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 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.’ Carswell LCJ also made it clear that a flexible approach is required when he added: ‘[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.’


Carswell LCJ


[2001] NICA 25, [2001] NIJB 269




Northern Ireland


ApprovedAlexander 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 by:

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 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 . .
Lists of cited by and citing cases may be incomplete.


Updated: 13 June 2022; Ref: scu.201984