Practice and Procedure


PUBLISHED December 11, 2003

The judge's misdirections to the jury rendered the convictions for affray and dangerous driving unsafe. The judge had also failed to take into account the youth of an offender and his good character in sentencing.The appellants ('R', 'M', 'S' and 'J') appealed against convictions and sentences for affray. J was also charged with dangerous driving. The prosecution case was that J had been driving a car with S and R as passengers when missiles were thrown at the car by a group of youths. It was alleged that J had driven at the youths, but his car had struck another car. A large scale disturbance followed, during which police officers were assaulted. M's case had been that he had not incited or used violence. R had not given or called evidence. J said that he had lost control of his car when the missiles were thrown and had not intended assault. R, M and J were convicted of affray on 19 September 2003. J was also convicted of dangerous driving. S pleaded guilty to affray. M was sentenced to 18 months' detention in a young offender institution, R to 15 months' detention, J to a total of 27 months' imprisonment and S to nine months' detention. After passing sentence, the judge was invited to reconsider all the appellants' sentences. He reconsidered only the sentence of M and reduced it to 14 months. The grounds of appeal against conviction related solely to the judge's summing-up. The appeals against sentence related to the judge's refusal to reconsider the sentences of R, J and S.HELD: (1) The judge's summing-up was defective in a number of respects. For example: (i) he had incorrectly directed the jury as to the offence of affray, leaving them without a clear explanation of what the prosecution was required to prove; (ii) he had failed to refer to the statutory definition for the offence of dangerous driving; (iii) his expositions of the law relating to self defence and necessity had lacked clarity; and (iv) he may have left the jury with the impression that they could draw an adverse inference from both R's failure to answer questions when interviewed by police and R's failure to give evidence. Such misdirections rendered all of the convictions unsafe. The three appeals against conviction were allowed. (2) The judge's refusal to reconsider the sentences of R, J and S could have resulted in a justifiable sense of grievance on their part. The judge's sentence for S had failed to reflect his youth and good character at the time of the offence, and failed to take into account that the sentence would be his first custodial sentence. S's appeal was allowed and a sentence of six months' detention in a young offender institution substituted.Appeals allowed.

[2003] EWCA Crim 3554