the female who they thought was in some sort of personal danger, or were the two men spoiling for a fight, that is Mr Hunt and Mr Annis? If so, why? This, you may think, is really the first important fact that you have to address: who was or who were the actual aggressors? Was the defendant so enraged with what he thought his girlfriend had been up to behind his back with another man that he began to lose control of his emotions? Did the arrival of two young men on the scene, taking the side of his girlfriend, further enrage him so as to act wholly out of character?"

Mr Harounoff says that to put the question like that involved, as he puts it, "ironing out" the inconsistency between the evidence of the prosecution witnesses which he had highlighted the evening before. However, we see no basis for this criticism. The judge had corrected the error of fact the previous evening. Question three did, in our view, identify a crucial question for decision. It was of course a matter for the jury which evidence they accepted. In making that decision they were aware, from the correction prompted by Mr Harounoff, that the Crown witnesses were not entirely consistent on that point or indeed no doubt every point. Experience suggests that that is often the case. We should add in this regard that we have now seen a transcript of Nathan's evidence from which it appears that he was first concerned about Lola's safety and a little later about Sarah's safety. In this regard we accept Mr Adebayo's analysis of that evidence.

[34]Three. Mr Harounoff correctly observes that the case for the Crown and the case for the defence were mirror images of each other in that the Crown contended that the call received by the defendant's girlfriend on her phone had caused the defendant to "flip", whereas the defence contended that Mr Annis and Miss Heath were engaged in an argument probably involving Mr Hunt. Simon Annis confirmed that an argument had taken place. Mr Harounoff further correctly notes that the judge made the nature of the Crown's case clear to the jury. However, after the judge had posed the eight questions, to which we have referred, and just before the jury retired, Mr Harounoff said this in the absence of the jury:

"Your Honour, I do not wish to sound disrespectful, but the questions posed at this stage of the proceedings just before the jury go out, in my respectful submission, ought to be balanced. In so far as the first question that your Honour suggested that they consider, namely, whether the dispute between the defendant and Lola may have effectively triggered the defendant to become enraged, whether that has any bearings on the proceedings ought to be balanced, in my respectful submission, by a direction to them to consider whether the argument between Sara Heath and admitted by Simon Annis to have taken place, whether that could have fuelled any feelings of outrage and loss of control by the prosecution witnesses. It is simply, in my submission, unfair to focus the jury's attention on an allegation that a phone call between the defendant and his girlfriend could have triggered violence, and not to remind them of the fact that Simon Annis admitted that he had had an argument with his girlfriend and that that could equally have fuelled it."

The following exchange then took place:

"JUDGE SCOTT-GALL: I hear that, but it was never suggested, either directly or by inference, that because of an argument, such as it is, between Sara and Simon, and she never accepted there was an argument, caused them to go and take it out on the defendant. MR HAROUNOFF: She never admitted that; he did. That having been established, I am entitled to comment on it, which I did, but at this stage, to ask them to focus on a disagreement between Lola ---- JUDGE SCOTT-GALL: I am quite happy to invite the jury to put that in the balance if you wish me to. MR HAROUNOFF: I do. JUDGE SCOTT-GALL: I will, but let me underline the fact that it was never suggested that if there had been an argument between Simon and Sara, that it was that argument that led Nathan and Simon to chase down the road and launch a vicious, savage attack on the defendant. MR HAROUNOFF: It was never suggested because, obviously, I do not have closed-circuit television video evidence of that. JUDGE SCOTT-GALL: Which is perhaps why it should not go in the balance, but if you want me to I will."

A little later

the judge said this, in the absence of the jury:

"I will certainly, if you would like, which you do, remind the jury that there was an argument admitted by Simon between him and Sara and they are to consider that, in the scale of things, as to whether that might have prompted the two men to join together. I will do that, if you like."

The judge then said this to the jury:

"Mr Harounoff rightly asks me to remind you when I was posing one of the questions whereby I was inviting you to consider the extent of the disagreement, if there was a disagreement between the defendant and Lola as they were progressing back towards West Street, to remind you that there was simultaneously taking place, certainly, according to Simon, an argument between him and Sara, although Sara herself did not accept they were having an argument, they were having a discussion, as to whether that, if there was such an argument, affected the conduct of Nathan and Simon in some way as to perhaps cause them to run down and decide to attack the defendant. It is a question of putting all those matters into the balance."

[35]Mr Harounoff complains that the judge put the point in a dismissive way. We do not, however, agree. The judge drew the jury's attention to the difference between the evidence of Simon on the one hand and Sara on the other. He concluded in what in our view was a wholly unobjectionable way by saying that it was a question of putting all those matters into the balance. The balance was of course a balance for the jury to strike.

[36]Four and five. Mr Harounoff submits that the judge minimised and sought to disparage the extent of the medically confirmed injury sustained by the appellant. His complaint arises out of the seventh of the judge's eight questions, which the judge put thus:

"Seven. Your answer to the question: 'Who started the fight and who was the primary aggressor?' will assist you in following my directions as to your approach to the defence in this case, that is on count 1, namely, that the defendant was acting throughout in self-defence, and in considering this you need to ask yourselves whether the injuries caused to the defendant, which again are entirely a matter for you as to their extent and gravity, as to whether or not you consider them to be, on the scale of this case, relatively minor, were they caused by the two prosecution male witnesses in course of an attack described as 'savage and vicious' to all parts of the defendant's anatomy, or, are you satisfied by the Crown's evidence that these relatively minor injuries, if that is your finding, were a consequence of Simon attacking the defendant in order to get him off Nathan, who was screaming for help because his ear was being bitten off, a critical issue of fact you need to address, because depending on your answer to that depends on whether or not you conclude the defendant has exaggerated the attack upon him and his resultant injuries, and if that is your finding you ask yourselves: well why has he?"

[37]Mr Harounoff raised the same or a similar point with

the judge at the end of his summing-up and the following exchange occurred:

"The second matter is this. The description of the injuries sustained by the defendant as possibly being minor or a matter for them to consider as to whether it was minor, in my submission, ought to be balanced by a recital of what the evidence was, the evident of Dr Mockett, who described ---- JUDGE SCOTT-GALL: I reminded the jury of his evidence yesterday. MR HAROUNOFF: Forgive me, but asking the jury whether those injuries were, in fact, minor might have an unfair effect on their deliberations. JUDGE SCOTT-GALL: With respect, it is part of their investigation into the facts of the case in having to balance Dr Mockett's unchallenged diagnosis. MR HAROUNOFF: It was challenged. JUDGE SCOTT-GALL: I don't think the Crown ever challenged Dr Mockett that he did not find bruising to the back of the head, bruising to the calfs etcetera, as to whether, in fact, in the jury's judgment, having regard to the description of the attack, life-threatening, whether, in fact, the injuries bear that out. That is the point of the question. MR HAROUNOFF: The description to the jury to consider whether these were minor injuries ought to be balanced by a contrary description, namely: do you think that the injuries were, in fact, quite serious? JUDGE SCOTT-GALL: Well, I would have that was implicit, because I said it was entirely a matter for them whether they thought they were minor. MR HAROUNOFF: There is a danger that the jury may feel that your Honour is communicating to them your view that you think that those injuries were minor, when, in my submission, the medical evidence goes wholly the other way. JUDGE SCOTT-GALL: Mr Harounoff, I think that is treating the jury with a lack of intelligence, which is unfair to them."

The judge had indeed reminded the jury about the evidence of Dr Mockett the previous day at page 32 line 12 in this way:

"Dr Mockett examined the defendant at his surgery. He has been the family GP for a number of years, 16 years. His observations were noted: bruising to the left eye, substantial bruising to the side and the back of the head, which he could feel through the defendant's thick hair. As a result, he gave him a form to enable him to go and have a skull x-ray at the hospital. There was some bruising to his back and some bruising to his legs. He found no injuries to his front, and he thought that the bruise to the legs and calf muscles were consistent with a stamping-type injury where a foot has been brought down onto the defendant's legs. He said the consequence of that sort of impact is to have a diffuse bruise, which takes a few days to materialise. He agreed that, in fact, there was nothing in his notes about him considering that there was evidence of stamping injuries and he only decided to reduce to writing the fact that his diagnosis was that there was evidence of stamping when he wrote a letter to the solicitors in March of this year, and the Crown make the point that that is probably why there was no reference to stamping in the prepared statement, because the doctor had not diagnosed it and neither had it been complained of and the defendant has latched onto that subsequently. It is a matter entirely for you."

The reference to the prepared statement was a reference to the statement prepared by the appellant before he attended at the police station on the first occasion.

[38]Mr Harounoff makes these points: 1. that the judge was wrong to say that the Crown made the point he said it did in the passage just quoted; 2. that in that passage the judge unfairly undermined the evidence of a recognised medical practitioner. He relies in particular on the words "latched on to"; and 3. that in the passage at the end of his summing-up the judge declined Mr Harounoff's invitation to remind the jury what the medical evidence was, including the evidence of the police surgeon Mr Knight.

[39]As to the passage at the end of the summing-up, the judge was in our view entitled to take the view, as was the case, that he had already reminded the jury of the medical evidence and to say that implicit in his invitation to the jury to consider whether the injuries were minor was an invitation to consider whether they were more than minor, that is quite serious. It was entirely a matter for the jury. We agree with the judge that one should respect the intelligence of jurors. As to the evidence of Dr Knight, we note that Mr Harounoff did not expressly invite the judge to refer to that particular evidence at the time. It has never been the responsibility of a judge to refer to every piece of evidence in the case. As to the earlier part of the summing-up, the judge was entitled to ask the jury to consider the questions he did. The considerations he raised were relevant and were matters for the jury. It was a matter for them what view they took of the doctor's evidence.

[40]The particular point being made by the Crown was that there was no reference to stamping in the appellant's prepared statement and that that pointed to the fact that no stamping had taken place. That was undoubtedly a legitimate forensic point for the Crown to make and for the jury to consider. Whether the appellant latched on to the opinion of the doctor, in circumstances in which that opinion, so far as stamping is concerned, was expressed only after the prepared statement was made, was a matter for the jury. It was a matter for them to say whether the appellant had indeed latched on to that evidence in order to embellish his evidence by saying that stamping had taken place. All these were legitimate matters for the jury to consider. There is no substance in the point, in our view, that the judge did not set out the findings of the doctor as to the injuries which he had found on the appellant.

[41]Six. Mr Harounoff complains about the judge's approach to the evidence of Carly Smith.

The judge said at page 33 line 9:

"She is a good friend of the defendant and his sister. She cannot remember the precise date it was that she was out clubbing in Brighton, but she was making her way home up to get a taxi in the taxi rank at West Street. She had been to The Escape nightclub with two friends when she witnessed a fight. What she saw was two guys hitting another guy. They were kicking and punching the other guy, who was on the ground, and the fight lasted a good five to ten minutes, maybe longer. After she had passed the fight the next thing she sees is Jess run past her holding his face. She never saw a bear-hug between two men. The question for you is whether what she saw had anything to do with what involved Nathan, Simon and the defendant, because it has never been suggested that anybody was stretched out on the ground being punched and booted, they were all upright, so it may be that either Miss Smith's memory has failed her or she saw a completely different incident. It is entirely a matter for you whether her evidence helps you remotely."

Mr Harounoff says correctly that there was no evidence that Carly Smith was a good friend of the appellant. The position was, and as we understand it is, that she was a friend of the appellant's sister. Mr Harounoff submits that the judge was here unfairly disparaging the defence evidence in the passage which we have just quoted. He refers in particular to the judge's use of the expression "stretched out on the ground", an expression which nobody had used in the course of the trial. Mr Harounoff points to the fact that in the written statement prepared by the appellant to which we have referred he said, as he did in evidence, that the larger of the two "had tried to grapple me to the ground".

[42]It appears to us that the judge's error in saying that the Carly Smith was a good friend of the appellant is of no significance in judging the safety of the conviction. Miss Smith was a friend of the appellant's sister and the judge was undoubtedly wrong to say that she was a friend of the appellant. Although she certainly knew him sufficiently to recognise him as "Jess" when he ran past her. As to the expression "stretched out on the ground", we recognise that no one else had used the expression. The evidence of the witness was that two men were punching and kicking another man who she thought was on the ground. So if the judge made an error there it was to miss out "she thought", which seems to us to be of little significance. The fact is that no one said that the appellant was on the ground, other than this witness, although on the appellant's evidence the others were trying to grapple him to the ground. The fact remains however that there was no other evidence, as the judge correctly said, that he was on the ground.

[43]Seven. Mr Harounoff complains that the judge referred to Nathan as "the victim". He was plainly a victim in the sense that, as was common ground, he had had his ear bitten off. We entirely reject the submission that the use of the word "victim" bestowed some kind of judicial imprimatur on the Crown's case -- the jury can have been in no doubt what questions they had to consider.

[44]Eight. On count 2 Mr Harounoff submits that the effect of a passage in the summing-up was to withdraw part of the defence from the jury. The defendant's defence was that he denied punching Sara. He said in evidence:

"I did not punch Sara in the face. I did not lash out at her."

It was suggested that she might have been struck inadvertently by either Nathan or Simon who were raining punches on the appellant.

The judge put it in this way:

"As to who it was that punched Sara, you may think it was almost certainly not Nathan; you may think it is highly unlikely that it was Simon laying into his own girlfriend. It seems to be common ground that Lola was some distance away, Sara is unlikely to have punched herself, and, by the process of elimination, you may think it was probably the defendant, so the issue is: was it deliberate or was it some sort of accident?"

Mr Harounoff submits that the effect of that passage was to withdraw a straightforward defence from the jury and invite them in terms to conclude that the appellant had indeed assaulted Sara when that allegation had been denied in clear terms.

[45]We do not accept that submission. The jury were reminded of the appellant's case on count 2. The jury were reminded of the prepared statement. Moreover, giving evidence-in-chief the appellant denied being responsible for any of Sarah's injuries. In cross-examination the appellant again denied being responsible but he did say that she might have been caught accidentally by someone's fist. Those parts of the evidence are referred to in the summing-up. Before closing speeches, there was discussion between the judge and counsel concerning the defence to count 2. The defence appeared to be either that it was not the appellant who was responsible for the injury or, if he was, that it was an accident. The judge left the two defences to the jury.

[46]In an earlier passage in the summing-up the judge said this in relation to count 2. He told the jury that before they could convict the appellant on count 2:

"...the Crown must prove two things: that the defendant intentionally applied unlawful force to the complainant. It is the Crown case that the defendant, having freed himself from Mr Hunt, deliberately punched Miss Heath in the face causing the injuries... The defence case is that he did not punch Miss Heath in the face, or, if he did, he did it accidentally. The Crown must make you sure it was the defendant who struck the blow. If you are not sure on that point well then you acquit, but if you are sure of that, the Crown must make you sure that it was not an accidental blow."

A little later he said:

"So the issue on count 2 ... is entirely a factual one. If you are sure that this was no accident but a deliberate blow, well than you will convict the defendant because you will be sure that what he did was to punch Miss Heath in the mouth, both intentionally and unlawfully. If you are not sure on either of those points you will, of course, acquit."

[47]We accept Mr Adebayo's submission that the comments made in the passage complained of did not cross the boundary of acceptable comment. The judge had already made it clear what had to be proved and the jury can have been in no doubt about it.

[48]Nine. The appellant had stated in his prepared statement that while on Russell Road "I became aware of a group of three people we had passed earlier on that street". The case officer confirmed from CCTV footage that the appellant and Lola could be seen walking hand in hand westwards on Russell Road. The evidence was that they had failed to find a hotel and walked back. The officer confirmed that some 28 minutes had elapsed when the appellant and Miss Gray could be seen walking back in the opposite direction. Mr Harounoff submits that it would have required a great deal of prescience on the part of the defendant at the time he gave his prepared statement to appreciate the point that would be made and in fact he was made at the trial on his behalf. It was suggested to the jury by the defence that the three prosecution witnesses must have been loitering or arguing for 28 minutes that night.

The judge put the point in this way:

"... it was never suggested, because nobody thought of it, to either Sara, Nathan or Simon, that they were there static, so to speak, for half an hour or 28 minutes on a cold November's night with Sara sitting on the kerb. It is, you may think, in the context, a rather long time to be sitting out..."

Mr Harounoff submits that that comment could only have confused the jury. It had been specifically put to Nathan by the defence that the appellant and his girlfriend had passed the three prosecution witnesses on two occasions. Nathan responded to this by saying: "No, they passed us only once".

[49]We do not think that there is anything in this point which could conceivably lead to the conviction being unsafe. It is pure speculation what the Crown witnesses might have been doing in the period of 28 minutes to which we have been referred.

[50]Ten. Mr Harounoff again complains in this context, as in the earlier context, about the judge's attitude to his use of the world "yob". Yet Mr Harounoff himself says that, as he quite properly puts it, "a lapse into colloquialism might be regrettable." We agree. In any event the jury can have been in no doubt what the issues were, including in particular whether Nathan and Simon were the aggressors. We add in this regard that we do not think that the judge can be fairly criticised for not referring specifically to an answer given by Simon in cross-examination. He was asked whether he had been involved in fights previously and he said:

"Me on my own or with Nathan Hunt?"

And after a pause "No". Mr Harounoff says that that is telling but, if it is, its tellingness somewhat escapes us. In any event the failure to refer to that particular piece of evidence cannot possibly, either alone in or in conjunction with any of the other points made, make these verdicts unsafe.

[51]Eleven. Mr Harounoff submits that the review of the appellant's case was throughout dismissive in both tone and content. We have considered that submission with great care in the light of the authorities. We have tried to focus on each of Mr Harounoff's points both individually and cumulatively but have concluded that neither separately nor together do they support the overall conclusion or make the convictions unsafe. The points relied upon by Mr Harounoff are essentially jury points which we are sure that he stressed before the jury and in our view the judge quite properly identified questions which would assist the jury.

[52]Twelve. Mr Harounoff complains that at no stage in the summing-up did the judge make the observation reflected by the evidence of the defendant that he had never been involved in a fight in his life and would be inclined to have steered clear from trouble of this sort because he had too much to lose. It is true that the judge did not make such a comment to the jury, but it must have been perfectly obvious to the jury that the appellant had a great deal to lose having regard to his history and experience and the evidence of good character which was put before the jury fairly and in extenso.

[53]In all the circumstances, we have reached the conclusion that ground 1(1) of the appeal fails.

[54]Ground 1(2) asserts that the judge purported to give the jury directions on factual issues and in doing so that he improperly trespassed on the jury's domain. This is a reference to the eight questions which the judge posed for the jury's consideration. They were not, in our judgment, directions but merely questions. Moreover they were indeed pertinent questions for the jury's consideration.

[55]Ground 1(3) asserts that the judge failed to remind the jury of significant and important aspects of the defence and ground 1(4) alleges bias. We have essentially dealt with those points in considering the detailed submissions made by Mr Harounoff. We reject the submissions of bias. In our view the defence was fairly and sufficiently put to the jury. The jury had the prepared statement with them when they retired. The judge reminded the jury of the evidence of the appellant and of the other defence witnesses, including the impressive character witnesses. The judge was not obliged to repeat every point made by counsel. This is, after all, a trial by jury. The jury gave careful consideration to the whole of the case, as is evidenced by the fact that they had retired for ten-and-a-half hours. Unfortunately for the appellant he was convicted by them on both counts. Whether he was guilty or not was a matter for the jury. We are firmly of the view that none of the points of criticism made of the judge leads to the conclusion that the verdict is unsafe. It follows that the appeal against conviction fails.

[56]We turn to sentence. Mr Harounoff submits that the sentence of five years is manifestly excessive. The appellant did not plead guilty. It follows that he is not entitled to a discount for a plea of guilty. Further, he was convicted of a serious offence under section 18 of the Offences Against the Persons Act 1861, namely wounding with intent to cause grievous bodily harm. The grievous bodily harm was the biting off of the complainant's ear. On the face of it a sentence of five years' imprisonment would seem to be entirely justified.

[57]However, Mr Harounoff advances a number of compelling points in support of the appeal against sentence. We identify these key points: 1. Although the jury were satisfied, so that they were sure, that the appellant intended to cause grievous bodily harm, Mr Harounoff submits that this was not, indeed cannot have been, a premeditated assault. He submits that the intention must have been formed as it were on the spur of the moment and indeed lasted a very short time indeed. He thus submits that, although this is a section 18 case, it is as close to a section 20 wounding case as a section 18 case can be. We accept that submission. We also accept in this regard that there are no rigid guidelines as to sentence -- see for example Attorney General's Reference No 132 of 2001 [2003] 1 Cr.App.R (S),

[2002] EWCA Crim 1418

where Potter LJ giving the judgment of the court said this: "Bearing in mind the elastic nature of the circumstances which can legitimately be taken into account as peculiar to an offence or an offender when the judge is faced with the difficult task of sentencing in cases of this kind, this court has been loth to lay down inflexible guidelines in respect of section 18 and section 20 offences." 2. The offence was entirely out of character. Mr Harounoff relies upon the character evidence before the judge and further character references and indeed a petition which the appellant's supportive family have gathered together and which we have seen and considered. Again we accept this submission, although we cannot lose sight of the fact that the jury found the intent, short-lived as it was, proved. 3. The judge expressly held that there was no risk to the public of this appellant offending in this way in the future. We accept that that is a very unusual feature this class of case. 4. We have seen a prison report which is very favourable to the appellant and consistent with the character references to which we have referred. 5. It is fair to regard this as a case in which the appellant, as it has been put, "flipped". 6. We have been referred to a number of cases which suggest that a sentence of five years is excessive. We refer in particular to Attorney-General Reference No 29 of 2001

[2002] 1 Cr.App.R 60

[2001] EWCA Crim. 1491

. We were also referred to a number of other short reports, principally relating to sentences on section 20, which again have been collected together by the appellant's family.

[58]In all the circumstances, we have reached the conclusion that a sentence of five years, even for a section 18 offence on conviction, was manifestly excessive on the facts of this, in some ways most unusual case. The sentence must nevertheless reflect the jury's finding as to intent and the fact that the appellant is not entitled to any credit for his plea. We have reached the conclusion that a proper sentence would have been one of three-and-a-half years' imprisonment. It follows that the sentence of five years is quashed and a sentence of three-and-a-half years substituted. To that extent the appeal against sentence is allowed.