Practice and Procedure

R v N (2003)

PUBLISHED November 6, 2003

Convictions for attempted murder and burglary with intent to inflict GBH were safe as, in the circumstances, the judge had been right to allow the indictment to be amended and to refuse a stay for abuse of process where the defendant had pleaded guilty to lesser offences of wounding with intent. The judge had correctly directed the jury on expert opinion and the summing up overall was fair and balanced.Appeal with leave of the single judge, against convictions for attempted murder and burglary with intent to inflict GBH imposed at St Albans Crown Court before HH Judge Findlay Baker QC. The defendant ('D') had pleaded guilty to two counts of wounding with intent and assault occasioning actual bodily harm. D was sentenced to an extended sentence of nine years under s.85 Powers of Criminal Courts (Sentencing) Act 2000 consisting of six years in a Young Offender's Institution and an extended period of three years. D, who was 14 years old at the time of the offence, had been friends with the victim ('V') since starting school. However, the friendship deteriorated culminating in D attempting suicide. D received psychiatric help and counselling and described her behaviour as "flipping". She described seeing a white light and she would then change from good to bad. D subsequently returned to school but was subject to bullying. Her relationship with V deteriorated further when she wrote an article about her suicide attempt and the bullying. D took V's house keys from her bag and in the early hours, dressed in dark clothing, took a knife and gained entry to V's home. She went to V's bedroom and stabbed her in the head. V's mother, who tried to intervene, was also stabbed and V's sister was assaulted. In interview D admitted the attacks but claimed she had flipped. Shortly before trial the prosecution made an opposed application to amend the indictment to include a charge of burglary with intent to inflict GBH and an unopposed application to add two counts of wounding with intent. The judge granted the application. Following D's plea of guilty to the lesser counts of wounding with intent an application was made to stay the attempted murder and burglary counts for abuse of process. That application was refused. At trial evidence was given, by a social worker in charge of D whilst she was detained on remand, that D had confessed that she was happier when she had tried to murder V. Evidence was given by an expert in mental illness that in his opinion D's hallucinations and amnesia were genuine. When summing up the judge directed the jury to ignore the opinion of the expert as it was for them to decide if her account was genuine. D appealed the convictions for attempted murder and burglary on the grounds that: (i) the judge was wrong to have allowed the indictment to be amended at such a late stage; (ii) following D's pleas of guilty the remaining counts should have been stayed for abuse of process; (iii) the evidence of the social worker should have been excluded under s.78 Police and Criminal Evidence Act 1984 as it was contrary to public policy for the confession to be adduced where it was given in a situation where a defendant was encouraged to talk to social workers; (iv) the judge wrongly directed the jury with regard to the expert's evidence; and (v) the summing up was unfair and unbalanced.HELD: (1) The judge was right to have allowed the indictment to be amended to reflect the more serious count of burglary with intent to inflict GBH. Further, the judge had come to a proper and fair decision to refuse the application for abuse of process. The decision was not oppressive or prejudicial and there had never been any indication by the prosecution that it would not proceed on the more serious charges if pleas were given on the lesser charges of wounding with intent. (2) There was no elevated public policy reason that could have lead to the conclusion that evidence from the social worker ought not to have been admitted. Careful consideration should always be given as to whether such evidence ought to be admitted. Any prosecution evidence was prejudicial to a defendant and the issue was whether, having regard to all the circumstances, the admission would have such an adverse effect that the court ought not to admit it. (3) There was a fine dividing line between the admission of evidence of opinion and evidence of a bald expression of view not based on expert opinion. The judge's direction on the expert evidence was well within his competence and he properly directed the jury. (4) Looking at the summing up as a whole it could not be faulted. It was a full, fair and balanced summing up.Appeal dismissed.

[2003] EWCA Crim 3239