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 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.
Held: The appeal was dismissed.
Mustill LJ said: ‘It was argued on behalf of the Crown that this test was not satisfied in the present case, where there was, it was submitted, ample evidence to justify the conviction of Campbell for murder. It seems to us that the test is material where the possible alternative is a relatively trifling offence, consideration of which would only distract the jury. It is clear from the terms of the passage which we have quoted from Mustill LJ’s judgment in R v Fairbanks that other considerations may require a lesser offence to be left. In the present case it does appear that it was a tenable possibility that the jury might reject the evidence of Dawn Shaw about the conversation in her house, in which event the jury would need direction about the matters requiring proof if Campbell was to be convicted of murder on the basis of having taken part in a joint enterprise. In such event they might have acquitted him of murder, though finding him guilty of assisting the offender.’ A flexible approach is required: ‘[Defence counsel] submitted that it was for the judge to ensure that all material issues were placed before the jury, even if not argued overtly by him in closing. We feel impelled to agree with this submission. For the reasons which we have stated, we are of the opinion that the case does not fall within the category of those in which the issue does not arise in the way in which the case has been presented to the court. It is not one in which Campbell has admitted that the offence was committed. The possibility was there that he took some lesser part in the affair than full complicity in murder, and that possibility was not removed by his denial that he had anything at all to do with the attack. We therefore must conclude that the judge should have left the lesser offence to the jury and given them an appropriate direction on the law relating to join enterprise.’ and ‘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.’


Mustill LJ


[1988] 1 WLR 1265, [1988] Crim LR 760, (1988) 88 Cr App R 173


England and Wales


CitedRegina 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 by:

Appeal fromRegina 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 . .
CitedSutton London Borough Council v S and Another QBD 26-Oct-2004
Parents had had charges brought against them by the appellant for failing to ensure the attendance of their child at school dismissed. The authority appealed.
Held: The authority should have considered more carefully whether it was appropriate . .
CitedCoutts, 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 . .
CitedRegina 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 . .
CitedRegina v Coutts HL 19-Jul-2006
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 . .
CitedRegina 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 . .
CitedLondon Borough of Sutton v S Admn 26-Oct-2004
The Borough appealed against acquittal by the magistrates of the defendant parent accused of failure to ensure the regular attendance of their child at school. The child had attended only irregularly. The parents had contacted the school and . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 April 2022; Ref: scu.220042