(back to preceding text)
34. A discussion then took place between the judge and prosecution and defence counsel, and the judge put the specific question to defence counsel whether he invited him to put manslaughter on any basis to the jury. Counsel replied that his provisional answer was that he did not, but that he had not, as yet, had the opportunity to discuss the matter in detail with the appellant. He asked permission, if the position changed, to raise the matter with the judge the next morning, which permission the judge granted. Defence counsel made no reference to the matter the next day and therefore with the agreement of both counsel the judge did not leave manslaughter to the jury.
35. In a statement which the appellant made for the purposes of his appeal to the Court of Appeal he said (and defence counsel accepts that it correctly represents the gist of his discussion with the appellant) that after the discussion between the judge and counsel, defence counsel said to 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 also said that he was advised that he would receive a sentence as long as 15 years on a conviction for manslaughter. Therefore it is apparent that rather than accept the strong probability of a conviction for manslaughter with a lengthy sentence, the appellant decided that he would bank on an acquittal on the count of murder with consequent release, although that course involved running the risk of a conviction for murder.
36. It is clear that there was evidence at the trial which enabled the Crown to advance a strong case that the appellant deliberately and intentionally killed Jane Longhurst to satisfy his fantasies of sexual violence. But I also consider that there were parts of the evidence to which I have referred above which raised the reasonable possibility that he lacked the necessary intent either to kill or to cause grievous bodily harm and that he was guilty of manslaughter. When he raised the matter with the judge, prosecuting counsel accepted that the appellant's account of what had happened might amount either to manslaughter by gross negligence or, "arguably", manslaughter by an unlawful and dangerous act. In the absence of a finding of an intent to kill or cause grievous bodily harm, I consider that on the facts of this case the death would come more appropriately within the category of manslaughter by an unlawful and dangerous act than within the category of death by gross negligence. Quite apart from the evidence of Dr Shepherd, ordinary common sense indicates that putting tights round a woman's neck and pulling them tight is a dangerous act which creates a realistic risk of serious harm.
37. The appellant's actions in doing so were unlawful because of the danger involved and because consent does not prevent such a dangerous act in the course of sex being unlawful. In R v Emmett  EWCA Crim 1710 (which the judge very properly drew to the attention of counsel in his discussion with them) the appellant in the course of sexual activity with his female partner and with her consent covered her head with a plastic bag which he tied at her neck with a ligature and which he then tightened to her point of endurance. She suffered distress because of loss of oxygen and was found by a doctor to have suffered subconjunctival haemorrhages in both eyes and some petechial bruising around the neck. The appellant was charged with assault occasioning actual bodily harm. The Crown Court judge ruled that the defence of consent was not available to the appellant and he appealed to the Court of Appeal against this ruling. In dismissing the appeal the court (constituted by Rose LJ and Wright and Kay JJ) stated:
"Accordingly, whether the line beyond which consent becomes immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry [in R v Brown  AC 212], the point at which common assault becomes assault occasioning actual bodily harm, or at some higher level, where the evidence looked at objectively reveals a realistic risk of a more than transient or trivial injury, it is plain, in our judgment, that the activities [engaged] in by this appellant and his partner went well beyond that line. The learned judge, in giving his ruling said: 'In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause [for] the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body.' With that conclusion, this Court entirely agrees."
38. In DPP v Newbury  AC 500 Lord Salmon in a speech with which all the other members of the House agreed stated:
"The direction which [the trial judge] gave is completely in accordance with established law, which, possibly with one exception to which I shall presently refer, has never been challenged. In Rex v Larkin (1942) 29 Cr.App.R.18, Humphreys J said, at p.23:
'Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.'
I agree entirely with Lawton LJ that that is an admirably clear statement of the law which has been applied many times. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence and sometimes to little less than murder.
I am sure that in Reg. v Church  1 QB 59 Edmund Davies J, in giving the judgment of the court, did not intend to differ from or qualify anything which had been said in Rex v Larkin, 29 Cr App R 18. Indeed he was restating the principle laid down in that case by illustrating the sense in which the word "dangerous" should be understood. Edmund Davies J said, at p. 70:
'For such a verdict' (guilty of manslaughter) 'inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.'
The test is still the objective test. In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger."
In Attorney-General's Reference (No 3 of 1994)  AC 245, 270A-271C Lord Salmon's statement of the law was approved and followed by Lord Hope of Craighead. Therefore, I consider that there was a viable defence case that the death of Jane Longhurst constituted manslaughter by an unlawful and dangerous act.
39. There is a long line of authority that the trial judge is bound to put to the jury such questions as appear to him properly to arise on the evidence even though defence counsel may not have raised a particular issue himself. Two of those cases are R v Hopper  2 KB 431 and Mancini v DPP  AC 1. In Hopper Lord Reading CJ said at page 435:
"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 although counsel may not have raised some question himself."
In Mancini Viscount Simon LC said at page 7:
"The fact that a defending counsel does not stress an alternative case before the jury (which he may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it."
40. This principle was applied by the Privy Council in Von Starck v The Queen  1WLR 1270, 1275 and in delivering the judgment of the Board the rationale of the principle was fully stated by Lord Clyde:
"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 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 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."
Lord Clyde's judgment was applied by the Privy Council in Hunter and Moodie v The Queen  UK PC 69 and by the Court of Appeal of Northern Ireland in R v Shaw and Campbell  NIJB 269.
41. In their judgment the Court of Appeal in the present case referred to two features which they considered distinguished the present case from the authorities relied on by Mr Fitzgerald QC for the appellant (who did not appear at the trial). In paragraph 58 they said:
"It is to be noted that there are two critical features of this case, which distinguish it from the previous cases. First, as we have seen, it is the fact that both counsel for the prosecution and the defence thought that it would not be in the interests of the fair trial of the defendant, if the offence of manslaughter was left to the jury. The second distinction is that the only basis upon which the jury could convict the appellant of manslaughter, was factually wholly different from the case that the prosecution was advancing in order to obtain a conviction of murder. It was not, for example, a case where it would be possible for the jury to come to the conclusion that the appellant was not guilty of murder but guilty of manslaughter on the case for the prosecution."
They further said in paragraph 61:
"In addition, at that stage of the case all the evidence, on behalf of both the prosecution and the defence, had been given so it could well have caused unfairness to the appellant to change fundamentally the nature of the case against him during the summing-up. While it is conceded that there was a viable basis for a verdict of manslaughter based upon the appellant's account, namely that it involved an unlawful and dangerous act of tightening the ligature around the victim's neck during consensual asphyxial sex, such a view of the facts would be wholly inconsistent with the case for the prosecution. So, for the judge to introduce the possibility of a verdict of manslaughter on these grounds would have transformed the nature of the case that the appellant was required to meet. The jury would not only have had to decide whether the victim may have died in the course of consensual sexual intercourse, but they would also have had to come to a conclusion as to the degree of danger that consensual asphyxial sexual intercourse, as practised by the appellant, involved."
42. Later in their judgment at paragraphs 83 and 84 the Court of Appeal said:
What is important here is that the judge accepted it would be unfair, and therefore 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. If, in this case, manslaughter had been included, and the jury convicted the appellant of this offence, an appeal would almost inevitably have followed, and it is doubtful whether the conviction could have been regarded as safe. There may be cases where the approach based upon not withdrawing a defence from the jury should be extended to situations where the alternative verdict would not be a defence, but this case is not that situation. The judge's task is, as far as practical and appropriate, to simplify the task of the jury, not to make it more complicated than it would otherwise be.
84. As our detailed consideration earlier in this judgment of the facts is intended to make clear, the case for the prosecution required the jury to consider a formidable body of circumstantial evidence. The critical issue for the jury to determine, however, was whether it was possible for the victim's death to have been an accident. In this situation, to introduce an alternative count would make the jury's task far more complicated without enhancing the interests of justice. Properly understood, the authorities only require a jury to be directed as to manslaughter, as an alternative to murder, when it is in the interests of justice for this to happen. It is not in the interests of justice for this to happen where it would result in unfairness to a defendant, or where it would make the task of the jury far more difficult without there being any sufficient countervailing benefit which justifies an additional burden being placed upon the jury."
43. I am, with respect, unable to agree with the reasons given by the Court of Appeal for not following the principle applied in Von Starck. As regards the first reason, although defence counsel did not wish the judge to leave manslaughter to the jury it is clear that this was because of a tactical decision by the appellant to go for a complete acquittal notwithstanding that this involved the risk of a conviction for murder. But, although it appears distasteful that a defendant can ask the judge not to leave a lesser alternative count to the jury and then, when convicted on the greater count, complain to an appellate court that the alternative count was not left, the interests of justice require, as Lord Clyde stated, that the jury should be able to reach a sound conclusion on the facts in the light of a complete understanding of the law applicable to them.
44. As regards the second reason given by the Court of Appeal, I consider that the leaving of relevant issues to the jury which may result in the jury coming to the conclusion which is the most just one on the evidence cannot depend on the way in which the prosecution chooses to present its case but must depend on all the evidence; as Lord Clyde stated in Von Starck at page 1276, "the issues in a criminal trial fall to be identified in light of the whole evidence led before the jury."
45. I am also unable to agree with the view of the Court of Appeal that it would have been unfair to the defendant to leave manslaughter to the jury and that a conviction for manslaughter would almost inevitably have led to an appeal which might have succeeded. If the judge had decided to leave manslaughter to the jury he would have told counsel of his decision and they would have referred to the issue in their closing speeches to the jury. The actions and mental attitude of the defendant at the time of sexual activity with the deceased were relevant to the issue of manslaughter as they were to the issue of murder, and the defendant had given a full account of his actions and mental attitude to the jury. Not infrequently in a murder case, the defendant advances a defence which, if not disproved by the prosecution, would entitle him to a complete acquittal, as when the defendant claims that he used a weapon in self defence, but the judge, pursuant to his duty, leaves the issue of provocation to the jury if it arises on the evidence, notwithstanding that defence counsel has not wished that issue to be left, and a verdict of manslaughter by reason of provocation does not necessarily mean that the defendant has had an unfair trial. In R v McCormack  2 QB 442,446 B the Court of Appeal said:
"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."
Whilst there will be cases, as the Court of Appeal recognised in McCormack, where it would be unfair to the defendant to leave an alternative verdict to the jury, I am satisfied that this is not such a case.
Nor do I think that the task of the jury would have been unduly complicated by leaving the issue of manslaughter to them. Therefore, although it was understandable why he failed to do so, I consider that the judge should have left the issue of manslaughter to the jury. The question then arises whether the conviction for murder should be quashed as unsafe.
46. In the authorities which consider whether a conviction should be quashed on appeal when the judge has erred in failing to leave an alternative verdict to the jury two lines of reasoning have been adopted. One line of cases has followed the reasoning of Lord Ackner in R v Maxwell  1 WLR 401 (with whose judgment the other members of the House agreed). In that case the appellant had been tried and convicted on a count of robbery. Under section 6(3) of the Criminal Law Act on the count of robbery the jury could return the alternative verdict of theft, but an alternative verdict of burglary could not be returned. The prosecution declined to add a count of burglary to the indictment, a decision which Lord Ackner considered to have been justified (see page 408). The appellant appealed on the ground that the judge should have left the alternative verdict of theft to the jury and the House dismissed the appeal, Lord Ackner stating at page 408 that:
"on the facts of this case the judge was entitled to conclude that the alternative of theft was relatively so trifling that the jury's attention upon the essential issue - did the appellant intend violence to be used? - should not be distracted."
Lord Ackner therefore held that he could find no vitiating error or reason for regarding the verdict as unsafe or unsatisfactory, but he went on to state (by way of obiter):
"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. If they are so satisfied then the conviction cannot be safe or satisfactory."
47. A second line of cases makes no reference to the concern that a jury, properly directed by the judge as to the law on the count left to them, may nevertheless have convicted, not on a sound basis in accordance with the judge's directions and on their honest assessment of the facts, but from a reluctance to see the defendant get clean away with disgraceful conduct. These cases take a more direct approach to the issue and hold that where a lesser alternative verdict which was reasonably open on the evidence should have been left, but was not left, there has been a serious miscarriage of justice and the conviction must be quashed as unsafe.
48. Mr Kelsey-Fry relied on Lord Ackner's judgment and submitted that even if the judge should have left the manslaughter issue to the jury, nevertheless the conviction for murder was safe and should be upheld because the judge had properly directed the jury as to the relevant law, and on the facts of the case the House could not be satisfied that the jury had convicted out of a reluctance to see the appellant get clean away.
49. A considerable number of authorities have followed Lord Ackner's judgment in Maxwell. In R v Maxwell (Nolan)  Crim LR 848 in delivering the judgment of the Court of Appeal Hobhouse LJ after citing Lord Ackner's judgment said at page 6 of the transcript:
"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."
50. In Hunter and Moodie v The Queen  UK PC 69 Lord Hope of Craighead said at paragraph 28:
"Their Lordships consider that the trial judge was wrong to deprive the jury of the opportunity of considering whether, in the light of the mixed statements, the Crown had proved in the case of each appellant that the 'triggerman' test was satisfied. He ought to have directed the jury to consider this question, and to have left with them the alternative verdict that the appellants were guilty of non-capital murder which would have been open to them on the evidence if they were satisfied that the appellants were acting in pursuance of a joint enterprise. They were, of course, left with the alternative verdict of not guilty [of capital murder]. But, as Lord Ackner explained in R v Maxwell  1 WLR 401, 408, if the judge fails to leave an alternative offence to the jury, the court must consider whether the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. That was a very real possibility in this case. There was ample evidence that the appellants had guns in their hands, and that they had been using them during their running battle which they and their companions had started with the police. According to the police witnesses, all four men had been attempting to inflict grievous bodily harm on them from the start of this incident."
51. In Gilbert v The Queen (2000) 201 CLR 414 in the High Court of Australia Gleeson CJ and Gummow J, who were in the majority with Callinan J, delivered a judgment which acknowledged some degree of validity in the concern which underpins the approach stated by Lord Ackner in Maxwell. They said at page 420:
"The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice."
And at pages 420 and 421 after citing passages in the judgments in Mraz v The Queen (1995) 93 CLR 493, delivered at a time when murder attracted the death penalty, including the statement of Fullagar J:
"A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them."
"These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences."
52. However, McHugh J and Hayne J, dissenting, rejected the view taken by Gleeson CJ and Gummow J as to how a jury might come to their decision. McHugh J said at page 425:
"30. The argument for the appellant is a claim that this Court should proceed on one of two bases, each of which necessarily involves an assumption that, if manslaughter had been left as an issue, the jury might have disregarded their sworn duty to give a verdict in accordance with the evidence. The first assumption is that, if manslaughter had been left, the jury might have convicted of manslaughter even though they knew, because of the trial judge's directions, that the appellant was guilty of murder. The second assumption is that the jurors were not convinced beyond reasonable doubt that the appellant knew that his brother intended to kill or to inflict grievous bodily harm on Linsley, that they knew therefore that he was not guilty of murder, but that they nevertheless convicted him of murder rather than acquit him and see him go free. In my respectful opinion, as a matter of legal policy, no court of justice can entertain either assumption.
31. The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."