Brady, R. v [2006] EWCA Crim 2413

Case No 200602385 D3[2006] EWCA Crim 2413
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM MIDDLESEX GUILDHALL
HIS HONOUR JUDGE KARSTEN, QC
T2004 0355
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 19 th October 2006
Before
LADY JUSTICE HALLETTMR JUSTICE LEVESONMR JUSTICE SIMON
Between
ReginaAppellantPhilip BradyRespondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Louis French (instructed by The Crown) for AppellantSimon B Sherriff (instructed by Caplins Solicitors) for Respondent
Judgment
[1]On 27th January 2006, at the Middlesex Guildhall Crown Court before His Honour Judge Karsten QC and a jury, the Appellant was convicted of an offence of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. He was sentenced to 2 years imprisonment. He appeals against conviction with leave of the single judge.[2]The factual background is as follows: on the evening of Saturday the 13th March 2004 the Appellant spent the evening drinking with friends from 6.30 p.m. onwards. He also consumed ecstasy tablets. A doctor who examined him after the incident with which we are concerned described him as “a happy drunk”. His level of alcohol was later back calculated, on his account, at 200 milligrams as against a legal limit for driving of 80 milligrams.[3]The main prosecution witness at trial, a Mr Dubchev, saw the Appellant at about midnight on the first floor of the club. This consisted of a gallery overlooking the crowded dance floor. Mr Dubchev was leaning on the railings of the balcony when the Appellant, a complete stranger, approached him and handed him his cloakroom ticket. He said the Appellant then “wriggled and hoisted himself up in a twisting motion” onto the railings. He twisted repeatedly from left to right. One minute his feet were on the floor and the next, according to Mr Dubchev, the Appellant had climbed onto the railings with both feet off the ground. He looked to his left and threw himself over the railings. Mr Dubchev was in no doubt that the Appellant jumped deliberately.[4]Tragically, the Appellant landed on Ms Lorraine Mack who was dancing on the floor below. She felt a thud to her head and shoulders. The blow broke her neck and has rendered her quadriplegic. Her condition is unlikely to improve and she will remain in a wheelchair and dependent on others for the rest of her life.[5]When police officers arrived at the scene they found the Appellant standing in the middle of the road outside the club, kicking a bin. He was unsteady on his feet and required the support of an officer. He was talking nonsense but on being arrested he responded:
“Am I being done for falling off the balcony?”
[6]In interview, he said he remembered leaning against the railings and giving his cloakroom ticket to a complete stranger. He said that all he wanted to do was place his bottom on the railing, so that he could take the weight off his feet. He lost his balance and fell over backwards to the floor. He gave a similar account at trial, adding that, at the time he lost his balance, he had been perching with his bottom on the railing, with both his hands on it and both feet planted on a ledge underneath it.[7]As well as photographs and plans of the scene, the jury had the benefit of a reconstruction of the railing and the ledge in court. When the Appellant gave evidence he demonstrated the position he was in when he said he lost his balance. In the middle of the summing up and before they retired, the jury asked for yet another demonstration of the Appellant by the railings. This they were given. We do not have before us the reconstruction or the Appellant; and the measurements given to us are plainly inaccurate. Counsel was unable to help. What we do know is that at the time of the incident the top of the railing was low off the ground; the judge reminded the jury that from the railing to the floor was about 44 inches. We understand that, after the incident, the club decided to add to the height of the railing.[8]The judge left the case to the jury on the basis that the prosecution had to prove 3 elements: that the Appellant caused Ms Mack grievous bodily harm, that he did so unlawfully, and that he did so maliciously. Having defined grievous bodily harm and disposed of the question of unlawfulness, he turned his attention to what he said was the only issue in the case namely the third element “maliciously”. At page 6 C he directed the jury in these terms:
“What that means is that the defendant must either have intended to cause some injury or physical harm- and it is not suggested by the prosecution there was any such intention on the defendant’s part in this case- or that he must have been reckless as to doing so and that is what this case is about. ….In the normal case, where there is no issue of intoxication the test requires that the defendant should be aware of a risk and go on to take it, the risk being of injury. There are special rules which apply where a defendant does not appreciate the risk because he has made himself drunk. As you appreciate it is not defence to say: I did not recognise there was a risk because I was drunk…”
[9]He then directed the jury on recklessness in the context of voluntary intoxication. In summary, at page 6 C-D the judge directed the jury to consider “if the defendant had been sober and in good mental shape would he have realised that some injury or physical harm whether or not of minor character might result from his actions in what he was doing in the condition he was in that night.”[10]Having summarised the evidence, at the end of his summing up,

the judge returned to the issues and summarised them in this way at pages 35B – 36A:

“The Crown say whether he jumped or fell, because he lost his balance, it was still a reckless thing to do and that had he been sober at the time and looking at what he was doing while drunk that night, at that point the prosecution say he would certainly have realised it was a dangerous thing to do involving a risk of losing his balance because of his state. The prosecution say that there is really no justification for taking that risk and that it was not a reasonable risk looking at it objectively…… You have heard the defence account and essentially his case is that this was an accident which was not caused by recklessness on his part and that looking back on it, although he obviously regrets what happened, he cannot accept that he was reckless within the meaning of the legal sense when this incident occurred.”
[11]Mr Sherriff, who appeared on behalf of the Appellant here and below, took no issue with the directions the judge gave on recklessness save in one respect. He argued that the judge failed to direct the jury that the Crown had to establish that the Appellant foresaw “an obvious and significant risk” of injury to another by his actions, or would have done had been sober, as has been required since the decision of the House of Lords in R v G and Another 2004 1 Cr App R 21.[12]In G the question for their Lordships’ House was whether “a defendant could be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged, when he gave no thought to the risk but by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it”. Lord Bingham of Cornhill, in the leading speech, reviewed the law of recklessness and the background to the enactment of the Criminal Damage Act. He concluded that when Parliament used the word “reckless” in section 1 of the Criminal Damage Act it intended the word should be given the “subjective” meaning ascribed to it in R v Cunningham 1957 41 Cr App R 155. The House unequivocally departed from its previous decision in R v Caldwell 1981 (1981) 73 Cr App R 1982 [1982] AC 341.[13]Mr Sherriff argued that, although the point in G was essentially one of statutory interpretation, the decision has universal application whenever recklessness is in issue (see Attorney General’s Reference No 3 of 2003 [2004] 2 Cr App R 23).[14]In support of his proposition that every direction on recklessness should now include the qualifying words “obvious and significant” in relation to risk, he relied upon the observations of Lord Bingham in paragraph 32 at page 257 to the following effect:
“First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily acceptable as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self induced intoxication: R v Majewski (1976) 62 Cr App R 262 [1977] AC 443 one genuinely does not perceive the risk. Such person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.”
[15]We can deal with this first point straightaway. We have no difficulty in accepting that, although the House of Lords in G was concerned with the definition of recklessness in the context of an offence under section 1 of the Criminal Damage Act 1971, many of their Lordships observations have a much wider application. However, it is, in our view, simply unarguable that, as a matter of law, since G a trial judge is bound to qualify the word “risk” by the words “obvious and significant” and, without such qualification, any directions on recklessness are fundamentally flawed. Lord Bingham in answering the certified question posed for the House in G did not qualify the word “risk” in the way Mr Sherriff suggests is now appropriate. At para 41 Lord Bingham answered the certified question in this way: “ A person acts recklessly within the meaning of s.1 of the Criminal Damage Act 1971 with respect to-(i) a circumstance when he is aware of a risk that it exists or will exist;(ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.[16]By observing that “It is clearly blameworthy to take an obvious and significant risk of causing injury to another” in the passage cited, in our view, Lord Bingham was simply restating, as one of his reasons for reverting to the Cunningham definition of recklessness, the well known principle that a defendant cannot be convicted of a serious crime on the basis solely of an act which causes harm or injury. The act must be accompanied by a criminally culpable state of mind. A man who intends the consequences of his actions is plainly culpable, but so too is the man to whom a risk of harm (a significant risk) is obvious, but who nevertheless goes on to take that risk.[17]Thus, we reject the first limb of Mr Sherriff’s argument that the judge’s directions to the jury were deficient in this respect.[18]We turn next to the issue which exercised Holland J, the single judge, but which was not originally a ground of appeal and was not an issue raised at trial, namely: whether, on the appellant’s account, there was sufficient evidence of the actus reus of an offence contrary to section 20 of the Offences Against the Person Act 1861. Alerted to the point by Holland J, we would have expected counsel to arrive at the hearing of this appeal armed with any relevant authorities their researches produced, for example the leading case on the actus reus of section 20 namely R v Ireland: R v Burstow 1998 1 Cr App R 177 1998 AC 147.[19]However, the only authority put before us by Mr Sherriff was G to which we have already referred on the issue of recklessness. On this second ground, in his skeleton argument, he asserted as follows:
“…firstly the jury properly directed would not have convicted the Appellant on the basis that he jumped off the balcony railing. Secondly, that the act of falling was not deliberate and must, therefore, have been accidental. The actus reus required for the section 20 offence must be the inflicting of grievous bodily harm. The physical act of the Appellant (falling) that caused the injury to the victim was not a direct assault. A dictionary definition of ‘accidental’ includes ‘occurring by chance, unexpectedly or unintentionally. An accident does not attract criminal liability for an offence contrary to the section.”
[20]In his written submissions, Mr French for the Crown relied on the decisions in R v Ireland and R v Martin 1881 8 QBD 54 in support of the proposition that “inflicting grievous bodily harm does not require any physical contact between the accused and the victim”. Grievous bodily harm can be inflicted without any assault and without direct or indirect application of force to the victim’s person. In his oral submissions, he relied primarily upon Martin which, we note, did involve acts which arguably were directed at the victims, namely turning off the lights and barring the doors of a theatre.[21]Neither counsel addressed us on Ireland to any significant extent or referred us to the decision in R v Dica 2004 2 CR App R 28 in which Judge LJ giving the judgment of the court, over which the Lord Chief Justice presided, provided a helpful analysis of the law on the actus reus of the offence of inflicting grievous bodily harm contrary to section 20.[22]Between paragraphs 13 and 25 of the judgment in Dica, Judge LJ reviewed the decision in R v Clarence (1889) 22 QB 233, which, as we understand it, is the basis for Mr Sherriff’s assertion that absent a “direct assault” there can be no conviction under section 20. At para 24 he summarised the effect of the decision in Clarence in this way:
“The requirement for an assault and an immediate connection between the violent action of the defendant and the onset of its consequences were plainly central to the decision that the conviction under s.20 should be quashed.”
However,at para 26 he continued: “26. In R v Wilson (Clarence)[1984] AC 2422, the House of Lords was considering the problem of convictions on alternative counts under s 6(3) of the Criminal Law Act 1967. It was necessary for the decision that the true ambit of s.20 of the 1861 Act should be considered. In the only detailed speech, with which each member of the House of Lords agreed, Lord Roskill made plain that notwithstanding the absence of an assault, a conviction under s.20 could nevertheless be sustained. He said in terms that "there can be an infliction of grievous bodily harm contrary to s.20 without an assault being committed". This decision undermined, indeed destroyed, one of the foundations of the reasoning of the majority in Clarence, based on the view that an offence under s.20, like that under s 47, required an assault resulting in a wound or grievous bodily harm. This represented a major erosion of the authority of Clarence in relation to the ambit of s.20 in the context of sexually transmitted disease.[27]This process has continued. Since R v Chan-Fook [1994] 99 CAR 147, as approved in the House of Lords in R v Ireland: R v Burstow [1998] 1 CAR 177, it has been recognised that for the purposes of both s.20 and s 47 "bodily harm" includes psychiatric injury, and its effects. Although the impact of Chan-Fook is reflected in that now well-established principle, it is perhaps worth noticing that "... an injury can be caused to someone by injuring their health; an assault may have the consequence of infecting the victim with a disease or causing the victim to become ill. The injury may be internal and may not be accompanied by any external injury ..." (per Hobhouse LJ at p. 151)[28]This language, reflecting contemporary ideas, is entirely contrary to the reasoning adopted by the majority in Clarence. In argument in the House of Lords in Ireland and Burstow, Chan-Fook was strongly criticised. The challenge was robustly rejected. The ruling was said by Lord Steyn to mark "a sound and essential clarification of the law". As he explained, the statute of 1861 was "always speaking", and the ambit of the offences in ss 18, 20 and 47 had to be considered in circumstances which were never envisaged by the majority in R v Clarence.[29]In R v Ireland: R v Burstow, much argument also centred around the difference between the concept of inflicting grievous bodily harm in s.20 and causing it in s 18. Lord Steyn recognised that the two words, "inflict" and "cause", are not synonymous. In relation to Clarence, he acknowledged that the possibility of inflicting or causing psychiatric injury would not then have been in contemplation, whereas nowadays it is. In his view the infliction of psychiatric injury without violence could fall within the ambit of s.20. Lord Steyn described Clarence as a "troublesome authority", and in the specific context of the meaning of "inflict" in s.20 said expressly that Clarence "no longer assists". Lord Hope similarly examined the consequences of the use of the word "inflict" in s.20 and "cause" in s 18. He concluded that for practical purposes, and in the context of a criminal act, the words might be regarded as interchangeable, provided it was understood that "inflict" implies that the consequence to the victim involved something detrimental or adverse.[30]Such differences as may be discerned in the language used by Lord Steyn and Lord Hope respectively do not obscure the fact that this decision confirmed that even when no physical violence has been applied, directly or indirectly to the victim's body, an offence under s.20 may be committed. Putting it another way, if the remaining ingredients of s.20 are established, the charge is not answered simply because the grievous bodily harm suffered by the victim did not result from direct or indirect physical violence.”[23]In so far as Mr Sherriff appeared to be suggesting that Clarence was still good law, the decisions in Ireland and Dica provide the answer: it is not. However, this was not the single judge’s concern. Holland J questioned whether or not the Appellant could have been convicted “absent proof of an actus reus appropriate to a section 20 offence that is, absent proof of deliberate, non-accidental conduct on the part of the accused that inflicted grievous bodily harm upon the victim”[24]Given the way in which the appeal was argued before us, we confess we have not found the question an easy one to answer. As we attempted to review the law ourselves, we understood the concern of the single judge. In each of the two cases upon which Mr French placed reliance, on the facts, there was evidence of “deliberate non accidental conduct” which caused serious harm. We have already referred, in brief, to the facts of Martin. The Appellant Martin deliberately created a situation in which the theatre goers panicked and some were injured in their attempts to escape the theatre. In Ireland, the deliberate conduct was the making of silent telephone calls to the victim which caused psychiatric injury. Further, in Dica, we note, there was evidence of deliberate conduct on the part of the Appellant, namely, despite having being diagnosed HIV positive, having unprotected sexual intercourse with the victims so that they too contracted the disease. In Cunningham, although the appellant’s actions were not directed at his unfortunate victim, his actions were plainly deliberate. He tore a gas meter from a wall. This led to the escape of a considerable volume of gas and the partial asphyxiation of his sleeping neighbour. In the present case, the defence argued that Ms Mack’s injuries were caused, not by any deliberate act on the Appellant’s part, but by his falling accidentally upon her.[25]Given the possible ramifications of a judgment on this point, we are reluctant to come to a concluded view, in the absence of fuller argument. If it assists, however, we are prepared to give our preliminary view, namely that, subject to the question of mens rea, it may have been open to the jury in this case to convict the Appellant on the basis of his own account. We say that for this reason: arguably, there was here evidence of “deliberate non-accidental conduct on the part of the accused that inflicted grievous bodily harm” in that the Appellant deliberately perched, precariously as it turned out, on a low railing, above a crowded dance floor and having consumed considerable quantities of alcohol and drugs. This deliberate act, on any view, led almost immediately and directly to the fall over the railing and to the infliction of grievous bodily harm. It was a substantial cause of the infliction of those injuries. We would not be inclined to accept, therefore, Mr Sherriff’s submission that, because it was the unintentional fall rather than the deliberate act which, in fact, caused Ms Mack’s injuries, this broke the chain of causation. The one led inevitably to the other.[26]In the event, however, it is not necessary for us to come to a concluded view or call for further argument, because of what we have decided are deficiencies in the summing up. If it was open to the Crown to seek a verdict of guilty on the basis of the Appellant’s own account, then, in our view, and counsel did not argue to the contrary, it was incumbent upon the trial judge to direct the jury in very clear and careful terms. In our judgment, this he failed to do. Indeed Mr French was forced to concede that the summing up “might have been clearer”.[27]There are a number of aspects of the summing up which have caused us concern. First, the judge directed the jury there was but one issue for them to decide, namely recklessness. There was not. The jury had to decide a number of factual issues including the obvious one of whether they were satisfied that the Appellant jumped.[28]If the jury were satisfied that the Appellant jumped, they then had to consider the question of recklessness in that context. However, if they were not satisfied the Appellant jumped, as the judge accepted was a real possibility (by indicating that he would sentence on that basis), the case was far from straightforward. We consider, therefore, that it was important to draw a distinction between the two versions of events when directing them on the question of recklessness. This the judge never did.[29]As a rule, it is very much a matter for a trial judge to decide how he wishes to structure his summing up. However, he is still required to ensure that the jury are not only directed accurately on the law, but also directed in such way that the issues and the defence case are put before them in a way that they can readily understand. In most cases, that will not be a problem. On the facts of this case, given the need for careful and clear directions as acknowledged by Mr French, in our view, the judge should have gone further than he did. With the added complication of voluntary intoxication, more was required than simply giving the jury global directions on the law of recklessness, in the context of voluntary intoxication, and then a summary of the evidence by way of narrative.[30]The Appellant insisted that he genuinely believed his perching on the railing was not precarious, that he had five points of contact with the ledge and the railing namely his feet, hands and bottom. Therefore, in effect, even if sober, he would not have appreciated there was a risk of his a) losing his balance, b) toppling over and c) landing on someone below and causing them injury. He did not claim that, by virtue of the drink or drugs he had voluntarily consumed, he had deprived himself of the ability to appreciate the consequences of his actions. His defence was that he genuinely did not perceive a risk of injury from sitting on the railing and was not, therefore, blameworthy. He insisted that, at the time, he believed that what he was doing was “perfectly reasonable” and he would have acted in the same way when sober. It was in this context that the jury had to consider whether, on the Appellant’s own account, the prosecution had established he was criminally reckless.[31]The Appellant was not on trial for getting drunk and/or behaving stupidly. He was on trial for inflicting grievous bodily harm. We consider it would have been advisable to remind the jury of this. We repeat the observations of Lord Bingham in para 32 of G. “But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self induced intoxication: R v Majewski (1976) 62 Cr App R 262 [1977] AC 443) one genuinely does not perceive the risk. Such person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.”[32]With those observations in mind, we have considered the summing up as a whole with great care. Suffice it to say that given the way in which the summing up was structured, and the cumulative effect of the judge’s directions as a whole, we have our doubts as to whether it was made sufficiently clear to the jury that a) the test of recklessness was not an objective one and b) the question of recklessness was very different depending on which version of events they accepted.[33]We are driven to the conclusion that there was here a very real danger of the jury’s having convicted on a false basis. We cannot rule out the possibility that the jury found that the Appellant behaved stupidly and was guilty of causing Ms Mack to suffer grave injuries and he was, therefore, guilty of inflicting grievous bodily harm contrary to section 20.[34]We turn, finally, to Mr French’s submission that, even if some of the criticisms made of the summing up are valid, nevertheless, the conviction is not unsafe because the Appellant, on his own account, was clearly reckless. The difficulty we have in adopting that approach is that this court is not in a position to resolve apparent conflicts in the evidence as to the relevant dimensions of the balcony, the railing and the ledge. We are in no position to assess whether or not the defence was as hopeless as Mr French maintained.[35]Accordingly, we are driven to the conclusion that the conviction is in all the circumstances unsafe. The appeal must be allowed and the conviction quashed.

LADY JUSTICE HALLETT:

[36]Mr Sherriff, I gather there are some amendments that you wish to make to the judgment. First of all, we need to amend paragraph 1. We have omitted His Honour Judge Karsten's QC.[37]MR ZETTLIN: My Lady, yes. I have taken instructions from those more senior than I. They do not affect, so far as I can ascertain, the one factual matter and a second less important one. They do not affect the court's judgment in my opinion. If I may just point them out.

LADY JUSTICE HALLETT: Indeed, we want to get the factual matters right, so, please.

[39]MR SHERRIFF: It is paragraph 2:
"He also consumed two to three ecstacy tablets"
. I don't actually take issue with that matter after discussion with Mr French. The factual basis was on his arrest he had said "I have taken two to three". At his interview he said it was half. And that was one of the issues at trial. But it is certainly correct that he had said at some point he had taken two to three.

LADY JUSTICE HALLETT: Shall we just delete the numbers two to three? Tablets then is plural -- "he had also consumed ecstacy". We will delete in paragraph 2 the numbers "two to three" and the word "tablets".

[41]MR SHERRIFF: The last sentence in paragraph 2:
"He took a blood sample from him in which the level of alcohol was measured"
. No sample of any type, blood or urine, was ever taken from him. The figures arrived at as to what he might have had were a back calculation by an expert taken totally on the account of the appellant as to what he said he had consumed.

LADY JUSTICE HALLETT: Right. In which case we delete that last sentence.

[43]MR SHERRIFF: My Lady, it could be "the level of alcohol was measured at".

LADY JUSTICE HALLETT: Or was calculated -- was back calculated at. "His level of alcohol, on the basis of his account, was calculated at ...", is that right? MR SHERRIFF: My Lady, yes.

LADY JUSTICE HALLETT: "... on the basis of his account, was calculated at 200 milligrams as against the legal limit for driving of 80 milligrams".

[47]MR SHERRIFF: My Lady, my apologies for the lateness in informing the court of those matters.

LADY JUSTICE HALLETT: No, that is very helpful, Mr Sherriff. Thank you. MR SHERRIFF: May I raise --

LADY JUSTICE HALLETT: Please bring to our attention any matters even if they appear to be minor.

[51]MR SHERRIFF: I am grateful, my Lady. Paragraph 7, the third sentence starting "in the middle of the summing-up". It is correct to say after retirement the jury sent a note asking for a demonstration.

LADY JUSTICE HALLETT:

[52]Yes, and only allowed to see him standing by the railings. I wondered that as I reconsidered the judgment. It is perhaps more accurate to say they actually asked for another demonstration of the appellant by the railings -- would that be more accurate -- because they asked for a demonstration of what he had shown in his evidence but then were only allowed to see him standing. In which case we will delete "The jury asked for yet another demonstration of the appellant by the railings". We delete the apostrophe s and the word "standing" in paragraph 7. MR SHERRIFF: I am grateful, my Lady.

LADY JUSTICE HALLETT: Is that it? Yes. Very well. With the amendments we have indicated in paragraphs 1, 2 and 7, for the reasons given in the judgment that we hand down today this appeal will be allowed and the conviction quashed. Are there any other applications?

[55]MR ZETTLIN: My Lady, the Crown apply for a retrial in this matter. LADY JUSTICE HALLETT: Yes.[57]MR ZETTLIN: The basis for that is:(1) this is a very serious matter;(2) the reason for allowing the appeal was lack of clarity and misdirection by the learned judge. There is no difficulty about having a retrial. And in my submission -- the Crown's submission it would be a suitable case for such a retrial.[58]MR JUSTICE LEVESON: The only question is, speaking entirely for myself, that he was sentenced to a term of two years' imprisonment. MR ZETTLIN: That has almost expired. MR JUSTICE LEVESON: Which has almost expired.[61]MR ZETTLIN: Yes, indeed. In fact he is eligible for tagging either as we speak or in the next --

MR JUSTICE LEVESON: He won't need to be because of the Act.

[63]MR ZETTLIN: Yes. The upshot of that is that there won't, therefore, be any addition to a sentence at the end of day if he were convicted, but it seems that it is of grave importance to know whether, in the circumstances of this case, a jury has concluded that he has indeed properly acted recklessly in what he did in such a way as to commit a grave criminal offence. LADY JUSTICE HALLETT: Grave importance to whom?[65]MR ZETTLIN: To the public at large. It is not just a question of between the parties. It needs to be known by the public at large that somebody who has had a considerable quantity of alcohol to drink and who then jumps on or gets on to a railing at a level above which -- below which people are dancing and then falls is indeed committing a criminal offence thereby.

LADY JUSTICE HALLETT: Mr Zettlin, I appreciate that you were not counsel at trial, nor indeed at the appeal, but you may have noted from the judgment that this case was originally prosecuted and presented to the jury on the basis that this appellant jumped. It then became apparent that the learned judge, despite having heard the evidence, decided that he could only sentence on the basis that the appellant had sat on the railing and then fallen over, as you know, unintentionally.

[67]What consideration has been given by the Crown Prosecution Service to whether or not it is in the public interest to have a retrial if they can only proceed on the basis, as the judge seems to have found, that he sat on the railing?[68]MR ZETTLIN: Your Honour, I personally have not had this discussion. I have been informed of these discussions by Mr French.

LADY JUSTICE HALLETT: Do we know what discussions he has had about the paragraphs of our judgment where we form no concluded view as to whether as a matter of law there was ever a case on the appellant's own account?

[70]MR ZETTLIN: My Lady, I don't know the details of the discussion that he has had, so I can't answer that question.

MR JUSTICE LEVESON: So you don't know whether the views of the victim have been obtained?

[72]MR ZETTLIN: I would suspect they have not, but I am not sure.

MR JUSTICE SIMON: Is Mr Dubchev available to give evidence? MR SHERRIFF: As I understand it, yes.

[75]MR JUSTICE SIMON: If the jury were directed that the only basis on which they could convict was that he deliberately jumped would you argue that the sentence should have been higher?

MR JUSTICE LEVESON: It couldn't be, of course, because of the Act.

[77]MR JUSTICE SIMON: But the judge would have to sentence on a basis different from the basis on which he in fact sentenced which was that it was not deliberate.[78]MR ZETTLIN: Well, if there is a conviction without any special verdict it would not be clear at the end whether or not the conviction was based upon what Mr Dubchev has had to say.[79]MR JUSTICE LEVESON: Of course, it wouldn't. But given he has already served the sentence -- effectively served the sentence and given that the statute provides a maximum for the sentence the judge at first instance passed initially it becomes moot which is why one raises the question whether it truly is in the public interest in the context of this case to retry it. Particularly if you have not yet got -- not able to tell us at what level the matter was considered and whether the Crown Prosecution Service had in mind all the complexity that is engendered by my Lady's judgment and the facts of the case. If you had told me that the victim had expressed a particular view, then that would be highly material to me, but you can't tell me that. I speak only for myself of course.[80]MR ZETTLIN: My Lord, I am not a position to tell your Lordship that. If that is a material factor, which will determine the issue one way or the other, I would seek time to seek those instructions, but the time that will be required would be a day, because, of course, we don't know whether we can contact the victim.

LADY JUSTICE HALLETT: Mr Zettlin, again, it is not your fault, because plainly you have been asked to stand in, so my comments are not directed at you. It was a matter for the Crown Prosecution Service and Mr French to ensure this matter was in proper form before us this morning and I am sure you would not argue to the contrary. They should have instructed you properly, they should have ensured that consideration was given, as my Lord points out, at an appropriate level to the complexities and they should have ensured that any views of the victim were obtained. It is not directed at you, but in my view it is simply not good enough for them to send you along with the very limited instructions you have.

[82]MR ZETTLIN: My Lady, I am afraid I can take the matter no further.

LADY JUSTICE HALLETT: No, you can't. Mr Sherriff, presumably you would wish to respectfully adopt all the comments that my Lord, Leveson J, and I have made, albeit you probably would not wish to adopt what Simon J has said.

[84]MR SHERRIFF: My Lady, yes. If it assists the court the time as of today from the actual incident is now two years, seven months and five days. If there were a retrial it would be presumably at Middlesex Crown Court. It is in my knowledge that warn lists after rearraignment are already into March.[85]MR JUSTICE LEVESON: Yes, but that can be resolved for specific cases. That is not decisive.

LADY JUSTICE HALLETT: What is the position of the appellant at the moment? He is not in court today?

[87]MR SHERRIFF: He sits behind me. It is known in relation to the victim in this matter that civil redress is being sought on her behalf.

LADY JUSTICE HALLETT: Is she suing, or is it a claim on the Criminal Injuries Compensation Board?

[89]MR SHERRIFF: My understanding is she is suing. Letters have been sent to the appellant from solicitors instructed by the victim.

MR JUSTICE LEVESON: Presumably litigation is being pursued against the club.

[91]MR SHERRIFF: I presume that, yes, my Lord, but I don't know that as a matter of fact. But it seems obvious from the Health and Safety report that they will.

LADY JUSTICE HALLETT: Very well. (Pause). We will retire.

LADY JUSTICE HALLETT: Mr Zettlin, we received a message that Mr Mack is making the telephone calls. The victim's father. MR ZETTLIN: Brother.

LADY JUSTICE HALLETT: Sorry, Mr Mack we were told father. We are extremely grateful to him and we would like to say that for our part we regret the fact that he has been put into this position because enquiries were not made before, so we are grateful to him for trying to help the court.

MR JUSTICE LEVESON: And we apologise to him and the victim for that having happened.

LADY JUSTICE HALLETT: I hope she understands, Mr Mack, we would not have wanted it this way.

[98]MR ZETTLIN: My Lady, in addition to that, I have spoken to her civil solicitors, because what has happened is this. She has been approached by her brother this morning and has said that she does not wish to have a retrial. But her solicitors on the civil matter are very concerned that she is making a knee jerk reaction without taking advice. The reason they are concerned about this is this. There are both civil proceedings against the appellant and the club, on the one hand, proceeding, and there is also a claim in the Criminal Injuries Compensation Board. They have, on the basis of a conviction, paid out half the sum they intend to paid out, namely half a million pounds. They have paid quarter of a million pounds. There is some concern that if the case ends with an acquittal that they may wish to have that money back, or, if not, certainly not pay the second tranche.[99]MR JUSTICE LEVESON: We are not saying this is not a crime. All we are saying is that something went wrong with the trial process.

LADY JUSTICE HALLETT: And given our concerns about the law, Mr Zettlin, there is, of course, the possibility, that we have not had to grapple with, that there may or may not be a crime.

[101]MR ZETTLIN: My Lady, the concerns are that the effect of the court's judgment may affect the outcome of the civil matters both against the Compensation Board and the civil proceedings. (Pause). Can I just say this? What the solicitors are asking for --

LADY JUSTICE HALLETT: I am sorry, Mr Zettlin, we are very concerned as to whether or not this is an appropriate line of enquiry for us. We are dealing with a criminal appeal. Anything that we have said or done is not intended in any way to impact upon Miss Mack's claim for compensation from whomever, and we don't think it is appropriate to continue down this line, although we are very grateful to members of the Mack family for trying to find out what she feels about the criminal proceedings.

[103]MR ZETTLIN: All I would say is this. It is very unfortunate, and it is nothing to do with the court, obviously those who instruct me, but it is most unfortunate that she has had to have a quick reaction, whereas she might, when she reconsiders the matter, change her mind. It is for that reason that one is a little bit concerned about the court taking into account a settled view that she does not wish to proceed with a first trial. It is not a settled view on any --[104]MR JUSTICE LEVESON: The decision is not a decision for her in any event. Obviously, however, it is vitally important that the prosecuting authorities take into account the views of victims, but that does not bind the court and has never intended to. Our concern was that that step had not been taken. This is not Miss Mack's responsibility and it is never ever going to be her responsibility and she shouldn't think ever that it was.

LADY JUSTICE HALLETT: We agree, Mr Zettlin, that it was for others to consult with her long before this morning.

[106]MR ZETTLIN: My Lady, the enquiry this morning, of course, was caused as a result of the comments that the court has made to me. And, first of all, I asked Mr Mack, "has she been consulted" and the answer was "no". So I then asked that she be spoken to. I hope I was not wrong in doing that.

LADY JUSTICE HALLETT: No, not at all. It is our view that before forming a view that they would seek a retrial the Crown Prosecution Service should have ensured that her views were ascertained then she would not have been in this position of being telephoned at the last minute on a Thursday morning. I think that is as far as we can take it. (Pause). Mr Sherriff, Mr Zettlin, we do not consider it in the public interest to order a retrial, given the fact that this appellant has served nearly all the maximum sentence he could serve. Therefore we don't make any such order.

[108]As far as what we have said, and our judgment today is concerned, we do not intend that anything should have any impact whatsoever upon Miss Mack's claims for compensation from whomever. MR SHERRIFF: My Lady.

LADY JUSTICE HALLETT: And may I, again, offer the thanks of the court to any member of the Mack family who have come here today. We do appreciate how important this case was to Miss Mack and we are grateful for their assistance. We obviously wish her well for her future.