R v Mowatt [1967] EWCA Crim 1

R v Mowatt [1967] EWCA Crim 1; [1968] 1 QB 421

Unlawful wounding, foresight of physical harm and directions to the jury on the meaning of “maliciously”.

Facts

In the early hours of 30 September 1966, Sidney Mowatt and another man stopped the complainant in the street. According to the complainant, the other man snatched a £5 note from his pocket and ran away. After an unsuccessful pursuit, the complainant returned, seized Mowatt by the lapels and demanded to know where his companion had gone.

Mowatt admitted hitting the complainant and knocking him down, but relied on self-defence. Two off-duty police officers described further violence: Mowatt sat astride the complainant and punched his face repeatedly, then pulled him up and struck him down again, leaving him virtually unconscious. Mowatt disputed that further assault.

He was tried on counts of robbery with violence and wounding with intent to cause grievous bodily harm under section 18 of the Offences Against the Person Act 1861. The judge directed an acquittal of robbery with violence. The jury instead convicted him of larceny from the person and, on the second count, the lesser offence of unlawful wounding. His challenge to the larceny conviction and sentence was not pursued before the Court of Appeal.

Issue

The trial judge had explained unlawfulness and self-defence but had not separately directed the jury on the meaning of “maliciously”. Did that omission invalidate the unlawful-wounding conviction?

Decision

The Court of Appeal dismissed the appeal. It held that the lesser offence had the same ingredients as unlawful and malicious wounding under section 20. On the issues and evidence in this trial, the judge did not need to give a separate explanation of malice. The court also rejected the complaint that the self-defence directions were inadequate.

Reasoning

Foresight of some physical harm was sufficient

Diplock LJ explained that section 20 required awareness that the defendant’s act might cause some physical harm to another person. It did not require foresight of a wound or injury as serious as the harm actually inflicted. Awareness of the possibility of even minor physical harm was enough.

This distinguished the lesser offence from the section 18 allegation of wounding with intent to cause grievous bodily harm. The latter required the specified intent; the word “maliciously” added nothing to that more demanding requirement in the allegation under consideration.

The directions had to address the real dispute at trial

The court accepted that awareness of possible harm could be a genuine issue requiring explanation, as it had been in R v Cunningham. However, a summing-up should help the jury decide the disputed facts, rather than introduce a theoretical issue unsupported by the evidence.

Here, the judge had told the jury to acquit of wounding if only the first, admitted blow had been struck: on the evidence, that blow could be justified in self-defence. The dispute concerned whether the additional attack described by the officers had occurred and, if it had, whether Mowatt intended grievous bodily harm.

If the jury accepted the officers’ account of repeated, forceful punches, there was no evidential basis for suggesting that Mowatt had not realised some physical harm might result. His case was that the further assault had not happened, rather than that he had carried it out without appreciating that possibility. A separate explanation of “maliciously” was therefore unnecessary on these facts.

Source: Court of Appeal judgment, 20 June 1967.