Friday, 18 February 2011

What's funny about retinal damage?

Prime example of failure to understand the law from Richard Littlejohn today:

A criminal prosecution brought against a man who hit a woman in the face with a flying sausage has been laughed out of court.

Judge Anthony Goldstaub told the Crown Prosecution Service that the case was ridiculous.

Ashly Brearey, 22, from Harlow in Essex, was charged with assault causing actual bodily harm as a result of injuries sustained by 24-year-old Candice Whybrow during a food fight at a party.

But when it reached Chelmsford Crown Court, Judge Goldstaub told the CPS to drop the case.
Although he sympathised with Miss Whybrow, who suffered retinal damage, he said the prosecution undermined the dignity of the court.

The judge said that apart from the difficulty of securing a conviction in front of a jury, ‘there was the prospect of a lot of laughter’ which could harm the judicial process.


Earlier, the prosecution had alleged that the party had got out of hand when ‘there was a period of unruly horseplay, before the sausage came into the scene’.

There was also a suggestion that the injury could have been caused by a chicken drumstick.
It sounds like something out of Beachcomber. Spike Milligan would have had a field day with the Case Of The Flying Sausage.

But when we’ve all stopped giggling, you have to ask how this ludicrous case ever got so far. And how much police time and public money was wasted on a food fight?

M’lud, my client Bugsy Malone pleads guilty to GBH with a sausage and asks for two jellies, one bowl of custard and a Turkey Twizzler to be taken into consideration.


Right Richard. Time for a quick law lesson.

Assault occasioning actual bodily harm is prohibited by section 47 of the Offences Against the Person Act, 1861.

Here's the CPS guidelines for prosecuting ABH:

45) The offence is committed when a person assaults another, thereby causing actual bodily harm. Bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling: (R v Donovan 25 Cr. App. Rep. 1, CCA). It is an either way offence, which carries a maximum penalty on indictment of five years' imprisonment and/or an unlimited fine not exceeding the statutory maximum.

46) As stated above, the factors in law that distinguish a charge under section 39 (common assault) from a charge under section 47 are the degree of injury resulting and the sentencing powers available to the sentencing court. For instances where common assault will be the appropriate charge. Where the injuries exceed those that can suitably be reflected by a common assault a charge of assault occasioning actual bodily harm should normally be preferred. By way of example, the following injuries should normally be prosecuted under section 47:
  • loss or breaking of tooth or teeth;
  • temporary loss of sensory functions, which may include loss of consciousness. (T v Director of Public Prosecutions, [2003] Crim. L. R. 622)
  • extensive or multiple bruising;
  • displaced broken nose;
  • minor fractures;
  • minor, but not merely superficial, cuts of a sort probably requiring medical treatment (e.g. stitches);
  • psychiatric injury that is more than mere emotions such as fear, distress or panic. In any case where psychiatric injury is relied upon, as the basis for an allegation of assault occasioning actual bodily harm, and the matter is not admitted by the defence, then expert evidence must be called by the prosecution. (R v Chan-Fook, 99 Cr. App. R. 147, CA).

47) A verdict of assault occasioning actual bodily harm may be returned on proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. (i.e. it need not be intentional to cause the harm done)

48) The test of recklessness is as per R v Cunningham (Archbold 19-167).

I think it's safe to say that retinal damage falls under those guidelines, given that the victim has lost a significant portion of central vision in her eye.

A clearer picture of what the judge actually said is offered by the Telegraph:

  “Apart from public interest in the matter he is of good character and it is a question of whether a jury can be persuaded to consider a conviction.

“I want it to be seen by someone more senior. I have concerns on four points: public interest; the prospect of conviction; the dignity of the court and the prosecution process.”


Following a review of the evidence, CPS barrister, Richard Stevens, told the court the Crown had decided not to proceed.

Yesterday, he told the court: "The Crown have considered the matter further and have reached the conclusion that there is not a realistic prospect of a conviction.”

At that point the judge quipped: “There is the prospect of a lot of laughter.”

The Crown then formally offered no evidence against Mr Brearey, who was found not guilty and discharged.

It seems to me that the CPS decided to drop the case as it couldn't prove that the defendant was the one to cause the injury, and also that he was unlikely to reoffend.

Richard Littlejohn: now against justice if it involves a word he finds amusing. You couldn't make it up.

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