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Cite as: [2000] EWCA Crim 28

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WRIGHT, R v. [2000] EWCA Crim 28 (5th April, 2000)

Case No: 9903978W3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 5th April 2000

B e f o r e :
LORD JUSTICE BELDAM
MR JUSTICE SILBER
and
THE RECORDER OF LEEDS

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R -v- GLENN PAUL WRIGHT
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Edward Rees Esq QC (Miss .R. Towler) for the Appellant
M.D.L. Worsley Esq QC appeared for the Crown
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Judgment
As Approved by the Court
Crown Copyright ©

On 13th April 1999 at the Central Criminal Court the appellant, Glenn Paul Wright, pleaded not guilty to an indictment containing three counts. The first count charged him with aiding and abetting the attempted suicide of William Scott on 16th November 1996. Count 2 charged that he murdered Karelius Smith on 8th February 1997 and count 3 that he attempted to murder Kenneth Cross on 27th January 1998. On 30th April the jury found the appellant guilty of aiding and abetting Scott to commit suicide, guilty of the murder of Karelius Smith but not guilty of attempted murder of Kenneth Cross.
For aiding and abetting the attempted suicide of Scott, the appellant was sentenced to eight years imprisonment to be served concurrently with the sentence of life imprisonment for the murder of Karelius Smith.
At the time of the offences the appellant was either in custody on remand or as a serving prisoner. He is twenty-seven years of age and since the age of fifteen has been convicted on many occasions of offences largely of dishonesty but occasionally of violence. The offences charged in counts 1 and 2 occurred when he was on remand at the Vulnerable Prisoners Unit in HM Prison, Woodhill. At the time of the offence of attempted murder, he was subject to a sentence of three years imprisonment and in HMP Pentonville. The three offences charged against him were committed in circumstances so similar that they were tried together. In every case there was evidence that the appellant had taken an active part in assisting the victim to hang himself by creating a noose from bedlinen, securing it and encouraging the victim to suspend himself.
On 16th November 1996 William Scott, the victim in count 1, was on remand awaiting trial for the murder of his girlfriend. He was depressed and spoke to the appellant of ending his life. Initially he contemplated cutting his wrists with a razor blade. The appellant offered to assist him and eventually, when Scott said he did not have "the bottle" to slash his wrists, made a noose from a strip of bedspread. The appellant placed the noose around Scott's neck, eventually looping the end of the noose over the bathroom door and placing a chair outside for Scott to stand upon. Scott then stood on the chair, kicked it away and passed out. The appellant pressed the emergency call button and a prison officer found Scott hanging from the bathroom door. The appellant said that at the time he had been lying on his bed with his back to the bathroom and facing the wall listening to his Walkman when he heard a thump, turned round and saw Scott hanging on the door.
On 1st February 1997 Karelius Smith was found in the cell he shared with the appellant unconscious and apparently lifeless lying on his back on the floor with a piece of brown bedsheet tied round his neck. He was resuscitated but died a week later. The appellant said that while he was asleep Smith had hanged himself. Karelius Smith was a very immature young man who was described as "a little depressed and acting strangely". He had said that he wanted to hang himself. He had been sentenced to 15 months imprisonment on 20th January and on 29th was placed in a cell with the appellant. However, about half an hour before he was found, he had seemed reasonably cheerful when discussing a possible transfer with a prison officer. In February the appellant told another prisoner at Woodhill that he had hanged another inmate and that the Authorities were trying to "get him" for it. He said he had hung him and kicked the chair away.
The charge of attempted murder arose from a similar incident on 27th January 1998 when Kenneth Cross, a prisoner in HMP Pentonville, was transferred to share a cell with the appellant. That night prison officers who were summoned by the appellant found Cross unconscious on the floor of the cell. Cross recovered and later described how the appellant, after giving him some 30 tablets, made a noose from the bedsheet which he attached to a metal grill on the window. He told Cross to stand on the pipes beneath the window and put the noose around his neck explaining that this would secure a transfer to hospital for both of them and they would be able to get drugs. Cross said the appellant had pulled his legs off the pipes and he began to asphyxiate when the noose snapped and he collapsed on the floor.
The appellant gave evidence insisting that he had no involvement in any of the hangings. He repeated his account of the events leading to the attempted suicide of Scott, said that he had been unaware Smith intended to commit suicide until he woke up to find him hanging from the lavatory door but agreed that he had told another prisoner that he had killed his cellmate. He explained that he had merely said this to emphasise he was not a sex offender. He disputed Cross's evidence though he admitted he had told another prisoner that he had been involved. He had done this to convey the impression that he was a hard man so that other prisoners would leave him alone.
The Basis of the Appeal.
In his summing-up the Common Serjeant of London explained to the jury that to prove the charge of murder the prosecution had to satisfy them that the appellant had done a deliberate act which caused Smith's death and that when he did so he intended to kill him or cause him really serious harm. He reviewed the evidence fully and fairly and Mr Edward Rees QC, who appeared for the appellant, accepted that the judge's initial directions gave no cause for complaint. However the facts of the case were unusual and after they had retired the jury asked three questions seeking further guidance. The ground of appeal relates to the directions then given by the Common Serjeant in answer to those questions. Mr Rees submits that they were not sufficiently detailed to cover the uncertainties disclosed by the questions and the conviction is accordingly unsafe.
The Three Questions.
The first question asked by the jury was:
"In the case where the victim does not intend to die is the deliberate preparation and encouragement of an act knowing that the victim is highly likely to suffer very serious injury, and as a result of that act the victim dies, murder."
The second question was:
"In the case where the victim does not intend to die is a deliberate failure to execute a pre-arranged plan which would avoid the death of a victim murder."
Finally the jury asked for more guidance on:
"To what extent one's involvement in an act would constitute murder."
After lengthy discussion with counsel, the Common Serjeant addressed the jury saying:
"What I propose to do as the note plainly relates to count 2 is I am going to go through again the directions I gave you in respect of count 2, and then deal with the questions you have asked."
After reminding the jury that they had to be satisfied that the prosecution had proved that the defendant did an act which caused the involuntary death of another human being, he said:
"And ... the prosecution have to prove that when the defendant did the act which caused or led to the death he intended either to kill Smith or to cause him really serious injury ... There are really two things the prosecution have to prove. Did the defendant do an act which led to the death of Smith? Second, if he did, when he did that act did he intend to kill Smith or to cause him serious, really serious injury. Those are the elements of murder."
He then reminded the jury of the alternative verdicts open to them and turned to the questions they had asked. After reading out their first question, he said:
"Encouragement of a voluntary act which results in death would not be murder. So encouragement to commit suicide would not be murder. But it would amount to or might amount to assisting, aiding and abetting suicide. A deliberate act which causes an involuntary death with the requisite intention either to kill or to cause serious injury is murder. If when you ask the question the words "preparation" and "encouragement" are as it were conjunctive, in other words if when you say "preparation" and "encouragement" you mean an act which leads to death, then that is murder but mere preparation would not amount to murder if for example a man prepares a noose on the basis that at some future time the other man might use it to kill himself. That would not be murder, it could not be murder."
Turning to the second question, he said:
"I take it that what you have in mind there is if there was some plan along the lines that a noose would be put round Smith's neck, his chair would be kicked away or pulled away but that the defendant would cut him down before any real damage was done. Would that be murder? Well the answer must, I think, be this. If the elements of murder are made out in other words if an act is done which leads to the death and there is the intention to cause death, to kill or cause serious injury, then failure to abide by a pre-arranged plan which would have avoided death does not stop it being murder. It remains murder. But of course merely being a spectator cannot be enough for murder. There must be to put it in ordinary language there must be a murderous act, an act with the intention to kill or cause grievous bodily harm."
In answering the third question he said:
"There must be an act which leads to death done by the defendant."
He asked the jury if that answered their question and they apparently acknowledged that it did. After a further retirement the jury found the appellant guilty of the murder of Karelius Smith.
Mr Rees submitted that the judge's direction overlooked what he described as another credible scenario on the evidence in which the appellant did not commit murder, namely:
(a) That the appellant and the deceased were involved in a scheme to fake suicide by hanging in order to achieve transfer to the prison hospital.
(b) That as part of that scheme, once Smith lost consciousness, the appellant would summon official help so that Smith could be resuscitated in time.
(c) That Wright encouraged or assisted Smith to suspend himself knowing that it was dangerous so to do but not necessarily intending that Smith should suffer serious injury or die.
(e) That the appellant failed to summon help in time to prevent Smith dying accidentally.
Mr Rees argued that the first of the jury's questions suggested that they were actively considering that possibility. That question contained the phrase "knowing that the victim is highly likely to suffer very serious injury" which Mr Rees said was equivalent to recklessness and not the same as an intent to cause him really serious harm. In these circumstances he submitted that the judge ought to have expanded his direction to the jury by making it clear that they could not convict the appellant of murder by finding the necessary intent unless they felt sure that death or really serious bodily harm was a virtual certainty from what the appellant was doing (barring some unforeseen intervention) and that he appreciated that fact. He submitted that the judge ought to have given the expanded direction referred to by Lord Lane in Nedrick [1986] 83 CAR 267 and approved by the House of Lords in Woolin [1999] 1 CAR 8. He said that the issues for the jury were extremely if not impossibly difficult and that the third question asked showed how uncertain they were in their approach to the question of participation and causation. To answer that question by saying that there must an act which leads to death done by the defendant did not give the jury the help they required. The phrase "leads to death" could be misleading and the judge should have said that the act had to cause death. Mr Rees accepted that it was clear from the jury's question that they rejected the appellant's explanation that he had played no part at all in the hangings.
Mr Worsley QC, for the prosecution, submitted that the judge in this case was justified in confining his direction to the simple and straightforward terms he used which, he submitted, was in accordance with the guidelines given by Lord Steyn and Lord Hope in Woolin. He relied, in particular, on the observations of Lord Hope that:
"I attach great importance to the search for a direction which is both clear and simple. It should be expressed in as few words as possible. That is essential if it is to be intelligible. A jury cannot be expected to absorb and apply a direction which attempts to deal with every situation which might conceivably arise."
He submitted that the judge was right to confine his directions to those he gave. Once the jury had reached the conclusion that the appellant had done a deliberate act which caused Smith's death by hanging, it was not difficult for a jury to come to the conclusion whether or not he intended at least really serious bodily harm. Thus the question of the appellant's intention was straightforward and could properly be answered without drawing complicated distinctions between foresight and intent, between substantial risk and virtual certainty (or any other degrees of likelihood) and intention and recklessness. It was not, therefore, a case which required the judge to direct the jury in terms which went beyond the simple direction which he gave them.
Turning to the question of the appellant's criticism of the use of the phrase "which leads to death", Mr Worsley drew attention to the number of occasions on which the judge told the jury that they had to be satisfied that the defendant did an act which caused the death of Karelius Smith.
We note that the judge on several occasions used the words "an act which caused death". On some he paraphrased it as "the defendant did the act which led to the death". It must therefore have been quite clear to the jury that he was using the words "led to the death" in the sense of "caused the death".
Our Decision.
In cases in which the jury seek further guidance from the judge in the form of questions on which they want further assistance, it is seldom profitable to speculate upon the discussions which have prompted the questions or to analyse too closely the reason why the question has been asked. It is more relevant to consider whether in the light of the directions they had already been given and the additional directions they received whether they could have been in any doubt as to the finding they were required to make if they were to find a charge of murder proved. The questions and the directions given have to be taken together with the earlier directions to determine whether on the assumption that the jury were loyal to the directions they received they could have arrived at their verdict by finding facts which fell short of those required to prove murder. On that basis the question we have to consider is whether the jury in this case following the direction the Common Serjeant gave them could have concluded that the appellant was guilty of murder although they did not find that he intended to kill or do really serious harm. For example, following the judge's directions, could they have decided that the appellant was guilty of murder on the basis that they found that he knew or was aware that Smith was highly likely to suffer very serious injury although he did not intend or desire him to do so?
We do not think that if they followed the directions clearly given by the Common Serjeant the jury could have done so. As Lord Steyn said in Woolin (supra) at page 19, the trial judge is best placed to decide whether it is helpful to go beyond the simple direction and, if so, in what terms.
By giving the straightforward direction on intention the judge was directing the jury to the real question they had to determine and steering them away from the chameleon-like concepts of purpose, foresight of consequence and awareness of risk. Once the jury rejected the appellant's account that he had taken no part whatever in the hanging, his actions of preparing the noose and securing it in a position from which the victim could be suspended and placing a chair from which the victim could fall and be hung were plainly actions from which the jury could find that the appellant at the time intended serious harm to the victim. Accordingly we reject the criticism of the additional guidance given to the jury by the judge. Equally we do not think his use of the phrase "which led to the death" in the context in which it was used in the summing-up was capable of being misunderstood. It was, as we have said, used interchangeably with "caused the death". The circumstances were not such as to call for any more elaborate explanation of the principles of causation. In our view the jury were properly directed on the issues they had to decide, there was evidence on which they could find the appellant guilty of murder and his conviction is not, in our view, unsafe. The appeal will be dismissed.