Law Report: Lords can determine appeal grounds: Regina v Mandair. House of Lords (Lord Mackay of Clashfern, Lord Chancellor, Lord Templeman, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Mustill), 19 May 1994

Where an appeal by a defendant or prosecutor to the House of Lords under the Criminal Appeal Act 1968 cannot be disposed of without resolving a ground of appeal which had not been determined by the Court of Appeal, the House of Lords can either remit the matter to the Court of Appeal or can itself exercise the powers of the Court of Appeal in relation to the undetermined ground. A jury can convict of an offence under section 20 of the Offences Against the Person Act 1861 of inflicting grievous bodily harm as an alternative to a charge under section 18 of causing grievous bodily harm.

The House of Lords (Lord Mustill dissenting) allowed an appeal by the Crown from the Court of Appeal's decision quashing the defendant's conviction, and remitted the case to the Court of Appeal to dispose of the grounds of appeal not dealt with by the Court of Appeal.

The defendant was charged with causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act. The prosecution alleged that he had thrown dilute sulphuric acid at his wife and badly injured her face. The jury returned a verdict of not guilty. When asked about the alternative offence of 'causing grievous bodily harm, contrary to section 20' which the trial judge, applying section 6(3) of the Criminal Law Act 1967, had left open to the jury, it returned a verdict of guilty.

The Court of Appeal allowed the defendant's appeal against conviction on the ground that the offence under section 20 was to 'inflict' grievous bodily harm, not 'cause' it, so he had been convicted of an offence not known to the law. The Court of Appeal did not deal with the grounds that the trial judge did not adequately direct the jury on the intent required by section 20 and that the jury was left in a state of confusion.

Anthony Scrivener QC and John Harvey (CPS) for the Crown; David Lederman QC and David Harounoff (Howard Brown & Co) for the defendant.

LORD MACKAY LC said that 'cause' in section 18 was sufficiently wide to embrace any method by which grievous bodily harm could be inflicted under section 20. It was wide enough to include any action that could amount to inflicting grievous bodily harm under section 20. Therefore an alternative verdict under section 20 was open on the terms of the indictment.

The word 'cause' was wider or at least not narrower than the word 'inflict'. Since causing grievous bodily harm was used to distinguish it from wounding, the verdict meant that the causing of the grievous bodily harm was contrary to section 20 in that it consisted of inflicting grievous bodily harm on another.

It was highly desirable that the precise words of the statute should be used in the jury's verdict, but where the jury had returned a verdict which was capable of having a clear meaning, it was a technicality to decline to give it meaning because the word 'cause' was not used in the section.

The verdict that the defendant caused grievous bodily harm contrary to section 20 satisfied the requirement for a statement of offence in the Indictment Rules 1971. Causing grievous bodily harm could mean either inflicting grievous harm or causing it some other way.

While a simpler and more direct course would have been to add a count to the indictment based on section 20 and the course followed here was not be commended as a wise course for the future, the result was that the jury convicted the defendant of an offence known to law, namely a contravention of section 20.

The Court of Appeal did not deal with the other grounds of appeal, and it would be wasteful to require it in every case to decide all the grounds on the basis that the House of Lords might take a different view from the point taken by the Court of Appeal.

Having considered sections 33 and 35 of the Criminal Appeal Act 1968 under which the appeal was brought, where a decision had to be taken on whether a conviction should stand or be set aside, the appeal to the House of Lords could not be completely disposed of without resolving a question undisposed of by the Court of Appeal, and the statutory provisions enabled the House either to remit the matter to the Court of Appeal or to exercise itself the powers of the Court of Appeal, in relation to the grounds of appeal not disposed of by that court.

In the present case it would be more appropriate to remit the grounds to the Court of Appeal for its decision. It was absolutely necessary, when an appeal under the 1968 Act was being prepared for hearing in the House of Lords, that the statement of facts and issues should state plainly whether any grounds of appeal had been undetermined by the Court of Appeal and the parties should include submissions on those and on how the House should dispose of them.

When the House of Lords had decided that a conviction should be restored it was not open to the Court of Appeal to set aside that order unless the case was remitted to the Court of Appeal by the Home Secretary to consider the appeal afresh.

LORD TEMPLEMAN and LORD GOFF concurred and LORD BROWNE-WILKINSON agreed.

LORD MUSTILL, dissenting, said that 'cause' and 'inflict' did not mean the same. Although in both cases there must be a causal connection between the defendant's act and the injury, in the case of 'cause' the nature of the connection was immaterial but 'inflict' conveyed the idea of a direct and immediate doing of harm. 'Cause' was the wider word, so a verdict of 'causing' could embrace a set of facts which did not amount to 'inflicting'.