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Editorial Miscellany

Grave And Criminal Assault

On July 14th, 2000 the Court of Appeal delivered judgement in the appeal against sentence of Jason Mallet.  Mallet had been sentenced by the Superior Number to four years’ imprisonment on a count of grave and criminal assault and to other penalties in relation to other offences which are not material to this note.

The appellant had attacked a stranger who was sleeping that night in the flat which the appellant shared with others.  He punched his victim repeatedly, hit him with a hair dryer, and threw him naked into the street.  After a brief delay the appellant followed the victim outside and stabbed him repeatedly with a kitchen knife causing ten puncture wounds.  None of these required stitching and the victim was discharged from hospital after two days.  The appellant’s explanation was that he reacted in uncontrolled rage to a homosexual advance allegedly made to him.  The Royal Court, in passing sentence, reviewed all the recent authorities and reached the conclusion that the case of Att.Gen. v Norris[1], long regarded as the leading guideline case on sentencing for grave and criminal assault, had been misinterpreted over the years, even by the Court of Appeal in Evans & Phillips v Att.Gen.[2]

The Court of Appeal did not appear to dissent from the Royal Court’s analysis of the sequels to Att.Gen. v Norris, although on the facts it attributed greater weight to some of the mitigating factors and substituted a sentence of three and a half years’ imprisonment.  It suggested that the dictum in Evans & Phillips approving Norris should be treated as obiter.

The Court of Appeal continued however by looking at the sentencing issues raised on the appeal “from a different angle”.  It noted that non-fatal offences against the person in Jersey are divided into two categories, namely assault and grave and criminal assault.  It cited the definition of the distinction between these two offences given by Ereaut, Bailiff, in his directions to the jury in Att.Gen v Vaughan in November, 1994, and stated, correctly, that the offence of grave and criminal assault embraced a number of offences which were categorised in England as woundings, causing or inflicting grievous bodily harm, aggravated assault both with and without intent, etc.  The Court thought it would he “helpful” to examine these more closely and described the hierarchy of offences under English Law ranging from assault occasioning actual bodily harm at the bottom, through wounding or causing grievous bodily harm without intent, to wounding or causing grievous bodily harm with intent to do so.  The Court acknowledged that the ingredients of grave and criminal assault did not include any particular “intent”.  Nonetheless the Court stated that –

“whilst it is not appropriate to advocate formally a layered tariff with the offence of grave and criminal assault it is quite clear from the English authorities that sentences for offences against a person are graded according to the particular offence in respect of which the sentence is being imposed.  We consider it will be of assistance to Jersey courts if in assessing the seriousness of the offence they follow in general terms the English frame work”.

This is, with great respect to the Court of Appeal, a surprising proposition.  When sentencing an offender for a grave and criminal assault the Royal Court is now, it appears, required to consider hypothetically what offence would have been committed had the offender committed his crime in England.  Having established what kind of an offence it would have been in England, the Royal Court must then determine in which sentencing band the offence would fall in England before notionally re-patriating the sentencing process to Jersey and assessing the seriousness of the offence in a local context.  This convoluted process advocated by the Court of Appeal seems open to a number of objections.

(1)    Neither counsel nor the judges in Jersey are practitioners of English Criminal Law.  Will it be necessary in the future to adduce expert evidence  before sentencing for grave and criminal assault, or should the Courts merely make an educated guess as to the offence which would have been committed in England?

(2)    Suppose the Crown and defence counsel disagree as to whether particular conduct would have been an assault causing grievous bodily harm or wounding with intent.  Should the Royal Court conduct a quasi-Newton hearing in order to establish what offence would have been committed in England, even though in Jersey there is no doubt that the defendant has committed a grave and criminal assault?

(3)    The law of England relating to offences against the person is hardly a model of clarity.  The distinctions between different offences under the Offences against the Person Act 1861 have often given rise to considerable difficulty.

Perhaps all the Court of Appeal meant to say was that, in sentencing for grave and criminal assault, the presence or absence of an intent to cause the injuries suffered by the victim is a significant factor.  No-one could quarrel with that.  But to import the complexities of a Victorian statute from another jurisdiction seems a bridge too far.  Sentencing for grave and criminal assault had indeed, as hinted by the Court of Appeal, been driven into something of a judicial cul-de-sac.  The Court’s advocacy of the English framework was no doubt made with the best intentions.  It seems a shame however that an opportunity to lay down more practical guidance, (for example by creating categories relating to the most common aggravating features), for sentencing in future cases has been missed.  There seems little doubt that the Court of Appeal will have to re-consider the matter before too long.

More On The It Front

On April 18th, 2000 a single judge of the Court of Appeal heard and determined an application for an extension of time in an administrative appeal.[3]  The decision was remarkable only by reason of the fact that counsel made their submissions in Jersey while the judge was sitting in London.  It was the first occasion on which a video conferencing link had been used to enable a judicial decision to be made and, from the brief remarks of Southwell JA, it seems to have been a success.  The advantages of this employment of video – conferencing links are obvious.  There is a saving in travel and accommodation expenses and, more importantly, a considerable saving of judicial time.  Assuming the availability of a judge of the Court of Appeal, it will also enable applications for leave to appeal or for a stay to be made more speedily than might otherwise be the case.  It remains to be seen whether, or perhaps how quickly, the use of video conferencing will spread to other areas of decision – making at lower judicial levels.