Clarke v REGINA

Factual and Procedural Background

This appeal concerns a murder conviction arising from an incident on the evening of 5th June 2008. The deceased, a 36-year-old male, had been drinking with friends before meeting three teenage girls at a restaurant. After a confrontation involving the appellant, the deceased, and others, a physical altercation occurred near a supermarket. The appellant attacked the deceased, delivering multiple blows and kicks, including at least one kick to the head. The deceased suffered a fatal brain haemorrhage and died in hospital.

The appellant admitted causing the deceased's death but contended that he was guilty only of manslaughter, denying the intent necessary for murder. The appellant was initially tried for murder at Nottingham Crown Court, but the jury was unable to reach a verdict, leading to a retrial. At the retrial, the main issue was whether the appellant intended to cause grievous bodily harm. The jury convicted the appellant of murder by a majority verdict. The appellant now appeals against this conviction.

Legal Issues Presented

1. Whether the prosecution was entitled to invite the jury to reject the evidence of its own witnesses regarding the number of kicks delivered by the appellant to the deceased's head without obtaining permission to treat those witnesses as hostile.
2. Whether the trial judge erred by failing to direct the jury to treat the transcript of a witness's evidence with appropriate caution, given the witness did not testify in person at the retrial.
3. Whether prosecuting counsel improperly asserted in closing speech that the appellant had shown no remorse for causing the deceased's death.

Arguments of the Parties

Appellant's Arguments

• The prosecution improperly impugned the credibility of its own witnesses, Hill and Jackson, by suggesting they were deliberately withholding evidence about the number of kicks, without obtaining the court's permission to treat them as hostile.
• The trial judge failed to instruct the jury to treat the transcript of Sally Cox's evidence with caution, as she did not appear in person or undergo cross-examination at the retrial.
• The prosecution's closing speech improperly accused the appellant of showing no remorse, a comment unsupported by evidence and not put to the appellant in cross-examination.
• The prosecution's cross-examination failed to put to the appellant the suggestion that he delivered more than one kick, rendering the closing speech unfair.

Prosecution's Arguments

• The prosecution was entitled to call witnesses whose evidence was reliable on some points but inconsistent or incorrect on others and to invite the jury to prefer one version over another.
• The prosecution could suggest which evidence the jury should accept, including the number of kicks, relying on other supporting evidence such as the pathologist’s testimony about defensive injuries.
• The prosecution did not seek to treat Hill or Jackson as hostile witnesses, but was entitled to rely on parts of their evidence and challenge other parts.
• The comment regarding remorse was acknowledged by prosecuting counsel as inappropriate and was used by defence counsel in closing.
• The appellant was clearly put to the suggestion of delivering more than one kick during cross-examination.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Criminal Procedure Act 1865 (Denman's Act), s. 3	Permits a party to treat its own witness as hostile only with court permission and restricts attacking a witness's credit.	Established statutory foundation for limiting prosecution's ability to impugn its own witnesses without permission.
Prefas and Pryce (1988) 86 Crim App R 111	Affirmed common law rules on hostile witnesses and evidence contradictions.	Supported the principle that prosecution may rely on part of a witness's evidence while not relying on other parts.
Kenneth Russell-Jones [1995] 1 Crim App R 538	Outlined prosecution's discretion in calling witnesses and promoting a fair trial.	Reinforced the prosecution's duty to call credible witnesses but not those deemed unworthy of belief.
Cairns [2002] EWCA Crim 2838; [2003] 1 Crim App R 38	Addressed prosecution's inconsistent approach to witnesses and partial reliance on evidence.	Clarified that prosecution may call witnesses whose evidence is partly reliable and partly unreliable without treating them as hostile.
Cooper [1969] 1 QB 267	Established the test for unsafe conviction based on the court's overall impression and lurking doubt.	Guided the court's ultimate assessment of whether the conviction was safe in light of the appeal grounds.

Court's Reasoning and Analysis

The court began by reviewing the relevant law on the prosecution's ability to call witnesses whose evidence may be partially inconsistent or incorrect, emphasizing that the prosecution may rely on parts of a witness’s testimony while not relying on others. However, the prosecution may not directly attack the credit of its own witness or suggest deliberate lying without court permission to treat the witness as hostile, as codified in the Criminal Procedure Act 1865 and supported by case law.

In this case, prosecuting counsel, in his opening and closing speeches, suggested that two prosecution witnesses, who testified to a single kick, were deliberately withholding evidence or lying about the number of kicks. This was done without obtaining the court’s permission to treat those witnesses as hostile, contrary to established legal principles.

The court acknowledged that the prosecution was entitled to ask the jury to prefer the evidence of other witnesses and to rely on circumstantial evidence such as defensive injuries. Nevertheless, the explicit suggestion that the witnesses were deliberately lying was improper and prejudicial.

The court also considered the appellant's subsidiary grounds of appeal. The failure to direct the jury to treat a transcript of a witness’s evidence with caution was an oversight but not fatal, as appropriate directions were given when the transcript was read. The improper comment on remorse was accepted by prosecuting counsel as inappropriate but did not alone warrant quashing the conviction.

Applying the test for unsafe conviction from Cooper, the court found that the improper attack on the prosecution’s own witnesses created a lurking doubt about the safety of the conviction. The jury might have reached a different verdict absent the prosecuting counsel’s improper conduct.

Holding and Implications

The appeal against conviction is ALLOWED.

The court concluded that the appellant’s conviction for murder was unsafe due to the prosecution’s improper conduct in impugning its own witnesses without permission. The conviction is quashed, and the court invited submissions on the form of the resulting order. No new precedent was established beyond affirming existing principles regarding treatment of prosecution witnesses and fair trial obligations. The direct effect is that the appellant’s murder conviction is overturned.