England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 98/6777/W5 Royal Courts of Justice Strand London WC2A 2LL
		5th October 1999

THE LORD CHIEF JUSTICE: On 12 October 1998, in the Crown Court at Leeds, the appellant was found not guilty of murder on the verdict of a jury but guilty of manslaughter. He appeals against conviction by leave of the full court.

The indictment against him simply alleged in common form that on 30 August 1997 he murdered the deceased Kieran Austin Doherty. The killing occurred very early in the morning of 24 August outside a nightclub in Wakefield where the appellant was employed as a doorman or bouncer. The victim had been a member of a party who attended the club on that night to celebrate the forthcoming wedding of one of their number. Some members of the party had been drinking all day. There was trouble inside the club, of which it is not suggested that the deceased was in any way the instigator, but he and his party were ejected. After their ejection the deceased was the subject of an assault which felled him to the ground with the result that, on falling to the pavement, he fractured the back of his skull and suffered injuries to his brain from which he subsequently died.

There was a mass of evidence at the trial, not all consistent and not all apparently describing the same assault. Some witnesses described a karate kick delivered to the face of the deceased. Others described a blow delivered with a fist.

Before the jury were empanelled at the outset of the trial on 5 October the defence asked the judge to direct the prosecution to give written particulars of the way in which the case against the appellant was put, those particulars having been informally requested of the prosecution and refused. The judge declined to make such an order, taking the view that the nature of the Crown's case would become quite clearly apparent in the course of the opening.

It was a matter of some importance to the defence since if the alleged assault which the appellant was said to have committed was delivered as a karate kick, the sole issue in the trial was one of identification. If, on the other hand, the assault was said to have been delivered with a fist, the appellant would strongly have relied on the contention that he was defending himself.

As already stated, the judge declined to order written particulars to be given and counsel representing the Crown opened the case. In the course of his opening he said:

".... the Deceased approached the defendant who was dealing with one of his friends. The defendant reacted and lost his self-control. First, he struck out with his fist and missed. This was followed immediately and with great speed with a karate kick to the Deceased's face. The kick was delivered with speed and precision, so fast that witnesses who speak of a punch did not see it. The Deceased was felled immediately and went back cracking his head and fracturing his skull.

The prosecution case is that, when the defendant delivered the karate kick to the head of the deceased he demonstrated an intent to cause at least serious bodily injury. The defendant did not mention the kick in interview because he knew that to use a kick was unreasonable and unjustified and was therefore an unlawful attack not in self-defence."

It seems from that passage that the case clearly to be put was that the fatal blow was delivered by a karate kick and no reference was made to any alternative.

At the conclusion of all the evidence called by the Crown the defence made a submission that there was no case to answer. Submissions were made on that point in the course of which leading counsel representing the appellant said:

"That the Crown's case is, and has always been, that the fall to the ground which caused the fatal injury to the deceased was caused by a kick which they say was administered by the Defendant. I am sure that I would not be overstating the case if I said that if there were any other cause of the fall to the ground other than a kick, then the Crown's case would fail. Accordingly, your Honour, it is our submission that the evidence in relation to whether or not the Defendant kicked the deceased is suspect to say the least, and that it is taking it at its highest so unreliable that a properly directed Jury could not properly convict the Defendant on it."

Counsel then dealt with the three witnesses who had testified to seeing a kick, and dealt rather more briefly with two witnesses (upon whom it appeared up to then the prosecution did not rely) who had mentioned a punch. He summarised his submission by contending:

"And so our submission is really simply this. That the Defendant is not satisfactorily identified as having kicked the deceased, and that the deceased on the evidence went down on to the floor for a reason which I am sure the Prosecution would agree if it was a punch or a push could not possibly be said by them to be an unlawful act on the part of the Defendant. And they, I am sure, would not seek to perpetuate this case based on that evidence if it stood alone.

And so our simple submission is that this is in a sense a 'plums and duff' type of case, in which the Jury would be unable to reconcile the two versions of events. But that even -- putting it in other words other than those of Mr Justice Turner, I might perhaps describe it as a case in which the evidence is so at odds within itself that a properly directed Jury could not properly convict upon it."

Prosecuting counsel resisted that submission, submitting in reliance on R v Galbraith that there was evidence on which the jury could rely to convict the appellant if they accepted the evidence. The question was however raised by the trial judge as to what the basis of the case was, and we find this exchange:

"THE JUDGE: .... Could I just ask you about one thing, Mr Spencer .... that was raised by Mr Swift in the course of his argument to me? It was not directly concerned I think with the position as it is being put now, but what he was for saying was that the Crown would not seek a conviction unless ....

PROSECUTING COUNSEL: There was a kick.

THE JUDGE: Unless there was a kick, yes. Is that the Crown's position?

PROSECUTING COUNSEL: It is not the position, I am afraid. No."

After various brief exchanges the judge continued:

"But I just thought that I would like to establish myself whether or not that was the Crown's position as Mr Swift seemed to be assuming.

PROSECUTING COUNSEL: It is not, your Honour, no. You will recall when I opened the case that I placed emphasis on the fact of the kick as being evidence of the specific intent ....

THE JUDGE: Yes.

PROSECUTING COUNSEL: .... and that is all that I am prepared to say."

The submission of no case was rejected.

The defence then repeated their request for particulars after the rejection of that submission. They submit (and we do not understand this to be contested) that the trial had up to then been conducted on the basis of the case as opened: that the deceased was felled by a karate kick. It is further asserted that the appellant himself was not cross-examined to the effect that he had felled the deceased with a blow by his fist, and indeed it is said that the Crown itself suggested that two witnesses whom it had called, and who had testified to a blow with the fist, were mistaken. The defence tell us (and again we do not understand this to be contested) that it was not until the last witness was called by the defence, a Mr Sterling, that there was any detailed cross-examination about the nature of any blow which the appellant was said to have delivered with his fist.

Before the summing-up began on 9 October the defence requested the judge to invite the jury to return a special verdict if they were to convict of manslaughter, to indicate whether their verdict was based on a kick or a punch. The judge declined to invite the jury to return a special verdict, and we can understand his reasons for not favouring that course.

The case as advanced by the Crown was summarised by the judge in summing up at page 8 of volume 1 where he said:

"The Prosecution's case is that there is a body of sober, reliable witnesses who establish to make you sure -- whose evidence can make you sure that the deceased was felled by the Accused by means of what has been called a karate kick; that is to say a kick which was delivered with the shod foot at the height of the man's eye. Alternatively, they say that he was not felled in the way the witnesses described by a kick. They say that he was felled by the accused man in circumstances which rendered the blow unlawful, either because it had nothing to do with self- defence, or because there was no need to use such force as produced that effect."

Our attention is similarly drawn to a passage in volume 2 at page 3 where the judge said:

"And so allowing for the fact that people have different views and say different things, members of the Jury, you have got to ask yourselves, well, is there a theme which runs through it all and about which you can be sure; a solid core of evidence which makes you sure that certain events did happen in the way in which the Crown say? The Prosecution say that there is, and that it becomes apparent in two aspects of the case.

First of all, members of the Jury, they say that you can be sure that Doherty lay unconscious on the ground outside that pub because he had been kicked. And secondly, that only the accused man did something which rendered that -- a man unconscious on the pavement. Now, once you are satisfied of those two things, say the Crown, that enables you to draw the inference that it was indeed Mr Carr who felled Doherty so that he lay unconscious. And that also, in addition to those propositions, there are threads which positively bind the two propositions together to reinforce that inference."

The defence accept that that is the way in which the Crown case was being put by the end of the hearing, but submit that it was not the way in which the case was opened and was not consistent with the basis upon which the case was conducted. Moreover, they complain that the generality of that summary does less than justice to the issues which the jury were called upon to decide. They contend that their position always was that, so far as a karate kick was concerned, it was not the appellant who delivered it, and that if he had struck a blow which connected with the deceased, it was struck in self- defence, there being evidence that there were people in the crowd who were making for the appellant.

The defence complain that, as a result of the course which the case followed, they were seriously prejudiced. It affected, as they contend, the way in which the defence case would be deployed. If, as they originally understood, a kick alone was alleged, then the defence could concentrate on the issue of mistaken identification, which was the course that was in fact adopted. If a push or a punch was alleged, they could concentrate upon the lawfulness of that action without concerning themselves with the kick or the identification issues. If, as was always open to the Crown, it was contended that either the kick or the punch (or perhaps both) were delivered by the appellant and that both were unlawful then the defence could have concentrated their attention on both aspects of that case, drawing attention to the need for the jury to agree on the basis upon which they were convicting. As it was they submit that the course of events was prejudicial. The jury were unable to evaluate the evidence of a push or a punch at the time when that evidence was given with a view to deciding whether it was unlawful. The Crown had suggested that their witnesses who spoke of a punch were mistaken. The defendant was not cross-examined about the punch; neither was one of his witnesses who also described a punch. So, as already recounted, there was no detailed cross-examination about the punch and how hard or soft it was, and whether it was necessary or unnecessary, until the cross- examination of the last defence witness.

The defence further contend that they were prejudiced because, as a result of the course the case followed, it appeared to be unnecessary for them to explore whether a punch undoubtedly thrown by the appellant, according to his evidence, in fact connected with the deceased or whether it did not. Indeed, the defence went to the length of calling witnesses to describe a punch which could in the event have worked against the appellant by assisting the Crown. It was, the defence submit, an unfortunate course for events to follow, in particular because they did not investigate the issue of self- defence with reference to a single punch, understanding the case to rest on a karate kick.

The defence further complain that the result of this procedure was to lead the judge inadvertently to put the defence in a summary form which was in the event misleading. At page 9 of the first volume of his summing-up the judge said to the jury:

"The Defence on the other hand say, 'No, this scene is so confused and the evidence so contradictory that you cannot be sure. And even if you were sure that the Defendant had something to do with the fall and caused it, then you cannot be sure that he was not acting in lawful self-defence'. It is obviously your task to decide what did happen, members of the Jury, and then what conclusions you come to in terms of who did it, the unlawfulness or otherwise of such act and the intention or otherwise which accompanied it."

That, the defence complain, did much less than justice to the distinction that they were drawing between the kick, which raised an issue of identification, and the alleged punch, which raised an issue of self-defence, the judge treating both the alleged forms of assault as being subject to the same defences. The judge should, it is said, have indicated that self-defence was not relied on in relation to the kick, but only to the punch. It is also submitted that, if the case was to be left to the jury on the basis of a punch alone, a careful direction was needed to explain that the jury had to be satisfied that the punch was not delivered in the course of lawful self-defence to ensure that the jury understood how the concept of reasonable force applied in that particular context.

It is further complained that the judge gave no direction on the need for the jury to agree on the basis of any conviction of manslaughter, namely on the basis either of a punch or of a kick. That submission is based on a familiar line of authority beginning with R v Brown (1984) 79 Cr App R 115, and in particular the passage in the judgment of the court at page 119, where Eveleigh LJ said:

"In a case such as that with which we are now dealing, the following principles apply: 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged."

Reliance is also placed on R v Mitchell (CA 28.5.93, unreported), and in particular a passage to be found at page 9G of the transcript which reads:

"The principles that we derive from the cases are these:

(1) Where a number of different matters are set out in a single count, the Judge should consider whether he should give the jury a direction that they must all be agreed upon the particular ingredient which they rely upon to find the defendant guilty of the offence charged (Brown).

(2) That such a direction will be necessary only in comparatively rare cases. In the great majority of cases, particularly cases alleging dishonestly and cases where the allegations stand or fall together, such a direction will not be necessary. It is of first importance that directions to the jury should not be overburdened with unnecessary warnings and directions which serve only to confuse them. (Price and More).

(3) However, in an appropriate case where there is a realistic danger that the jury might not appreciate that they must all be agreed on the particular ingredient on which they rely to found their verdict of guilty on the count, and might return a verdict of guilty as charged on the basis that some of them found one ingredient proved and others found another ingredient proved, so that they were not unanimous as to the ingredient which proved the offence, a direction should be given that they must be unanimous as to the proof of that ingredient. (Lord Ackner in More).

Applying those principles to the instant case, we pose the question: was there a realistic risk that some members of the jury might have found one of the ingredients in the charge proved and others another ingredient as to the foundation of their verdict? This was a case which alleged unlawful harassment and the acts relied upon by the Crown in the particulars were very disparate, both as to time and as to their nature. For example, acts of violence were alleged and a failure to complete building works. It was not a case alleging dishonesty, and it was not a case where the particulars alleged stood or fell together. Accordingly, we are persuaded that this was a case where there was a real risk that unless otherwise directed the jury might have come to the conclusion that provided all twelve of them were agreed that the defendant had committed one of the acts alleged, even though they were not all agreed as to which of them, they could and should convict the appellant of the charge. It follows that, in our judgment, the Recorder in this case should have directed the jury that they must be unanimous as to proof of the ingredient relied upon to found their verdict of guilty."

It is, as we understand, agreed that the judge did not in terms give this direction to the jury although Mr Spencer QC for the Crown submits that, when the summing-up as a whole is read, in effect he did. Mr Spencer, however, submits that it was not strictly necessary for any such direction to have been given on the facts of this case and that the conviction would not be in any way unsafe, even if it were the fact (which he rules out as a realistic possibility) that six jurors convicted on the basis of a kick and six of a punch. Mr Spencer rejects the criticisms made by the appellant of the course of events at the trial. He submits, correctly, that the only issue in this court is whether the conviction is safe, and he submits that it is. He argues that there was no obligation on the Crown to give particulars of the way in which the case was put since it was open to the appellant and his advisers to study the papers and infer what the basis of the accusation was. He accepts that in opening he put the case on the basis of a karate kick or nothing, but contends that it was not incumbent on him to outline other alternatives, and that it was always open to the jury to convict of the lesser offence of manslaughter if they were satisfied that that was what the evidence justified. He submits that, having regard to the directions on the burden and standard of proof which the judge gave (and he has referred us to a number of references), the case was fairly and squarely put before the jury for their decision, leading to a conviction which we should not disturb.

We have reached four conclusions which we consider to be sufficient for the determination of this appeal. First, on the facts of this case we think it unfortunate that the prosecution declined to give written particulars of how it put its case before the trial began and unfortunate that, when the prosecution did decline to give particulars, the judge did not direct them to do so. It is not in our judgment an adequate answer to say that the case was obvious. If the case was obvious it would have been no problem for the Crown to have given brief particulars of the basis of the case; and if it was not obvious the case for doing so was even stronger. Such particulars are not necessary in the vast majority of cases, but any defendant (not least a defendant accused of murder) is entitled to know whether the Crown relied on a kick or a punch or both. There could have been no objection to particulars being given in an alternative form. Had that been done, the defendant would have known from the outset exactly where he stood. It is relevant in our judgment to reflect that, had these been civil proceedings by the estate of the deceased against the appellant, such particulars would undoubtedly have been required. We certainly would not wish to encourage in criminal proceedings the exchange of paper which characterises civil proceedings. Nonetheless, it seems to us anomalous and wrong that a case against a defendant should be spelled out with less particularity when he stands in the dock accused of murder than when he resists a claim for compensation. Secondly, we think it unfortunate, the prosecution having apparently nailed its colours to one version of events in opening, namely that the deceased was felled by a karate kick, that the prosecution sought, and the judge permitted, departure from that position in the course of the case, at any rate without making sure that the appellant was in no way prejudiced. Here, on grounds outlined for the appellant (to which reference has already been made) there was in our judgment the potential for prejudice, and in the course which events took during the trial we are of opinion that there was actual prejudice. The appellant was entitled to know how the case was put so that he could make judgments on the cross-examination of prosecution witnesses and the marshalling and deployment of his own evidence. It put him at a serious disadvantage when he was denied a clear statement of the case he had to meet.

Thirdly, if the case was to be left to the jury on the alternative bases of a karate kick or a punch, it was necessary for the judge to direct the jury very carefully indeed on the differences between these two forms of assault and the different defences applicable to each and, in particular in relation to the punch, the exercise of reasonable force. It was necessary to make plain that, if the jury were satisfied that the crucial blow was a kick, the issue was one of identification; and if the crucial blow was a punch, the issue was one of self-defence on which a careful and precisely tailored direction was in our judgment necessary. In summarising the defence as he did, and in failing adequately to differentiate between the kick and the punch and the defences relevant to each, the judge may, we fear, inadvertently have misled the jury. It is perhaps relevant to note in addition to passages already cited a passage at page 56 of the second volume of the summing-up where the judge said:

"First of all, did Mr Carr do an act which caused the death, or was a cause of the death, of Mr Doherty? That act it is said is felling him to the ground, as a result of which he fractured his skull. If you are not sure about that, then that is the end of this case and Mr Carr should be acquitted. If on the other hand you are sure that he did do an act which was of course deliberate as opposed to accidental -- you must be sure of that as well -- and caused the death, or was a cause of the death of Mr Doherty, then you should say to yourselves, 'Well, am I sure that it was unlawful?'"

He continued:

"Something will obviously turn upon the nature of the act which you decide he did."

The judge elaborated that proposition and then said:

"Again something may turn upon the nature of the blow which you decide did it, but that is a matter upon which you must make your own decision."

That in our judgment very much understates the significance of the nature of the act. Not only might something turn on it, but it was indeed crucial to the jury's approach to the case and called for a much more specific and clear direction than we find.

Fourthly, we consider that the judge should on the facts of this case have directed the jury that they must reach a unanimous decision on the deliberate act (if any) which they found proved and on the unlawfulness of that act. Despite the argument of Mr Spencer, we cannot conclude that such a direction was given either implicitly, as he contends, or explicitly. There was in our judgment a real risk that some jurors might have found the appellant to have kicked the deceased and others found him to have delivered a punch, feeling themselves entitled to convict because the judge had told them that the appellant could be convicted on either basis. Had that happened there would have been six jurors not satisfied that the appellant had delivered the fatal kick and six jurors not satisfied that the deceased had been felled by a punch by the appellant. The absence of such a direction on the facts of this case was in our judgment a fatal flaw and we consider that that real risk existed.

We wish to make it plain that we are not seeking to lay down any general rule. There will often be minor differences between the facts alleged and the evidence given by various witnesses, and there is no need for agreement between all jurors on fine factual differences. Here, however, the difference between the two forms of assault did not depend on fine factual differences, but on a stark difference in the evidence of witnesses describing the two events, those two forms of assault giving rise to very different defences. We regard this case, taken on its own facts, as one which falls within the principles laid down in R v Brown and R v Mitchell. We remind ourselves, as Mr Spencer rightly reminded us, that ultimately the question is whether we consider this conviction to be unsafe. The court is not of course required to be persuaded that the appellant is innocent of any crime. We merely have to form a judgment as to whether the conviction is or is not unsafe. We conclude that it is unsafe and accordingly are constrained to allow the appeal and quash the conviction.