AG -v- De la Haye [2010] JRC 005 (12 January 2010)

JUDGMENT THE commissioner: 1. I am invited by the Defence to rule that certain of the counts on the indictment that this defendant faces cannot be supported by the Prosecution evidence and should be quashed. If that argument fails, I am further invited to rule that to proceed against the defendant on those counts would be an abuse of process and should not be permitted. Yesterday I announced my decision namely that both of the Defence arguments failed; I now give my reasons for that decision. The Facts 2. On 24 th April, 2009, in St Helier, the 23 year old accused drove while she was not merely over the limit but falling over drunk. She can be seen on CCTV shortly before she drove falling over in the street through drink and staggering down the road. In that condition she drove into a wall; she drove away from the scene and moments later drove into a group of three women pedestrians standing on the pavement, injuring each of them badly. She drove away from that scene and, crossing a junction into a main road without stopping, crashed into a wall directly opposite the junction. From that point she drove into another wall on the other side of the road and, leaving that scene, she drove erratically along the main road, often on the wrong side of the road, until crashing into a kerb. As a result of that final impact, the car became incapable of being driven further. The accused was

arrested at the scene of the final impact. The Indictment 3. There are two groups of counts in the Indictment:- (i) Dangerous driving and associated road traffic offences. To these counts, the defendant has already pleaded guilty; (ii) Three counts of grave and criminal assault. These have been charged on the basis that it is sufficient for these charges that the defendant was reckless as to the causing of injury rather than intentional in her actions. The Defence argue that you cannot have reckless grave and criminal assault in Jersey Law. There must, they contend, be a hostile act directed towards the victim.

4. The outcome of the case depends on my ruling because each side has made sensible concessions. The Crown do not argue that they can prove a deliberate assault or hostility by the defendant to those whom she injured. If their argument fails, they cannot proceed on these counts. The Defence concede that recklessness is proved if that can properly be a basis for this charge. Accordingly, if their argument fails, the defendant will enter pleas of guilty to those three counts.

5. The Defence argue that if they fail in their primary submission, I should rule that it is an abuse of process to charge these offences in a road traffic context. The Argument 6. Three preliminary points:- (i) there can be no question but that when a motor vehicle is deliberately driven at a person that is an assault; the vehicle is then being used as a weapon; (ii) the normal course is to charge reckless driving of a motor vehicle as dangerous driving under the Road Traffic Acts, whether or not personal injury is caused; (iii) this case is not concerned with the distinction between assault and grave and criminal assault nor with the differences between the ways that Jersey and England and Wales classify offences of serious violence. It is concerned with the definition of an assault and as part of that argument, whether that term has a different meaning in the two jurisdictions.

7. Advocate Hopwood takes as his starting point what has been described as the classic exposition of law in this area. It is contained in a direction to a jury by Ereaut, Deputy Bailiff in the case of AG-v-Vaughan [1974] unreported. "I am going to begin by telling you the meaning of a grave and criminal assault. Now in Jersey law an assault is a touching or laying hold by one person of another in an angry, revengeful, rude, insolent or hostile manner and it includes an attempt to do so, providing that the person who is threatened is led to anticipate an attack. In the United Kingdom an attempt to do those things is called an assault and the actual doing of those things is called a battery but here we make no such distinction, we use the same name both for an attempt and for the actual doing of the thing, they are both equally called assaults. In Jersey law assaults can be of two kinds, they can either be a common assault which is the less serious of the two kinds of assault or they can be a grave and criminal assault, which as its name implies is the more serious type of assault and the only difference between them is one of the degree; for example to slap a man in the face perhaps even to punch him in the nose and to do no more than that would be a common assault but to kick a man repeatedly about the face or body with a booted foot or to use a weapon of any kind could be

undoubtedly a grave and criminal assault. Therefore because a knife is a weapon which is capable of inflicting serious injury, an attack with a knife on a man with the intention of inflicting injury on that man can be a grave and criminal assault and it is immaterial that no injury in fact results, perhaps because the victim has managed to avoid being struck either partly or completely." 8. Some comments about that direction:- (i) This is primarily a description of the differences between Jersey and English law both in relation to assault and grave and criminal assault and also the absence in Jersey law of a distinction between assault and battery. (ii) The learned Deputy Bailiff clearly then thought that, subject to that last point, assault meant the same in each jurisdiction because he gives as a definition words which were then applicable to English law. (iii) The way in which the law is expressed there is by reference to adjectives first used in this context in 1824. Without in any way suggesting that the statement of law in that direction is wrong, I would express the view that any definition of assault and any direction to a Jury would be better without the use of those ancient adjectives. In particular it is hard to see how an otherwise lawful touching would be rendered unlawful and an assault because of what we, in 2010, would regard as rudeness or insolence. (iv) What

makes the touching or the application of force by one person to another an assault is that it is unlawful and, in my judgment, it is better expressed in that way. Consideration of whether a touching or application of force is unlawful may in any particular case involve consideration of a number of different issues, such as whether the Prosecution have proved that the touching was deliberate and not accidental, or whether they have proved that the force used was not in self defence but the fundamental question is whether the application of force was unlawful. That indeed is the issue here.

9. As I have said, we can start from the point that in 1974 the definition of assault was the same in Jersey law and in English law. There is no doubt the present definition of assault in English law can include a reckless application of force. What is the position here?

10. It is convenient to start with an examination of English law. The case which made it clear that a reckless application of force could be an assault was Venna (1975) 61 Cr App R 310. Lord Justice James giving the judgment of the Court said this:- "[Counsel for the Appellant] argued that the direction is wrong in law because it states that the mental element of recklessness is enough when coupled with the actus reus of physical contact, to constitute the battery involved in assault occasioning actual bodily harm. Recklessness, it is argued, is not enough, there must be an intention to do the physical act, the subject matter of the charge. Counsel relied on the case of Lamb (1967) 51 Cr App R 417 and argued that an assault is not established by proof of a deliberate act which gives rise to consequences which are not intended. In Fagan-v-Commissioner of Metropolitan Police (1968) 52 Cr App R 700 is was said:- "...an assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence". In Fagan it was not necessary to decide the question whether proof of recklessness is sufficient to establish the mens rea ingredient of assault. That question falls for decision in the present case. . "...in our view the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or

recklessly applied force to the person of another. If it were otherwise the strange consequence would be that an offence of unlawful wounding contrary to section 20 of the Offences Against the Person Act , 1861, could be established by proof that the defendant wounded the victim either intentionally or recklessly but, if the victim's skin was not broken and the offence was therefore laid as an assault occasioning actual bodily harm contrary to section 47 of the Act, it would be necessary to prove that the physical force was intentionally applied. We see no reason in logic or in law why a person who recklessly applies force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable. This is such a case. In our judgment the direction was right in law and this ground of appeal fails" 11. It is clear from the judgment that the Court was not seeking to change the law but to express the existing position.

12. Has the law of Jersey taken a different course? There is no clear authority dealing with this point. By clear authority, I mean either a decision of the Jersey Court of Appeal or a First Instance decision where the point was argued. I would respectfully suggest that care needs to be taken when citing words from an extempore First Instance decision where it was not relevant to argue a particular point and to seek to suggest that the Court intended to express an opinion on a point that was not in issue.

13. Advocate Hopwood argues that there are several cases from which it may be inferred that recklessness is insufficient in Jersey and that what is required is a hostile intent by the defendant towards the victim. I will deal with each of those cases:- (i) First, the AG-v-Annison [1987] JLR N 9; this was a decision of the Deputy Bailiff on appeal from a Magistrate. At first sight it appears to deal with the point. However this is an extremely unsatisfactory case as an authority, not because of the decision itself but because of the way that it is reported. The Note in the Jersey Law Report reads as follows:- "In Jersey there is no distinction between "assault" and "battery" but only between "assaut" and "assaut grave et criminel", the difference between which is one of fact and degree. An assaut is the striking of another or at another, including an attempt to do so, with hostility towards someone, i.e. in an angry, revengeful, rude, insolent or hostile manner, but not necessarily towards the person who is struck. Gross negligence or recklessness which does not amount to hostility is therefore irrelevant." In the transcript of the judgment the Deputy Bailiff says:- "There is no doubt that what the appellant did here was a grossly negligent act, but it did not contain a hostile act, it was not aimed at any person, and therefore what she did was a civil tort. In Jersey there is

no distinction between assault and battery. What we have is an "assaut" and an "assaut grave et criminal". The distinction between them is one of fact and degree. An "assaut" (assault) is the striking of another or at another, including an attempt to do so, whether or not the party striking misses his aim, in an angry, revengeful, rude, insolent or hostile manner. In other words there must be hostility towards someone, but not necessarily the person who is struck." The Deputy Bailiff then goes on to say:- "In the instant case there was gross negligence but no hostility and therefore it could not an assault. To seek to incorporate recklessness as an element of assault in this case is inappropriate. Recklessness is relevant only where the act done - intentionally or recklessly - causes another to apprehend immediate or unlawful violence. A person who recklessly applies physical force to the person of another commits an assault. But here there was no reckless application of physical force to the child." It can be seen that whereas the Note in the JLR may be said to be a summary of the first part of the judgment, it is inconsistent with the second part which appears to support the Crown argument in this case. The transcript contains no summary of the facts. Although Crown Advocate Baker has been able to speak to the Crown Advocate in the case, who remembers it and is able to give a

description of the facts which shows them to have been unusual in the extreme, such a method of expanding the reporting of a case is not satisfactory. In my judgment, this is not a case that can safely be relied on as an authority. (ii) Harrison-v-AG [2003] JLR 480 , this is a Court of Appeal decision and hence would be binding on me. However, this is a decision on some important principles of sentencing not dealing with the definition of assault. To the extent that the Court does speak of the definition of offences in paragraph 154 et seq , it is clear that it is in the context of the difference between Jersey offences of violence and the English offences of violence. The Court does not deal either directly or indirectly with the issue which I have to consider. (iii) Burnett-v-AG 2000/204, unreported. This was a decision of Birt, Deputy Bailiff (as he then was) on appeal from a conviction by the Magistrate. In giving judgment he used the following words:- "Having regard to the evidence in its totality, we have come to the conclusion that it was unreasonable to convict the appellant on this evidence. There was insufficient evidence that we were here concerned with an assault with the necessary hostile intention. We are left in real doubt as to whether the appellant assaulted Mrs Burnett and we therefore must allow the appeal." It is clear that the issue in the case was whether the appellant had acted in self defence or defence of another. The appeal was allowed because the evidence of the complainant was quite inconsistent with the evidence of independent witnesses. The use of the words "hostile intent" was convenient shorthand for the factual issues in that case.

14. Advocate Hopwood also seeks to pray in aid the absence of any reference to reckless assaults in Jersey cases. The Crown might equally point to the absence of any reference to Jersey law having diverged from English law in this area. In truth, in a small jurisdiction, it should not be wondered at that a particular situation has not come before the Courts in a way which would produce authority.

15. The issue has been discussed from an academic point of view by Advocate Whelan in an article in the Jersey Law Review of October 2006 where he does deal directly with this issue and expresses his opinion. The article is entitled Grave and Criminal Assault - The Landscape Past and Present and, after reviewing the English law and the Jersey law, the way the two differ, and referring to the direction to the jury in Vaughan , his views support the Crown's argument in this case. Advocate Whelan says this at paragraph 11:- "It is to be recalled that this [the Vaughan direction] was a summing up to a jury so that the task was to condense principle into its most accessible form for use on a particular set of facts. Strictly speaking, in English law assault and battery are indeed separate summary offences. An assault is committed when the accused intentionally or recklessly causes another to apprehend immediate and unlawful violence. A battery is committed when the accused intentionally or recklessly [emphasis added] inflicts unlawful violence. A battery may, but does not inevitably, follow an assault. As the text books point out, despite this technical difference the term "assault" or "common assault" has been generally used both in cases and in the statutes to cover either an assault or a battery in England. This leads to the conclusion that there is no ultimate difference on the

point between the Jersey and English jurisdictions, and that the summing-up to the jury in Vaughan succinctly expresses the correct position." Then at paragraph 23:- "One would venture to summarise thus: a grave and criminal assault is an unlawful application of force (or conduct which causes the victim to apprehend its imminent application on him) or the violation of the body of another in either case causing or risking substantial injury to the victim. It is submitted that a person who intentionally or recklessly infects a sexual partner with HIV or some other grievous affliction would commit a grave and criminal assault. Consent to the act of sexual intercourse would not amount to consent to the risk of HIV unless the consent was informed by knowledge of the infection and the partner willingly submitted to it. In Jersey, as in England, a person's body is inviolate" 16. In my judgment Jersey law remains the same as English law. To echo Lord Justice James in Venna , I can see no reason in logic or law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. It is not a question of aligning the law in the two jurisdictions. In my judgment, this has always been the law here. This is simply the first time that it has been necessary to articulate it expressly. There is therefore no need for me to resort to the

principles enunciated in the well-known cases of Foster and Renouf . Had it been necessary to do so I would have reached the same conclusion by a different route. Abuse of Process 17. There is no doubt that the practice of charging bad and dangerous driving as a violent offence has been adopted, and has not been disapproved, by the courts in England. Advocate Hopwood has drawn my attention to a note by Dr David Thomas, QC, which is very critical of this practice. I have some sympathy with that criticism, since to charge an offence of violence in order to seek a higher penalty for the defendant in circumstances where the legislature has expressly enacted a road traffic offence to cover such offending is not, at first sight, attractive.

18. However I find it hard to see how to charge an offence where the facts make out that offence can be abusive in itself. Further, if the motoring offence has as its maximum penalty a sentence which does not adequately reflect the criminality involved, then it does not justly meet the facts of the case. There is also an important safeguard against injustice. The mere fact that a defendant has been convicted of or has pleaded guilty to grave and criminal assault does not mean the sentence must be longer than that available for dangerous driving; the sentencing Court will pass whatever sentence the facts of the particular case merit.

19. Having said that it is not an abuse of process to charge these offences, I should make clear my strong view that it would only be in exceptional cases where this course will be the right one. Normally, even where dangerous driving has led to serious injury, the proper charge will be under the Road Traffic legislation. It should also be borne in mind that, although the consequences of the driving are of course relevant, it is the seriousness of the dangerous driving that primarily governs the gravity of this offence. However the present case and its facts are such an exceptional case and I do not criticise the Prosecution for charging it as they have. Conclusion 20. For the above reasons:- (i) Recklessness is sufficient mens rea where the charge is grave and criminal assault both generally and where the allegation relates to the driving of a motor vehicle; (ii) It is not an abuse of process for the Crown to proceed on such charges in this case. Sentencing 21. The sort of driving in this case as outlined above, with the consequences for the three women involved can only be met with a significant custodial sentence. The Court has listened to and read the mitigation placed before it by Advocate Hopwood; it is considerable and important. The defendant is a young woman of good character and is entitled to the full 1/3 reduction for her guilty pleas.

22. There is one matter that we must address. It was conveyed to the victims that the defendant had shown no remorse. We do not know how the victims came to that conclusion but it is the Court's opinion and belief that the defendant is genuinely remorseful.

23. We do broadly, but not entirely agree with the conclusions of the Crown. The conclusions for the grave and criminal assault are too long, whilst those for the dangerous driving not long enough, that offence being at the top end of the scale. This was not a momentary lapse by the defendant; she deliberately drove when she did not have to and there is no alternative other than to send her to prison.

24. The sentence of the Court is as follows; Count 1, not pursued; Count 2, 5 months imprisonment and 12 months disqualification; Count 3, 21 months imprisonment and 5 years disqualification; Count 4, 4 months imprisonment and 12 months disqualification; Count 5, 5 months imprisonment and 12 months disqualification; Count 6, 2 years and 9 months imprisonment and 5 years disqualification; Count 7, 2 years and 9 months imprisonment and 5 years disqualification; Count 8, 2 years and 9 months imprisonment and 5 years disqualification; Count 9, 2 months imprisonment and 12 months disqualification. All counts are concurrent. There is a mandatory order that, upon the expiry of the disqualification period, Miss De La Haye must sit a driving test. Authorities Archbold Criminal Pleading, Evidence and Practice. Jersey Law Review of October 2006. AG-v-Vaughan [1974] unreported. Venna (1975) 61 Cr App R 310. Lamb (1967) 51 Cr App R 417. Fagan-v-Commissioner of Metropolitan Police (1968) 52 Cr App R 700 . AG-v- Annison [1987] JLR N 9. AG-v-Annison 88/259. Harrison-v-AG [2003] JLR 480 . Burnett-v-AG 2000/204. R-v-Stranney [2007] EWCA Crim 2847 . R-v-Baiin [2005] EWCA Crim 07. R-v-Bridle [2002] EWCA Crim 908. Page Last Updated: 02 Aug 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII