These appeals against conviction by Foster, Newman and Kempster, raise important questions about the ambit and application of the decision of the House of Lords in R v Coutts [2007] 1 CAR 60. In advance of the hearing it appeared possible that Birmingham’s application for leave to appeal against conviction might do so, but in the result it did not, and we shall deal with Birmingham’s application at the end of the judgment in the appeals.

Mark Foster was convicted of attempted murder on 20th January 2003 in the Crown Court at Stafford before Goldring J and a jury. On 13^th June 2003 he was sentenced to 9 years imprisonment. An application to appeal against conviction was refused on 30^th October 2003. The Criminal Cases Review Commission (the Commission) referred the conviction because, contrary to the decision in Coutts, the judge failed to leave to the jury the possibility of conviction of an alternative offence, assault occasioning actual bodily harm, or attempt to do so, or attempt to do grievous bodily harm with intent.

The complainant was a working prostitute. On 14^th July 2002 she made arrangements to meet a client at a lorry park, where she had worked for about two years. She left the vehicle of one client at about 11.10 pm. After speaking to two acquaintances, she made her way across the lorry park to go home. The appellant was a long distance lorry driver, parked in the same truck stop. The appellant paid her for sexual intercourse. They climbed into the bed at the rear of the cab. Sexual intercourse began, but the appellant was unable to gain a full erection. He withdrew and she masturbated him until he ejaculated. None of these facts was in dispute.

According to the complainant, while she was getting dressed, suddenly and without warning she was pulled backwards and felt something tighten around her neck. She started to choke and was unable to speak, and to begin with, unable to free herself. She began to struggle furiously, kicking and lashing out with her arms. She was then dragged by whatever it was round her neck to the driver’s seat and then felt it loosen. The appellant jumped on top of her. She screamed, and in an effort to stop her screams, he placed his hand over her mouth and nose, which prevented her breathing. He told her that if she stopped struggling he would let her go. When she stopped struggling he released the pressure from her mouth, but instead reached out for a pillow and tried to place it over her face. She was so terrified that she defecated, and in desperation began to struggle violently again. She managed to open the driver’s door, and with her arms extending out of the vehicle pulled herself against the steps of the cab, falling head first onto the ground. She quickly got to her feet and ran screaming for help. The appellant drove away from the scene.

Noting the complainant’s hysterical state, another driver relayed the registration number of the appellant’s vehicle to the police. When the police arrived the complainant was still distressed, and reported that she had lost one of her earrings and a training shoe during the struggle. A medical examination disclosed injuries to her neck which were consistent with her version of events, and she also suffered bruising to her left elbow and buttock. Petechial haemorrhages were noted in her eyes, typical of an asphyxial episode, which would have lasted about 20 seconds, (according to the expert for the Crown) or between 20 and 30 seconds, (the defence expert).

The appellant was arrested in the early hours of the following morning. His immediate response was to indicate that he had been involved in a fight in a pub. It was noted that he had superficial scratch marks on left side, lower front thigh and knee area, the back of his left and right hands and his right forearm. His vehicle was searched, and an earring identical to the complainant’s earring was found, together with a quantity of hair. The tachograph indicated that the vehicle was stationary at the time of the incident. In view of subsequent events, we need not narrate the development of the evidence which demonstrated that, contrary to his denials, the appellant was responsible for the attack on the complainant.

The appellant’s evidence at trial presented an emphatically different account of events. Owing to his inability to perform full penetrative intercourse, the complainant made derogative remarks to him, so he asked for his money back. When she refused, he attempted to grab the money from her, and she punched him in the face. In order to restrain her, and prevent her continuing with the attack on him, he grabbed the collar of her jumper. When she began to struggle, he panicked and released his grip and let her out of the cab. He accepted that he had caused the physical injuries which she sustained, including injuries consequent on asphyxia, but denied that he intended to kill her.

At the end of the evidence, Goldring J invited counsel to make submissions whether assault occasioning actual bodily harm should be left to the jury. The Crown submitted that they were contending that the appellant had deliberately attempted to kill the complainant, and that it would confuse the jury if they were asked to consider anything else. ‘Our case is essentially all or nothing’. Counsel for the appellant submitted that the issue of assault had arisen, and that it was a proper case for ‘obvious reasons’ for the judge, on his own initiative, ordering the addition of a count of alleging assault occasioning actual bodily harm. Goldring J approached the problem as if it was a matter for the Crown, and he declined to add such a count. He also indicated that he would give a formal direction in relation to self-defence, making it plain that this issue was not being raised on the defendant’s behalf.

The jury was directed with unequivocal clarity that the appellant should not be convicted unless they were sure that he tried to strangle the complainant intending to kill her. He could only be guilty if the jury was sure of that fact. The summing up ended with a further reminder of the essential issue.

Lee Newman was convicted of attempted murder on 15^th May 2006 at the Crown Court at Basildon before His Honour Judge Clegg and a jury. On 19^th June he was sentenced to imprisonment for public protection, with a minimum term of seven years, less 310 days spent on remand in custody. He appeals against conviction with leave of the single judge in the light of the decision in Coutts.

The appellant worked at a garage in Wickford. The director in charge of the business was the complainant, Mrs Francine Spurr. On 10^th August 2005, in the late afternoon, she was returning a set of car keys to the cupboard in the showroom when the appellant attacked her by putting his hands around her neck and gripping it hard. The prosecution case was that the appellant had a sado erotic fantasy about strangling Mrs Spurr to death, and that when he attacked her on 10^th August he was fulfilling that fantasy. The allegation was based on evidence discovered later which showed not only a number of photographs of Mrs Spurr, but also a story written by him in which he described in graphic detail how ‘Lee put both his hands around her neck and began to strangle Fran, watching her as he finally strangled her to death’. The defence case was that the appellant did not intend to kill or harm the complainant.

The evidence at trial included evidence from a number of women who had been treated in a bizarre way by the appellant. A former girl friend described an incident when he grabbed her by the throat, and how when she screamed, the appellant released his grip, saying that he was sorry, but then grabbed her again by the throat, so that she screamed and ran for help. When questioned, the appellant said that he did not intend to hurt his girl friend, and so the charges were dropped, and he was bound over to keep the peace for 12 months. A receptionist at the same garage, who was friendly with the appellant, began to feel uncomfortable with him from about the beginning of 2004. On a number of occasions he would appear out of nowhere as she was going to her car after work, saying words to the effect, that he hadn’t beaten her up for a while. Although the words were spoken in a jocular way, he would corner her against the wall and put a hand around her throat. On the last occasion, his grip had been tighter than normal. She added that he always stopped when she asked him to do so, and although she felt uncomfortable with this behaviour, she did not think that he would go further and try and strangle or kill her.

Another woman, describing her relationship with the appellant as ‘professional’, was standing by the key cupboard in the show room speaking to the appellant about either a car or a customer in May 2005. The appellant was behind her, and put his hands around her throat. She said that it was done in a playful way, and she pushed him away. She disregarded the incident until she heard about the attack on Mrs Spurr.

In evidence the appellant explained that he had put his hands around the necks of each of these three women, explaining that he was ‘play fighting’.

The complainant described events on 10^th August. She was hanging some car keys back in the appropriate cupboard, when she heard the appellant say ‘I’m sorry’. She turned her head and said “Pardon”. Thereupon the appellant put his hands around her neck, with his thumbs at the front and his hands at the back. Initially she thought it was a joke, and said ‘what are you playing at? Get off’. The appellant repeated that he was sorry. However, he looked as though “he was another planet”, and his grip was extremely tight. He then lunged at her, using his body weight to push her back into the cupboard. She fell onto the ground on her head and back, and the appellant’s hands remained gripped around her neck extremely tightly. She tried to pull at his fingers, and then at his testicles, and attempted to tear at his eyes, and scratch his face, but he appeared oblivious. She said that she was terrified and thought that she was about to die. She could feel the appellant’s blood dropping onto her face. She felt very weak, and the appellant kept repeating ‘I’m sorry’. She then lost consciousness. Just as she slipped into unconsciousness, she thought she was about to die. The next thing she could remember was being spoken to by another colleague.

The colleague described entering the showroom, and hearing noises coming from the area of the key cupboard. He saw Mrs Spurr either kneeling or sitting on the floor, and the appellant either kneeling or sitting behind her, with both facing towards the back of the cupboard, and the appellant’s hands on the complainant’s shoulders. When the appellant turned to face him, he saw blood on his face, hands and shirt. The complainant looked as though she had passed out, she was limp and lifeless. When the appellant saw him he turned back to the complainant and began to shake her by the shoulders saying, ‘I’m sorry Fran, I’m sorry Fran. Are you alright Fran?’. The appellant then got up and ran away. The complainant seemed delirious and unsteady on her feet, he saw marks on either side of her neck. The emergency services were called.

The appellant was later found by his wife in the early hours of the morning lying in some brambles a short distance from the garage. His face and torso were covered in scratches, some from brambles, but some on his own evidence, those to the face, had been inflicted by the complainant. She herself had suffered a dislocation of the right shoulder, together with some bleeding around the right ear, and large red marks on the neck.

The appellant described in evidence some of his financial and emotional stresses. His story, describing the scene where “Lee” strangled “Fran” was written when he was angry with the complainant after he had been told that he would only receive £200 by way of bonus. He had no intention of killing her, and the story had been left in his brief case because he had forgotten about it. The incident on 10^th August occurred at the end of a difficult day when he had an impression that she was annoyed with him. He lost his temper and lashed out at her. He was incredibly angry and grabbed her by the throat because she wouldn’t listen, and just kept talking and talking. All he wanted was for her to be quiet. He could only remember being angry and then looking down and seeing her. She was on the ground, and he released his grip of her neck. He noticed her catch her breath and saw that her eyes were still moving. He had no idea how he came to be down on his knees beside her.

The appellant did not accept that he had said sorry to her at the outset of or during the attack. He only apologised at the end. Although he did not dispute it, he could not recall that she kneed him in the groin, scratched his face or twisted his testicles. He did not intend to kill her or cause her serious harm. He just wanted her to shut up and let him have his say. He could not explain how her shoulder came to be dislocated. When the witness arrived, and the complainant got up and went to the telephone, he panicked and ran away.

When cross-examined, the appellant accepted that he was not play fighting with Fran, and that he had deliberately assaulted her. He knew that he had done something very wrong but had not intended to kill her. He kept photographs of the complainant in his brief case because he was attracted to her. He also accepted that he had torn some of them up, but did not know why, nor indeed why he enlarged some other photographs of her on his photocopier. He accepted that there were similarities between the events described in his written story and the actual events which took place on 10^th August.

The judge gave the jury impeccable directions about the ingredients of attempted murder. Before the appellant could be convicted, the prosecution had to prove that ‘this defendant intended to kill Francine Spurr’. This, he emphasised was the crucial question in the case, which was very much in dispute. He directed them that however reprehensible his conduct might be, unless they were sure that he intended to kill, he would not be guilty. “An intention to frighten, or even just to hurt somebody, is not enough”.

Mark Kempster was convicted on 30^th March 2001 in the Crown Court at Southampton, before Mr Recorder Hughes, as he then was, and a jury, of three counts of burglary (counts 1, 3 and 4), and one count of attempt burglary (count 2). On 20^th April he was sentenced to 10 years imprisonment for each burglary offence, and 5 years imprisonment for the attempted burglary, the sentences to run concurrently.

This appeal against conviction follows a reference by the Commission, first, on the basis that following Coutts it is arguable that the Recorder should have left as an alternative to the burglary count on count 4, either theft or handling stolen goods, and that if so, the convictions on counts 2 and 3, attempt burglary and burglary, were so connected to the conviction on count 4 that if it were quashed, they would be quashed as well. A separate issue arising from fresh evidence which might undermine the prosecution evidence relating to ear prints was adjourned. This judgment does not address the fresh evidence issue.

Count 1 reflected a burglary which occurred on the night of 3-4 June 2000 when an eighty nine year old lady was awoken by the presence of a man in her bedroom. He was wearing a hood over his head. He spoke to her, and stole £45 from her handbag.

The rear kitchen window had been forced. The police recovered an ear print from a fixed pane to the side of the window. The ear mark was said by an expert called by the Crown to match the reference print taken from the appellant, and she was in no doubt that it had been left by the appellant. The appellant was also linked to the premises because he had done some building work for the householder during February 2000.

Counts 2, 3 and 4 were offences which took place in the early hours of 17^th June 2000. Count 2 related to an incident at about 1.45 am when a householder was disturbed by an intruder forcing a kitchen window. When he went to investigate the noise, he found the burglar climbing in though the window. The intruder fled. Count 3 related to a similar incident about one hour later, when another 89 year old lady awoke to find a man in her bedroom. Her jewellery was missing. Then, at about 4 am, Mr and Mrs Martin were woken by a telephone call. The caller claimed to be a police officer who told them that they had been burgled and that their bank cards were now with the police. He asked them to disclose their PIN numbers, so that a stop could be put on the cards. Instead, the householders telephoned the police themselves. They then discovered that they had been burgled and their bank cards taken. The call to them was traced to a telephone box close to the appellant’s home. There was evidence to suggest that he had used the telephone box at about that time to call a taxi.

The evidence called by the Crown included that of the appellant’s cousin, Robert Smith. He was called at the request of the defence and treated as hostile. He said that he had committed all of the offences for which the appellant was being tried, but he was unable to give any detail of the offences. He did not mention that he had given any credit cards to the appellant.

The prosecution relied on the similarities of the method of operation between counts 2, 3 and 4 and, their proximity in time and place to show that they had all been committed by the same person. When he was interviewed, the appellant denied all of the offences, and in relation to count 1, following disclosure of the ear print evidence, said that he had done some work at the premises some four or five weeks previously. On the night of 17^th June, he had been at home looking after his children while his wife was staying with her sick mother.

At the end of the prosecution case, the judge rejected submissions that there was no case to answer and that the jury should be discharged because of the risk of unfairness which followed the admission of Robert Smith’s evidence. The appellant then dispensed with the services of his solicitors, and eventually counsel withdrew. An adjournment was refused, and the trial continued with the appellant unrepresented.

The appellant elected to give evidence. He said that if the ear print was his, it must somehow have been left when he was working at the house. He would not have burgled a house where the occupant knew him. He had been on a family night out on the 3-4 June, in company with his wife throughout. As to 17^th June he accepted that he had made the telephone call to the home of the Martins, and said that the bank cards had been given to him by Robert Smith. He lied to the police about this because he did not want his wife to know that he had gone to visit another woman while she was away. His wife, mother and brother supported his alibi for 3-4 June.

This account was challenged and fully explored by the prosecution, their case remaining that the appellant was the burglar. At the conclusion of his evidence, before addressing the jury, the defendant asked the judge whether he would be inviting the jury to bring in what he described as a further charge of handling. The Recorder said that that alternative would not be open to them, and the defendant asked ‘would you honour be advising them in any way at all?’ To which the Recorder responded, ‘Yes I will tell them that if they think that is what has happened then they have to acquit you.’ The defendant asked ‘they cannot bring a verdict back on the handling?’ To which the Recorder replied ‘No, it is not an alternative. I’m not being awkward. In law, handling stolen property is not an alternative to burglary.’ The Recorder said that he would ‘most certainly’ direct the jury that the appellant’s evidence was that his only involvement in these offences related to the credit cards.

In summing up, the judge gave the jury what he described as a word of warning in relation to the appellant’s evidence that he dishonestly received the credit cards and tried to obtain the PIN numbers. He directed them that if they were not sure that he was the burglar, he would be acquitted on count 4, and counts 2 and 3 as well, but that an alternative verdict, for example, guilty of handling stolen property was not open to them. The prosecution case was that the defendant was the burglar, and unless the jury agreed, the defendant was entitled to be acquitted. There was no alternative verdict.

The statutory framework governing alternative verdicts is found in the Criminal Law Act 1967 (the 1967 Act). Section 6(2) provides :

of manslaughter, or of causing grievous bodily harm with intent to do so; or

of any offence of which he may be found guilty under an enactment specifically so providing, or under section 4(2) of this Act; or

of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty;

The Court of Appeal Criminal Division may substitute a conviction for an alternative offence. In the circumstances described in section 3 of the Criminal Appeal Act 1968, which provides:

A woman died at Coutts’ flat and her body was found one month later on some public land. The issue before the jury was whether Coutts deliberately strangled her to satisfy his sexual fantasies, or whether her death was an accident, which happened in the course of consensual asphyxial sexual activity. The prosecution and the defence were both agreed, and so submitted to the judge, that the jury should not be invited to consider a possible verdict of unlawful act manslaughter on the basis that to do so would undermine the fairness of the trial. Accordingly the possibility of a manslaughter verdict was not left to the jury. Coutts was convicted of murder. The House of Lords decided that the judge’s failure to leave the manslaughter alternative was wrong. The appeal was therefore allowed.

The decision was based on four reasoned speeches. Lord Bingham of Cornhill, Lord Rodger of Earlsferry each expressly agreed with each other, and the speeches of Lord Hutton and Lord Mance who both expressly agreed with Lord Bingham and Lord Rodger. Lord Nicholls of Birkenhead agreed with the reasoning in each speech. Coutts was directly concerned only with the murder conviction (the narrow question). However the speeches addressed the general “duty and discretion” of the judge to leave alternative verdicts to the jury in trials other than murder (the broad question). It would be productive of uncertainty and disadvantageous to the administration of criminal justice if we did not immediately acknowledge that we are bound to follow the approach of the House of Lords to both questions.

Dealing first with the narrow question, it was long established, certainly from the early part of the 20^th century (R v Hopper[1915] 2 KB 431), at a time when murder carried the death penalty, that irrespective of submissions to the contrary, even if both sides were agreed, the judge was obliged to leave the possibility of acquittal of murder and conviction for manslaughter on any available basis for which there was some evidence. This requirement was not abated merely because its application might complicate the task of the jury. The line of authority since Hopper is unbroken. (see, among many others, Mancini v Director of Public Prosecutions[1942] AC 1; Bullard v R[1957] AC 635; Von Starck v R [2000] 1 WLR 1270). No further citation of authority is needed. Each member of the present constitution, faced with the issue when sitting in the Crown Court, has unhesitatingly applied the principle, now reinforced, yet again, by Coutts.

Murder involves unlawful killing: so does manslaughter. If the circumstances in which the defendant killed his victim may have amounted only to manslaughter, as a matter of law, he cannot be guilty of murder. Notwithstanding the abolition of the death penalty, the judge’s directions must not deprive the defendant of a defence to the charge of murder which, on the evidence, may be open to him, whether that evidence emerges from the defence actually advanced by the defendant at trial, or where it arises on the evidence generally. Therefore if there is any evidence that the killing may have occurred in circumstances which amounted to manslaughter, that possible verdict should be left to the jury and section 6(2) of the 1967 Act would apply unless this would cause unfairness to the defence because it had not had a proper opportunity to deal with the possible alternative. Critically to the result in Coutts, and indeed other similar cases, the jury were not given any opportunity, direct or indirect, to consider a manslaughter verdict when it undoubtedly arose on the evidence. It was therefore impossible to know whether, if properly directed at the outset, the jury would have accepted or rejected this possible defence, and returned their verdict accordingly. Sometimes described as a “compromise” verdict, (see Von Starck), the verdict remains a true verdict by which the jury indicates its inability either to accept the Crown’s case to its full extent, or to acquit the defendant altogether on the basis of his defence.

This was the context in which the broad question arose for consideration. No extensive citation of relevant authority prior to Coutts was undertaken in the appeals before us. The pre-Coutts principles are found in the decisions in Fairbanks [1986] 83 CAR 251 and Maxwell, first in the Court of Appeal at [1989] 88 CAR 173, and then in the House of Lords at [1990] 91 CAR 61.

Fairbanks was charged with causing death by reckless driving. Following cross-examination of witnesses for the prosecution, and thereafter evidence called by the defence, a guilty verdict would have been “problematical”, but conviction of driving without due care and attention would not. After hearing conflicting submissions, the assistant Recorder declined to direct the jury that the lesser verdict was open to them. However after retiring for about 90 minutes, the jury asked: “would it be possible to define the term ‘reckless’ as opposed to any other categories of bad driving?”. The Recorder responded to the effect that they were to put out of their minds the possibility of a conviction for careless or inconsiderate driving. In due course the appellant was convicted of causing death by reckless driving. He appealed, among other grounds, on the basis that the Recorder was wrong in law when he failed to direct the jury as to possible alternative verdicts, and so failed to allow them to consider alternatives offences.

The judgment of the court given by Mustill LJ emphasised that the judge was obliged –

The conviction was quashed and a conviction of driving without due care and attention was substituted. Plainly, the jury question demonstrated concern among some or all its members about the directions of law which they were given as they applied to the evidence, yet the effect of the directions they received in response to their question was that they should, in effect, ignore them. Therefore a realistic alternative to the charge they were considering was removed from their consideration.

The attention of the court in Fairbanks was not drawn to R v McCormack (1969) 53 CAR 514. This decision established that the trial judge was vested with a discretion to leave to the jury the possibility of convicting of a lesser included offence falling within section 6(3) of the 1967 Act. The court upheld the decision of the trial judge to leave indecent assault to the jury which was considering the allegation that the defendant had had unlawful sexual intercourse with a girl under the age of 16. It followed, of course, that he had discretion not to do so. The significant feature of McCormack was that the statutory defence (section 6(3) of the Sexual Offences Act 1956) was then believed to be available in relation to the full offence, but not to the indecent assault admitted in evidence by the appellant. We now know that this was wrong ( R v J [2005] 1 CAR 277). However, when McCormack was decided, the judge’s decision reflected the current view that the defendant should not be permitted to escape proper conviction on wholly unmeritorious technical grounds, and his decision was upheld in the Court of Appeal.

Maxwell was alleged to have procured the commission of a serious robbery, which took place in a dwelling house. His defence was that he had indeed sought to arrange a burglary, to which he was willing to plead guilty, but he had no idea that a robbery might ensue. The indictment alleged robbery. Burglary was not an alternative to this charge, but theft would have been. The jury was required to decide between a “wholly artificial choice between convicting Maxwell of robbery and acquitting him altogether”. The effect was to distort “the shape of the trial” and to confuse the jury. The jury was indeed troubled, and as in Fairbanks, they asked a straightforward question: “we would like to know if there is a lesser charge that we can bring against Maxwell … other than robbery”. The judge immediately responded: “… the answer to your question is ‘no’. Burglary is not an alternative and you can concentrate on the charge … which is one of robbery”. After a further retirement, the defendant was convicted.

In the Court of Appeal, counsel for the Crown had the forensically invigorating problem of submitting to Mustill LJ that the judgment of the court which he had given in Fairbanks was wrong and he referred to what Mustill LJ himself described as “some sharp criticism” of it in the Supplement to Archbold. Accordingly the court reconsidered Fairbanks. After reconsideration the court repeated the general observation in relation to the duties of the trial judge, that he was not obliged to leave an alternative offence to the jury simply because the defence asked him to do so, and Mustill LJ’s judgment continued “… in other cases there will be a viable alternative to a conviction on the major offence as charged, and no conviction at all, and if so the judge should leave the jury with the full range of choice”. After considering various alternative scenarios, he concluded “the right course will vary from one case to another, but the judge should always use his powers to ensure, so far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence”.

The court accepted the general thrust of the critical observations in the Supplement to Archbold. Acknowledging that if the conviction were upheld, it would be unrealistic to envisage any circumstances in which the appellate court would intervene, Mustill LJ concluded that;

The question certified was:

The single speech in the House of Lords was delivered by Lord Ackner. He doubted the validity of the view expressed in the Court of Appeal that the indictment “forced the jury to make a wholly artificial choice” between robbery or a complete acquittal. Lord Ackner said:

The question for decision was whether the judge should ‘have informed the jury in response to their question’ that, although burglary was an impermissible alternative, they could convict of theft. After referring to Fairbanks, and the criticism in the relevant Supplement to Archbold, the House of Lords confirmed that the judge was not obliged to leave an alternative offence to the jury, merely because the defence asked him to do so. In some cases, where there was a “viable alternative” to conviction of the major offences, the full range of choices should be left to the jury. In yet other cases, “where the principal offence is so grave and the alternative relatively so trifling”, the jury should not be distracted from the real issue by being asked to consider something remote “from the real point of the case”. Where however the court was satisfied that “the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct”, and an alternative lesser charge was not left to them, the conviction would not be safe or satisfactory.

The test propounded in Maxwell about the circumstances in which the court should interfere with the verdict was closely examined in each speech in Coutts. It is impossible to ignore the criticisms expressly directed at it. Maxwell is variously described as “not an easy authority” by Lord Bingham, who observed the different grounds upon which the defendant had failed in the Court of Appeal (that the appellate court should only interfere if there were identified “solid grounds for suspecting that the members of the jury had foresworn their oaths”)and in the House of Lords (that the lesser offence of theft was trifling in relation to robbery) and considered neither was “unproblematic”. Lord Hutton, who was a member of the Board in Hunter, [2003] UKPC 69, which followed Maxwell, pointed out that Lord Ackner was speaking obiter when he said that the appellate court, before interfering with a verdict, must be satisfied that the jury may have convicted out of a reluctance to let the defendant “clean away” and criticised that approach as “unsatisfactory” it should no longer be taken. Lord Rodger of Earlsferry described the test as “problematic”, to say the least, and on analysis, “wrong in principle”; and Lord Mance regarded the test in relation to a jury trial as “unworkable”. There was no suggestion that the concerns about the correct approach in law to what might be called the reluctant jury attracted the application of the Practice Direction (Judicial Precedent) issued by Lord Gardiner on behalf of himself and the Lords of Appeal in Ordinary on 26 July 1966. In any event, the language in the speeches is unequivocal. Lord Ackner’s test is no longer applicable. Effectively, it has been extinguished. It is nevertheless important to a proper understanding of the approach to the broad question in Coutts that it reflected the potential problem of the reluctant jury, deprived of the opportunity to reach a compromise but nevertheless true verdict.

Coutts also provides unequivocal authority that whenever alternative verdicts should be left to the jury, whether in the narrow or broad context, then the judge should so direct them, notwithstanding united submissions on behalf both the prosecution and the defence to the contrary. In making this judgment, of course, the judge must be alert to and have in mind the possibility of any consequent unfairness, usually to the defendant, but not excluding the possibility of unfairness to the prosecution. In recent years, with increasing emphasis, the entire structure of the trial process has been revisited to ensure that the real issues should be identified before, or certainly not later than the start of the trial, and that the evidence on both sides should be presented accordingly. That said, experience shows that the evidence by the end of the trial may not always mirror the anticipation of either side, and any “fairness” question should be addressed at the close of the evidence, before speeches, but always in the context of the issues to which the evidence has given rise.

On the basis of Coutts, the effect of the submissions on behalf of the appellants is that when at trial the defendant admits in evidence any lesser criminal offence to the offence charged in the indictment, the judge must always direct the jury in a way that it enables them to acquit of the more serious offence, and convict of the offence admitted by the defendant. If this is not done, the conviction of the more serious offence will be unsafe. Mr Henry Blaxland QC argued that Coutts demonstrated a principle of law that in a trial on indictment any “obvious and viable alternative verdict” should ordinarily be left to the jury where there is evidence to support it, irrespective of the wishes of the parties, and even when the alternative verdict would be inconsistent with the prosecution case. The principle was not confined to cases to which sections 6(2) and 6(3) of the 1967 Act might apply, and an indictment which failed to include an obvious and viable alternative offence, as disclosed on the evidence at trial, was defective for the purposes of section 5 of the Indictments Act. Where the judge erred in failing to leave a lesser alternative verdict obviously raised by the evidence, the conviction, whether for murder or some lesser offence, should be quashed as a serious miscarriage of justice. Effectively, this submission reflected the arguments on behalf of the appellants, who again with different emphasis, adopted Mr Blaxland’s concession that the obligation to direct the jury in this way would not arise where the alternative offence would be too remote from the issues in the case, or trifling or trivial, or where to do so would cause unfairness to the defendant.

To examine these submissions we must return to Coutts. On analysis three distinct questions arise. First, whether it is possible to identify when, as a matter of law, the judge’s failure to leave an alternative verdict is erroneous. Second, whether the principle extends beyond the ambit of section 6 of the 1967 Act (of direct application in Kempster’s appeal). Third, the impact of an erroneous failure by the judge to leave an alternative lesser verdict to the jury on the safety of the conviction in the individual case.

Before any requirement to leave an alternative verdict arises, it must be “obviously” raised by the evidence, that is, an alternative verdict which would suggest itself to the mind “of any ordinarily knowledgeable and alert criminal judge” (per Lord Bingham) Lord Mance adopted the same formulation of an “obvious alternative verdict”. Lord Hutton, while agreeing with Lord Bingham’s test that the alternative verdict should suggest itself to the “ordinary knowledgeable and alert criminal judge” observed that the same test might be differently expressed. The alternative verdict should “only” be left if it was one to which “a jury could reasonably come”, quoting Lord Clyde in Von Starck, or where “the alternatives really arise on the issues as presented at the trial”, quoting Mustill LJ in Fairbanks. Lord Rodger explained that the judge’s duty was to “put the possibility of a viable alternative verdict to the jury”, but not if this was remote from the real point of the case, thus echoing Mustill LJ’s formulation.

Each of these formulations admitted of exceptions, and it is therefore plain that an absolute question of law is not engaged. Nothing in the speeches in Coutts suggested expressly, or by necessary implication, that the situation which arises in these appeals, and which has arisen and will no doubt continue to arise in many trials, creates an obligation on the trial judge to leave an alternative lesser verdict whenever the defence to the more serious charge on the indictment involves an admission of a lesser offence. Sometimes it will, but sometimes not.

Three decisions of this court where the Coutts principle was addressed are illustrative. In R v Abdi Aziz Ali [2006] EWCA Crim 2906 the appellant was charged with one count of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Persons Act 1861 and he was convicted. An alternative verdict of assault occasioning actual bodily harm on the basis, first, that the appellant lacked the necessary intent and second, that any injuries that he may have inflicted did not constitute grievous bodily harm were not left to the jury, largely because counsel for the appellant and his co- defendant dissuaded the trial judge from doing so. In fact a conviction of assault occasioning actual bodily harm would have been an entirely appropriate verdict on the evidence, and in the light of Coutts, the court concluded that the Recorder should have left the count to the jury, notwithstanding the urgings of defence counsel. By contrast, in R v Soran Ali[2006] EWCA Crim 3084 the appellant was convicted of causing grievous bodily harm with intent, contrary to section 18 of the 1861 Act, in the context of violent disorder. The Crown alleged that the defendant was responsible for using a knife to inflict a very serious injury on the victim. The appellant denied it, but admitted one punch to another man in defence of one of his co-accused. In accordance with the submissions of counsel, a possible verdict of an offence contrary to section 20 of the 1861 Act was not left to the jury. The appeal was advanced on the ground that Coutts required that this alternative should have been left to the jury. The court concluded that a section 20 verdict was not, in the circumstances, an obvious alternative verdict. In the context of extreme violent disorder, the victim had suffered a very deep knife wound to his wrist, and the issue at trial was whether the defendant was responsible for the knife injury.

In R v Banton[2007] EWCA Crim 1847, the defendant was convicted of wounding with intent contrary to section 18 of the 1861 Act. The jury was not invited to consider a possible section 20 verdict. Based on Coutts, this formed the basis of the appeal. The Crown’s case was that the defendant had smashed a bottle against the victim’s face, causing serious injury. At trial the defendant, in her evidence, asserted that the victim was one of three aggressors who assailed her with bottles. To defend herself she picked up one bottle and hurled this in their general direction. She did not see the bottle strike the victim, and she did not intend to hurt or to cause her injury. She ran from the room, and when followed by the victim, threw a glass at her, which missed. After discussion, and an overnight opportunity for reflection by counsel for the Crown, he told the judge that he made no application to add a count appropriate to section 20. The judge observed, “so you nail your colours to the mast of: if she hit her face with a bottle she must have intended to do her serious injury?” The jury was directed accordingly.

On appeal, in the light of Coutts, the Crown did not resist the appellant’s argument that an offence contrary to section 20 should have been left to the jury. Dismissing the appeal, the court observed

These decisions illustrate the way in which this court has already sought to apply the reasoning in Coutts. They demonstrate that it does not necessarily follow from the defendant’s admission of a lesser or different crime to the crime charged in the indictment that the jury must be given an opportunity to return a verdict on the basis of the admitted criminal conduct. This is unsurprising. Many a guilty defendant, examining evidence which is effectively incontrovertible, will take refuge in admitting some criminal activity encompassed by this evidence, but deny the more serious offence supported by evidence which he can challenge or seek to explain. The defence may, of course, be true. Equally, the jury may be unable conscientiously to reject it. However when cases like these arise, the alternative verdict may very well be remote from the more serious allegation made by the prosecution and the real issues in the case. In Fairbanks, now perhaps to be regarded as resuscitated by Coutts, it plainly was not. The only issue in the trial was the proper level of criticism to be directed at the defendant’s driving. In Maxwell, despite the criticisms in Coutts by Lord Bingham, the question asked by the jury was not directed to a lesser included offence under section 6(3) of the 1967 Act, but to burglary, and the possible alternative, theft, was treated as too trivial. Although Lord Bingham referred to the maximum sentence for theft provided by statute, it seems improbable that he was suggesting that the gravity of a possible alternative offence was to be considered in the abstract. We respectfully suggest that in any event theft would have distracted from the essential issue at trial, that is the defendant’s alleged involvement in a particularly unpleasant incident at the victim’s home which took place when the defendant was not there.

The danger highlighted by some of the speeches in Coutts, underlining the duty of the trial judge to leave alternative verdicts to the jury, is the risk that faced with the stark choice between convicting a defendant whose behaviour was on any view utterly deplorable, and acquitting him altogether, the jury may unconsciously but wrongly allow its decision to be influenced by considerations extraneous to the evidence and convict of the more serious charges rather than acquit altogether. In such circumstances to omit directions about a possible lesser alternative verdict may therefore work to the defendant’s disadvantage. Coutts itself provides a possible example. However, Coutts does not suggest that such a risk is always present. Indeed our entire system for the administration of criminal justice in the Crown Court depends on the conscientious and impartial determination of the issues by the jury, following and applying the directions of law which they receive from the judge. This principle, too, was unequivocally acknowledged in Coutts.

Accordingly, not every alternative verdict must be left to the jury. In addition to any specific issues of fairness, there is what we shall describe as a proportionality consideration. The judge is not in error if he decides that a lesser alternative verdict should not be left to the jury if that verdict can properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issues in the case. He must, of course, reconsider any decision he may have reached about alternative verdicts in the light of any question which the jury may see fit to ask, as they did in Fairbanks and Maxwell. However when the defence to a specific charge amounts to the admission or assertion of a lesser offence, the primary obligation of the judge is to ensure that the defence is left to the jury. If it is not, on elementary principles, the summing up will be seriously defective and the conviction will almost inevitably be unsafe. The judgment whether a “lesser alternative verdict” should be left to the jury involves an examination of all the evidence, disputed and undisputed, and the issues of law and fact to which it has given rise. Within that case specific framework the judge must examine whether the absence of a direction about a lesser alternative verdict or verdicts would oblige the jury to make an unrealistic choice between the serious charge and complete acquittal which would unfairly disadvantage the defendant. In this context the judge enjoys “the feel of the case” which this court lacks. On appeal the problem which arises is not whether a direction in relation to a lesser alternative verdict was omitted, and whether its omission was erroneous, but whether the safety of the conviction is undermined.

Before addressing this question, we must consider whether the principles derived from Coutts extend beyond the ambit of alternative verdicts available under the statutory arrangements provided by section 6 (2) and (3) of the 1967 Act. Coutts suggests that it did not. It addressed the statutory framework provided by the 1967 Act, but went no further. The opportunity to address the issue was available when the decision in Maxwell was criticised, but again, given that the jury question plainly indicated an interest in a possible burglary conviction, ( which would not be available for the purposes of section 6(3)) no extension beyond the ambit 1967 Act was suggested.

The bill of indictment is, as Archbold explains in its opening words:

Section 3(1) of the Indictments Act 1915 provides:

Without reciting the developing jurisprudence about the meaning of the word “defective” as used in section 5 (1) of the 1915 Act, it is now common practice to permit amendments to the indictment at any stage of the trial, whether by amending or adding or substituting new counts, provided that these steps may be taken without unfairness to the accused. Whether unfairness results will usually depend on the purpose of the amendment, the stage of the trial at which the amendment is sought, the degree, if any, to which the defendant is required by the amendment to meet a new prosecution case and whether he would be disadvantaged in the presentation of his defence. Thus, for example, in R vCollison [1980] 71 CAR 249 an amendment was permitted which removed a technical impediment and allowed the jury to deliver the verdicts of unlawful wounding contrary to section 20 of the 1861 on which they were all agreed, when the charge was before them, but not “expressly stated”.

Argument was not addressed to us about the correctness and applicability of the decision in R v Osieh [1996] 2 CAR 144, where discussing the interaction of the proviso to section 2(2)of the Administration of Justice (Miscellaneous Provisions) Act 1933 with section 5 of the Indictments Act 1915 Schiemann LJ said:

The final question is the impact of any erroneous failure by the trial judge to leave an alternative lesser verdict to the jury. Ultimately the single issue for this court is whether we think that the conviction is unsafe. If we do, the conviction must be quashed: if not, the appeal must be dismissed. The statutory test relating to the safety, or otherwise, of convictions returned by the jury is unchanged.

We shall return to the specific features of the individual appeals.

The victim suffered actual bodily harm. The appellant’s case was that he had caused her injuries, at least at the outset because he was seeking to restrain her from an attack on him. Perhaps realistically, in the light of the actual injuries, he did not rely on self defence as a complete answer to the allegation, although the judge left it to the jury, who rejected it. However his admissions about the circumstances in which the victim came to sustain her injuries bore no relationship to her allegation that he intended to kill her by depriving her of her breath, first by covering her mouth and nose, and then by using a pillow for the purpose. Save that the location in which the incident took place was agreed, there was simply no correspondence between the two versions.

In view of Coutts, the judge was wrong to treat the decision whether to leave actual bodily harm to the jury as the responsibility of the prosecution. The question nevertheless remains, whether after Coutts, any alternative offence should have been left to the jury. There was a single issue before them, effectively whether the incident took place in the circumstances described by the complainant or the appellant. The account given by the defendant amounted to admitting an offence contrary to section 47 of the 1861 Act. However the offence he admitted, or an attempt to commit it, was trivial when set against the alleged attempt to kill by asphyxiation. The appellant would not have been convicted unless the jury had wholly rejected his account. A verdict convicting him of an attempt to do grievous bodily harm with intent would not have been a realistic alternative on the facts of the case. Indeed no other compromise verdict would have been realistic. The decision that an alternative verdict should not be left to the jury was right. The defendant was not disadvantaged by the absence of such a direction. We therefore have no reason to doubt the safety of this conviction. This appeal will be dismissed.

The circumstances surrounding this appeal are very similar to those in Foster. The appellant admitted responsibility for the complainant’s injuries. On his own case he was “incredibly angry” and grabbed her by the throat. He did not release his grip of her neck until she was on the ground, and when he did so, he noticed that she caught her breath. All that he was saying was that he did not intend to kill or cause her serious harm.

The single issue at trial was his intention at the time of this sustained attack. The possibility of a verdict which merely reflected the victim’s injuries would have been remote from the realities of the issues to be decided by the jury. The judge was right not to leave any lesser alternatives to them. As in Foster, the admitted offence contrary to section 47 of the 1861 Act was trifling in the circumstances, and an offence of attempting to cause grievous bodily harm with intent would have been unrealistic on the evidence. The jury’s attention was rightly directed to what was effectively the single issue in the case. Again, the defendant was not disadvantaged by the absence of a direction linking his defence to a lesser alternative verdict. The appellant would not have been convicted of attempt murder unless the jury rejected his account of the incident. Once they had done so, no compromise verdict was realistically open. This appeal will be dismissed.

We shall assume that the power to amend the indictment to add a handling charge at the close of the evidence was available. In any event, on the burglary charge, a conviction for theft was a possible alternative.

The issue was stark. The link between Kempster and three offences of dwelling house burglary or attempt burglary during the night of 17^th June 2000, was the telephone call made to Mr and Mrs Martin. Kempster either committed two burglaries and one attempt burglary that night, or, quite by chance, he was put into possession of part of the proceeds of one burglary by his cousin who claimed to have committed them. The admitted dishonest handling (whether so presented or presented as an offence of theft) was remote from the real issues and when set against three dwelling-house burglary offences, at night, trivial. The Recorder was right to conclude that a lesser alternative verdict was not available, but even if it had been, he would have been right not to leave any such verdict to the jury.

On the Coutts issue, the appeal will be dismissed. The ground of appeal based on fresh evidence will be adjourned and listed in due course. Directions for the hearing will be given in the usual way by the Registrar of Criminal Appeals.

Gareth Birmingham was convicted of murder and conspiracy to rob on 18^th August 2006 in the Crown Court at Liverpool before His Honour Judge Globe QC and a jury. He was sentenced on 18^th September to life imprisonment (with a minimum term of 25 years less 205 days spent in custody) for murder, and imprisonment for public protection with a minimum of 5 years imprisonment concurrently for conspiracy to rob. This is a renewed application for leave to appeal against conviction and sentence. We shall grant the necessary four day extension.

The Crown’s case was that the applicant, then aged 22, and a co-accused, Terence Adams, aged 19, conspired together and with another person to rob Robert Ryan, a 22 year-old drug dealer, of his drugs and money. It is integral to an understanding of the case that the third person was the applicant’s brother, against whom there was insufficient admissible evidence.

On 12^th January 2006 Robert Ryan was lured to Windsor Road by telephone calls from the applicant and co-accused pretending that they wanted to buy cocaine from him. The applicant was armed with a knife and the co-accused with a telescopic metal baton. They went to Windsor Road in a Corsa car belonging to the co-accused’s mother. The applicant’s brother sat in the rear seat. In the meantime Ryan accompanied by a Crown witness, Bartley, arrived at the scene in a Rover car. The vehicles themselves and some of the movements of those who were present were filmed and timed by a nearby CCTV camera but it did not capture the details of the incident. The video itself, together with schedules of telephone calls before and after the incident, were produced in evidence, and much of this evidence was agreed. It showed that the entire incident, from start to finish, was all over in about 30 seconds.

The deceased went toward the applicant’s car, where he was stabbed twice in the chest. Bartley remained in the Rover car. He did not know what happened, but someone smashed the driver’s window with a baton to deter him from intervening. He heard the deceased shout that someone had a knife and he heard another shout of ‘grab his chain’. The deceased ran away and was found to be bleeding from his side. An ambulance was called. He was pronounced dead at the hospital. In the meantime the applicant drove away from the scene.

On 19^th January the applicant voluntarily reported to the police station. He was arrested. In interview he made no comment. His co-accused produced a prepared case statement.

At trial the applicant and his co-accused gave evidence. The applicant described the co-accused wanting some cocaine, and eventually telephoning the deceased who agreed to meet them in Windsor Road. The applicant himself did not know the deceased. There was no plan to rob him, and they were unarmed. They waited for him for over an hour in Windsor Road.

The deceased arrived in his Rover car, and went over to the Corsa and got into the applicant’s seat to do the drug deal with the co-accused while he stood outside. In the car an argument arose about the quality of the drug. This led to the deceased to make threats, and he pulled the appellant’s brother from the car. In the course of a violent struggle the deceased punched him and then kicked him on the ground and threatened to shoot him. The applicant thought that he was going to produce a weapon, and indeed a knife fell to the ground. He picked it up and challenged the deceased in an attempt to protect his brother. The deceased ran towards him and tried to punch him, and the applicant lashed out with the knife and stabbed him twice. This all happened very quickly. He did not know where he had stabbed the deceased. The knife was blooded and he drove away in the Corsa with it and the deceased’s coat in a panic. His essential defence to the charge was that he was defending his brother and himself.

We need not recite the evidence of the co-accused. It was not suggested that it had any bearing on the issues raised in the applications. Instead, our attention was focussed on the full transcript of the applicant’s evidence. In chief the applicant accepted that he had stabbed the deceased in the course of the incident, and in a sentence or two described how he had done so because the deceased was fighting with his brother and he threw him to the ground and hit and kicked him and screamed that he was ‘gonna smoke you’, meaning that he was going to shoot him. The applicant said that he just reacted, ‘protecting my brother really’ and after that they began to square up and ‘it just went out of hand’. Later he described the incident in more detail, and taking the narrative up from the reference to ‘gonna smoke you’ he saw the deceased go for something which he thought was a weapon and when he saw a knife hit the floor, he ran over and picked it up. When he picked the knife up he said to the deceased ‘come on then’ to which the deceased responded ‘what? Do you know who I am?’ and ran at him and ‘I just … I stabbed and I stabbed him twice’. He was asked what he meant when he said ‘come on then’ and he replied ‘to come at me because I wanted him to leave my brother alone’. The deceased turned round and began to run at him and then stopped, and then starting throwing a punch, and ‘that’s when I lashed out with the knife’. After the stabbing, the deceased backed away, and the applicant looked at the knife and saw blood on it ‘and panicked’.

Later he was asked if he was conscious of the force he had used and responded ‘to be honest I thought I was punching him’, and went on, ‘I knew I had the knife but when you’re lashing out you don’t realise that until it’s too late’. Cross-examined he agreed that although there were two knife wounds, there had been in fact an additional stab cut which had gone through a fold of the deceased’s clothing. When it was put to him that he must have stabbed the deceased three times he replied that he was ‘panicking. I couldn’t tell you exactly. All I know that he was coming towards me and I lashed out’. Shortly afterwards he repeated that the deceased was coming at him trying to punch him but that he wasn’t punching him. He wasn’t punching anyone. He lashed out with the knife. Later it was suggested that his brother was not a shrinking violet, and the deceased insisted that it was his brother, and that he was protective ‘over his family’. He repeated his original account of hearing the reference to ‘smoke you’, and something hit the ground, which he ran over and picked up and to defend his brother, or divert the deceased from the attack on him said, ‘come at me’.

Basing himself on this material, Mr Jonathan Goldberg QC submitted that in accordance with long standing principles, the trial judge should have left a possible defence of provocation for the consideration of the jury, however tenuous the evidence of provocation, indeed even if it was ‘extremely tenuous’. For his purposes, Coutts re-enforced but did not add anything to well understood principles. We agree with Mr Goldberg’s proposition of law. The problem he faced is that a close analysis of the evidence given by the applicant demonstrates, as the single judge, Mackay J, refusing leave intimated, that the applicant claimed to have a complete recall of the incident which led up to the infliction of the fatal injuries, and described himself as aware both of his actions and those of the deceased, who was threatening him and his brother. He responded to this threat, but denied any loss of self control saying, among other things, ‘I didn’t come at him like a lunatic’. In reality there was no evidence that he lost his self control. Mackay J observed that ‘unless the current state of the law is such that in every case of self defence, or the defence of another, provocation must also be left to the jury, there is no arguable basis for appeal on this ground’. He did not read Coutts as providing support for any such proposition. Neither do we. Having analysed the transcript of the applicant’s evidence as a whole we are satisfied that as a matter of law the judge’s decision not to leave provocation to the jury in this case was correct.

Mr Goldberg renewed his application for leave to appeal against sentence by disarmingly conceding that the reasoning of the sentencing judge was impeccable. The essential thrust of his submission was that the sentence was too heavy. This was a short lived robbery which went wrong, and the applicant was still only 22 years old when he inflicted the fatal wounds on the deceased.

The judge accepted that there was a lack of premeditation, but rejected the applicant’s contention that he had only accidentally acquired the knife at the scene. He rejected any element of self-defence. He was entitled to do so. He took account of the applicant’s age, but also bore in mind his previous convictions. He referred to the statutory requirement that the starting point for murder committed in the circumstances of this case was a minimum term of thirty years. In these circumstances the minimum sentence, 25 years, is not open to criticism.

Accordingly these renewed applications are refused.