Practice and Procedure


PUBLISHED October 7, 2003

Where a jury inadvertently returned verdicts on two counts arising in the alternative, it was proper for the conviction for the lesser offence to be quashed. On the facts of the case, police had not acted in bad faith when interviewing witnesses for the defence on suspicion of conspiracy with the defendant to pervert the course of justice.Application for leave to appeal conviction referred to the full court by the Registrar. On 2 October 2002 at Newport Crown Court, before HH Judge Farmer QC, the applicant ('H') was convicted of causing grievous bodily harm with intent, count one, and inflicting grievous bodily harm in respect of the same assault, count two. H was sentenced to a total of three years' imprisonment. On 12 April 2002 H's son was fighting in an amateur boxing match. The victim ('V') was a spectator who made a derogatory comment which was overheard by H. It was the prosecution's case that H took offence to the remark and in the dressing room deliberately head butted V in the mouth. In interview and at trial H said it was an accident. V had struck out at him with a glass of beer and he had raised his hands in self-defence. H gave the police the names of four potential witnesses. At the time, H was subject to police investigation in relation to three earlier prosecutions where it was suspected he had dishonestly procured acquittals by putting forward witnesses to lie for him. The police interviewed the four witnesses put forward by H in relation to the investigation with the view to preventing any dishonesty. Witness statements were taken from three witnesses under s.9 Criminal Justice Act 1967 broadly supporting H's version of events. In early July all four witnesses were arrested on suspicion of conspiracy with H to pervert the course of justice. They were interviewed in accordance with The Police and Criminal Evidence Act 1984. Police had obtained witness statements from those on whom the prosecution wished to rely and decided the four witnesses had already lied to them and were likely to lie on oath. At trial an application was made for a stay for abuse of process as the manner and conduct of the police interviews prejudiced H's case and breached Art.6(3)(b)(2) of the European Convention on Human Rights. The application was refused and at trial only two of the four witnesses gave evidence supporting H, one refused to give evidence and one was not called as he had changed his statement saying he had not seen the whole incident. When summing up the judge gave full directions on the alternate offences. When the jury returned they indicated they had reached a verdict of guilty on count two. The judge ordered them to deliberate on count one and then gave a majority direction. The jury gave no indication that they had reached a verdict on count one at that point. The jury returned 30 minutes later and indicated a guilty verdict on count one. H applied to appeal conviction on the grounds that: (i) as the two counts were in the alternative and the jury had already convicted on count two the subsequent conviction on count one was unlawful. There was an unambiguous verdict on count two and that was the end of it the subsequent verdict on count one must in the circumstances be unsafe; and (ii) the judge should have stayed the proceedings for abuse of process as there was bad faith on the part of the police in interviewing the four witnesses and that was unfairly prejudicial to H, violating his right to a fair trial. The prosecution contended that both counts could not stand but that count two should be quashed not count one. Further the police could not be criticised as they were entitled to vigorously investigate whether the witnesses were fabricating the account to support H.HELD: (1) Where a jury inadvertently returned verdicts on two counts arising out of the same conviction, one of which was a lesser offence but with one or more of the same ingredients of the more serious offence, the proper course would be to quash the lesser sentence (see R v Harris (1969) 53 Cr App R 376). The more important question was whether in the circumstances described the verdict on count one was safe. (2) It was unfortunate that the judge allowed the verdict to be returned on count two before indicating the verdict on count one. However, the verdict on count one was not unsafe for three reasons: (a) the essential issue for the jury was whether the head butt was deliberate, it was a short step to the conclusion that it was done with intent; (b) the judge could not have made it plainer that the two offences were alternatives; and (c) there was no indication the jury had reached a verdict on intent the first time they returned. They informed the clerk that they had agreed the head butt was deliberate and if they had reached a verdict on intent they would have indicated that as well. It was therefore appropriate to quash count two and not count one. (3) The judge considered the evidence from the transcripts of the police interviews over three days. He was somewhat uneasy about parts of the interviews but was not persuaded they were oppressive, unfair or done in bad faith. Only one of the witnesses changed what he had originally said, the other three maintained their original account. (4) The judge was right on the material before him to hold that the police had not acted in bad faith. The starting point was that the police had a duty to investigate conduct that could pervert the course of justice and the police had a proper interest in preventing it as well as bringing the culprits to book. Equally the police were entitled, if they thought there was a conspiracy to lie to the court, to investigate, there was no property in a witness. However, a witness should not be "brow-beaten" or intimidated and investigations before a trial required sensitivity and scrupulous detail to fairness. (5) There were shortcomings in the investigations but the police were not acting in bad faith and viewed on the whole their behaviour was not oppressive and unfair.Application allowed, judgment accordingly.