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The Jersey Law Review – October 2006

GRAVE AND CRIMINAL ASSAULT - THE LANDSCAPE PAST AND PRESENT

Cyril Whelan

1 The law of Jersey has never resorted to a series of graduated factual distinctions to

describe and sanction the individual forms which the offence of assault can take. One

would look in vain for direct correspondence, for example, with ss.18, 20, 21, 29 and 47 of

the Offences against the Person Act, 1861 (“the 1861 Act”) which respectively criminalize

wounding or causing grievous bodily harm with intent, wounding or inflicting grievous

bodily harm, attempting to choke, suffocate or strangle with intent, throwing corrosive fluid

with intent to harm, and assault occasioning actual bodily harm. Equally one would look in

vain for direct correspondence with other offences tailored by English statute to fit the

range of specific circumstances in which offences of causing non-fatal harm to the person

can arise.

2 In Jersey the offence of assault is the product of customary law and only a single

distinction is made. The key extant statement is that which was formulated by Ereaut,

Deputy Bailiff, as he then was, in his summing up to the jury at the Assize trial of Anthony

Vaughan in November, 1974. The transcript was preserved by the present Solicitor

General and runs thus -

“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 is, as its name implies, the more serious type

of assault, and the only difference between them is one of degree. For example,

to slap a man in the face, perhaps even to punch him on the nose, and to do no

more than that, could 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.”

3 Certainly this was descriptive of the charging practice which the most cursory

examination of the Poursuites Criminelles shows to have obtained for more than a

hundred years before Vaughan and which continues today. The first instance of the

charge of assaut” revealed by a brief search comes in 1797.1 The fact that the first

instance of assaut grave et criminel revealed by that same search comes in 18642 means

that it is sufficiently close in time to the enactment of the 1861 Act to give rise to a thought.

It is a thought founded only upon imagination but which might find a more solid base upon

further research. Might the Jersey legislature and the Attorney General of the day have

1 P.G. v McClosky et aus. 1 PC 64 2 P.G. v Chapman 18 PC 525

examined the Act and consciously decided that while some distinction in the gravity of the

offence was warranted in its formal description for charging purposes in Jersey, it was not

necessary to enact a statute creating a multiplicity of offences and sanctions according to

a set of prescribed factual criteria?

4 Whatever the history of the route, the law of assault in Jersey finds itself at the point

described to the jury in Vaughan. It is a respectable place at which to be. Because the

continuum of assault from the most minor to the most grave is contained within the

customary law of Jersey, the sanction in each case is at large. The Court is able to

examine all of the factual circumstances of the individual offence before it and to impose

the penalty to which reason and justice point on those specific facts. How it arrived there

it is difficult if not impossible to surmise. The Royal Commissioners tried to relate the law

in 1847 to the Grand Coutumier but gave up the task as hopeless. They stated –

“It seems to us that Messrs. Pipon & Durell have not, in respect either of the

nature of the offences or the species of punishment, identified the assaults,

spoken of in the Grand Coustumier as crimes with anything known to the

modern law of Jersey.”3

5 A qualitative comparison with the structural approach to the offence in the English

jurisdiction is probably idle. It is simply the case that the approaches differ. Jersey has

relied upon the endemic judge-made law and practice of the centuries both to identify the

offence and to gauge appropriate levels of penalty. English law, on the other hand, has

regulated these things principally by statute, most notably the Victorian statute which

remains in place.

6 In England common assault originated at common law (although it is now an offence

contrary to the Criminal Justice Act 1988 s.39), is generally triable only summarily, and

carries a maximum custodial penalty of six months. There are therefore noticeable

distinctions of approach between the Jersey and English jurisdictions in the case of

comparatively minor assault which both refer to as “common assault”. It is true that the

offence in England now finds an aggravated form when it is racially or religiously

motivated and that this aggravated form carries a maximum custodial term of two years.4

There is no doubt that in Jersey this feature of aggravation would in any event be taken

into account by the sentencers and that it would be so taken without the need for a statute.

There can be no serious doubt that on first principle such notice would properly be taken

as part of a customary law jurisdiction and discretion.5 To speak of the Magistrate’s Court,

it would doubtlessly be right for the Magistrate to commit a case of common assault to the

Royal Court if a circumstance of racial or religious aggravation could properly be seen to

lift the appropriate penalty beyond the reach of the statutory twelve months’ jurisdiction.

3 First report of the Commissioners appointed to inquire into the state of the criminal law in the Channel Islands – Jersey

London, HMSO 1847 page xxii (“The 1847 Commissioners’ Report”) 4 Section 29 of Crime and Disorder Act, 1998 5 See, e.g. Att.Gen. v McGinty [2006] JRC 115 where the Court expressly declined to attribute a particular part of the sentence to

the racist nature of the assault but nevertheless regarded that element as being a relevant aggravating factor.

7 Given the foregoing analysis, there is perhaps the appearance of an anomaly in the

fact that there is an instance in Jersey of a statute which expressly provides that racial or

religious motivation may be taken to aggravate an offence of violence so as to increase

sentence. The reference is to “racially or religiously aggravated murder” at articles 2 and 6

of the Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Jersey)

Law, 2005. The explanation is that when the Jersey legislature adopted, as it had to, the

principle that in murder cases a minimum period had to be determined by the sentencers

in open court and announced on a fully reasoned basis, it was entirely natural and efficient

to proceed by way of statute and to adopt for that purpose the relevant provisions of the

Criminal Justice Act, 2003 mutatis mutandis. There has therefore been an incorporation

into the law of Jersey of some English modalities for a specific purpose. That does not

work to displace the earlier analysis that in the non-fatal offences of violence the

customary law jurisdiction of the Court is sufficiently wide to take account of all of the

circumstances of the offence before it and to impose the sentence which all of those

circumstances call for in reasoned justice.

8 When the offence of assault moves from the lower into the upper reaches, English

law has articulated structured divisions by statute. Jersey law has not done that and

instead, as has been seen, relies upon the single offence of grave and criminal assault,

attended by levels of sentencing developed by the superior courts to meet the

circumstances and seriousness of the individual cases before them.

9 The ascending level of seriousness in England beyond common assault is identified

by the 1861 Act and begins with assault occasioning actual bodily harm (s.47), the

maximum custodial penalty for which is five years on indictment, or six months summarily.

The gist of the offence is an assault or battery which causes any injury calculated to

interfere with the health or comfort of the victim. Although the causing of such injury is an

element beyond the ingredients of common assault or battery, no mens rea in relation to

that element is required. If injury is caused, it need not even be proved that the injury was

foreseeable, because this element of the offence is one of strict liability.

10 The reference to battery in the preceding paragraph prompts the following

observation. The distinctions between assault and battery as between Jersey and England

were put this way in Vaughan -

“Now, in Jersey law, an assault is a touching or laying hold by one person on

another in an angry, revengeful, rude, insolent or hostile manner, and it includes

an attempt to do so, provided that the person who is threatened is led to

anticipate an attack. In England, 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.”

11 It is to be recalled that this 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 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.6 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.

12 Next in the hierarchy of the 1861 Act comes the offence at s.20, namely that of

unlawfully and maliciously wounding or inflicting grievous bodily harm. It carries a

maximum custodial penalty of five years on indictment, and six months summarily. As to

the actus reus, ‘wounding’ requires the breaking of the skin.7 Strictly speaking, even trivial

wounds are within the definition. ‘Grievous bodily harm’8 has been construed to mean

‘really serious harm’, with the result that a value judgment is required by those drawing the

indictment in each case. In some cases the decision will be easily made, while in other

cases the injury will be closer to the margin. It would be fair to ask whether this instinctive

feel for the margin has any more certainty about it than those Jersey cases which have

instinctively to feel for the margin between common assault and grave and criminal

assault. The question would be rhetorical.

13 The s.20 offence has to be committed “maliciously”, that is to say either with the

intent to do some kind of bodily harm or recklessly as to whether any such harm might be

caused. The harm intended as foreseen by the accused does not have to amount to a

wound or to grievous bodily harm. An intent to cause minor injury which inadvertently

results in the infliction of a wound or serious injury is sufficient to found a conviction.9 A

comparison with the Jersey position will be attempted later in this paper.

14 The most serious form of assault given by the statute is that of wounding or causing

grievous bodily harm with intent (s.18 of the 1861 Act), which attracts a maximum penalty

of life imprisonment. The actus reus elements are effectively the same as for the s.20

offence and the mens rea is patent.

15 It is readily apparent, therefore, that in the English jurisdiction the more serious

offences of non-fatal violence are sub-categorized into woundings, grievous bodily harm

and aggravated assault both with and without intent, and that each sub-category is

attended by its own maximum penalty regulated by statute. In Jersey law the single

6 See, e.g., Archbold Pleading, Evidence and Practice in Criminal Cases 36th edition, Sweet and Maxwell 1966, para 2631 7 D P P v Smith [1961] AC 290 HL 8 R v Wood (1830) 1 Mood. 278; but the internal rupture of a blood vessel is not sufficient: see JJC (a minor) v Eisenhower

[1983] 3 All ER 230 9 Mowatt 51 Cr. App. R 402

customary law offence of grave and criminal assault covers all of these forms of conduct

and the penalty is at large.

16 Definitions in this area comprise action, consequences and intention. The question

of the actus reus is not problematic in this context. The definitions given to the Jersey jury

in Vaughan were taken directly from the Archbold of the day and the elision of assault and

battery in both Jersey and England is unremarkable and easily discerned. It can safely be

said that the actus reus of an assault in both jurisdictions in the unlawful application of

force or conduct which causes the victim to apprehend the imminent application of

unlawful force upon him. As to consequences, some of the English offences require a

particular type of injury (‘wounding’) while others require a particular degree of injury

(‘grievous bodily harm’).

17 It falls to be asked what part consequences play in the more serious of the two form

of assault charged in Jersey. This leads to a consideration of what makes a grave and

criminal assault ‘grave’. Certainly the extent of the consequences (i.e. the degree of injury)

would be one answer and, as mentioned earlier, would call for judgment in much the same

way as the line between bodily harm and grievous bodily harm has to be judged under the

English statute. That is not the only answer to the question, however. An attack with a

weapon fortuitously causing slight, or even no, injury still constitutes a grave and criminal

assault on the rational basis of the kind and degree of injury of which the assailant put the

victim at risk. At this point, therefore, of a definition of grave and criminal assault one

considers the degree of injury inflicted or of which the assailant puts the victim at risk.10

18 “Stalking” has been held to amount to a grave and criminal assault, even in the

absence of serious physical injury. In Att.Gen v Bardwell11 the accused followed his victim

late at night for a considerable period of time before attacking her. He used no weapon

and her physical injuries were slight, although the trauma caused by the “stalking” was

considerable and long-lasting. Distress, or psychiatric injury, it capable of converting an

assault into a grave and criminal assault.12

19 As has been seen the English statute draws a crucial distinction between the

deliberate infliction of serious injury on one hand, and its unintended production on the

other. In Jersey, specific intention as to the degree of injury is not an ingredient of the

offence. The emphasis rests on the nature of the attack, rather than on the intention of the

assailant.

10 In Att.Gen. v Gibaut 31 May 1985 unreported, the accused aimed a loaded pistol-grip cross-bow at police officers in a public

place. It was not discharged and the accused asserted that his only intention had been to cause fear. He was nonetheless

convicted of grave and criminal assault. Similarly, in Att.Gen. v Gibaut 5 June 1985 (not the same defendant) the brandishing of

knives so as to put the victims in fear of their lives led to a conviction for grave and criminal assault. 11 1996 JLR N - 16 12 C.f. R v Morris (1998) 1 Cr. App. R 386 where the English court appeared to accept that the psychiatric injury suffered by the

victim amounted to a “non-physical” assault. There appears to have been an acceptance that there had been an assault

occasioning actual bodily harm contray to s.47 pf the 1861 Act. This must mean that the victim was put into a state of fear.

20 The 1847 Commissioners’ Report includes this exchange in the minutes of evidence

-

“2865. (To Mr. F. Godfray, Advocate.) As to Assaults, does not the intent of

the assault form a part of the specific accusation? – The intention

would be put down.

2866. Might the enditement affirm the Assault and negative the intent? –

Yes.

2867. Supposing they found the whole, what would be the conclusion of

the Attorney General? – Imprisonment.

2868. With capital punishment? – No: the Court possibly would transport

the offender.

2869. An Assault with intent to commit a Rape, for instance? – If the Rape

was not committed, it would not be capital.

2870. In the case of an Assault laid with intent to murder; would the

punishment still be merely imprisonment? – I do not think, unless

the man were murdered, it would be a capital punishment.

2871. Do you recognise a specific class of offences in cases where the

act, if carried into effect, would have been Murder, or Grievous

bodily harm? – The punishment would vary.

2872. Are not those aggravated Assaults distinguished only by being

triable by an enditement instead of being disposed of by the Court?

– They would be distinguished by their punishment, and, naturally,

by the form of accusation. An assault need not be of that very

grievous nature for the man to go before the enditement. Grievous

bodily harm, without the intention of killing the person, would go

before the enditement.

2873. An Assault with intent to commit a Rape, an Assault with intent to

commit murder, or to maim, would be Assaults with intent to commit

a felony; but an Assault to do grievous bodily harm would not be an

assault with intent to commit a felony? – No: but still that would go

before an enditement.”13

21 The Commissioners were accordingly led to report -

13 At page 237

“Assaults, with intent to commit particular crimes, are not classed as in the

English law. The intent is specified in the act of accusation, and is there, in legal

effect, a description of circumstances aggravating the assault. When the intent is

very heinous, the proceeding is criminal, and may subject the criminal to

transportation, as in the case of attempt to murder. In cases of slighter assaults,

there may be a cause en ajonction of the more formal kind. But the line of

distinction is very indefinite: and there is also the purely civil remedy for assault.

Other offences, specifically distinguished by the English law, are here merely

species of assault, as forcible abduction and forcible entry.”14

22 The position about intent therefore remains that it is not an ingredient of the offence

but, as in England, the presence or absence of intent goes to sentence. Similarly, the

degree of injury intended is a sentencing factor, and appropriately so in a jurisdiction in

which the offence arises at customary law so that the penalty is at large and utter flexibility

is available to the process of discretionary sentencing. Jersey, unlike England, has a

system of criminal sentencing which proceeds from a detailed exposition of the offence by

the prosecution with reasoned conclusions as to the appropriate penalty. This is put into

writing and sent to the Court and to the defence comfortably in advance of the sentencing

hearing. The defence has the full opportunity to respond and differences between the

respective positions are readily identified at an early stage. If the differences are material,

they may lead to a Newton trial so that the Court may determine the degree of culpability.15

Such a procedure lends itself particularly well to a detailed examination of the question of

intent in those rare cases where the facts do not speak perfectly clearly for themselves.

23 One would venture to summarise thus: a grave and criminal assault is an

unlawful application of force (or conduct16 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.17 In

Jersey, as in England, a person’s body is inviolate.

24 As between the English and Jersey jurisdictions, does one system work in any

sense better than the other? The systems are simply different, and neither is either

noticeably deficient or free from questions at the margins.

14 At page xxvi 15 See, e.g. Att.Gen. v O’Brien 1995 JLR N – 12; Mackenzie v Att.Gen. 1995 JLR 9 16 If three men surround a victim in a remote place in a threatening or intimidating manner, it is suggested that those

circumstances would give rise to a grave and criminal assault. 17 In England the analysis is different. Such conduct has been charged under s.20 of the 1861 Act. There is no need for an

assault under sections 18 and 20; the respective offences are simply infliction or causing the requisite degree of harm. See A G v

Ireland [1998] AC 147.

25 In that regard it is interesting to consider how each system would respectively deal

with an identical set of facts. Those of the sort postulated in Vaughan itself provide a good

starting point. Suppose a single strike with a carving knife by the assailant at the victim’s

face. The victim ducks and, by a whisker, the blow misses him altogether. In English law

there has been an assault because the assailant intentionally caused the victim to

apprehend immediate and unlawful violence. A charge of common assault with its

maximum custodial penalty of six months would not, however, reflect the gravamen of the

attack. Each of the more serious charges is predicated on actual injury and so are not

available in this case where none resulted. The solution would lie in the law of attempt and

the appropriate charge would be attempting to wound or cause grievous bodily harm with

intent, i.e. an attempt under the Criminal Attempts Act 1981 to commit an offence contrary

to s.18 of the Offences against the Person Act, 1861. The absence of injury, although

fortuitous, would go to sentence. It might be said that this is less elegant and no more

effective than the position given by Jersey law on the same facts. A grave and criminal

assault has been committed. The intentional conduct has caused the victim to apprehend

the immediate unlawful application of force upon him and the assailant has risked

substantial injury to the victim. The fortuitous absence of injury is a matter to be taken into

account when the sentence is imposed.

26 A similar comparative analysis might be performed on the following set of facts

which arise quite frequently in both jurisdictions.18 A woman and a man, strangers to each

other, have an altercation in a public bar. She throws her drink over him. Instinctively he

retaliates in kind but accidentally allows the glass to slip so that it hits her, breaks and cuts

her face. The English solution, finally settled by the House of Lords in R v Savage19 lies in

s.47 of the 1861 Act, assault occasioning actual bodily harm. The actus reus of the

offence is an assault or battery (a nugatory distinction for instant purposes, as discussed

earlier), and it must be established that this was what caused the victim actual bodily

harm. The mens rea is simply that required for a common assault, so that, although the

causing of actual bodily harm is an additional actus reus element, no mens rea as to it is

required. If such harm results, it need not even be proved that the injury was foreseeable,

because this element of the offence is one of strict liability.

27 It took the House of Lords 130 years after the passage of the statute to invest the

legal response to a commonplace set of facts with certainty. The law of Jersey on the

point has no such uncertainty. The deliberate raising of the hand and throwing of the drink

on to the victim is a deliberate and unlawful application of force (or conduct causing

apprehension of its immediate application) and has caused an injury of substance, namely

a cut face. The fact that this, or any injury, was unintended and therefore accidental is a

feature which will go to sentence and the extent to which it matters, given the

consequences to the victim and other circumstances, is classically something to be

weighed in the balance of judicial discretion.

18 E.g. Att.Gen. v Casey [2005] JRC 174 19 [1992] 1 AC 699

28 Precisely the same comparative analysis applies to those cases in which a relatively

mild assault, a single punch, results in catastrophic injury because the victim falls and

strikes his head, causing damage to the brain. If one looks at the outline of McManus20

contained in Aspects of Sentencing in the Superior Courts of Jersey21 one observes that

no matter how the legal analysis and classification of the offence proceeds, the true

conundrum arises at the point of sentencing. One would venture further to observe that,

because the sentence is entirely at large and the appropriate level is determined by a

consensus of at least three experienced judges, the Jersey system comes near to ideal.

“Mention should be made of the tragically unusual case of McManus (16.03.01).

In a minor altercation between friends the accused threw one, not very forceful,

punch which caused the victim to fall and hit his head. The consequences make

hard reading: there was a blood clot to the brain and the victim was flown to

Southampton for emergency treatment. At the time of sentencing the victim was

unable to walk unassisted, had no movement in his arms, could not talk and was

possibly blind; fed by tube passing into stomach through abdominal wall;

incontinent both ways; likely to require constant nursing throughout the

remainder of his life; current age 48. (accused age 33).22

29 A trivial blow had appalling consequences. As the Royal Court (Superior Number)

stated on appeal from the Inferior Number - “This is not a case of manslaughter, but from

the perspective of the victim and his family the consequences are arguably worse, for he

has been condemned to what amounts to a living death”. The Royal Court has done what

it can to apply justice where there can be no right solution. A sentence of nine months was

imposed at first instance; reduced to six months on appeal.23

30 Again, it is not apparent that the charge of grave and criminal assault has less to

recommend it than the s.20 offence which would be brought in the English jurisdiction.24 In

either jurisdiction the true difficulty is to find the sentence which reflects the real justice of

the case. One has already offered the view that the composition of the Royal Court as a

sentencing court renders it particularly well placed to wrestle with difficulties of that sort.

31 This paper has sought to emphasise the breadth of the offence of grave and criminal

assault ranging as it does from just above common assault to something just short of

attempted murder. Emphasis has been placed too, on the fact that, because the offence

of grave and criminal assault arises at customary law, the sentence is at large, enabling

the sentencers to take account of the nature, effects and all other circumstances of the

assault in the exercise of an untrammelled discretion to arrive at a sentence precisely

matched to the needs of the case. Such a structure has avoided the “banding” of offences

20 Att.Gen. v McManus 16 March 2001, unreported 21 Whelan, Aspects of Sentencing in the Superior Courts of Jersey, 2nd edition, 2002 22 Op. cit. at page 285 23 2001 JLR N-27; 23 May 2001, unreported. Both divisions of the Royal Court referred to the English cases of R v Coleman

(1992) 13 Cr. App. R. (S) 508 and R v Ambrose (1997) 1 Cr. App. R. (S) 404. The key factor was the absence of any real

hostility on the part of the accused. 24 See Mowatt loc. cit.

and corresponding penalties encountered in a statutory approach, with some history of

attendant difficulties of interpretation.

32 Because nothing is perfect there has been some price to pay in return for the

advantage of wide discretion. It has taken the form of a need judicially to find appropriate

guidelines in the absence of statutory parameters. The search has not been entirely

straightforward but the difficulties should not be overstated. The search for workable

guideline tariffs has been no more difficult than in any statutory offence, whether in Jersey,

England or elsewhere, where the maximum penalty is set at life imprisonment. (Class ‘A’

drug trafficking is but one example).

33 The search, at least in express terms, can fairly be thought of as dating from

Att.Gen. v Norris.25 The Court drew an analogy with the English offence of ‘inflicting

grievous bodily harm’ and identified a “proper bench-mark of between three and five

years”. A group of cases thereafter seemed not to follow this lead so that some

inappropriately low sentences resulted.

34 In 2000 the Superior Number took the opportunity to review this area of sentencing.

The case was Att.Gen. v Mallet,26 and in its detailed review the Court returned to base,

namely the highly authoritative commentary by Professor David Thomas QC in the 2nd

edition of his work Principles of Sentencing. It was clear that the band taken from Thomas

and referred to in Norris (3-5 years) referred to sentences actually imposed, and not to

starting points before mitigation. Equally, it was clear that in the material section of the

work, the author was dealing with the offences of wounding or causing grievous bodily

harm with intent. Although Norris had focused on one sentencing band, it was only one

band among others identified by Thomas. Four bands were given for analytic purposes

but, as Birt, Deputy Bailiff noted in Mallet. “in reality they are but one continuum of

increasing severity,”27 running from below 3 years up to 12 years.

“Ultimately, the Court is sentencing for a particular offence of grave and criminal

assault, taking into account the aggravating and mitigating features of the case

and the circumstances of the offender. Other cases, whilst useful for ensuring

that the Court is in roughly the right area of sentencing, are not precedents and

sentencing is not to proceed by a detailed comparison with the facts of other

cases. The Court must decide where, in the spectrum from the least to the most

serious, the various factors place the case before it.”28

35 Respectfully, that reads as a model approach to discretionary sentencing. However,

when the case came before the Court of Appeal29 the gist of the judgment was that it

would assist the Jersey courts to read the facts of a case across to the equivalent English

25 1992 JLR N – 11; 3 June 1992 unreported 26 2000 JLR 155 27 At page 161 28 At page 162 29 2000 JLR 256

offence and to allow the relevant English penalties to inform the Jersey sentencing

decision. Again with respect, that has the grate of a mixed metaphor about it and it is not

an approach which has achieved currency. Indeed, a differently constituted Court of

Appeal just months later in Le Monnier v Att.Gen. said this -

“Sentencing ‘brackets’ (or ‘bands’) in cases involving personal violence have

been imported into Jersey from the English sentencing practice, but it should be

emphasised that such brackets reflect the sentences actually passed: they are

finishing points rather than starting-points. Further, they are only of limited

assistance in Jersey.”30

36 Moreover, the process of reading across was expressly declined by the Superior

Number in Att.Gen. v Harrison,31 with the subsequent approval of the Court of Appeal ( see

below).

37 In Mallet the Court of Appeal had indicated the need for sentencers to identify an

appropriate starting-point before applying mitigation to reduce the figure to the sentence

actually to be imposed. The difficulties, both practical and of principle, about this were

raised by the Crown before the Court of Appeal in Harrison.32 A five-man Court of Appeal

sat and the case gives the detailed history of the issue of the use of starting-points for

offences other than drug offences, an issue which the Court itself recognised as having

“caused both difficulty and controversy”. In summary, the Court decided that it had

jurisdiction to rule on what the Crown had advanced to be a procedural matter, on the

basis that it was incumbent on the Court of Appeal to make binding rulings on sentencing

procedure when the interests of justice so required.

38 It ruled that “starting point” meant the appropriate sentence for the offence prior to

any allowance for personal mitigation or plea of guilty; and that -

(a) matters such as provocation and extent of injury are properly to be

considered as part of the starting point deliberation because they

form an integral part of the offence, as opposed to personal

mitigation/plea;

(b) the concept of starting points is comparatively modern but imparts a

high degree of transparency, which is to be desired; and

(c) It would not direct the use of starting points as they are not the only

means of achieving clarity of reasoning and remaining Convention

compliant; nevertheless the Royal Court should receive the

strongest indication that the express use of starting points is

30 2000 JLR 396 at 400 per Calcutt JA 31 2003 JLR 480, per Bailhache, Bailiff 32 2004 JLR 111

encouraged, and for its part the Crown is “expected” to give an

assessment of the starting point in its conclusions.

39 Beyond the question of starting points, Harrison illuminates a number of issues and

repays a thorough read as a judgment of the first importance. Guilty plea mitigation, the

effect of bad character, the interface between the sentencing Court and the Court of

Appeal are among the matters scrupulously considered. Of most particular value is the

confirmation that intent is not an element of the offence of grave and criminal assault, so

that the state of the offender’s mind is irrelevant to proof of guilt. Its presence or absence

may be inferred from an analysis of the facts and its significance is considered in a

passage the length of which is balanced by its importance -

“116 It follows that in Jersey it is not necessary for the Crown to prove

intent. As a factor in the commission of any offence, its presence or

absence may be inferred from an analysis of the facts; but the state

of the offender’s mind is irrelevant to proof of guilt. The emphasis of

the Jersey offences of common assault and grave and criminal

assault rests on the nature of the attack, rather than on the intent of

the attacker.

117 Insofar as the judgment of the Court in Mallet has been construed

as compelling the Crown to assert whether the offence, if charged in

England, would have been indicted as a s. 47, s. 20 or s. 18 offence

under the Offences Against the Person Act 1861, we deprecate

such a construction. We do not believe that it was the intention of

the Court in that case to infuse an ingredient into the offence of

grave and criminal assault (at the time of sentence) to which no

evidence had been specifically adduced prior to conviction.

118 The Bailiff raised this matter when this appellant was sentenced in

the Royal Court. He said (2003 JLR 480 at para. 9):

“There is, in this jurisdiction, only one offence, namely grave and

criminal assault, compared with a number of different statutory

offences in England, and we do not think it is helpful or indeed

appropriate to try to identify the precise offence which might have

been committed by the defendant in another jurisdiction.”

We agree. Such a result would have serious consequences for the

administration of justice in this Island, and would increase the

likelihood of sentencing in such cases being prefaced by Newton

hearings at which much of the evidence, on which a decision had

already been made by a jury, would have to be rehearsed before a

tribunal, differently constituted as to facts (Jurats in the place of

jurors), and possibly as to law (a different judge from the judge who

presided at trial as in this case). We do not regard that as

desirable. Newton hearings have a useful place in the criminal

process. But the occasions when it should be necessary to have

such a hearing after a contested trial should be rare.

119 We accept that the multiplicity of circumstances which result in

charges of grave and criminal assault afford a wide band of

sentencing options for the Royal Court, but if the three different

English offences were to be introduced into the sentencing process

so that the court was required to decide into which English offence

the facts of the Jersey offence would fall, the flexibility of the

sentencing process would become unnecessarily and artificially

restricted.

120 In our judgment, in any case of grave and criminal assault the

Crown, when drafting the statement of facts, and the Jurats, when

addressing themselves to sentence, should make an assessment of

the seriousness of the offence and should bear in mind the following

factors, though the list is not intended to be exhaustive:

(a) the nature of the deliberation with which the assault was

carried out;

(b) whether the blow was aimed or random;

(c) whether the incident arose as a result of a loss of

temper or was committed in cold blood;

(d) what was the degree of force with which the blow must

have been struck;

(e) the nature, extent, gravity and permanence of the injury

occasioned;

(f) if a weapon was used, the nature of such weapon;

(g) whether the weapon was carried or seized on the

instant;

(h) how many were concerned in the assault and the

circumstances which gave rise to their involvement;

(i) the nature and extent of any provocation offered by the

victim;

(j) whether the offender has a record of committing the

same or similar offences or constitutes a danger to

himself of to the public.

Many of these matters will impact on the state of mind of the

offender which the sentencing court should take into account in

assessing the gravity of the assault. But we do not believe it is

appropriate to introduce into this jurisdiction at the time of sentence

an ingredient which forms no necessary part of proof of conviction.

122 Given the difference between the English and Jersey offences, and

the differences in sentencing practice and policy, we do not derive

any real assistance from the English sentencing reports….”33

Conclusion

40 The ways in which cases of non-fatal assault are defined in the two jurisdictions of

England and Jersey are quite different. In England the accent is upon severity of injury

and differences in the intent with which the injury was inflicted. The relevant sub-divisions

are the common law offence of common assault and the statutory offences of assault

occasioning actual bodily harm, unlawful wounding, and wounding/causing grievous bodily

harm with intent. In Jersey, on the other hand, there are only two offences to reflect the

entire range, namely common assault and grave and criminal assault. Both arise at

customary law and the difference between them is one of degree. That formula for the

difference between the two Jersey offences is time - honoured and not as woolly as it

sounds. It is hoped that this brief paper has shown that the difference of degree arises in

specific and easily recognisable ways. The law can look at the degree of force actually

used and/or the degree of injury actually suffered and/or the degree of injury (whatever the

outcome is) which necessarily on the facts was within the contemplation of the assailant. A

jury is enabled to look at all the surrounding circumstances and to characterize an assault

as grave and criminal if a judge directs that that verdict is open to them.

41 Because the sentence is at large the sentencers have the necessary freedom to

tailor a sentence precisely to fit the exact factual components, and to the circumstances of

the offender, in any case before the Court. Much has been made in this paper of the

freedoms offered by a sentencing scale which is at large. One recognises of course the

concomitant potential risk, namely results which are random and inconsistent. That risk

has been stifled by the diligence of the Courts. There has been much concentration in

successive guideline judgments of the question of how to invest this area of sentencing

with structure and certainty. Whatever misgivings remain about a starting point approach it

33 At page 151 et seq.

remains true that the judgment of the five-man Court of Appeal in Harrison provides a

detailed and serviceable model against which sentencing for grave and criminal assault

can be deliberated. Of particular note is that Court’s concern that the flexibility of the

sentencing process should remain free from unnecessary and artificial restrictions.

Cyril Whelan is an advocate of the Royal Court and Principal Legal Adviser in the Law

Officers’ Department, Jersey. He is the author of “Aspects of Sentencing in the Superior

Courts of Jersey”.

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