Tierney & Anor, R. v [2009] EWCA Crim 2220

[2009] EWCA Crim 2220

Case No.No. 2008/06789/D4, 2008/06791/D4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 15 October 2009

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE PENRY-DAVEY

and

MR JUSTICE KEITH

Between

R E G I N ACrown

- v -

Between

STEVEN JOSEPH TIERNEY

JONATHAN MARK TYM

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Mr O Edwards appeared on behalf of both Appellants

Mr S Medland appeared for Crown

J U D G M E N T

[1]These are appeals against conviction by Stephen Tierney and Jonathan Tym. The appeals follow a reference of their convictions by the Criminal Cases Review Commission ("the Commission") under section 9 of the Criminal Appeal Act 1995.

[2]On 19 April 2005, in the Crown Court at Chester, before His Honour Judge Philip Hughes and a jury, the appellants were convicted of assault occasioning actual bodily harm. No count of common assault was included in the indictment. Nor was common assault left to the jury as an alternative verdict when it had recently become available. Following their conviction the appellants were later sentenced to community punishment orders for 180 hours. They were also ordered to pay £1,000 in compensation to the complainant and £1200 towards the costs of the prosecution.

[3]Earlier applications for leave to appeal against conviction and sentence were refused by the single judge and they were not renewed.

[4]The facts can be taken from the Reference by the Commission. The prosecution case was that the appellants attended a Christmas party with their wives at a hotel in Chester on 20 December 2003. The two men were both police officers serving in the same police force. They lived a few doors apart and their wives also worked together for Cambrian Associates Limited ("Cambrian"), the organisers of the party.

[5]During the course of the evening Mr Tym directed continual, abusive and loud remarks towards Mr Mayers' wife, Louisa, who was a Cambrian employee. Remarks were in addition directed towards Mr Mayers. He decided to confront Mr Tym about his behaviour.

[6]Both men were intoxicated and a verbal confrontation ensued. Mr Tierney involved himself by approaching Mr Mayers from behind and punching him to his head. Mr Mayers retaliated by striking Mr Tierney. A scuffle ensued, with Mr Tierney and Mr Tym throwing punches at Mr Mayers. The three men ended up struggling with each other on the floor.

[7]The incident ended quickly, culminating in Mr Mayers being dragged out of the function room along the floor by means of his collar and tie. Mr Tym had hold of his tie; Mr Tierney had hold of his collar. Mr Mayers' tie was pulled tight. He lost consciousness and suffered marking to his neck.

[8]The Reference summarises the evidence given by Mr Mayers. It needs no repetition for the purposes of our judgment. It is right to record the evidence given by the appellants. Mr Tierney gave evidence first. He had seen Mr Mayers and Mr Tym engaged in an argument. He had thought that Mr Mayers was about to punch Mr Tym and intervened by pulling Mr Mayers to calm him down. He had stood behind Mr Mayers and put his hands on top of his shoulders, pulling Mr Mayers backwards. Mr Mayers had put up no resistance. Mr Tierney intended to walk him to the doorway. If he had resisted he could not have done that. He took Mr Mayers to the door and released him. Mr Mayers suddenly turned round and punched him in the face, causing him to fall backwards into the room over loose chairs. He fell flat on his back with Mr Mayers on top of him. Mr Mayers tore at his shirt and continued to punch him. He could not defend himself and could feel blood on his face from his nose. He had not pulled Mr Mayers by the collar, nor had he seen Mr Tym pull Mr Mayers out of the room. He was left on the floor and then sat on a chair. He had not been aware of what was going on in the corridor outside. He sat for a while, not speaking to anyone, upset by the whole incident. When he later went outside for some fresh air, Mr Mayers was there and was shouting. So he went back into the hotel. He sustained bruising, a cut lip, a bruised and swollen nose, blackened eyes and a sore kidney from the assault and having fallen over the chairs. He had not told the police officers who were called to the hotel in response to the incident that he was a police officer, but he thought that they were aware that he was from other guests. He had not made a complaint. His wife had begged him not to do so.

[9]Mr Tym in his evidence said that no one had admonished him for his behaviour that night, nor did he know anyone was displeased with it. He denied being drunk or directing abusive or offensive comments at Mr or Mrs Mayers. He had not at any stage said to Mr Mayers, "Where are you girls going?", or called him "Gay boy". He had been in the corridor off the function room when Mr Mayers walked by. He had the impression that Mr Mayers was unhappy. Mr Mayers was glaring at him. Mr Mayers had walked off. Mr Tym had finished his conversation with another guest before going back into the function room. Shortly after he was shocked when Mr Mayers came and stood very close to him and said, "You think you're a fucking hard copper, but you're scum". Mr Mayers' eyes were glazed and his speech slurred. He thought Mr Mayers was drunk. He was confined by the wall behind and could not move to his left or right. Aware of the bottles, knives and cutlery about, to reduce the risk of Mr Mayers using something as a weapon, he pulled Mr Mayers in towards him by the waste. His wife had come over. He told her that he would sort it out. Mr Mayers then went backwards. He had not seen anyone lead him. He was just relieved that he was going away.

[10]When asked in interview why he had said that his wife and Mrs Tierney took Mr Mayers away, he said that he had talked about the events with his wife. He was telling the truth, but could not answer why he was now saying that he did not know who led away Mr Mayers. He had sat down and next heard someone shout "Steve" from the end of the table. He stood up and could see that Mr Mayers was on top of Mr Tierney, punching him. He never did anything to Mr Mayers out of malice. It had been necessary to remove him from Mr Tierney as swiftly as possible to protect Mr Tierney from further injury. He acted to pull Mr Mayers off Mr Tierney, but lost his grip because of Mr Mayers' movements. When he tried for a second time, he pulled hard and up came Mr Mayers. Mr Mayers had been on the floor with his eyes open. Mr Tym had seen people lying in such a state outside pubs before. They could be ill or drunk, but simply by looking at someone it was not possible to say whether or not they were unconscious. He did not think that he had caused Mr Mayers any harm. He dragged him firstly by his upper body and then by his collar. Mr Mayers' tie had finally ended up in his left hand. But he had not held the tie by both hands and used it as a means to drag Mr Mayers across the floor, as was alleged.

[11]In relation to the evidence given by another prosecution witness he said that Mrs Lloyd-Jones had asked him to come over and asked him to undo Mr Mayers' tie. Although it was not tight like a noose, he had undone the tie. He stayed while she examined Mr Mayers. After a couple of seconds Mr Mayers sat up.

[12]Mr Tym had said to Mr Taylor (another witness) that he was sorry the incident had happened, but that he was not sorry for what he had himself done. He did not make any complaint to the attending officers. He was uninjured and his wife had said that it was better not to make a complaint because they all had to work together.

[13]The Crown called a substantial number of witnesses who, although none had seen the entire incident, gave evidence that was supportive of the account given by Mr Mayers that he had been the victim of an attack by the two appellants and contradicting their evidence that they had acted either in self-defence or in defence the one of the other, or that they had been peaceably involved, trying to avoid or reduce the risk of trouble.

[14]Just before the end of the evidence it was submitted that there was no case for Mr Tierney to answer. Unsurprisingly, because this was plainly a case which required the attention of a jury, that submission was rejected. Although some character evidence remained to be produced on behalf of Mr Tierney, taking advantage of the fact that the jury was out of court, the judge invited submissions from counsel on the question whether he should leave common assault to the jury. The Crown's position was that he should leave common assault; it was a viable alternative. The judge's preliminary observations indicated that he agreed with that submission.

[15]However, and rightly, he then sought submissions from counsel for the two appellants. The judge was presented with a powerful argument that, although it was technically possible to leave common assault to the jury, such a course would be inappropriate in this case. It is worth noting the way in which the submission was advanced. The judge said that it seemed to him that it would be appropriate to leave to the jury the possibility of common assault, whereupon Miss Baxter (then appearing for Mr Tierney) submitted that the Crown had nailed their colours to the mast of assault occasioning actual bodily harm and had chosen to prosecute the appellants for that offence. She said:

".... given that that is what [the appellants] have been brought here to face and given that that is the basis upon which all of the witnesses have been cross-examined, then it would only be fair for the [appellants] to have that and that alone left to the jury. If there had been an alternative, it may be that certain other avenues would have been explored with the witnesses in terms of whether it was reasonable to use any form of restraint and the like in particular circumstances and those avenues have not been explored."

Miss Baxter ended this part of her submission by suggesting that if the judge left common assault it would effectively pull the rug from underneath her client's feet. The judge questioned that, but Miss Baxter was adamant in her submissions.

[16]Counsel for Mr Tym re-echoed the same submission. He concluded that to leave the alternative of common assault would amount to a change in the way in which the Crown had advanced the case and might have resulted, if the defence had known about it, in a possible difference in the way the case would have been advanced.

[17]The judge asked counsel for the Crown whether it was correct that he had indeed, as counsel for both appellants had argued, opened the case robustly on the basis that it was a section 47 assault occasioning actual bodily harm, joint enterprise, to which counsel said, "Yes".

[18]The judge took the view that the more he had listened to the submissions by counsel for both appellants, the more he thought that:

".... perhaps in the interests of fairness it would be better for me not to leave it [common assault] to the jury."

Thus focused on the interests of fairness, he upheld the submission made on behalf of the appellants. As the law was understood at that time, that was an entirely appropriate and commendable response.

[19]In due course when he came to sum up to the jury, the judge gave them the directions that he had indicated he would. He said that the issue was whether Mr Mayers was rendered unconscious and whether there was any red mark on his face. His direction was clear. He said:

"It is necessary for the prosecution to prove that Mr Mayers suffered the injuries he said he did and for them to prove too that those injuries were caused by being assaulted by the defendants."

A little later he said: 20. "Did the assault cause the injuries, the red marks on the neck, the unconsciousness? If you are sure it did, the defendants will be guilty of the charge of assault occasioning actual bodily harm. If you are not sure, your verdict will be not guilty ...." Pausing there, lest there be any misunderstanding, that direction followed impeccable directions about the proper approach to the issue of self-defence and who of those present at this incident was or may have been the aggressors and who was or may have been the peace-makers.

[20]At 10.55am that day the jury retired to consider its verdicts. At 3pm a majority direction was given. They retired again at 3.02pm. At 4pm the jury sent a note to

the judge which was in the following terms:

"Can we find them guilty of assault but not occasioning actual bodily harm?" 22. "

The answer is quite simple. In the context of this case that option is not available to you. It is either assault occasioning actual bodily harm or nothing at all. Would you like to retire now and carry on your deliberations please?" The jury retired shortly afterwards. Thirteen minutes later they returned to court. They convicted Mr Tym by a majority verdict of 10:2. They had no verdict in the case of Mr Tierney. The court adjourned until the following day. On the following morning, after a further retirement of twenty minutes, the jury returned to court and this time they convicted Mr Tierney again by the same majority of 10:2.

[21]When an application was made for leave to appeal to this court no point was taken about the fact that the judge had not left the alternative verdict to the jury. However, when their applications were refused on 5 January 2006, the appellants applied to the Commission for their convictions to be reviewed. The Commission distilled no less than seventeen different grounds of complaint. None of them was considered by the Commission to have weight or to amount to anything which might lead to the quashing of these convictions. Nevertheless, the convictions were referred to the court on the basis identified by the Commission, in essence, that the safety of the convictions is undermined because of the judge's decision that the common assault alternative should not be left to the jury and, as the Commission draws attention to the point specifically, by his direction in answer to the jury's direct question whether they could find the appellants guilty of assault, but not of assault occasioning actual bodily harm.

[22]The Crown does not seek to support the conviction. With some hesitation we agree with the Crown that, in view of the jury's question, there is no way in which we can know, and it would be wrong to deduce anything from the jury question itself than that it may realistically have reflected some possible doubt in the mind of one or more of the jury whether the evidence that actual bodily harm had been caused was sufficiently convincing.

[23]The Crown invites us to substitute a conviction for common assault. With respect to the argument to the contrary, that application is unanswerable. Our attention was drawn to a brief note on the decision in R v Harris (TLR 22 March 1993, judgment given on 2 March 1993). However, that was an altogether different case in which none of the questions which arise here was in issue. In a case of alleged rape there was a question about the extent of penile penetration and therefore whether attempted rape was the appropriate charge. In this present case the jury would not have convicted either of these appellants of assault occasioning actual bodily harm unless they were sure at the outset that Mr Mayers had been the victim at least of common assault for which both appellants were responsible, and in which they, not he, were the aggressors.

[24]Accordingly, we shall quash these convictions and, in accordance with our powers, we shall substitute convictions for common assault.

[25]Before we leave the case, however, we must draw attention to these further considerations. In our judgment there is no doubt that when the judge gave the direction he did, he was exercising what at that time was a well understood judicial discretion, directed at the interests of justice, in particular the interests of justice for which counsel on behalf of the appellants had contended. We respectfully disagree with the view expressed by the Commission that the well-known decision of the House of Lords in R v Coutts

[2006] UKHL 36

re-affirmed well-known principles. In reality Coutts represented and required of criminal courts that a new approach should be taken to the problem of alternative verdicts. The previous way in which this issue was addressed is exemplified by the decision of the Court of Appeal in Coutts itself. For all practical purposes the House of Lords in Coutts, while not expressly overruling the earlier House of Lords' decision in R v Maxwell

[1988] 1 WLR 1265

, effectively deprived it of authority. The position was summarised by the court sitting in a five judge constitution in R v Foster and Others

[2007] EWCA Crim 2869

, where the consequences of the decision in Coutts were addressed and applied in a number of specific situations. Paragraph 50 in Foster sought to address the issue and analyse the impact of Coutts on Maxwell. It reads:

"The test propounded in Maxwell about the circumstances in which the court should interfere with the verdict was closely examined in each speech in Coutts. it is impossible to ignore the criticisms expressly directed at it. Maxwell is variously described as 'not an easy authority' by Lord Bingham, who observed the different grounds upon which the defendant had failed in the Court of Appeal (that the appellate court should only interfere if there were identified 'solid grounds for suspecting that the members of the jury had foresworn their oaths') and in the House of Lords (that the lesser offence of theft was trifling in relation to robbery) and considered neither was 'unproblematic'. Lord Hutton, who was a member of the Board in Hunter [2003] UKPC 69, which followed Maxwell, pointed out that Lord Ackner was speaking obiter when he said that the appellate court, before interfering with a verdict, must be satisfied that the jury may have convicted out of a reluctance to let the defendant 'clean away' and criticised that approach as 'unsatisfactory' it should no longer be taken. Lord Rodger of Earlsferry described the test as 'problematic', to say the least, and on analysis, 'wrong in principle'; and Lord Mance regarded the test in relation to a jury trial as 'unworkable'. There was no suggestion that the concerns about the correct approach in law to what might be called the reluctant jury attracted the application of the Practice Direction (Judicial Precedent) issued by Lord Gardiner on behalf of himself and the Lords of Appeal in Ordinary on 26 July 1966. In any event, the language in the speeches is unequivocal. Lord Ackner's test is no longer applicable. Effectively, it has been extinguished. ...."

That being the analysis in Foster, it seems apparent that as a matter of reality the law has changed. In our judgment this court would normally approach any application for leave to appeal out of time, following a trial which had taken place before Coutts was decided in the House of Lords, and based on the ground that the judge had failed to leave an alternative verdict to the jury as if it represented a change of law case in the sense identified by this court in R v Cottrell and Fletcher

[2008] 1 Cr App R 107

[26]If and when like cases these arise and are referred to the Commission because the appeal process has been exhausted, we respectfully invite the Commission to continue to have regard to the principles identified in Cottrell and Fletcher.

[27]Is there anything further?

[28]MR EDWARDS: My Lord, there is one matter. Under section 3(2) of the Criminal Appeal Act, the court has to pass a sentence in substitution for the sentence passed below, not being a sentence of greater severity.

THE LORD CHIEF JUSTICE: Have your clients finished their community punishment order?

[30]MR EDWARDS: Yes.

THE LORD CHIEF JUSTICE: Yes. Have they paid the compensation order?

[32]MR EDWARDS: £1,000.

THE LORD CHIEF JUSTICE: Have they paid the costs?

[34]MR EDWARDS: They have, £1200.

THE LORD CHIEF JUSTICE: Well ....

[36]MR EDWARDS: My Lord, can I make the point? It is a very brief one.

THE LORD CHIEF JUSTICE: Yes.

[38]MR EDWARDS: Your Lordship has already pointed out the section in the summing-up in which the learned judge properly identified actual bodily harm as being the friction mark and the unconsciousness, about which there is a live issue. Had the appellants been convicted of common assault at the conclusion of that trial the sentence would, in my submission, have reflected that --

THE LORD CHIEF JUSTICE: Yes, of course.

[40]MR EDWARDS: -- certainly as far as compensation is concerned. (Pause to take instructions) My Lord, I do apologise. Compensation has not been paid pending this appeal.

THE LORD CHIEF JUSTICE: Four years?

[42]MR EDWARDS: Yes.

THE LORD CHIEF JUSTICE: All right. Thank them for pointing that out. Have the terms of the community punishment order been fulfilled?

[44]MR EDWARDS: Yes.

THE LORD CHIEF JUSTICE: What submission do you make?

[46]MR EDWARDS: It would have been less if they had been convicted of common assault.

THE LORD CHIEF JUSTICE: Yes, obviously.

[48]MR EDWARDS: And the compensation would have been considerably less.

THE LORD CHIEF JUSTICE: Yes. So would the community punishment order.

[50]MR EDWARDS: Yes.

THE LORD CHIEF JUSTICE: Yet they have carried it out.

[52]MR EDWARDS: My Lord, it does have an impact -- and I do apologise --

THE LORD CHIEF JUSTICE: Well, if I might say so, it illustrates some of the difficulties about cases coming back to this court a long time after everybody thinks they are finished.

[54]MR EDWARDS: I agree.

THE LORD CHIEF JUSTICE: What are you inviting us to do? What is your submission now that your clients have completed their community punishment order?

[56]MR EDWARDS: My Lord, the options are that that order could be reduced, although that would have no impact. Any different sentence, save for an absolute discharge, would in effect end up being a further penalty.

THE LORD CHIEF JUSTICE: Not if we leave the community punishment order unaffected and quash the rest of it, so far as sentence is concerned. What about the costs?

[58]MR EDWARDS: My Lord, in those circumstances it would be a matter for the court to consider whether on a conviction for common assault they should pay the costs of the entire trial process or otherwise.

THE LORD CHIEF JUSTICE: Very well. Thank you. The Crown's position is neutral, I take it?

[60]MR MEDLAND: Neutral, my Lord, save to say that the sentence imposed, whilst perhaps it might have been less, it certainly (and I hope it is not an inappropriate phrase that I used in my skeleton argument) was comfortably within the possibilities available to the learned judge upon a conviction for common assault. It may well be that the compensation might have been less. The costs, in view of the manner in which the trial was conducted of two (as they were then) police officers, it was unlikely, if I may say so, to have taken much less time than it did. It is from that that the figure was deduced as a contribution to the costs -- not the whole costs.

THE LORD CHIEF JUSTICE: Thank you. (The court retired to confer)

THE LORD CHIEF JUSTICE:

[62]We must now consider sentence following the quashing of the convictions for assault occasioning actual bodily harm. These offences of common assault were serious offences of their kind. They involved an outbreak of violence of a disgraceful nature in a public place by serving police officers. Our conclusion is that the sentence for the community punishment order should remain as it was. We shall not interfere with it. Nor can we see any basis for altering the decision in relation to the order that costs should be paid in the sum of £1200. The trial went ahead on the basis of a fully fought case. Indeed, the way in which the judge left the case to the jury was precisely the way in which, for forensic reasons, it was thought appropriate for the defence case to be conducted. Accordingly, we shall not interfere with that.

[63]However, to recognise the fact that the conviction now does not include the actual bodily harm which was found by the jury to have taken place, we must reduce the compensation order. We have reflected on the incident as a whole, removing from consideration of it the injuries which the Crown said had been sustained by Mr Mayers. In those circumstances the order for compensation will be the sum of £250 to be paid by each appellant. _______________________________________