Factual and Procedural Background
The Appellant was convicted of murder following a trial in the Central Criminal Court and sentenced to life imprisonment, with a minimum term of 20 years less time spent on remand. [1]
The prosecution alleged that the Appellant and a co-accused killed the deceased by stabbing and shooting him. The Appellant’s case at trial was that he was not present, and the principal issue was whether he had participated in a joint enterprise to kill or cause really serious bodily harm. [2][3][4][5]
The Appellant’s earlier applications for permission to appeal were refused. He later appealed following a reference by the Criminal Cases Review Commission, arguing that manslaughter should have been left to the jury as an alternative verdict. [6][7]
At trial, the judge directed the jury on joint-enterprise murder but declined to leave manslaughter as an alternative verdict for the Appellant. The jury subsequently convicted him of murder. [8][9][10][11]
Legal Issues Presented
- Whether manslaughter was an obvious or viable alternative verdict raised by the evidence and therefore should have been left to the jury. [12][13][14][15]
- Whether the judge’s answer to the jury’s question about presence at the scene wrongly expanded the basis upon which the Appellant could be convicted of joint-enterprise murder. [16][17][18]
- Whether the alleged failure to leave manslaughter rendered the murder conviction unsafe. [12][19][20]
Arguments of the Parties
Appellant’s Arguments
- Manslaughter was an obvious alternative offence supported by the evidence, and the failure to leave it to the jury was a serious misdirection under R v Coutts. [12]
- The alternative arose either because the Appellant was present but the gunman exceeded the agreed plan, or because the Appellant was not one of the two men who entered the house. [21]
- The jury should not have been forced to choose between convicting the Appellant of murder and acquitting him altogether. [22]
Respondent’s Arguments
- There was no evidentially obvious or viable basis for convicting the Appellant of manslaughter rather than murder. [23]
- The evidence supported the inference that anyone present at the house intended at least to cause really serious bodily harm, and the Appellant had not given evidence advancing a contrary case. [24]
- The proposed scenario that the Appellant was elsewhere while directing the attackers was unsupported speculation. [25]
- The different treatment of the co-accused was justified because that co-accused was remote from the attack and there was evidence supporting manslaughter in his case. [26]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| [2003] EWCA Crim 2280 |
The co-accused’s appeal was allowed and a retrial ordered. |
The Court described the co-accused’s earlier procedural history. [27] |
| [2003] EWCA Crim 3642 |
The Court had no jurisdiction to hear the prosecution’s appeal against the retrial ruling. |
The co-accused was never retried for manslaughter. [27] |
| [2003] EWCA Crim 2828 |
Earlier applications for permission to appeal were refused. |
The Appellant’s and his co-accused’s applications were refused. [6] |
| R v Coutts [2006] UKHL 39 |
The trial judge has ultimate responsibility for leaving any obvious alternative offence supported by the evidence, irrespective of counsel’s tactical positions. |
The Court treated the question as whether manslaughter was obviously raised by the evidence and whether its omission affected safety. [13][14][19][28] |
| R v Fairbanks [1986] 1 WLR 1202 |
The public interest requires defendants to be convicted of offences proved, without over-conviction or under-conviction. |
The principle supported leaving properly raised alternative verdicts to the jury. [29][28] |
| Von Starck v The Queen [2000] 1 WLR 1270 |
The trial judge bears ultimate responsibility for directing the jury on appropriate alternatives. |
The principle was included in the authorities reviewed in Coutts. [29][30] |
| Hunter and Moodie v The Queen [2003] UKPC 69 |
The trial judge’s responsibility concerning alternative verdicts. |
The case was cited within the formulation of the governing principle. [30] |
| Bullard v The Queen [1957] AC 635 |
Failure to direct on manslaughter where appropriate may make a murder verdict unsafe. |
The principle was adopted in Coutts and applied in assessing whether the conviction was safe. [31][19] |
| R v Foster [2007] EWCA Crim 2869 |
Not every alternative must be left; alternatives may be excluded if trivial, insubstantial, or inconsistent with the real issues, but viable alternatives must be considered. |
The Court applied the requirement that the alternative must be obviously raised and factually viable. [32][33][15][34] |
| R v Barre [2016] EWCA Crim 216 |
The principles governing obvious alternative verdicts, proportionality, factual context, and safety of the conviction. |
The Court used the summary of principles to assess whether manslaughter arose on the evidence. [35][36][37][20] |
Court’s Reasoning and Analysis
The governing principle is that a trial judge should leave an obvious alternative offence supported by the evidence, because the jury should not be forced into either an excessive conviction or complete acquittal. The alternative must, however, be one that arises obviously or as a viable issue on a reasonable view of the evidence; the question is fact-specific. [13][14][33][37][20]
The Court distinguished the co-accused’s position. There was evidence that he had commissioned threats rather than killing, and he was remote from the scene. By contrast, the evidence placed the Appellant at the scene, armed and participating in the events. [38][39]
The evidence showed that both attackers entered the house armed, that one discharged a shotgun, and that the deceased was repeatedly stabbed, including with a potentially fatal wound. The Court considered that anyone present during these events must have intended at least really serious bodily harm. [40][41][42][43]
The suggested scenario that the Appellant was elsewhere, on a motorway, while directing the attackers was unsupported by the evidence and amounted to speculation. It was therefore not a factual basis requiring a manslaughter direction. [44][45]
The Court considered that the jury’s question was most likely concerned with whether the Appellant was in the television room when the fatal shot was fired, not whether he had been absent from the house altogether. The evidence nevertheless placed both attackers in the hallway during the stabbing and while the shotgun was reloaded. [46]
Accordingly, the judge’s answer to the jury was correct: the Appellant could be convicted only if the jury were sure that he was party to a joint enterprise to kill or cause really serious bodily harm. The jury’s verdict was not unfairly compelled by the absence of a manslaughter alternative. [47][48][49]
Holding and Implications
Appeal dismissed; the murder conviction was not unsafe. The Court held that manslaughter was not an obvious or viable alternative verdict on the evidence, and that the judge was correct not to leave it to the jury. [50]
The direct consequence was that the Appellant’s murder conviction remained in force. The decision applied and consolidated existing principles concerning alternative verdicts rather than creating new law. [28][50]