Read Law Right

The recent Court of Appeal decision in R v Auriol Grey [1] provides us with an object lesson in the importance of applying all the necessary ‘elements’ of law to the facts of the case.

This necessity apparently eluded all the parties in Ms Grey’s original trial and ultimately led to her conviction being overturned.

Facts

The facts of the case can be found in paragraphs 1 to 4 of the judgment. You can read contemporary reports of both the trial and the appeal. The redacted CCTV of the incident can be seen in these reports. The basic gist is this: Ms Grey (D) and Mrs Ward (V) encountered each other on a shared footpath/cycle-path. D gesticulated and shouted with rude words to V. V fell from her bicycle into the path of a car.

V was killed. D was charged with her manslaughter and on conviction was sentenced to imprisonment of three years.

The offence

Manslaughter is an offence that can arise in multiple ways. As a partial defence to murder it shows up as manslaughter on the grounds of diminished responsibility, loss of control or suicide pact. It also shows up as gross negligence manslaughter. And, as in this case, it shows up as unlawful act manslaughter.

Unlawful act manslaughter is defined in Kennedy [2]:

“To establish the crime of unlawful act manslaughter it must be shown: (1) that the defendant committed an unlawful act; (2) that such an unlawful act was a crime … (3) that the defendant’s unlawful act was a significant cause of the death of the deceased.”

On the facts of the Grey case there could have been two bases for an unlawful act. Battery, due to the gesticulating if contact was made between D and V; or technical assault, due to either the gesticulating or the hostile language or both.

An offence of battery requires some force to be applied to the victim. Unfortunately, the CCTV did not show the moment of meeting. None of the eye-witnesses could be sure that physical contact had been made. So there was no evidence of battery.

An offence of technical assault, however, does not require any physical contact. The offence is made out if:
(1) V apprehends the imminent use of unlawful force against them, and
(2) D acts with the purpose of, or is reckless as to, their words or actions having that effect. [3]

Recklessness is tested subjectively, so that it can only be made out if the jury is sure that D recognised that their actions or words risked having that effect and went on to take the risk anyway. It doesn’t matter if bystanders would recognise the risk.

The mistake

Unfortunately, at trial, neither judge, prosecution, nor defence, recognised that the elements of technical assault had not been proven by the prosecution. [4]

How could it be that three sets of experienced lawyers managed to overlook this? I’m not going to speculate about overworked, underfunded litigators, although that could have an influence. I’m going to suggest something much more prosaic.

They assumed it went without saying.

This is alluded to when Counsel for the Crown submitted that “the jury were nevertheless directed in terms such that they would inevitably have found that common assault was committed.” [5] (my emphasis)

But having considered the necessary elements of technical assault, the appeal judges held that there was, in fact, no case to answer. [6] (Incidentally, explaining why Ms Grey’s conviction was quashed without an order for re-trial.)

The lesson

Here, then, is the lesson. Don’t assume the application of the law is inevitable. Don’t assume the outcome goes without saying.

This applies par excellence to criminal law, [7] because on most occasions the offence will have multiple elements.

When you are confronted with a problem-style question, follow the example of the appeal judges:

• Explain the elements of the law you are arguing.
• Systematically apply them to the facts.
• Resist the temptation to skip the elements that seem obvious.

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[1] [2024] EWCA Crim 487, 8 May 2024.
[2] R v Kennedy (No 2) [2007] UKHL 38, cited at para 18 of R v Grey.
[3] R v Grey [23]-[24].
[4] See particularly paragraphs 21 and 32.
[5] Grey [16].
[6] ibid [32] “the prosecution case was insufficient even to be left to the jury”.
[7] But not just criminal law. E.g. proportionality in human rights cases, negligence in tort cases, substantive legitimate expectation in judicial review cases; and plenty more.