Introduction

It has been 25 years since the court of Appeal decision R v Crawford[2001] EWCA Crim 543, when a single judge granted permission for leave to appeal on the second ground, namely for the need for a Brown direction in self-defence limbs. The first ground was successful;the Lord Justices found it was unnecessary to pursue second ground. The law in Self-Defence and Brown Direction has hardly changed since than, and if someone in the future should ask permission to agrue this ground. it could be granted leave again. But this time have a conclusive decision on this matter. This was the second ground.

"5....the judge erred in failing to give a 'Brown' direction in his summing-up. The submission here is that, having opened an alternative basis for a conviction on the assault charge, despite the way the case had been put during the trial, the judge should then have directed the jury that before they could convict they should all be unanimous, or, in the case of majority verdict, they should by a majority of at least ten to two be sure that the offence had been committed either on the primary basis on which it was put, namely that there was simply an unprovoked assault with no excuse whatever, or, alternatively, on the alternative basis that, if the appellant was reacting to a refusal to leave his home by the complainant, then he was reacting by use of excessive force. Unless they were all of the view that on one basis or on the other the case was made out, they could not convict."

What is the Brown direction?

The Court of Appeal case in R v Brown (Kevin) (1984) 79 Cr App R 115. Established that when a number of matters were specified in a charge as together constituting one ingredient of the offence, and any one of them was capable of doing so, then it was enough in order to establish the ingredient that any one of them was proved, but it must be proved to the satisfaction of the whole jury. It was confined to those cases where there was an appreciable danger that, in deciding whether they were agreed on the matter that constituted the relevant ingredient, some of the jury might convict having found a particular matter proved as constituting the ingredient while others might find a wholly different matter proved as constituting the ingredient.

In the Court of Appeal decision, Keeton put it in much simpler terms. Keeton [1995] 2 Cr App R 241. At page 249G
“…it is only in cases where truly alternative bases for a finding of guilt are being put forward by the Crown and where there is a risk that the jury might feel that it is permissible for some of them to be satisfied by one basis and others by another, that the Brown direction need be given. It is not appropriate to complicate what are essentially straightforward cases with a Brown direction.”

As of recent, R v Chilvers [2021] EWCA Crim 1311 paragraph 63 affirmed circumstances when the Brown Direction is needed.

What is self-defence?

Self-defence is a defence to murders, assaults, and most other crimes. It operates to free you from criminal liability in circumstances where you would have otherwise committed an offence. The test for this type of defence has two ‘limbs.’ Both ‘limbs’ must be satisfied for self-defence to be successfully raised.
The first ‘limb’ provides you will have acted in self-defence if you believe that your conduct is necessary.
The second ‘limb’ provides that the conduct is a reasonable response in the circumstances as you perceived them.

There are two routes to a guilty verdict in Self-Defence

First Limb of Self-Defence

R v Williams (Gladstone)[1983] EWCA Crim 4. Lord Lane:

"One starts off with the meaning of the word "assault". "Assault" in the context of this case, that is to say using the word as a convenient abbreviation for assault and battery, is an act by which the defendant, intentionally or recklessly, applies unlawful force to the complainant. There are circumstances in which force may be applied to another lawfully. Taking a few examples: first, where the victim consents, as in lawful sports, the application of force to another will, generally speaking, not be unlawful. Secondly, where the defendant is acting in self-defence: the exercise of any necessary and reasonable force to protect himself from unlawful violence is not unlawful. Thirdly, by virtue of section 3 of the Criminal Law Act 1967, a person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of an offender or suspected offender or persons unlawfully at large. In each of those cases the defendant will be guilty if the jury are sure that first of all he applied force to the person of another, and secondly that he had the necessary mental element to constitute guilt."

Second Limb of Self-Defence

R v Martin (Tony) [2001]EWCA Crim 2245.

"...As to the second issue,as to what is a reasonable amount of force, obviously opinions can differ. It cannot be left to a defendant to decide what force it is reasonable to use because this would mean that even if a defendant used disproportionate force but he believed he was acting reasonably he would not be guilty of any offence. It is for this reason that it was for the jury, as the representative of the public, to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr Martin believed himself to be in. It is only if the jury are sure that the amount of force which was used was unreasonable that they are entitled to find a defendant guilty if he was acting in self-defence."

What does the legal term being "Sure" exactly mean in England and Wales for Jury trial

O'Brien v Chief Constable of South Wales Police [2005] UKHL 26. Lord Bingham

"3. Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in R v Kilbourne [1973] AC 729, 756: 'Evidence is relevant if it is logically probative or disprobative of some matter which requires proof … relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable."

In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35. Lord Hoffmann

"2. If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened."

R v Summers (1952) 36 Cr. App. R. 14. Lord Goddard

"It is far better, instead of using the words reasonable doubt and then trying to explain what is a reasonable doubt, to direct a jury: You must not convict unless you are satisfied by the evidence that the offence has been committed. The jury should be told that it is not for the prisoner to prove his innocence, but for the prosecution to prove his guilt. If a jury is told that it is their duty to regard the evidence and see that it satisfies them so that they can feel sure when they return a verdict of Guilty, that is much better than using the expression reasonable doubt and I hope in future that that will be done. I never use the expression when summing up. I always tell a jury that, before they convict, they must feel sure and must be satisfied that the prosecution have established the guilt of the prisoner."

Woolmington v DPP [1935] AC 462

"Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence."

The second limb is not always in issue for the Jury

When it comes to the issue of reasonableness of force, relevant evidence has to be adduce for that is capable of prove guilt. Example of when no evidence was adduced on the issue of the reasonableness of force.

The October 2025 revision of the Crown Court Compendium Parts I page 18-5

An accused cannot be convicted unless the prosecution proves his guilt beyond a reasonable doubt. To allow an accused to be convicted when there is no evidence before the court capable of proving his guilt beyond a reasonable doubt would obviously be unfair.

R v Crawford [2001] EWCA Crim 543 (Crawford). Lord Justice Mance:

"12. Counsel for the appellant accepts that, had the Crown put the matter as the judge did, it would have been open to them to do so and there was probably nothing further that he could have put to the complainant in cross-examination. His case put to her was that she was at all points lying and exaggerating. But he says that he could and would have required the Crown to put any such alternative basis for conviction to the appellant, who gave evidence. Further, he could and would have dealt with the subject in his final speech.
13. We accept those submissions. In our view the appellant's case was prejudiced as a result of the way in which the case was put in the summing-up by the judge…. In our view the appellant's case was prejudiced as a result of the way in which the case was put in the summing-up by the judge…."

In contrast to Mr Crawford, on trial on Mr Integrity cross-examination relevant evidence was visited in relation to the issue of reasonableness of force

R. v Integrity [2024] EWCA Crim 620 Lady Justice Julia Macur:

"10. We can dispose of this renewed application in very short order. We are satisfied that no agreement was reached between the prosecution and defence that the degree of force he used, if used in reasonable belief that he needed to defend himself, was 'reasonable'. Mr Levy's assertions to the contrary are not substantiated. This issue was visited in the course of evidence, as indicated in the Respondent's Notice, and to which Mr Levy has no answer. Further, we are told that the applicant's counsel did address this issue in her closing speech and made no objection to the proposed draft directions. We consider that this stance was entirely in keeping with the nature of the case and did not in any way indicate that she was negligent in conducting the applicant's defence.
11. The applicant conceded that he punched the complainant, which punch caused, obviously, significant injuries. It is unrealistic, and would have been unsafe from the applicant’s perspective, for the Deputy Judge Advocate to have failed to have explained the concept of reasonable force, that is: “… in the heat of the moment, when fine judgments are difficult.... [and he] cannot be expected to weigh up with precision the exact amount of force required..."

In Conclusion

Rightly or wrongly trial by jury is the foundation of our criminal justice system. Under jury trial juries not only find the facts; they also apply the law. Since they are not experts in the law, they are directed on the relevant law by the judge. But the task of applying the law to the facts, and so reaching a verdict, belongs to the jury, and the jury alone.
It is clear that most Self-Defence cases include the first and second limb, this results to two distinct route to a verdict. So the question is does the Jury have to agree on a single route to a verdict? That is:
"Before the jury could convict they should all be unanimous, or, in the case of majority verdict, they should by a majority of at least ten to two be sure that the offence had been committed either fist limb of Self-Defence or the second limb of Self-Defence."

25 years have passed since the Crawford decision. Only the Court of Appeal could answer the question of where the Brown Direction is appropriate. Until someone argues this ground, I guess we will never really never if the Brown direction is appropriate.