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

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    15.  The second principle is closely allied with the first (and is not, as counsel for the appellant insisted, engaged on the facts of this case). It is that ordinarily, and subject to limited exceptions, a trial judge should leave to the jury the possibility of convicting of lesser-included offences, that is, lesser offences within section 6(3) comprising some but not all the ingredients of the offence charged. In R v McCormack [1969] 2 QB 442 a defendant accused of unlawful sexual intercourse with a girl under the age of 16 denied that charge but admitted in evidence an act which was in law an indecent assault. The judge left that alternative to the jury, holding that he had no discretion to do otherwise, and the defendant was convicted of the lesser offence. His argument that the judge should not have left that alternative to the jury was rejected on appeal, although a discretion not to do so was held to exist. Fenton Atkinson LJ, giving the judgment of the Court of Appeal (which also included Melford Stevenson and James JJ), said (at pp 445-446):

    "It is said that the prosecution had not specifically run indecent assault as a possible verdict for the jury to consider and, therefore, that the deputy chairman had a discretion whether or not to leave that matter to the jury, and there was some discussion about that and Miss Harper [for the Crown] was submitting to the deputy chairman that it was his duty to put all the alternatives. The deputy chairman said: 'I would like to know whether I have a discretion not to do it. Frankly, I would exercise that discretion'. In fact, he went on to decide that he had no discretion in the matter, he left the alternative of indecent assault to the jury, and the jury convicted. Indeed, on our view as to what constitutes an indecent assault on a girl under 16, and in face of the defendant's own evidence, there was no possible answer to such a lesser charge.

    The view this court has formed is that the deputy chairman did have a discretion in the matter. Cases vary so infinitely that one can well envisage a case where the possibility of conviction of some lesser offence has been completely ignored by both prosecution and defence—it may be that the accused has never had occasion to deal with the matter, has lost a chance of giving some evidence himself about it or calling some evidence to cover or guard against the possibility of conviction of that lesser offence—and in such a case, where there might well be prejudice to an accused, it seems to this court there must be a discretion in the trial judge whether or not to leave the lesser offence to the jury.

    But that was not the situation here, and on the facts of this case we think plainly it would have been a wrong exercise of discretion not to leave this question of indecent assault to the jury, because this was a case where the defendant himself had given evidence and had said on oath 'True I did not have intercourse, but I did do that which amounts to an indecent assault'. In view of that perfectly plain evidence which he had given, we think the only right course for the deputy chairman to take was to do what he did and to leave that matter to the jury."

    16.  In R v Fairbanks [1986] 1 WLR 1202 the question before the Court of Appeal was whether, on an indictment charging a single count of causing death by reckless driving, an alternative of driving without due care and attention should have been left to the jury. Giving the reserved judgment of the court, Mustill LJ (sitting with Hodgson and Wood JJ) cited earlier authority on the leaving of lesser counts to the jury, including R v Parrott (1913) 8 Cr App R 186 where Phillimore J had said (at p 193):

    "There may be cases where, in the interests of the prisoner, a judge ought to do so; there are certainly many cases where the interests of justice are not met unless it is pointed out to the Jury that they may convict of a lesser offence, or, thinking it a case of 'neck or nothing', they may acquit altogether."

At pp 1205-1206, Mustill LJ continued:

    "These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the Jury by advising them of the possibility of a verdict which could make no sense.

    We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the Jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and Jury, and where the possibility of conviction for a trivial offence would be an unnecessary further complication.

    On the other hand the interests of justice will sometimes demand that the lesser alternatives are left to the Jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the Jury cannot be sure that he was guilty of the greater."

The conviction was quashed.

    17.  The Court of Appeal (Mustill LJ, Farquharson and Tucker JJ) returned to this issue in R v Maxwell [1988] 1 WLR 1265. In that case the defendant had been charged with and convicted of robbery. He had denied that charge but had expressed willingness to plead guilty to burglary, a charge which the prosecution declined to prefer (and which was not a lesser-included offence). The judge rejected a submission by counsel for the defendant that the lesser offence of theft should be left to the jury. The jury, during their deliberations, asked whether there was a lesser charge than robbery of which the defendant could be convicted, having burglary in mind. The judge answered, correctly, that burglary was not an alternative and, incorrectly, that there was no available lesser charge: the defendant could in law have been convicted of theft. The issue on appeal was whether this lesser count should have been left. The court adhered to its general observations in R v Fairbanks, observing (p 1270D-E) that while the right course would vary from case to case "the judge should always use his powers to ensure, so far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence". That precept had not been observed. Considering what consequences should flow from that conclusion, the court ruled (p 1270G-H):

    "To interfere with the verdict would require us to identify solid grounds for suspecting that the members of the jury had foresworn their oaths by deliberately returning a verdict of guilty when they were not sure of it, simply to avoid an unwanted outcome."

Since no such grounds were established, the appeal was dismissed. On further appeal to the House ([1990] 1 WLR 401), the Court of Appeal's decision in R v Fairbanks was approved, as was the court's ruling at p 1270D-E, quoted above, on the judge's use of his powers, although the House shared the view of the trial judge that theft, as compared with robbery, had been too trifling an offence to leave to the jury. But counsel's criticism of the passage of the court's ruling at p 1270G-H, quoted above, was accepted. Lord Ackner, speaking for the House, said (p 408):

    "What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct."

    18.  R v Maxwell was applied by the Court of Appeal in R v Maxwell (Nolan) [1994] Crim LR 848. The judgment of the court was delivered by Hobhouse LJ, sitting with Garland and Curtis JJ, and at pp 5-6 of the transcript he said:

    "We consider that, in a case such as this, where there is a factual situation which requires a jury to consider the extent of the joint enterprise and whether all the ingredients of the offence have been proved against one of the defendants, and the fact that the evidence was capable of showing that different offences may have been committed by him, the jury should have that opportunity to consider the alternatives. This is not a case, such as often occurs, where there is a single main clear count charging an offence, and the alternatives to it are not viable alternatives. This is a case where the alternatives were, on the evidence before the jury, clearly viable as regards the appellant …

    The present case undoubtedly involved disgraceful conduct on the part of this appellant. He had been identified as one of the men in the minicab. It was clear and undisputed on the evidence that he had taken part in a joint attack on the minicab driver in the early hours of the morning and had, on any view, inflicted some injuries upon him. Indeed, on one view, he was the person who had started the actual violence. It was disgraceful conduct, and it would cause outrage if the appellant, having been identified as one of the men involved, were to 'get clean away'. If the jury were to have a proper opportunity to consider all the alternatives which were open to them in respect of the appellant, they should have had further directions from the Judge upon the alternative verdicts that were open to them. The Judge laid the ground in his directions about what was involved in a joint enterprise, and the different views that might be taken of how far the joint enterprise went. He referred to the facts, which indicated the increased gravity of the later parts of the incident, and the role of Oakley in aggravating the assault, as well as being involved in the robbery. But he did not then go on to direct the jury that there were alternative verdicts which were open to them.

    In our judgment, that did amount to a material irregularity in the conduct of this trial, and makes the appellant's conviction unsafe."

    19.  R v Maxwell is not an easy authority, for although, as already noticed, the defendant failed both in the Court of Appeal and in the House, he did so on different grounds, neither of which is unproblematical. The Court of Appeal dismissed the appeal because the jury were not shown to have returned an improper verdict. But given the restraint on disclosure of jury deliberations this is ordinarily very hard to show. Mr Kelsey-Fry was disposed to agree that the only basis for drawing an inference that the jury had returned an improper verdict would ordinarily be a question asked by the jury. Yet in Maxwell the jury did ask such a question and the inference was not drawn. The House dismissed the appeal because the lesser alternative offence was relatively trifling. Theft is, of course, a much less serious offence than robbery, lacking the aggravating feature of violence. But it carried a maximum sentence of ten years' imprisonment, and the discrepancy in terms of gravity between the offence charged and the lesser alternative was scarcely greater than in R v Fairbanks, where the defendant's appeal succeeded.

    20.  In Gilbert v The Queen (2000) 201 CLR 414 the defendant was charged with murder and the trial judge directed the jury, incorrectly under the law as later laid down, that manslaughter was not an alternative verdict. The jury, correctly directed on the ingredients of murder, convicted. The issue in the High Court was whether a substantial miscarriage of justice had occurred. Mr Kelsey-Fry relied on strong statements by McHugh and Hayne JJ, very much in line with his own submission, that the verdict of a properly directed jury should be respected: see in particular paras 30-31, 52. But these were dissenting judgments. Gleeson CJ and Gummow J (para 6) recognised the difficulty of knowing whether a misdirection is advantageous to one party or the other and held (para 13) that while it could, as a general rule, be assumed that juries understand and follow judicial directions, it need not be assumed that juries were unaffected by matters of possible prejudice when making their decisions. An appellate court should not (para 16) assume that juries adopted a mechanistic approach to the task of fact-finding, oblivious of the consequences of their conclusion. Callinan J, agreeing, recognised (para 96) that a jury room might not be a place of undeviating intellectual and logical rigour, and concluded (para 101):

    "The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice."

    21.  In Australia, as here, the trial judge's duty to direct the jury on alternative verdicts which there is evidence to support is not removed by the decisions of trial counsel. In Pemble v The Queen (1971) 124 CLR 107, 117-118 Barwick CJ said:

    "Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part …

    Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused."

    22.  It appears that the approach of the majority of the High Court of Australia in Gilbert v The Queen reflects the principle generally applied in the United States: Stevenson v United States (162 US 313, 323 (1896); Berra v United States 351 US 131, 134 (1956); Keeble v United States 412 US 205, 212-213 (1973). In the last of these authorities Brennan J, giving the opinion of the Supreme Court, said:

    "Moreover, it is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction —in this context or any other—precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option— convicting the defendant of simple assault—could not have resulted in a different verdict."

But the approach to the decisions of trial counsel appears to differ. While the Federal Rules of Criminal Procedure provide that "[t]he defendant may be found guilty of an offense necessarily included in the offense charged …" this has been universally interpreted as granting a defendant a right to a requested lesser-included offence instruction if the evidence warrants it: Beck v Alabama 447 US 625, 635, f.n.ll (1980). In the Supreme Court of Canada, the failure of the trial judge to direct the jury on the possibility of a manslaughter conviction has been held to be, following the language of Lord Tucker in Bullard v The Queen [1957] AC 635, 644, a grave miscarriage of justice: R v Jackson [1993] 4 SCR 573, 593.

    23.  The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.

    24.  It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise. It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal.

    25.  The Court of Appeal rightly recognised the high sense of public duty which juries customarily bring to their task. I would not wish to belittle that in any way. But one does not belittle it to decline (as the High Court of Australia has done) to attribute to juries an adherence to principle and an obliviousness to consequences which is scarcely attainable.

    26.  Nor, with respect, is it an objection that the jury's task would have been more complicated had a manslaughter direction been given. Compared with many directions given to juries, a manslaughter direction in this case would not have been complicated. But even if it would, that cannot be relied on as a reason for not leaving to the jury a verdict which they should on the facts have considered. If juries are to continue to command the respect of the public, they must be trusted to understand the issues raised even by a case of some complexity. For reasons already given, the wishes of counsel cannot override the judge's duty.

    27.  I am of opinion that the judge should have left a manslaughter verdict to the jury. His failure to do so, although fully understandable in the circumstances, was a material irregularity. While the murder count against the appellant was clearly a strong one, no appellate court can be sure that a jury, fully directed, would not have convicted of manslaughter. For these reasons, and those given by my noble and learned friends Lord Hutton, Lord Rodger of Earlsferry and Lord Mance, with which I agree, I would accordingly allow the appeal. I would remit the matter to the Court of Appeal and invite that court to quash the conviction. It may also deal with any application for a retrial which may be made, the appellant remaining in custody meanwhile.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    28.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Hutton, Lord Rodger of Earlsferry and Lord Mance. For the reasons they give, with which I agree, I too would allow this appeal.

LORD HUTTON

My Lords,

    29.  The appellant in this case was convicted of the murder of Jane Longhurst. At his trial his defence was that she had died by accident when he and she had been engaged in consensual sexual activity. The only issue left to the jury was whether he was guilty of murder. The question which arises on this appeal to the House is whether the issue of manslaughter should have been left to the jury as an alternative verdict which they could return under section 6(2) of the Criminal Law Act 1967, the appellant's contention that this issue should have been left having been rejected by the Court of Appeal.

    30.  An outline of the facts of the case are set out in the speech of my noble and learned friend Lord Bingham of Cornhill and in order to state my opinion on the point before the House it is relevant to refer to two particular parts of the evidence at the trial. One matter which was established was that in the past when the appellant engaged in sexual activity with a female partner by reason of his fetish with women's necks he would frequently restrict her breathing with her consent, telling her that it would heighten her feelings. On occasions he would put tights round her neck which he would pull tight from both sides. Two women who had had a relationship with the appellant, one between 1989 and 1996 and the other between 1996 and 1997, gave evidence of this consensual asphyxial sex with him. One of them said that she often had to tell the appellant to stop putting pressure on her neck and he always stopped when asked, and there was no suggestion that he continued putting pressure on the neck of the other woman if she asked him to stop.

    31.  The second part of the evidence to which I refer is the evidence of the forensic pathologist, Dr Richard Shepherd, called for the defence, as to the danger of pressure being put on the neck. In the course of his examination in chief he said:

    "Q.  So it rather looks as if pressure to the neck is a pretty dangerous business?

    A. It - certainly from my practice I know and from reports recorded in the forensic literature, there is no safe way to squeeze someone's neck. It always carries with it the risk of this stimulating these receptors and producing this vagal response.

    Q. We can all understand that if you are choking someone, in the sense that you are restricting either the blood flow or the airflow in either of the first two ways, the vascular or the respiratory are potential ways of strangling someone but it is going to take time?

    A. Yes.

    Q. And there may be some sort of struggle or the opportunity to say: "I can't breathe"?

    A. Yes.

    Q. What about the vagal inhibition method, how does that affect that scenario?

    A. If it kicks in at the level that we have mentioned, where there is a severe effect on the heart, causing it to slow right down or causing it to beat abnormally or causing it to stop, there is no prior warning to that; that will occur out of the blue.

    Q. And is the situation therefore that someone may literally drop dead?

    A. They may literally drop dead with the pressure being applied to their neck, and there are recorded cases of that occurring within the forensic literature."

In the course of his cross examination he said:

    "Q.  Doctor, I want to ask you about something else, please, and that is blood, not bruising blood, but blood in the way I am about to describe. If I have understood you correctly, vagal inhibition, stimulating the bearer (?) receptors, can make you drop dead?

    A. Yes.

    Q. Presumably if what you were saying earlier was right, that would mean anywhere on the neck that might happen?

    A. Absolutely. Pressure anywhere on the neck is an extremely dangerous action. Extremely dangerous action."

    32.  Therefore if one of the appellant's sexual partners in the years between 1989 and 1997 had died as a result of his putting tights round her neck and pulling them tight and there had been no additional evidence, as there was at his trial, of his visits to pornographic websites showing extreme violence towards women under headings such as "asphyxiation and strangulation" and his visits to the place where he had stored the body of the deceased, which suggested that he had necrophiliac propensities, I consider it to be clear that if he had been charged with murder the defence could have advanced a case of some force that he had not intended to kill or cause grievous bodily harm and was, at most, guilty of manslaughter.

    33.  At the close of the evidence prosecuting counsel, Mr Kelsey-Fry QC, raised the issue of manslaughter:

    "Mr. Kelsey-Fry:   May I raise what perhaps might be the first and most important topic. Ordinarily, of course, in a charge of murder there is an alternative verdict available.

    Judge Brown: Yes.

    Mr. Kelsey-Fry: The way the Crown have put the case, from start to finish, is that this was a deliberate killing, and it is a contest between the Crown's allegation of a deliberate killing on the one hand, and accident on the other. 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. The Crown's view is that that would be quite unfair and quite wrong in this case. Having set the case out as a contest between deliberate killing and the Defence version, if we failed to prove the deliberate killing, in our submission the defendant is entitled to a full acquittal."

 
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