When should alternative counts be left for the consideration of the jury?
In R v Barre  EWCA Crim 216 (10 February 2016) the Court of Appeal Criminal Division provided an helpful ruling in relation to the question when an alternative count should be left for the consideration of the jury. Lord Justice Gross, who provided the ruling, described the case as a matter which has had tragic consequences for the families on either side. The case concerned a clash between two groups of youths which lead to the fatal stabbing of Jamil Palmer. There was a history of difficulties and hostility between the convicted appellant and the deceased.
On 10 December 2014, the Central Criminal Court before His Honour Judge Hone QC convicted the appellant, now 18, of murder. He was sentenced to 17 years in prison. The appellant was tried with four other co-defendants who were all acquitted of murder by the jury. The ground of appeal against conviction was that the jury erred in refusing to direct the jury on manslaughter and leaving it as an alternative to murder.
Prior to the fatal stabbing both the appellant and the deceased were involved in a fight where the appellant ‘was knocked out’. A friend of the deceased filmed the incident and it was apparently shared on social media. The fatal stabbing happened later that afternoon when the appellant and the deceased and their respective friends agreed to meet. The post mortem examination revealed three stab wounds. The appellant was interviewed and made “no comment”. He did not give evidence in the trial.
The defence case was that the appellant had only anticipated a fist fight, and denied taking a knife or knowing a knife was brought by one of his friends. One of his friends had intervened in the fight and had struck the deceased. The prosecution’s case was that there was a history between the appellant and the deceased and that the appellant had a motive to cause the deceased harm. He had arranged for a knife to be present and to be available to him for him to use.
The judge ruled that given the particular circumstances of the case manslaughter should not be left as an alternative for the jury to consider. In the appeal the defence argued that on the evidence in the case the judge was under a duty to direct the jury to consider a verdict of manslaughter, i.e. the defence argued that there was evidence from which the jury could conclude that the appellant committed an unlawful and dangerous act but had not intended really serious harm.
The Court of Appeal considered the authorities in relation to this specific issue:
- R v Coutts  UKHL 39
- R v Foster  EWCA Crim 2869
The key point from these authorities in relation to the question in this appeal:
“The requirement to leave an alternative verdict arises where it is “obviously” raised by the evidence, it is one to which “a jury could reasonable come” or, put another way “where it arises as a viable issue on a reasonable view of the evidence”.
I.e. it is fact specific to each individual case. In this case the Court of Appeal disagreed with the appellant and dismissed the appeal. It said about Counsel’s submissions that they either go nowhere or are at best speculative. In conclusion, an alternative verdict of manslaughter was not obviously raised by the evidence. Interestingly, the Court of Appeal added that the fact that the appellant had stayed silent in interview and in trial did not support the need for a jury to be given an alternative direction.
Marleen is a lawyer in the criminal and regulatory team with experience in defending a variety of fraud and white collar crime matters. She represents clients both pre and post charge in relation to investigations of money laundering, corruption, insider dealing and (tax) fraud. In addition, she represents clients facing extradition and is familiar with mutual legal assistance requests. She has previous experience in commercial/insurance litigation. Marleen is a native Dutch speaker.