McCarney, R v

Factual and Procedural Background

The Applicant was convicted by a jury at the Crown Court sitting at Dungannon for the murder of a child, grievous bodily harm with intent, and sexual assault of a child under 13 years. The trial commenced on 2 October 2012 before Stephens J, involving two accused: the Applicant and the child's mother, referred to as Co-Accused. The indictment initially contained multiple counts including murder, causing the death of a child, sexual assault, and causing grievous bodily harm against the Applicant, and counts of allowing the death of a child and cruelty to a child against the Co-Accused. During the trial, further counts were added against the Applicant.

The Co-Accused was acquitted of the counts against her. The Applicant was convicted on Counts 1 (murder), 4 (grievous bodily harm with intent), and 7 (sexual assault), found not guilty on Count 3 (sexual assault by penetration), and no verdict was entered on Counts 2 and 8 due to the convictions on Counts 1 and 4. The offences occurred between September and December 2009, culminating in the death of the child on 11 December 2009.

The child lived with the Co-Accused and the Applicant from early 2009. On 10 December 2009, the child was found unconscious with severe injuries and was taken to hospital, where she was examined and later died. The Applicant was arrested following medical findings suggesting sexual assault. The trial involved applications to quash certain counts and submissions of no case to answer, which were largely refused by the trial judge. The Applicant did not give evidence at trial, and the Co-Accused denied injuring the child. The trial judge gave standard directions regarding adverse inferences from silence. The Applicant was sentenced to life imprisonment with a minimum term of 25 years before eligibility for release. Leave to appeal was initially refused but renewed before the Court of Appeal.

Legal Issues Presented

1. Whether the inclusion of Count 2 (causing the death of a child contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004) in the indictment, as distinct from the murder charge, was lawful and whether it unfairly affected the Applicant’s right to a fair trial.
2. Whether the trial judge erred in refusing to quash Count 2 and in refusing a direction of no case to answer in respect of that count.
3. Whether the trial judge failed to properly direct the jury regarding the possibility that both accused gave untruthful accounts, contrary to established case law on joint enterprise and circumstantial evidence.
4. Whether the trial judge erred in declining to direct the jury on manslaughter as an alternative verdict to murder and in his directions on the mens rea of murder.
5. Whether the trial judge failed to tailor his directions adequately to the circumstances of the case, especially regarding the evidence of the Co-Accused.
6. Whether the trial was unfair due to investigative focus solely on the Applicant despite multiple potential perpetrators.
7. Whether the trial judge erred in refusing applications for directions of no case to answer on several counts.
8. Whether the trial judge misdirected the jury regarding bad character evidence and the evidence about injuries not charged in the indictment.
9. Whether the trial was rendered unfair by the prosecution’s failure to correct a false impression about the Co-Accused’s violence.
10. Whether Section 7 of the 2004 Act is incompatible with Article 6 ECHR rights to a fair trial, burden of proof, presumption of innocence, and right to silence.

Arguments of the Parties

Applicant's Arguments

• Count 2 was not an offence known to law as drafted and its inclusion precluded the Applicant from applying for a no case to answer direction at the close of the prosecution case for murder, undermining the presumption of innocence and right to silence.
• The trial judge erred in refusing to quash Count 2 and in refusing a no case to answer direction, relying incorrectly on precedent and failing to exclude reasonable possibilities consistent with innocence.
• The jury was not properly directed on the possibility that both accused might have given untruthful accounts, contrary to established principles for joint enterprise cases.
• The trial judge wrongly declined to leave manslaughter as an alternative verdict and blurred the distinction between murder and manslaughter in his directions on intent.
• The trial judge’s directions were overly reliant on specimen directions and insufficiently tailored, particularly in relation to the Co-Accused’s evidence.
• The investigation improperly focused only on the Applicant as a suspect despite evidence suggesting multiple potential perpetrators, compromising disclosure and fairness.
• The trial judge misdirected the jury by admitting evidence of uncharged injuries as propensity evidence without proper application.
• The prosecution failed to correct a false impression created by the Co-Accused’s evidence denying violence, despite possessing medical records indicating otherwise.
• Section 7 of the 2004 Act infringed the Applicant’s rights under Article 6 ECHR by postponing the opportunity to apply for a no case to answer direction and permitting adverse inferences from silence in an unfair manner.
• The Applicant did not receive a fair trial due to the inclusion of Count 2 and the procedural consequences thereof.

Prosecution's Arguments

• Count 2 was properly included as it did not require intent and addressed circumstances where a death is caused by a household member who has responsibility.
• The evidence showed a strong prima facie case against the Applicant, who was the last person with the child before the fatal injury, and the sexual assault evidence was consistent with the charges.
• The evidence relating to other injuries was background evidence, not bad character evidence, and was admitted without objection.
• The Co-Accused’s evidence was properly treated with caution, and relevant disclosures were made to the defence.
• The trial judge properly rejected the no case to answer applications based on the evidence.
• The procedural provisions of Section 7 of the 2004 Act were lawful and did not infringe the Applicant’s rights under Article 6 ECHR.
• The trial was fair, and the Applicant was properly advised of the consequences of not giving evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed examination of the statutory provisions of Section 5 and Section 7 of the Domestic Violence, Crime and Victims Act 2004, relevant case law, and the facts of the case. It emphasized that Section 5 creates a single, indivisible offence of "causing or allowing the death of a child or vulnerable adult," not separate offences of "causing" and "allowing" death. The Court found that Count 2 as drafted, alleging "causing the death" contrary to Section 5, was not an offence known to law and should have been withdrawn from the jury.

However, the Court observed that the inclusion of Count 2 did not render the Applicant’s convictions unsafe. The procedural effects of Section 7, which postpones the consideration of no case to answer on murder until the close of all evidence, were considered compatible with Article 6 ECHR rights, given appropriate directions about adverse inferences from silence. The Court was satisfied that the trial judge gave adequate directions and that the Applicant was properly advised about the consequences of not giving evidence.

The Court applied the classic Galbraith test for no case to answer submissions, reaffirming that the judge must allow the case to proceed if there is evidence on which a reasonable jury could convict. The Court found that the evidence, though circumstantial, was sufficient to establish a prima facie case against the Applicant on the murder charge.

Regarding jury directions, the Court held that the trial judge’s approach was appropriate, including cautioning the jury about the Co-Accused’s evidence and the possibility that one of the accused was lying. The Court rejected the argument that the jury should have been directed on manslaughter as an alternative verdict, given the medical evidence.

On the issue of bad character evidence, the Court found that the evidence of uncharged injuries was background evidence and not propensity evidence requiring a formal application. The Court also determined that the prosecution fulfilled its disclosure obligations regarding the Co-Accused’s violent tendencies and that no unfairness arose from this.

In relation to the sexual assault evidence, the Court concluded that the trial judge accurately represented expert evidence about the injuries and the possibility of penetration or blunt force trauma, and there was no misdirection.

Finally, the Court considered the overarching fairness of the trial and found no basis to conclude that the trial was unfair due to the inclusion of Count 2 or the investigative focus on the Applicant. The Court noted the trial judge’s scrupulous conduct and the adequacy of the trial process.

Holding and Implications

The Court granted leave to appeal but ultimately DISMISSED the appeal.

The Court held that although Count 2 was incorrectly drafted as an offence of "causing the death" contrary to Section 5 of the 2004 Act and should have been withdrawn, its inclusion did not render the Applicant’s convictions unsafe. The procedural provisions of Section 7 of the 2004 Act were not incompatible with Article 6 ECHR rights, and the trial judge’s directions were appropriate and sufficient to ensure a fair trial. The evidence was sufficient to establish a prima facie case against the Applicant on the murder charge, and the trial was conducted fairly.

No new precedent was set by this decision; it reaffirmed established principles regarding the interpretation of the Section 5 offence, the application of no case to answer tests in circumstantial evidence cases, and the compatibility of Section 7 procedural provisions with fair trial rights under the European Convention on Human Rights.