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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Fennell, R v [2000] EWCA Crim 3544 (09 May 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/3544.html Cite as: [2000] 2 Cr App R 318, [2000] 1 WLR 2011, [2000] WLR 2011, [2000] 2 Cr App Rep 318, [2000] Crim LR 677, (2000) 164 JP 386, [2000] EWCA Crim 3544

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		9th May 2000

1. THE VICE PRESIDENT: On 8th February 2000 at Inner London Crown Court, following a trial before His Honour Judge Rountree, the appellant was convicted of assault occasioning actual bodily harm, which was an alternative to count 2 in the indictment, which alleged racially aggravated assault occasioning actual bodily harm. He was also convicted of criminal damage as an alternative to count 3, which alleged racially aggravated criminal damage. He was acquitted, on the judge's direction, on count 1, which alleged racially aggravated fear or provocation of violence. He was, on the same date, sentenced to 8 months' imprisonment on count 2, for the offence of assault occasioning actual bodily harm, and 1 months' imprisonment for the criminal damage offence, those sentences to run concurrently, making 8 months in all.
2. He appeals against conviction by leave of the Single Judge who referred the application for leave to appeal against sentence to the Full Court.
3. A co-accused called Richards was acquitted on all the counts laid against him.
4. There was an incident in a shop belonging to a Mr and Mrs Rauf in 'Danny's Pound Shop'. In the course of it the appellant and Mr Rauf sustained some injuries. It was common ground that there had been a struggle between the two of them, in the course of which goods had been brought down from the shelves.
5. The appellant had gone to the shop following some previous incident between Mr Rauf and the appellant's girlfriend. There were two issues at trial: first, self-defence in relation to the assault occasioning actual bodily harm and accident in relation to criminal damage; and, secondly, whether the appellant had used the racial language on which the counts in the indictment based on racial aggravation were founded.
6. The evidence from Mr Rauf was that, on 5th June 1999, he was in his shop, with other members of his family. The appellant came in and asked to speak to him. Mr Rauf, whose arm was pulled by the appellant, tripped over some stock and partly fell. The appellant, according to Mr Rauf, pushed and punched him while he was on the floor and said "You pulled a knife on my bird, you fucking Paki". Mr Rauf, according to himself, said "What knife? What bird?"
7. The appellant struck Mr Rauf on the face and upper body. He was on the floor for several minutes. He was then able to get up and the co-accused, Richards, according to Mr Rauf, pulled him down and, while he was down, the appellant threw an object at him which hit him. He tried to stop the appellant and Richards leaving and, as he did so, Richards punched him.
8. He suffered a number of injuries, which a doctor who examined him described as superficial lacerations to the head and hand, bruising round the eye, shoulder, arm, back and chest and tenderness over the middle back.
9. Mrs Rauf had been in the basement at the beginning of the incident. She went upstairs. She saw her husband on the floor and she heard the appellant, while throwing items at her husband say, "No Paki pulls a knife on my bird".
10. There were a number of other witnesses who described the scene but who did not refer to any sort of racial comment having been made by the appellant. Police officers arrived. It was not, however, until the evening of that day, when the officers telephoned in order to see what injuries had been sustained, that there was first made any complaint about racial language by the appellant. The complaint, at that stage, was made by Mrs Rauf.
11. The appellant gave evidence before the jury. He said his mother had been born in India. He had no racist views. On this day, as a result of what his girlfriend had told him that Mr Rauf had done, he went to, as he put it, "have a word with the shopkeeper". He had no racial intention or any intention of beating him up. He wanted to know why, as he understood the position to be, the shopkeeper had pulled a knife and he wanted an apology. On the way he met up with Mr Richards who accompanied him.
12. On arrival at the shop, he told Mr Rauf what his girlfriend had told him. He and Mr Rauf fell. There was a struggle on the ground. Items fell from the shelves. He received blows from Rauf, who reached into his back pocket. He, the appellant, thought he might have a Stanley knife there, in view of what his girlfriend had told him earlier. In consequence, he said he hit Rauf but he did so only to defend himself. He had not seen Richards doing anything.
13. The appellant's girlfriend and mother were called on his behalf and Richards also gave evidence before the jury.
14. At the conclusion of the prosecution counsel's final speech and before defence counsel addressed the jury, the question was canvassed by and with the judge as to whether alternative verdicts should be left to the jury, in the event that they were not satisfied that either the assault occasioning actual bodily harm, or the criminal damage had been racially aggravated, as was alleged in the indictment. The trial judge indicated that the thrust of the prosecution case was that this was an attack in relation for the earlier incident involving the appellant's girlfriend and it was appropriate for alternative counts to be left to the jury. At that stage, counsel for the defence, without further application or ado, addressed the jury, who returned the verdicts to which, at the outset, we referred.
15. On behalf of the appellant, Mr Digby, who represented him at trial, advances two grounds in support of the submission that the learned judge should not have left non-racially aggravated criminal damage to the jury. The first ground is based on the submission that it was not, as a matter of law, open to the judge to leave that matter to the jury, without the indictment being amended to add an additional count. The second submission is directed to the late stage at which the judge indicated that he proposed to leave alternative counts to the jury, it being said that, in consequence, the defence were unfairly prejudiced.
16. Before rehearsing the rival contentions in relation to whether it was or was not permissible in law for the judge to leave the alternative account as to criminal damage without a racially aggravated element to the jury, it is convenient to refer to a number of relevant statutory provisions.
17. Section 17 of the Magistrates' Court Act 1980 says this:

"(1) The offences listed in Schedule 1 to this Act shall be triable either way."

18. Schedule 1, at paragraph 29, identifies offences under the provisions of the Criminal Damage Act 1971 and, in particular, destroying or damaging property contrary to section 1(1).
19. Section 22 of the same Act, is in these terms.

"(1) If the offence charged by information is one of those mentioned in the first column of Schedule 2 to this Act (in this section referred to as 'scheduled offences') then... the court shall, before proceeding in accordance with section 19 above, consider whether, having regard to any representations made by the prosecutor or the accused, the value involved (as defined in subsection (10) below) appears to the court to exceed the relevant sum. For the purposes of this section the relevant sum is £5,000...

(2) If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved does not exceed the relevant sum, the court shall proceed as if the offence were triable only summarily, and sections 19 to 21 above shall not apply.

(3) If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved does not exceed the relevant sum, the court shall thereupon proceed in accordance with section 19 above in the ordinary way without further regard to the provisions of this section."

20. Section 19 refers to the duty of a Magistrates' Court to begin by considering which mode of trial appears more suitable. There are, indeed, National Mode of Trial Guidelines, but they are no more than guidelines, issued to assist justices in this task by the Criminal Justice Consultive Council (see Archbold 1-40a).
21. Schedule 2 of the 1980 Act, to which section 22(1) applies, is headed "Offences for which the value involved is relevant to the mode of trial". The first category of offences listed in the left hand column of the schedule is offences under section 1 of the Criminal Damage Act 1971.
22. Section 40 of the Criminal Justice Act 1988 provides for joining in the same indictment summary offences as alternatives to indictable offences. By subsection (3), the offences to which section 40 applies include, by virtue of (d)

"an offence mentioned in the first column of Schedule 2 to the Magistrates' Courts Act 1980 (criminal damage etc) which would otherwise be triable only summarily by virtue of section 22(2) of that Act."

23. The Interpretation Act 1978 includes, within Schedule 1, definitions of "indictable", "summary" and "triable either way" offences. (c) in that part of that schedule is in the following terms:

"'offence triable either way' means an offence, other than an offence triable on indictment only by virtue of Part V of the Criminal Justice Act 1988 which, if committed by an adult, is triable either on indictment or summarily..."

24. There then follows this passage:

"In the above definitions references to the way or ways in which an offence is triable are to be construed without regard to the effect, if any, of section 22 of the Magistrates' Courts Act 1980 on the mode of trial in a particular case."

25. The submission which Mr Digby makes is that as the criminal damage in this case, which was identified in the indictment as a sum slightly in excess of £1,500 was less than £5,000, it was not open to the judge to leave criminal damage, without the racially aggravating element, to the jury, in the absence of the addition of a further alternative count.
26. The submission is that, by virtue of section 22 of the Magistrates' Courts Act, simple criminal damage can only be dealt with summarily. Section 40 of the Criminal Justice Act permits a count to be added in relation to criminal damage and the combined effect of section 40(3)(d) and section 22(2) is to reclassify simple criminal damage as an offence triable only summarily and not, as would appear otherwise to be the case, by virtue of section 17 and schedule 1 of the 1980 Act, triable either way.
27. In support of that submission, Mr Digby relied, understandably, on the authority of R v Burt, Court of Appeal (Criminal Division) transcript 2nd April 1996, also reported in 161 Justice of the Peace Reports at page 77. That authority was also referred to in a decision of the Divisional Court, R v Bristol Magistrates' Court ex parte E [1999] 1 Cr App R 144, in the judgment of Simon Brown LJ, in particular at pages 150-151.
28. The passage in the judgment of the Court in Burt, given by Mantell J, on which Mr Digby relies, starts at 79 in the Justice of the Peace Report, and page 4D of the transcript. It is necessary to read it:

"By section 22 of the Magistrates' Courts Act 1980 as amended by section 56 of the Criminal and Public Order Act 1994, and by reference to Schedule 2 of the 1980 Magistrates' Courts Act, it can be seen that where an offence under section 1 of the Criminal Damage Act 1971 is laid, and it appears to the magistrates who are considering the appropriate mode of trial that the value of the damage done or the cost of putting the damage right, or the value of the property destroyed, is less than £5,000, the court is enjoined by section 22(2) of the Magistrates' Courts Act 1980 to proceed as if the offence was triable summarily only. That provision relates to what are called 'scheduled offences', those offences being set out in Schedule 2 of the Act, among which is to be found the offence contrary to section 1 of the Criminal Damage Act 1971, of destroying or damage property other than by fire

...Clearly the provision is to be treated as only applying to simple criminal damage laid under subsection (1)...

So, without more, it might appear that what was provided for in the Magistrates' Courts Act had to do merely with mode of trial and was not in any way intended to reclassify simple criminal damage under subsection (1) of section 1 of the Criminal Damage Act as a summary offence as opposed to its previous status as an offence triable either way, that is to say summarily or on indictment.

However, such a view is contradicted by section 40 of the Criminal Justice Act 1988. That section deals with the situation where the person has been charged in an indictment with an indictable offence and it is proposed to include in the indictment a summary offence founded on the same facts or evidence as the indictable offence or, where the summary offence forms part of a series of offences of the same or similar character, as an indictable offence which is already charged on the indictment.

In such circumstances subsection (2) provides that, in the event of conviction on the summary offence, the Crown Court is empowered only to deal with the offender in the same manner as a magistrates' court could have dealt with him. Then by subsection (3), the offences to which the section applies are listed, and at

(d) is included any offence mentioned in the first column of Schedule 2 to the Magistrates' Court Act 1980, inter alia the offence of criminal damage simpliciter which the section further describes as an offence which "would otherwise be triable only summarily by virtue of section 22(2) of that Act".

29. In our view the result is that in those cases where a Magistrates' Court would be bound to treat an offence of criminal damage as a summary offence the offence is to be regarded as triable summarily only."
30. The Court went on to refer to R v Mearns 91 Cr App R(S) 312, and to hold, correctly as it seems to us if criminal damage was only a summary offence, that it would be necessary specifically to add an alternative count of criminal damage to the indictment, before a defendant could be dealt with. Otherwise that offence was not within the jurisdiction of the Crown Court within the terms of section 6(3) of the Criminal Law Act 1967.
31. The question which arises on this appeal, on this aspect of the matter, is whether "the result" to which the concluding sentence of the passage cited from the Court's judgment in Burt refers, was the correct result and one binding on this Court?
32. Miss Griffin, on behalf of the Crown, now as in the court below, points out that the unambiguous provisions of section 17 and schedule 1 paragraph 29 of the Magistrates' Courts Act 1980 state that simple criminal damage is triable either way. Section 40 of the Criminal Justice Act 1988 does not, she submits, seek to change the character of either way offences. It provides a procedural mechanism which enables summary offences to be added to an indictment by way of alternative in an appropriate case.
33. She relies on the provisions of the Schedule to the Interpretation Act 1978 in two respects. First, the definition of an offence triable either way refers to an offence other than an offence triable on indictment only by virtue of Part V of the Criminal Justice Act 1988. She submits that criminal damage is not triable on indictment solely by virtue of Part V of the 1988 Act.
34. Furthermore, she points out the express prohibition in the Interpretation Act on recourse to the mode of trial provisions of section 22 of the Magistrates' Court Act 1980 when considering the definition of the three different types of offences contained in the Interpretation Act.
35. Finally, she adopted, with enthusiasm, a suggestion made in the course of argument by Hallett J, that certain provisions of the Crime and Disorder Act 1998, in particular, paragraph 14 of Schedule 3 and section 52(4) are quite incompatible with Parliament having, at the time of enacting that Act, thought that criminal damage had ceased to be an either-way offence. Miss Griffin submits that Burt was wrongly decided and was a decision reached per incuriam because the Court was not referred either to the provisions of the Interpretation Act or to the provisions of section 17 and Schedule 1 of the Magistrates' Courts Act.
36. All decisions of this Court enjoy respect. The decision of a constitution of such great experience in the criminal law as Kennedy LJ, Mantell J, as he then was and Judge Grigson, as he then was (that being the constitution in Burt), commands particular respect. But, with the greatest of respect, the result identified by the judgment in Burt does not seem to this Court to be correct, partly, though not entirely, for the reasons given by Professor Sir John Smith QC in his comments upon that case in 1996 Crim LR at pages 661 - 662.
37. In our judgment, section 22 of the Magistrates' Courts Act 1980 clearly does not say that criminal damage is triable only summarily. It would, in a sense, be surprising if it did, because section 17 of that Act specifically says that it is triable either way. Section 22 directs magistrates to proceed on a basis which assumes that criminal damage can be tried on indictment: for, when considering the appropriate mode of trial, if the damage is less than £5,000, they are to proceed "as if" the offence was triable only summarily.
38. The provisions of section 40(3)(d) of the Criminal Justice Act 1988 do not, as it seems to us, compel the conclusion reached by the court in Burt that simple criminal damage is only triable summarily. If this were so, Parliament would, in 1988, have been reclassifying criminal damage so as to deny the possibility of jury trial by an indirect side wind, when, in 1980, it had, on the face of section 17, and on the face of section 22, as the Court recognised in Burt, contemplated its continuance as an either way offence. In our judgment, so fundamental a change is not properly to be achieved by Parliament without clear express words. It is also worth commenting, as has already been pointed out, that schedule 2 is headed "Offences for which the value involved is relevant to the mode of trial."
39. In any event, the matter would seem to be put beyond doubt by the provisions of the Interpretation Act, on which Miss Griffin relies and to which the Court was not referred in Burt. Those provisions, which we have earlier rehearsed, are the consequence of amendment of the original Act, by Schedule 7 of the Magistrates' Courts Act 1980 and Schedule 15, paragraph 59 of the Criminal Justice Act 1988. The definitions of indictable, summary and triable either way offences are, as we have indicated in the passage from the Interpretation Act which we earlier set out, to be construed without regard to the effect, if any, of section 22 of the Magistrates' Courts Act 1980, on the mode of trial in a particular case.
40. We are unable to accept Mr Digby's submission that that provision is limited to section 22(3) of the Magistrates' Courts Act: it applies to the whole of section 22. In our judgment, this provision of the Interpretation Act can only mean that section 22 relates, as on its face it does, to decisions as to mode of trial. It does not affect the classification of offences in to indictable, summary or triable either way.
41. Further, and finally, the point made in the course of argument by Hallett J, to which we have earlier referred, seems to us to be fatal to the appellant's submissions in this case. As it seems to us, it is inconceivable that Parliament would have set up the procedures contained in paragraph 14 of Schedule 3 in the Crime and Disorder Act 1998 for determining whether an offence, listed in the first column of Schedule 2 to the 1980 Act was a summary offence, if Parliament had already enacted, by virtue of section 40 of the 1988 Act, that it was and could only be a summary offence. The same observation applies to the provisions, for example, of section 52(4), which refer to offences triable either way, by reference to section 22 of the 1980 Act.
42. Accordingly, it seems to us that we are entitled to conclude that the decision of the Court in Burt was reached per incuriam. Neither the Interpretation Act nor section 17 of the Magistrates' Courts Act appear to have been cited to the Court. We are not deflected from that conclusion by the obiter comments made in the Divisional Court in R v Bristol Magistrates' Court ex parte E. On the contrary, the actual decision in ex parte E (that the words "as if" triable only summarily do not mean an offence is a summary offence and that criminal damage is triable either way and indictable) is entirely consistent with the conclusions which we have expressed.
43. It follows that, in our judgment, it was open in law to the learned judge to leave, for the jury's consideration, the simple offence of criminal damage, without adding an additional count to the indictment.
44. So far as Mr Digby's second submission is concerned, we find it impossible to accept that the defence were prejudiced by the lateness of the specific decision to leave an alternative count to the jury. As Mustill LJ said in R v Fairbanks 83 Cr App R 251 at page 255:

"...the interests of justice will sometimes demand that the lesser alternatives are left to the jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater."

45. It seems to us that, in the light of those observations, it was permissible for the judge to leave the alternative to the jury, and he did not, by so doing, cause any unfair prejudice to the defence. It is to be noted that, as we said at an earlier stage, the issues canvassed before the jury, by way of cross-examination of prosecution witnesses and by the evidence adduced from the appellant himself, included not merely the question of racial aggravation of the conduct complained of but also whether or not the appellant had acted in self-defence.
46. In our judgment, it is impossible to say that the verdicts of the jury should be regarded as unsafe because of the stage at which the judge indicated and that he would leave the alternatives to the jury. Accordingly the appeal against conviction is dismissed.
47. As to sentence, Mr Digby makes a number of submissions on behalf of the appellant, who has already been released under the tagging provisions. He has no previous conviction for violence. He was out of trouble, notwithstanding that he had a number of previous convictions for offences of dishonesty, for a period of some 10 years. There are references before the Court which speak well of the appellant. The pre-sentence report suggested that a non-custodial sentence was appropriate and there was in the mind of the appellant at the time when he visited these premises, an element of provocation by reason of what had occurred, as he believed, earlier in the day. All those matters we take into account.
48. In our judgment, the total sentence of 8 months passed by the learned judge is not susceptible to arguable attack. It was appropriate, following a trial for offences of this kind, committed against a shopkeeper, whose premises were substantially disrupted in addition to the infliction of modest injuries upon him. In those circumstances, the application for leave to appeal against sentence is likewise refused.