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    79.  The statement of the law in Von Starck was applied by Sir Robert Carswell LCJ in the Court of Appeal in Northern Ireland in R v Shaw and Campbell [2001] NIJB 269 and by Lord Hope of Craighead, giving the judgment of the Privy Council, in Hunter and Moodie v The Queen (unreported) (Privy Council Appeal No 64 of 2002), para 27.

    80.  In the present case, however, the Court of Appeal suggested, [2005] 1 WLR 1605, 1621, para 69, that in Von Starck v The Queen Lord Clyde had expressed his views in terms that were more extensive than was necessary for the decision in that case. They did not believe that he would have expressed himself in those terms if he had had in mind the sort of situation being considered here. In my view Lord Clyde's observations, while not specifically phrased in terms of murder and manslaughter, are simply a fuller version of the statements of law to be found in the earlier decisions which I have quoted. I would respectfully endorse his formulation of the law.

    81.  As these authorities make clear, the duty of the trial judge to direct the jury on manslaughter arises if a jury might reasonably return such a verdict on the whole of the evidence, whether led by the Crown or by the defence. Contrary to what the Court of Appeal said in para 83 of their judgment, [2005] 1 WLR 1605, 1624, the duty applies even though the result may be that the jury convict the defendant of manslaughter on a basis which is different from, and inconsistent with, the case put forward by the prosecution. That is a necessary implication of the judge's duty to direct on manslaughter when it arises on all the evidence, even if the prosecution case is that the jury should accept particular elements of the evidence, on the basis of which they should find the defendant guilty of nothing less than murder. The stance of prosecuting counsel cannot be determinative of the range of verdicts fairly open to the jury on the evidence.

    82.  Directing the jury on the way that the law applies to any reasonable view of the facts disclosed by the evidence ensures that they have a proper understanding of the way that the law is intended to work, depending on the view of the facts which they take. Therefore, by omitting to mention manslaughter in a case where it could apply on a reasonable view of the facts, the judge will misrepresent the position by making the law seem more rigid and less nuanced than it actually is. While, for tactical reasons, it may suit counsel on either or both sides to represent the law in this way, as offering a stark alternative between murder and acquittal, with nothing in between, in fact the law provides for an intermediate position. The jury are entitled to be told of that intermediate position, whenever it might come into play on a reasonable view of the evidence. The intermediate position may not be to the liking of either the prosecution or the defence, but the jury are still entitled to be told of it, so that they may reach their conclusions "in light of a complete understanding of the law applicable to them." Where the duty of the judge is to give a direction on the alternative verdict, counsel have to adjust their speeches to the jury to take account of that prospective direction.

    83.  As Lord Clyde points out, this approach secures that the overall interests of justice are served in the resolution of the matter committed to the jury. If the jury are not aware that the law provides for conviction of manslaughter on the view of the evidence which they form, there is a risk that they may go wrong in either of two ways. On the one hand, the jury may convince themselves that, despite what the judge has told them, a conviction of murder must be open even in circumstances where it is not actually the lawful verdict because the crime of manslaughter comes into play; on the other hand, they may conclude that the defendant is entitled to be acquitted completely, say, on the ground of accident, in circumstances where the law actually requires that he should be convicted of manslaughter. The first eventuality harms the defendant, the second harms the wider public interest. But both are unacceptable. And our system guards against them by requiring the judge to explain the law of manslaughter to the jury so that they are aware of it in any appropriate case. Omitting the direction removes the safeguard.

    84.  Since the duty to put the possibility of a viable alternative verdict before the jury exists to promote the interests of justice in this way, it will not apply in circumstances where giving the direction would not serve those interests and might indeed undermine the fairness of the trial. For instance, there might be cases where it could properly be said that one or other of the parties was prejudiced because, if they had realised that the alternative verdict was going to be left to the jury, they would have examined or cross-examined the witnesses differently or would have led other evidence. If the prejudice was significant and could not be avoided or mitigated at that stage, the overall interests of justice might mean that the duty to direct on the alternative verdict would not apply. There could also be cases, other than murder-manslaughter, where the alternative verdict would be so trivial that the jury would be unlikely to be misled by not knowing about it and the public interest would not suffer if the defendant were not convicted of the offence. In such a case, as Mustill LJ envisaged in R v Fairbanks [1986] 1 WLR 1202, 1206, the judge could properly conclude that it was best not to introduce an unnecessary complication and distract the jury by forcing them to consider something which was remote from the real point of the case. Again, the duty would not apply. But, in a case such as the present, the duty applies and any additional complications in the directions to the jury are the necessary price of ensuring that they have all the information on the law which they need to discharge their responsibilities.

    85.  Since, in order to discharge those responsibilities, the jury require to be directed on manslaughter whenever (as in this case) it arises as a viable issue on a reasonable view of the evidence, a failure by the judge to give the direction will amount to a material misdirection in law. In terms of section 2(1) of the Criminal Appeal Act 1968 an appellate court will therefore have to quash the conviction if they think that, by reason of the misdirection, the conviction is unsafe. This is just to reach virtually the same position as is succinctly stated in the judgment of Lord Tucker in the Privy Council in Bullard v The Queen [1957] AC 635, 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."

    86.  Mr Kelsey-Fry submitted, however, that, even if your Lordships concluded - as I have concluded - that the judge had been wrong not to give the jury directions on the alternative verdict of manslaughter, this would not be a sufficient basis for quashing the appellant's conviction of murder. In effect, his argument was that, when a jury has been properly directed on a more serious offence and has convicted the defendant of that more serious offence, the failure to direct on a lesser alternative offence does not of itself render the conviction unsafe. In the words of Lord Ackner in R v Maxwell [1990] 1 WLR 401, 408, "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."

    87.  Despite its authoritative provenance, the test propounded by Lord Ackner is problematical, to say the least. So far as murder-manslaughter is concerned, it appears to be inconsistent with Lord Tucker's approach in Bullard v The Queen. The test is also difficult to apply. Since the appeal court cannot inquire into what went on in the jury room, it is very far from clear how they are meant to satisfy themselves in any given case that a jury may have convicted out of a reluctance to see the defendant get clean away. Moreover, the test supposes that the jury will have consciously convicted the defendant in the face of the judge's directions. Yet the foundation of the system of trial by jury is the assumption, which is thought to be borne out by experience, that juries apply the directions which the judge gives them. In Bergman and Collins [1996] 2 Cr App R 399 the Court of Appeal suggested that Lord Ackner's test might be satisfied if the jury had asked whether an alternative verdict was open to them - but Hutchison LJ pointed out that this had not actually availed the defendant in R v Maxwell. Mr Kelsey-Fry suggested that protracted deliberations by the jury might be a pointer to the jury having ultimately gone wrong in this way - but the lengthy deliberations could equally point to the jury having taken particular care in applying the directions which they had been given. The reality is that the test is so uncertain that it is likely to produce inconsistent results, however conscientiously it may be applied.

    88.  In any event, the test is wrong in principle. In Bullard v The Queen [1957] AC 635, 644 the Privy Council regarded the direction on manslaughter as essential in an appropriate case and as leading to a grave and irremediable miscarriage of justice if it was omitted. This can only be because the direction is necessary if the jury are to consider their verdict on the proper basis and to avoid the risk of being misled into an inappropriate verdict. So it must be assumed that giving or omitting the direction affects the way that the jury consider the issues in the case. In the words of Callinan J in Gilbert v The Queen (2000) 201 CLR 414, 441, 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."

    89.  The present case provides a good illustration of the point. The jury were told that they had to choose between convicting the appellant of murder and acquitting him on the ground that the victim had died as a result of an accident. On that basis they chose to convict of murder. But the jury should also have been told that, depending on their view of the facts, they could convict him of manslaughter. Mr Kelsey-Fry says that the additional choice is irrelevant since the jury convicted the appellant of murder and so they would never have reached the question of manslaughter, which only arose if they were not prepared to convict of murder. But that is to make an unreal assumption that, at all stages of their deliberations, the jury would keep the various issues in separate boxes, to be considered in a prescribed order. The reality is that, in the course of their deliberations, a jury might well look at the overall picture, even if they eventually had to separate out the issues of murder, manslaughter and accident. So, introducing the possibility of convicting of manslaughter could have changed the way the jury went about considering their verdict.

    90.  Mr Kelsey-Fry further objects that, in any event, when reaching their verdict, the jury would have considered all the relevant facts - it made no difference that they were unaware that the law attached the label of manslaughter to one version of those facts. But experience shows that, as in this case, counsel deliberately choose not to mention manslaughter to the jury on the view that this may indeed influence the way that the jury react to the facts. At the very least, Mr Kelsey-Fry's submission ignores the possibility that the jury's approach might have been different if they had known that the appellant's version of events might better be regarded as constituting the crime of manslaughter, rather than as involving a mere accident. In Muir v HM Advocate 1933 JC 46, 50, where the jury in a murder trial had not been directed on the possible verdict of culpable homicide on the ground of diminished responsibility, Lord Sands, who agreed that the appeal should be allowed, noted: "A brutal crime had been committed, and a measure of mental weakness might have been regarded from quite a different angle if the jury were aware that its affirmance did not involve complete acquittal." In much the same way, in the present case the jury might have regarded the defendant's version of events from quite a different angle if they had been aware that accepting it did not involve his complete acquittal.

    91.  In my view therefore, in a case where the judge has wrongly omitted to direct the jury on a viable alternative verdict, the failure to give the direction must be regarded as a material misdirection. In Bullard v The Queen [1957] AC 635, 644 the Privy Council considered that failure to give the appropriate direction on manslaughter in a case of murder would always be irremediable. In the absence of detailed argument on that particular point, it is enough to say that a failure to give the necessary direction must usually make the verdict unsafe since the appeal court will have no sufficient basis for concluding that a reasonable jury would inevitably have convicted the appellant of murder if they had been given the appropriate direction.

    92.  In the present case I am certainly unable to say that, if given a direction on manslaughter, a reasonable jury would inevitably have convicted the appellant of murder. I think accordingly that the verdict is unsafe. For these reasons, as well of those given by my noble and learned friends, Lord Bingham of Cornhill, Lord Hutton and Lord Mance, I would allow the appeal and make the order which Lord Bingham proposes.

LORD MANCE

My Lords,

    93.  I have had the advantage of reading in draft the judgments prepared by my noble and learned friends, Lord Bingham of Cornhill and Lord Rodger of Earlsferry. I agree with their reasoning and conclusions and add only a few words of my own out of deference to the careful submissions of Mr Kelsey-Fry QC for the Crown and because our decision marks a change from the approach taken in previous authority in both this House and the Privy Council to the safety of a verdict of guilty of a particular offence where the jury has not been directed as to the possibility of a finding of guilt of some alternative lesser offence.

    94.  Many of the cases cited to the House concerned failure by a judge to direct the jury about the possibility of circumstances which would reduce the charge laid to some lesser offence, e.g. provocation or self-defence which would reduce a murder charge to manslaughter: see e.g. Mancini v. DPP [1942] AC 1 and Bullard v. The Queen [1957] AC 635. The Privy Council decision in Von Starck v. The Queen [2000] 1 WLR 1270 falls to my mind into the same category - the judge directed the jury not to consider the issue of intoxication by cocaine, thus withdrawing from them the possibility of a finding that the defendant, because of such intoxication, lacked the specific intent necessary for a conviction for murder, while retaining the basic intent which is sufficient for a conviction for manslaughter (cf Blackstone's Criminal Practice 2006, paras. A3.10 and B1.35). Depriving a defendant of the benefit of an answer to the Crown's case, so leaving him or her exposed in law to conviction for an offence which he did not commit, must render any verdict unsafe.

    95.  But there have been some cases considering the situation where an alternative offence presents itself not as an answer to the Crown's case, but as a possibility which (although not canvassed by either side) arises in law on the defendant's own case if and only if the Crown's case is rejected. In this situation, a direction by the judge to the jury to consider the alternative offence may lead to conviction in circumstances when otherwise the jury would in law have had completely to acquit. Not surprisingly, there are cases in which defendants have complained that the judge should not have left an alternative offence to the jury in these circumstances: e.g. R v. McCormack [1969] 2 QB 442; where, equally unsurprisingly, the complaint was rejected (although the court pointed out, at page 446, that a trial judge must have a discretion not to leave an alternative to a jury, if to do so might cause undue prejudice, as where the defendant had lost the chance of giving or calling evidence to cover or guard against the alternative). An important public interest is served by the conviction of offenders of offences which they have committed, and the judge is not bound by the way in which either side has presented its case, if an alternative offence can without injustice be left to the jury.

    96.  In the present case the appellant's complaint is the reverse. The appellant was content at trial that the jury should be left with a choice between being satisfied of murder and the possibility of accident. But a criminal judge has to ensure a fair trial, irrespective of the attitude taken at trial by either side: see Von Starck at p.1275 per Lord Clyde. The appellant now therefore complains that the judge should have insisted on directing the jury that, even on the defence case of accident, they should consider whether the appellant's conduct amounted to manslaughter, at least by gross negligence, and that the verdict is unsafe because he did not.

    97.  It can be said with some force that our jury system rests on the hypothesis that juries follow the directions and decide between the options they are given loyally and dispassionately: see e.g. the dissenting judgments of McHugh and Hayne J in Gilbert v. The Queen (2001) 201 CLR 414 (High Court of Australia). There are after all many circumstances in which no alternative verdict is possible, but the jury may, on the defendant's own account of events, feel very considerable disgust regarding his conduct (as they did no doubt in the present case with regard to the defendant's conduct after the deceased's death). The jury is in such circumstances trusted, nevertheless, to approach the question of guilt or innocence in respect of the offence charged loyally and dispassionately.

    98.  However, in the limited number of previous cases in the United Kingdom, a different general approach has been taken in a context where an alternative verdict presents itself as possible. The approach has been (a) to recognise that there can be a real risk of the absence of a direction regarding the possibility of an intermediate alternative verdict influencing a jury to convict of the more serious charge laid by the Crown, out of reluctance to let the appellant "get clean away" with a complete acquittal, and (b) to seek to identify whether in the particular circumstances of the case that real risk actually arose: see e.g. R .v Fairbanks [1986] 1 WLR 1202, R v. Maxwell [1990] 1 WLR 401, R v. Maxwell (Nolan) [1994] Crim LR 848 and Hunter and Moodie v. The Queen [2003] UKPC 69 (cf also The Queen v. Shaw and Campbell [2001] NIJB 269). The test involved in part (b) of this approach was advanced by Lord Ackner in R v. Maxwell, at p.408 in the following terms:

"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".

    99.  I am persuaded that this is an unworkable test to apply to a jury trial. There is no reliable means by which an appellate court can, on so particular a basis, measure whether or how a jury may react to an unnatural limitation of the choices put before it. One is entitled to assume that juries go about their task in the utmost good faith, but the concern is with sub-conscious as well as conscious reactions. Like my noble and learned friends, I find persuasive the reasoning of Callinan J in Gilbert v. The Queen (2000) 201 CLR 414, 441, para. 101, to the effect that, as a matter of human experience, a choice of decisions may be affected "by the variety of choices offered, particularly when … a particular choice [is] not the only or inevitable choice". (In the present case, the possibility that the decision not to leave manslaughter to the jury might conceivably play out against, rather than for, the appellant is also inherent in defence counsel's apparent remark to the appellant at the time about "rolling the dice".)

    100.  Accordingly, in my view, where, as Lord Bingham has said, an obvious alternative verdict presents itself in respect of some more than trifling offence and can without injustice be left for the jury to consider, the judge should in fairness ensure that this is done, even if the alternative only arises on the defence case in circumstances where as a matter of law there should apart from that alternative be a complete acquittal.

    101.  Mr Kelsey-Fry submits, with some force, that the charge of murder laid by the Crown and any alternative offence of manslaughter which may be suggested would, despite its deplorable nature, still be of a very different order of seriousness. Nevertheless the latter could not conceivably be regarded as anywhere near trifling - a point which defence counsel's advice at trial that a conviction for manslaughter could attract a sentence as long as 15 years amply demonstrates.

    102.  It follows that the present verdict of guilt, arrived at when the jury was presented with a stark choice between murder and complete acquittal, cannot be regarded as safe, and I too would therefore allow this appeal and remit the case to the Court of Appeal on the basis indicated by Lord Bingham.