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[COURT O F APPEAL]

REGDSfA v. M O W A T T

C A

1967

June 2 0 Crime Mens rea " Maliciously " Wounding with intent to commit grievous bodily harmDefence of self-defenceVerdict DIPLOCK L.J., of unlawful wounding open to juryIngredients of offence BRABIN and ALLER " Unlawfully " and " maliciously "Whether necessary for jury ' to be directed as to meaning of " maliciously "Issues for jury Prevention of Offences Act, 1851 (14 & 15 Vict. c. 19), s. 5 l Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), ss. 18, 20.2 CrimeSumming upObject ofMatters to be put to juryMeaning of " malice."

The defendant was tried on indictment with (1) robbery with violence and (2) wounding with intent to do grievous bodily harm contrary to section 18 of the Offences against the Person Act, 1861. He pleaded not guilty to both counts. The case for the prosecution was that on September 30, 1966, the defendant and another man stopped a third man, W., in the street, whereupon the defendant's companion snatched at a 5 note from W.'s breast pocket and ran off. When W. seized the defendant's coat lapels and demanded to know where his companion had gone, the defendant struck him, knocking him down. Two policemen gave evidence that they saw the defendant sit astride W. and strike him in the face several times. When arrested the defendant was found to have a 5 note in his hand. The case for the defence was that the only blows struck by the defendant were in self-defence. In summing up on count 2, the trial judge told the jury that they were entitled to return a verdict of unlawful wounding (a verdict open to them by virtue of section 5 of the Prevention of

F
1

[Reported by M R S . JENNIFER WINCH, Barrister-at-Law.]

^ a

Prevention of Offences Act, 1851, s. 5: " I f upon the trial of any indictment for any felony . . . where the indictment shall allege that the defendant did cut, stab or wound any person, the jury shall be satisfied that the defendant is guilty of the cutting, stabbing, or wounding charged in such indictment, but are not satisfied that the defendant is guilty of the felony charged in such indiotment, then and in every such case the jury may acquit the defendant of such felony, and find him guilty of unlawfully cutting, stabbing, or wounding, and thereupon such defendant shall be liable

to as an of

be punished in the same manner if he had been convicted upon indictment for 'the misdemeanour cutting, stabbing or wounding." 2 Offences against the Person Act, 1861, s. 18: "Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person . . . with intent . . . to maim, disfigure, or disable any person . . . shall be guilty of a felony. . . ." S. 20: "Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person . . . shall be guilty of a misdemeanour. . . ."

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Offences Act, 1851), and directed them as to the meaning of " unlawfully " but nowhere gave any direction as to the meaning of the word " maliciously." (There was no alternative count under section 20 of the Offences against the Person Act, 1861, in which malice is an ingredient.) The jury convicted the defendant of larceny from the person and unlawful wounding. On appeal against conviction for unlawful wounding on the ground, inter alia, that the judge had not directed the jury on the meaning of maliciously: Held, dismissing the appeal, (1) that although there was no express reference to the word " maliciously " in section 5 of the Prevention of Offences Act, 1851, the words of section 4 of that Act made it clear that when a jury brought in an alternative verdict under section 5, the ingredients of the offence of which they found the defendant guilty were identical with those with which they would have to find him guilty under section 20 of the Offences against the Person Act, 1861. (2) That, where the evidence for the prosecution showed that the physical act of the defendant which caused injury to another person was a direct assault which any ordinary person would realise was likely to cause some physical harm to the other person and the defence was not that the assault was accidental or that the defendant did not realise that it might cause some physical harm to the victim, but some other defence such as that he did not do the alleged act or that he did it in self-defence, it was unnecessary to deal specifically in the summing-up with what was meant by " maliciously " in section 20. Reg. v. Cunningham [1957] 2 Q.B. 396; [1957] 3 W.L.R. 76; [1957] 2 All E.R. 412, C C A . distinguished. Per curiam. The definition of malice given by Professor Kenny in Kenny's Outlines of Criminal Law, 18th ed. (1962), p. 202, approved in Reg. v. Cunningham (supra) is not appropriate to the specific alternative statutory offences described in sections 18 and 20 of the Offences against the Person Act, 1861, and section 5 of the Prevention of Offences Act, 1851 (post, pp. 4 2 5 F
426B).

_ ^

F against conviction. On January 13, 1967, the defendant, Sydney Linton Mowatt, was tried at the Crown Court, Liverpool, before Judge Youds and a jury on an indictment containing one count of robbery and one count of wounding with intent. On September 30, 1966, in the early hours of the morning the defendant and a companion stopped a third man in the street and asked him whether there was a club anywhere nearby. The defendant's companion then snatched a 5 note from the third man's breast pocket and ran off. The third man chased him without success and returned to the defendant, grasping him by the lapels and demanding to know where his companion
APPEAL

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had gone. The defendant then struck the third man, knocking him down. Two police officers saw the defendant sit astride the third man and strike him repeated blows in the face, pull him to his feet and strike him again, knocking him down and rendering him almost unconscious. The defendant was arrested and taken to the police station where he was found to be concealing a 5 note in his hand. The defendant admitted inflicting the first blow but claimed it was in self-defence. The trial judge in summing up to the jury explained the meaning of " unlawfully " so far as it was relevant to the defence of self-defence. He gave no direction as to the meaning of " maliciously." The jury convicted the defendant of larceny from the person and unlawful wounding. Concurrent sentences of 18 months' imprisonment were imposed on each count. The defendant appealed against his conviction for unlawful wounding on the ground that the judge should have directed the jury as to the meaning of " maliciously " in section 20 of the Offences against the Person Act, 1861. /. Briggs for the defendant. "Maliciously" in section 20 of the Offences against the Person Act, 1861, must have some meaning. Reg. v. Cunningham 3 was not helpful on this point. Whatever meaning " maliciously " might have in the statute had not been given to the jury. Furthermore, the directions given to the jury on the issue of self-defence were inadequate. M. Maxwell for the Crown. The word " maliciously" in the context of section 20 of the Act of 1861 really adds nothing to the meaning already conveyed by its companion word " unlawfully " and the judge did not err by not giving the jury a specific direction upon it. The case of Reg. v. Cunningham3 turned on special facts. The injury which the appellant was charged with causing was brought about by a chain of events and circumstances following upon the appellant's wrongful act, and it, therefore, became necessary for the jury to consider very carefully the extent to which he did or should have contemplated the flow of consequences which ensued. Here the appellant admitted that he directly struck the complainant a blow and the only real issue was whether that blow, and other blows which the prosecution alleged were struck, were struck in self-defence. On that issue the jury found against the appellant. Where, as here, a person is charged under section 18 of the Offences against the Person Act, 1861,
3

[1957] 2 Q.B. 396; [1957] 3 W.L.R. 76; [1957] 2 All E.R. 412, C C A .

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the jury are entitled by section 5 of the Prevention of Offences Act, 1851, to bring in a verdict under section 20 of the former Act without having to find any additional ingredients in the offence. ^ a t 1S w ^ a t ^ y ^ ^ e r e anc* accordingly the judge's direction was adequate in the circumstances of the case.
DIPLOCK L.J. The defendant was indicted at the Crown Court, Liverpool, upon two counts arising out of events which took place in the early hours of the morning on September 30, 1966. The first count was robbery with violence. He was convicted of larceny from the person, and sentenced to 18 months' upon this count. His application for leave to appeal against conviction and sentence on this count was refused by the single judge and has not been pursued. The second count was wounding with intent to do grievous bodily harm contrary to section 18 of the Offences against the Person Act, 1861. On this indictment it was open to the jury under section 5 of the Prevention of Offences Act, 1851, to find him guilty of unlawfully cutting, stabbing or wounding; and then the section goes on: "and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misdemeanour of cutting, stabbing, or wounding." The misdemeanour there referred to was at that date the misdemeanour created by section 4 of the same Act, which so far as is relevant provided that: " If any person shall unlawfully and maliciously . . . cut, stab, or wound any other person, every such offender shall be guilty of a misdemeanour." That misdemeanour has now been substituted by the offence created by section 20 of the Offences against the Person Act, 1861; and in the view of this court although there is in section 5 of the Prevention of Offences Act, 1851, no express reference to "maliciously" as well as " unlawfully," the reference to " the misdemeanour" in which those adverbs appear together makes it clear than when the jury bring in an alternative verdict under section 5 of the Prevention of Offences Act, 1851, the ingredients of the offence of which they find the accused guilty are identical with those with which they would have to find him guilty under section 20 of the Offences against the Person Act, 1861. The jury in this case did find the defendant guilty of unlawful wounding. The judge in summing up explained to the jury the meaning of " unlawfully " so far as was relevant to the defence put forward by the defendant, which was that the only blows which he had admitted were delivered in self-defence. But nowhere

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in the summing-up did the judge mention the word " maliciously " or give the jury any directions as to its meaning. It was for this reason that the single judge gave leave to appeal against the defendant's conviction for unlawful wounding so that this court might be given an opportunity to consider to what extent it is necessary in a case of this kind to give to the jury express instructions upon the meaning of the word " maliciously " such as those as are discussed in Reg. v. Cunningham.1 " Unlawfully and maliciously" was a fashionable phrase of parliamentary draftsmen in 1861. It runs as a theme with minor variations throughout the Malicious Damage Act, 1861, and the Offences against the Person Act, passed in that year. Reg. v. Cunningham 1 was a case under section 23 of the Offences against the Person Act, 1861, which provides: " Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony." The facts were very special. The appellant went to the cellar of a house and wrenched the gas meter from a gas pipe and stole it together with its contents, and gas seeped through the wall. The cellar was under a divided house, one part of which an elderly couple occupied, and one of them inhaled some gas and her life was endangered. He was indicted under section 23 of the Act of 1861. No doubt upon these facts the jury should be instructed that they must be satisfied before convicting the accused that he was aware that physical harm to some human being was a possible consequence of his unlawful act in wrenching off the gas meter. In the words of the court, " maliciously in a statutory crime postulates foresight of consequence," and upon this proposition we do not wish to cast any doubt. But the court in that case also expressed approval obiter of a more general statement by Professor Kenny, [Kenny's Outlines of Criminal Law, 18th ed. (1962), p. 202] which runs as follows: "in any statutory definition of a crime, 'malice' must be taken not in the old vague sense of wickedness in general, but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done, or (2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of
1

n u

jj

[1957] 2 Q.B. 396; [1957] 3 W.L.R. 76; [1957] 2 All E.R. 412, C C A .

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harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill will towards the person injured."

Mowatt _""*"".

This generalisation is not, in our view, appropriate to the specific alternative statutory offences described in sections 18 and 20 of the Offences against the Person Act, 1861, and section 5 of the Prevention of Offences Act, 1851, and if used in that form B in the summing-up is liable to bemuse the jury. In section 18 the word " maliciously" adds nothing. The intent expressly required by that section is more specific than such element of foresight of consequences as is implicit in the word " maliciously " and in directing a jury about an offence under this section the word " maliciously " is best ignored. C In the offence under section 20, and in the alternative verdict which may be given on a charge under section 18, for neither of which is any specific intent required, the word " maliciously " does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to D some other person. That is what is meant by " the particular kind of harm" in the citation from Professor Kenny. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e., a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, E albeit of a minor character, might result. In many cases in instructing a jury upon a charge under section 20, or upon the alternative verdict which may be given under that section when the accused is charged under section 18, it may be unnecessary to refer specifically to the word " maliciously." The function of a summing-up is not to give the jury F a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence. There may, of course, be cases where the accused's awareness of the possible consequences of his act is genuinely in issue. Reg. v. Cunningham y is a good ^r example. But where the evidence for the prosecution, if accepted, shows that the physical act of the accused which caused the injury to another person was a direct assault which any ordinary person would be bound to realise was likely to cause some physical harm
1

[1957] 2 Q.B. 396.

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to the other person (as, for instance, an assault with a weapon or the boot or violence with the hands) and the defence put forward on behalf of the accused is not that the assault was accidental or that he did not realise that it might cause some physical harm to the victim, but is some other defence such as that he did not do the alleged act or that he did it in selfdefence, it is unnecessary to deal specifically in the summing-up with what is meant by the word " maliciously " in the section. It can only confuse the jury to invite them in the summing-up to consider an improbability not previously put forward and to which no evidence has been directed, to witthat the accused did not realise what any ordinary person would have realised was a likely consequence of his act, and to tell the jury that the onus lies, not upon the accused to establish, but upon the prosecution to negative that improbability and to go on to talk about presumptions. To a jury who are not jurisprudents that sounds like jargon. In the absence of any evidence that the accused did not realise that it was a possible consequence of his act that some physical harm might be caused to the victim, the prosecution satisfy the relevant onus by proving the commission by the accused of an act which any ordinary person would realise was likely to have that consequence. There is no issue here to which the jury need direct their minds and there is no need to give to them any specific directions about it. In such a case, and these are the commonest of cases under section 18, the real issues of fact on which the jury have to make up their minds are: (1) are they satisfied that the accused did the act? (2) if so, are they satisfied that the act caused a wound or other serious physical injury? (3) If the defence of self-defence is raised or there is any evidence to support it, do they think that the accused may have done the act in self-defence? (4) If the answer to (1) and (2) is " yes " and to (3), if raised, is " no," are they satisfied that when he did the act he intended to cause a wound or other really serious physical injury? If (3), if raised, is answered " no " and (1) and (2) are answered " yes," the lesser offence under section 20 is made out; and if (4) is also answered "yes" the graver offence under section 18 is made out. In any case under section 18 where the physical act of the accused was a direct assault which any ordinary person would have realised was likely to cause some physical harm to the victim and there is no evidence that the accused himself did not realise that it might do so, if those issues, which we have stated,

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are put fairly and squarely to the jury it is the view of this court that the summing-up is not open to criticism. There is no need for any general dissertation about the meaning of the word " m a l i c i u s l y - " T h e less said about it in such a case the better. The only remaining issue is whether the present case is one ' of this kind. The relevant evidence for the prosecution was that of the complainant and the two police officers. The complainant, in the early hours of the morning of September 30, was returning home, according to his evidence, and was stopped in a street by two men, one of whom was the defendant. They asked him if there was a club anywhere about, and then one of them, not the defendant, snatched a 5 note from the complainant's breast pocket and ran off. The complainant said he chased him without success, returned to the defendant, grasped him by his lapels and demanded to know the whereabouts of his mate. The defendant then (and this was common ground) hit out at the complainant and knocked him down. That was the first assault. Two off-duty police officers then saw the defendant, according to their evidence, sitting astride the complainant, and they saw the defendant strike him several violent blows in the face with his fist and pull him to his feet, strike him again in the face, knocking him down and making him virtually unconscious. The defendant was, according to the police, trying to pull up the complainant again when the police arrested him. When the defendant was taken to the station, he was found to be concealing a 5 note in his hand. The judge directed the jury to acquit of robbery with violence, because the evidence showed no violence but a snatching. That left larceny from the person, of which the jury convicted him. As regards the count of wounding, in effect, the judge directed the jury to acquit the appellant of any offence if they accepted that only the first blow, which he admitted, had been struck. H e directed them that on the evidence there would be justification in self-defence for that. As regards the blows seen to be struck by the police, the defendant sitting astride the complainant and raining a series of blows upon his face, lifting him up, casting him down again, the only issues before the jury was whether that happened at all and, if so, whether they were inflicted with intent to do grievous bodily harm. If the jury accepted that it did happen, then clearly any ordinary man would realise that some physical harm would be sustained by the victim, even though he might not have any specific intent to break the skin or amount to serious physical injury.

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QUEEN'S BENCH DIVISION this was clearly a case where in which the defendant was convicted the judge to give the jury any of the word " maliciously." by M r . Briggs o n behalf of the

429 C. A. 1967 J^ Mawatt

DlPLOCK L J

In the view of this court, relation to the lesser offence of it was quite unnecessary for instructions upon the meaning Another point was raised

defendant, namely, that the directions as given by the judge to the jury upon the issue of self-defence were inadequate. In the view of this court, there is nothing in that contention; and this appeal is accordingly dismissed. Appeal dismissed. Solicitors: Registrar of Criminal Appeals; Solicitor, Clerk, Liverpool. Town

REGINA v. LLEWELLYN-JONES CrimeCommon law misdemeanourMisbehaviour in a public office Indictment Description of offenceNo allegation of dishonesty or fraud in indictmentWhether essential elementRelated counts of fraudWhether element of dishonesty inherent in wording Whether offence disclosed. The defendant, the registrar of a county court, was convicted on six counts of an indictment charging him with misbehaviour in a public office. One count alleged that he " being and acting as the Registrar of Cardiff County Court, with the intention of gaining improper personal advantage and without proper regard to the interests of [an infant] wrote a letter to {solicitors] in terms which he would not otherwise have written." Another alleged that he " being and acting as the Registrar of the Cardiff County Court, with the intention of gaining improper personal advantage and without proper regard to the interest of [the object of a fund] made an order which he would not otherwise have made that 5,000 be paid to [a certain person] out of funds in court." The other four counts were identically worded. H e was also convicted on related counts of fraudulent conversion, fraudulent disposal of property and obtaining credit under false pretences. On appeal by the defendant on the ground that the indictment

C.A. 1967 Ian 26 '

LORD PARKER

C.J.. WINN WILLIS J.

[Reported by MARCEL BERLINS, E S Q . ]