The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent duty to leave that option to the jury.
Held: The appeal succeeded. 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. ‘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. ‘
Lord Rodger: ‘These authorities help to identify the attitude which an appeal court must adopt in a case such as this, despite any justifiable feeling of distaste for the appellant’s approach. If the court concludes that there was a material misdirection which rendered the jury’s verdict unsafe, then it must give effect to that conclusion and quash the conviction. An unsafe verdict cannot stand just because the appellant was partly to blame for its being unsafe. ‘
Judges:
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Lord Mance
Citations:
[2006] UKHL 39, [2006] 1 WLR 2154, Times 24-Jul-2006, [2007] 1 CAR 60, [2006] 4 All ER 353, [2006] Crim LR 1065, [2007] 1 Cr App R 6
Links:
Statutes:
Criminal Law Act 1967 6(2) 6(3)
Jurisdiction:
England and Wales
Citing:
Appeal from – Coutts, Regina v CACD 21-Jan-2005
The defendant appealed his conviction for murder, saying that the judge should have left to the jury the alternative conviction for manslaughter. The victim had died through strangulation during a sexual assault by the defendant. He said it had not . .
Cited – Regina v Fairbanks CACD 1986
The defendant complained that the judge had not left an alternate verdict of careless driving to the jury where he had been charged with driving a motor vehicle on the road recklessly.
Held: The conviction was quashed.
Mustill LJ said: . .
Cited – Hunter, Moodie v The Queen PC 8-Oct-2003
PC (Jamaica) The defendants appealed against their convictions for capital murder.
Held: The appeals were allowed, and non-capital convictions substituted. It is not enough to comply with section 2(2), for . .
Cited – Alexander Von Starck v The Queen PC 28-Feb-2000
(Jamaica) The defendant had fatally stabbed a woman. On arrest, he admitted killing her and that he had the knife which he had used to do so. He gave the police officer a pouch containing a knife, on which blood of the same group as that of the . .
Cited – Regina v Hopper CCA 1914
Lord Reading CJ said: ‘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 . .
Cited – Mancini v Director of Public Prosecutions HL 1941
There are exceptional cases to the rule in Woolmington for: ‘offences where onus of proof is specially dealt with by statute’. ‘There is no reason to repeat to the jury the warning as to reasonable doubt again and again, provided that the direction . .
Cited – Bullard v The Queen PC 1957
The question was whether there was evidence on which the jury could have found a verdict of manslaughter on grounds of provocation rather than the verdict of murder which had been returned.
Held: There is naturally a tendency for an appellate . .
Cited – Regina v Porritt CCA 1961
Ashworth J said: ‘As has already been said, the issue of manslaughter was not raised at the trial, but there is ample authority for the view that notwithstanding the fact that a particular issue is not raised by the defence, it is incumbent upon the . .
Cited – Shaw and Campbell, Regina v CANI 8-Jun-2001
The defendant appealed his conviction for murder saying the judge should have left the alternative charge of having assisted offenders to the jury.
Held: Referring to Fairbanks: ‘It was argued on behalf of the Crown that this test was not . .
Cited – Regina v Cox (Andrew Mark) CACD 12-Apr-1995
The Court of Appeal has the power to apply the proviso preserving a conviction despite the failure of the judge at trial to mention the defence of provocation. . .
Cited – Regina v Dhillon CACD 27-Nov-1996
The defendant appealed against his conviction for murder saying that the defence of provocation had not been left to the jury. The trial judge had thought that there should be a provocation direction, but neither prosecuting nor defence counsel . .
Cited – Rex v Parrott 1913
Phillimore J considered the possibility of allowing a conviction for a lesser offence than that charged and said: ‘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 . .
Cited – Regina v McCormack CACD 1969
The defendant was charged with unlawful sexual intercourse and it was held to have been correct to leave to the jury as an alternative verdict a verdict of indecent assault. It was held as ‘plain beyond argument’ that if a man inserted his finger . .
Cited – Regina v Maxwell CACD 1988
The defendant admitted paying two others to burgle his partner’s home, but said he had not anticipated violence, and appealed against his conviction for robbery, saying the judge should have left the alternative verdict to the jury. The jury, during . .
Cited – Regina v Maxwell CACD 11-May-1994
When directing the jury, the judge should mention all alternative and appropriate lesser offences with explanations. The possibility of a conviction under section 47 for assault occasioning actual bodily harm should be offered to a conviction under . .
Cited – Mraz v The Queen 1995
(High Court of Australia) 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.’ . .
Cited – Regina v Rennie Gilbert PC 21-Mar-2002
(Grenada) The defendant had successfully appealed a conviction for attempted rape. He said that he had been convicted on the uncorroborated evidence of the complainant, and that the judge should have given an appropriate warning to the jury. The . .
Cited – Regina v Emmett CACD 18-Jun-1999
The defendant appealed against conviction after being involved in sexual activity which he said was not intended to cause harm, and were said to be consensual, but clearly did risk harm. On the first occasion he tied a plastic bag over the head of . .
Cited – Attorney-General’s Reference (No 3 of 1994) HL 24-Jul-1997
The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act . .
Cited – Regina v Larkin CCA 1943
There may be involuntary manslaughter, if the accused intentionally did an act which was unlawful and dangerous and that act inadvertently caused death. Humphreys J said: ‘Where the act which a person is engaged in performing is unlawful, then if at . .
Cited – Regina v Maxwell HL 1990
The defendant had hired two men to enter his former partner’s house to commit robbery. It was his defence that he did not contemplate violence, and that he was only guilty of the offence of burglary. The prosecution would not add a count of burglary . .
Cited – Director of Public Prosecutions v Newbury and Jones HL 12-May-1976
The two teenage defendants pushed a stone slab from a bridge onto an oncoming train. The slab went through the window and killed the guard. They appealed convictions for manslaughter.
Held: The appeals were dismissed. An unlawful act can found . .
Cited – Pemble v The Queen 1971
(High Court of Australia) Barwick CJ: ‘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 . .
Cited – Regina v Church CCA 1965
The defendant was convicted of manslaughter. After he had been unable to satisfy his female victim sexually, he had become angry and had seriously assaulted her. He mistakenly thought she was dead and tipped her in the river where she drowned.
Cited – Keeble v United States 1971
(US Supreme Court) Brennan J 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 . .
Cited – Gillard v The Queen 2003
(High Court of Australia) Hayne J explained the effect of the majority decision in Gilbert: ‘In Gilbert, a majority of the Court concluded that if manslaughter should have been, but was not, left to a jury as an available verdict on the appellant’s . .
Cited – Regina v Jackson 1993
(Supreme Court of Canada) McLachlin J: ‘It is true that the trial judge charged the jury clearly and correctly on the mental state required to find Davy guilty of murder. It is also true that the jury found Davy guilty of murder. Nevertheless, I . .
Cited – Kwaku Mensah v The King PC 1946
(West Africa) The judge had failed to give a direction on provocation in a murder case where the issue properly arose.
Lord Goddard said: ‘But if on the whole of the evidence there arises a question whether or not the offence might be . .
Cited – Director of Public Prosecutions v Daley PC 1980
(Jamaica) The defendants had an argument with the deceased, who ran from them, tripped on a concrete ramp and fell. He died a few days later. The accused had thrown stones at him while he was running from them. The prosecution alleged that he died . .
Cited – Muir v HM Advocate 1933
The jury in a murder trial had not been directed on the possible verdict of culpable homicide on the ground of diminished responsibility.
Held: The defendant’s appeal was allowed. Lord Sands said: ‘A brutal crime had been committed, and a . .
Cited by:
Cited – St Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
Cited – Regina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
See also – Zipher Ltd v Markem Systems Ltd PatC 16-Jan-2007
. .
See Also – Yeda Research and Development Company Ltd v Rhone-Poulenc Rorer International Holdings Inc and others HL 24-Oct-2007
The claimants said that the defendant had misused confidential information sent to him to found an application for a patent, claiming wrongly to have been its inventor. The claimant appealed a refusal by the court to allow amendments to the . .
Cited – Whaley and Another v Lord Advocate HL 28-Nov-2007
The House considered claims that the 2002 Act, which set out to make unawful the hunting of wild mammals with dogs unlawful, infringed the claimants’ human rights, in that it contravened international treaties requiring the support for traditional . .
Cited – Foster, Regina v; Regina v Newman etc CACD 30-Nov-2007
In each case the defendant appealed his conviction saying that since the defence which he ran included an admission of a lesser offence, the court should have left a conviction for that lesser offence as an alternative for the jury.
Held: The . .
Cited – Serrano, Regina v CACD 1-Dec-2006
The defendant had been convicted of murder in 1972. He now appealed on a reference by the Criminal Cases Review Commission questioning the failure of the judge to direct on provocation. He had killed a girl after they tried but failed to have . .
Cited – Kempster, Regina v CACD 7-May-2008
The defendant appealed against his conviction saying that evidence of an ear-print expert had been wrongly admitted.
Held: The court rejected an argument based on Coutts. Ear-print evidence can be admitted provided the experts were . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 25 November 2022; Ref: scu.243336