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Judgments - R v. Coutts (Appellant) (On Appeal from the Court of Appeal (Criminal Division))


SESSION 2005-06

[2006] UKHL 39

on appeal from [2005] EWCA Crim 52





for judgment IN THE CAUSE




Coutts (Appellant) (On Appeal from the Court of Appeal (Criminal Division))



Appellate Committee


Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Hutton

Lord Rodger of Earlsferry

Lord Mance




Edward Fitzgerald QC

Paul Taylor

(Instructed by Fisher Meredith)


John Kelsey-Fry QC

Mark Summers

(Instructed by Crown Prosecution Service)



Hearing dates:

14 and 15 June 2006





WEDNESDAY 19 July 2006





R v. Coutts (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

[2006] UKHL 39


My Lords,

    1.  The appellant, Mr Coutts, was convicted of murder on an indictment charging him with that crime alone. Evidence was adduced at the trial which would have enabled a rational jury, if they accepted it, to convict him of manslaughter. But the trial judge, with the support of the prosecution and the consent of the defence, did not leave an alternative count of manslaughter to the jury. He directed the jury that they should convict of murder if satisfied that the appellant had committed that offence and, if not so satisfied, acquit. On his appeal to the Court of Appeal (Criminal Division) the appellant contended that a manslaughter verdict should have been left to the jury for their consideration, irrespective of the parties' wishes, since there was evidence to support it. The Court of Appeal rejected that contention, and by leave of the House the appellant now challenges its decision. The narrow question raised by the appeal is whether, on the facts of this case, the trial judge should have left an alternative verdict of manslaughter to the jury. The broader question, of more general public importance, concerns the duty and discretion of trial judges to leave alternative verdicts of lesser-included offences to the jury where there is evidence which a rational jury could accept to support such a verdict but neither prosecution nor defence seek it.

The facts and the proceedings

    2.  The facts of the case were summarised at some length by the Court of Appeal ([2005] EWCA Crim 52, [2005] 1 WLR 1605), and are the subject of a fairly detailed statement agreed between the parties for the purpose of this appeal. For present purposes a bare outline will suffice.

    3.  The deceased (Jane Longhurst) lived with her male partner in Brighton. The appellant and his girlfriend Lisa Stephens lived in a flat in Hove. Lisa Stephens was a friend of the deceased, with whom the appellant became acquainted. On 14 March 2003 the deceased died at the appellant's flat. He stored her body first in his car, then in his shed, then in a commercial storage facility. On 19 April he took her body to an area of woodland some distance away and set fire to it. When found, the body was burning and unclothed. It had a ligature made from a pair of tights tied twice around the neck, with a knot on the right-hand side. The appellant was interviewed by the police before and after discovery of the body, but prevaricated for reasons which he later sought to explain and justify. Some weeks later he told a legal representative that he had not intended to kill the deceased or cause her serious harm, and that he had never caused harm to anybody in the past when using ligatures in sexual activities. He was charged with murder and in due course tried before His Honour Judge Brown and a jury in the Crown Court at Lewes.

    4.  The expert pathologists called by the prosecution and the defence respectively at the trial were agreed that the cause of the deceased's death was compression of her neck by the ligature, causing her to be asphyxiated. But they disagreed on the most likely mechanism. The prosecution expert thought vascular strangulation or respiratory strangulation the most likely mechanisms, and considered vagal inhibition to be less likely. The defence expert thought vagal inhibition the most likely explanation. Both experts gave reasons for holding the opinions which they did, which were fully explored in evidence before the jury. The evidence suggested that death, if caused by vascular or respiratory strangulation, would have occurred within about 2-3 minutes; if by vagal inhibition, it would have occurred more quickly, possibly within 1-2 seconds.

    5.  Much of the evidence at trial was directed to the appellant's sexual habits and propensities. One witness, called by the prosecution, had had a seven-year relationship with the appellant, during which he had, with her consent, placed his hand around her neck, before and during intercourse, and had used tights and knickers around her neck. Another witness had had a shorter and more recent relationship. The appellant had asked her to put her hands around his neck during intercourse, and he had put pressure on her windpipe, sometimes using a stocking tied round her neck, which he would pull from both sides. She had allowed him to do this because of the pleasure it gave him but she had never enjoyed it herself and he had always stopped when she asked. With his current partner, Lisa Stephens, he had on a few occasions indulged in what he called "breath control play". There was some evidence, which was denied, that the deceased had engaged in similar activity with a partner other than the appellant.

    6.  The appellant said that he had been fascinated by women's necks for about 20 years, but that he had no interest in violence and his fetish did not extend to strangulation. He testified that on 14 March 2003 he and the deceased had had consensual asphyxial sex and her death had been a tragic accident. He had put his hand around her neck, and she had squeezed his hand to tighten his grip. He had then, with her consent, tied a pair of tights round her neck and tied a knot in them. At some point he had closed his eyes and released the tights. He did not know how the deceased had died.

    7.  The prosecution led evidence to show that before and after 14 March 2003 the appellant had visited a number of pornographic websites, showing violence towards women. Reliance was also placed on certain websites and on repeated visits by the appellant to the storage facility where the body of the deceased had been stored to suggest that he had necrophiliac propensities.

    8.  At the close of the evidence the trial judge very properly invited the submissions of counsel on whether he should direct the jury that a verdict of guilty of manslaughter was open to them. Prosecuting counsel submitted that it would be unfair to do so. He said:

    "It is true that one could mount an argument in law to suggest that the defence account, even if accepted, might amount either to gross negligence, on the one hand, or, arguably, an unlawful and dangerous act on the other; and so there would be room, arguably, for an alternative verdict, even on the defence account, of manslaughter …"

But he submitted that the Crown had throughout put forward the case that this was a deliberate killing and nothing else. If that was not proved, the appellant was entitled to be acquitted. It would be wrong to put the case on any alternative basis. Counsel then representing the appellant agreed, although he later ventilated the possibility of a verdict of "no intent manslaughter" as opposed to "unlawful act or gross negligence manslaughter". The judge asked counsel directly whether he was inviting him to put manslaughter on any basis to the jury, and counsel gave a provisional answer in the negative, while reserving the right to discuss the question with the appellant and raise the matter again. He did not raise the matter with the judge again, but did discuss it with the appellant. According to a statement of the appellant, seen and not controverted by counsel then acting, the latter asked him "Do you want us to make representation, or do you want to roll the dice and be home with Lisa and the boys?" The appellant was advised that if convicted of manslaughter he would receive a sentence of as long as 15 years', and agreed that counsel should not ask the judge to leave manslaughter to the jury. Thus the judge directed the jury on the ingredients of murder in terms of which no complaint is made, and directed them to acquit if they thought that the death was or might have been an accident. No mention was made of manslaughter. The jury convicted the appellant of murder.

    9.  In the Court of Appeal it was submitted for the appellant that a trial judge ought in the ordinary way and save in some exceptional cases to leave to the jury an alternative count of manslaughter which there is evidence to support, and that the trial judge in this case should have done so whether or not that was the course which counsel on both sides preferred. The Court of Appeal (Lord Woolf CJ, Cresswell and Simon JJ), having reviewed the leading authorities, rejected that submission: [2005] 1 WLR 1605, paras 81-84. The court did not recognise a risk that a jury in a case of this kind, faced with a stark choice between convicting of murder and acquitting altogether, might improperly convict. It would have been unfair and unjust to leave the alternative count "for the very good reason that it involved a different and inconsistent case from that put forward by the prosecution". To have introduced an alternative count would have made the jury's task far more complicated without enhancing the interests of justice.

The parties' submissions

    10.  Mr Fitzgerald QC (who did not appear at the trial) submitted for the appellant that if in a trial for murder there is credible evidence which would, if accepted, support a verdict not of murder but of manslaughter, the trial judge ought in the ordinary way to leave manslaughter to the jury for their consideration, unless it would for any reason be unfair to do so. The judge should follow that course even though the defence has not advanced such a case or sought such a verdict, and even though the prosecution has not raised, or has rejected, that possibility. The jury, as the tribunal of fact and arbiter of guilt, ought in principle to be invited to consider all issues properly raised by the evidence. If in a horrific case such as this the jury are faced with a stark choice between convicting of murder and acquitting a defendant whose conduct might be thought not only repulsive but dangerous, and are not alerted to an intermediate verdict which might (depending on their assessment of the evidence) best fit the facts as they find them, the risk arises that the jury may convict of murder because, consciously or subconsciously, they are unwilling to acquit. If the trial judge fails to leave to the jury a verdict which is raised by credible evidence, that is an irregularity which will ordinarily render the verdict unsafe, unless in all the circumstances the Court of Appeal concludes that the jury would inevitably have convicted even if the alternative verdict had been left.

    11.  Mr Kelsey-Fry QC for the Crown took issue with this approach. Accepting, as he had throughout, that the evidence, if accepted, supported a possible verdict of gross negligence manslaughter, he pointed out that neither the Crown nor the defence had asked that such a verdict be left to the jury and it was not a course the judge had favoured. The Crown had taken its stand that this was a deliberate, sadistic killing. The defence said that the death was an accident. The judge had given the jury a clear and accurate direction. If the jury thought that the death might have been an accident, they were to acquit. The integrity of jury trial depended on acceptance that a properly instructed jury would heed and follow the instructions of the judge. It must therefore be accepted that the jury, having deliberated, had found the full elements of murder to be established. There is no reason to suggest that the jury may, despite their oaths, have convicted improperly, and there is nothing to render the conviction unsafe. The Court of Appeal were right to dismiss the appeal for the reasons they gave.


    12.  In any criminal prosecution for a serious offence there is an important public interest in the outcome (R v Fairbanks [1986] 1 WLR 1202, 1206). The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge (Von Starck v The Queen [2000] 1 WLR 1270, 1275; Hunter and Moodie v The Queen [2003] UKPC 69, para 27).

    13.  Statutory rules (building in part on rules developed at common law) have been enacted to facilitate achievement of this important objective. Subsections (2) and (3) of section 6 of the Criminal Law Act 1967 provide:

    "(2)  On an indictment for murder a person found not guilty of murder may be found guilty-

      (a) of manslaughter, or of causing grievous bodily harm with intent to do so; or

      (b) of any offence of which he may be found guilty under an enactment specifically so providing, or under section 4(2) of this Act [assisting offenders]; or

      (c) of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty;

    but may not be found guilty of any offence not included above.

    (3) Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."

Thus, to take familiar examples, a defendant accused of murder may be convicted of manslaughter if the evidence shows that he was or may have been provoked, and a defendant accused of wounding with intent may be convicted of unlawful wounding if the evidence establishes the wounding but leaves room for doubt about the intent.

    14.  These statutory rules are reinforced by two principles developed in the cases. The first of these principles, relating to manslaughter on grounds of provocation in the context of a count of murder, was expressed by Lord Reading CJ in the Court of Criminal Appeal in R v Hopper [1915] 2 KB 431, 435:

    "We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence - we say no more than that - upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand."

This passage was quoted with approval by Viscount Simon LC giving the unanimous opinion of the House in Mancini v DPP [1942] AC 1, 7-8. It was again cited with approval by Lord Tucker, giving the reasons of the Privy Council in Bullard v The Queen [1957] AC 635, 642, who held that it had

    "long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked."

Lord Tucker went on to say (p 644):

    "Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached."

Lord Tucker's ruling first quoted above was itself quoted with approval by the Court of Criminal Appeal in R v Porritt [1961] 1 WLR 1372, 1376-1377. It has since been applied in many cases. But the fullest statement of the principle is that given by Lord Clyde on behalf of the Privy Council in Von Starck v The Queen [2000] 1 WLR 1270, 1275, when, in a case where there was evidence throwing doubt on the defendant's capacity to form the intent necessary for murder, he said:

    "The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them. If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognised in Xavier v The State (unreported), 17 December 1998; Appeal No. 59 of 1997 a low one, and, as was also recognised in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury. For tactical reasons counsel for a defendant may not wish to enlarge upon, or even to mention, a possible conclusion which the jury would be entitled on the evidence to reach, in the fear that what he might see as a compromise conclusion would detract from a more stark choice between a conviction on a serious charge and an acquittal. But if there is evidence to support such a compromise verdict it is the duty of the judge to explain it to the jury and leave the choice to them. In Xavier v The State the defence at trial was one of alibi. But it was observed by Lord Lloyd of Berwick in that case that, 'If accident was open on the evidence, then the judge ought to have left the jury with the alternative of manslaughter'. In the present case the earlier statements together with their qualifications amply justified a conclusion of manslaughter and that alternative should have been left to the jury."

This ruling has been applied by the Privy Council in Hunter and Moodie v The Queen [2003] UKPC 69 and by the Court of Appeal in Northern Ireland in R v Shaw and Campbell [2001] NIJB 269. The judge's duty to leave a possible manslaughter defence arising on the evidence to the jury, even though such defence has not been advanced or has been expressly disavowed at the trial, is clear: see, for example, R v Cox [1995] 2 Cr App R 513, 516-517; R v Dhillon [1997] 2 Cr App R 104, 114.