Lewis, R. v

The appellant has leave from the single judge, Sir Geoffrey Grigson, to pursue two grounds of appeal against his conviction for manslaughter on 28 September 2005 following a trial at Birmingham Crown Court before His Honour Judge Matthews and a jury. The appellant seeks the leave of the court to argue two further grounds.

The conviction arose from an incident which occurred in the Bristol Road, a main thoroughfare in Birmingham, during the early hours of 23 October 2004. A group of students were alighting from a taxi and making their way across the road. The appellant, who was then aged 43, was driving a 4x4 Isuzu motor vehicle, accompanied as passengers by his friend Carlos Morris and two females to whom he was giving a lift. His progress was impeded by the pedestrians. He sounded the horn of his vehicle and remonstrated. At trial the appellant said that he was met with abuse (although that was disputed by the students). He got out of the vehicle and approached one of the students who had, he said, struck the vehicle with his hand.

During the course of the incident which followed, it was the prosecution case that the appellant pushed aside one of the female students, Victoria Gray. Her brother, Christopher Gray, intervened either to punch or to push the appellant. Having done so, he ran from the scene into the road, where an oncoming car collided with him, causing fatal injuries.

The critical question for the jury, it is common ground, was whether the deceased, Christopher Gray, ran or continued to run as a flight response to an attack or threatened attack by the appellant. If so, it was open to the jury to find the appellant guilty of unlawful act manslaughter. If, however, he was either unaware that he was under attack or threatened attack, or if his flight was of his own volition and unrelated to any act of the appellant's, or not reasonably foreseeable, then the appellant was entitled to an acquittal.

The first ground upon which the appellant has leave is the assertion that the trial judge failed to give a clear direction as to how the prosecution put its case on the essential elements of unlawful act manslaughter. The judge should have directed them that, if they concluded the deceased had or may have decided to run of his own volition, they could only convict of manslaughter, the deceased continued to run as a result of becoming aware that the appellant was chasing him.

As a further corollary to the same argument, Mr Taylor has submitted that the jury should have been directed that they could not convict if they found that the deceased started running of his own volition and was unaware throughout that the appellant was chasing him because if that was the situation, nothing that the appellant did would have caused the deceased to continue running.

The second ground on which the appellant has leave is that the judge failed to direct the jury in terms of the proportionality between the attack or threatened attack, which constituted the unlawful act, and the response of the deceased to run into the road. Without such a reference, Mr Taylor submits, the jury would not have understood the significance of the new act of the deceased which might have broken the chain of causation.

We turn to consider the evidence heard by the jury. It fell into the following categories usefully identified by Mr Taylor in his Advice: (1) the students; (2) the motorists; (3) the bystanders; (4) the accident investigator, scientific evidence and evidence of the police interviews; and (5) the defence evidence at trial.

The students who, generally speaking, were in the deceased's group had been drinking -- some more than others. We shall refer only to the evidence concerning the critical moments before the collision, and only by way of summary of that evidence.

Yasmine Lally said that she had consumed four small glasses of wine and was neither drunk nor sober, although she was tired. She said that she saw Victoria Gray pushed and almost fall over. She did not see Victoria's brother, Christopher, become involved in anything physical. She saw him run away in the direction of oncoming traffic. He was in the road. He ran a very short distance. It all occurred in seconds. She said, "He was chased, I would say. I saw the man chase Chris, and Chris ran away". She did not see the collision.

Victoria Gray had consumed several vodkas and lemonade and felt fairly drunk. She said that she heard a man's voice becoming more aggressive. That made her walk over to see what was happening. A man got out of a vehicle. Victoria said words to the effect, "Can we just leave it?" Thomas Davies pulled her back, but she returned and stepped in between the man and her brother. The man to whom she was referring was the appellant. She said that the man was aggressive and pushed her with both hands on her shoulders. She fell to the floor. She claimed that she was kicked by a woman who had got out of the man's vehicle.

Amy Gibbons had consumed two vodkas and lemonade. She said that she was tipsy but not drunk. She said that the man (the appellant) was quite aggressive. He pushed Victoria. She thought that she heard the man say, "Don't touch me". Christopher Gray went towards the man and stopped in front of him without physical contact. However, Christopher Gray ran off up the road. The appellant ran after him.

Thomas Davies had drunk four pints of Carling and a bottle of ale or similar drink. He said the man asked, "What did you say? What are you doing?" He believed that the appellant's remarks were aimed at Nick Brennan. The man was shouting aggressively, but none of the group was shouting back at him. He heard the man say, as he was pointing to Thomas Davies, "Two boys against one man". The appellant then pushed Victoria Gray quite forcefully to one side. Christopher Gray retaliated with a push to the lower chest of the man, away from Victoria. The man looked at Christopher and ran straight at him. Christopher turned and ran into the road in a diagonal. He ran into a car. Of all the witnesses Thomas Davies made the most explicit connection between the appellant's movement and the deceased's flight.

Nicholas Brennan had drunk six to seven pints. He said he was merry. He described the appellant as being aggressive towards himself and Thomas Davies. He, too, claimed (although he had not mentioned it in his statement) that he heard the appellant say, "One man against two boys". Victoria Gray held out her hands in a non-aggressive manner in an attempt to pacify things. However, she was grabbed by the man who threw her to the ground.

Of the motorists, Jake Bernidine was driving a car with Amy Greenwill as his passenger. He saw a black man arguing with a girl. There were raised voices on each side. There were fast movements by both of them. Each seemed to be giving as good as the other. He saw the woman fall to the floor. There may have been contact such as a push. That was followed by a white man running from the side and appearing to punch the black man. The punch either made contact or very nearly did so. It was at this point that Mr Bernidine began to drive away, but through his rear-view mirror he saw the black man giving chase to the man who had lunged at him. The white man snaked across the road. They were sprinting, about three or four metres apart. That was the last he saw. He did not see the collision.

Amy Greenwill also described a black man pushing a blonde girl to the ground and seeing a white man run away. She had not seen any incident involving the white man and the black man together. She agreed that the black man was within three or four metres as they were running diagonally across the road. The deceased was hit by a car travelling in the opposite direction. The white man was still being chased when he was hit by the car.

The bystanders included Mr Mohammed Sardar, a taxi driver, who had stopped at the Tesco garage next to the scene. He described a man (who must have been the appellant) with a group of students. They were shouting at one another. He saw the appellant stretch his arm out at chest height but did not know if it made contact with anyone. A student ran away and the appellant ran after him. They were just on the Tesco side, that is their own side of the centre line in the road, when an oncoming vehicle collided with the student.

Andrew Moss had drunk six bottles of lager. He was standing by the Tesco cash machine. He saw two men running across the road, one after the other. They were about halfway across the road, with the leading man about an arm's length in front, when the collision occurred.

Police Constable Robbins, the accident investigator, concluded that the deceased had collided with the side of the oncoming car and the momentum of both himself and the vehicle caused him to be thrown onto the bonnet.

The evidence was that the deceased had shared a cannabis cigarette earlier in the evening. At the time of the incident his blood-alcohol concentration was 168mg per 100ml of blood.

In interview the appellant said that he had got out of his car because someone swore at him. He went over to the man to remonstrate, but obtained no reaction from him. He tried to leave but was surrounded. He put his hands up to protect his face. Someone punched the left side of his face and ran off. He moved a few strides into the road and stopped. There he felt his face for injury but found none. Mr Gray, on the other hand, had continued to run and was hit by the car. He had at no time been aggressive towards the students, "they were just kids".

In evidence the appellant said that he was with his friend and the two women to whom he was giving a lift. Nicholas Brennan came straight out in front of his car. He blew his horn and said, "What the fuck are you doing? I nearly knocked you down". Mr Brennan called him a racist name and may have hit his vehicle as he walked past. The appellant got out of the vehicle to ask what the problem was. He thought that Mr Brennan was drunk. A taller member of the group of students intervened. One member of the group poked him in the face. He told them not to touch him. They were all screaming and "giving it attitude". He was then pushed by Christopher Gray. The appellant fended Christopher Gray off. He did not remember any contact with Victoria Gray. He was about to leave when he took a punch to the left side of his face. He put up his hand, took a few strides forward thinking, "What's this?" He then thought, "I'll let it go". At this point Christopher Gray was running away. The appellant took a few strides and stopped whilst still on the pavement. Mr Gray carried on running and the collision occurred. After the collision the appellant ran to his vehicle and drove away.

Carlos Morris gave evidence in support of the appellant. He said that he saw one lad throw a punch which hit the appellant on the side of the face. That person ran off diagonally across the road. The appellant turned to see who had thrown the punch, took a few strides and stopped.

We turn to consider the law as it applied to the evidence which the jury had heard. The prosecution set out to prove that the appellant committed an unlawful act which all reasonable people would have foreseen risked causing some harm to the victim. On the facts of the prosecution case this is an example of the completion of the actus reus of manslaughter not by the offender but by the actions of the victim. Such cases require careful consideration of the issue whether the death of the deceased was "caused" by the appellant. It is an issue which arose in R v Williams and Davis [1992] 1 WLR 380, (1992) 95 Cr App R 1. The deceased had been picked up when hitch-hiking by three men in a car. After a journey of some five miles he jumped out of the car and in consequence suffered fatal injuries. As the court found, there was no admissible evidence as to what had caused the deceased to escape. The judge directed the jury that they must be sure that the deceased was in fear of being hurt physically; that his fear was such that it caused him to try to escape; that because he was trying to escape he met his death; and that his fear of being hurt there and then was reasonable and was caused by the defendants' conduct, which was unlawful and such as any sober and reasonable person would recognise as likely to subject the deceased to at least the risk of some harm resulting from it. We have summarised the judge's directions from the headnote to the report in the Weekly Law Reports. The unlawful act on which the prosecution had relied by way of inference from the circumstances was robbery or attempted robbery. As we have observed, the court held that there was no admissible evidence from which the jury could have inferred that the reason for the deceased's escape was robbery or attempted robbery. However, the court proceeded to consider whether the judge's directions as to causation, based as they were on R v Mackie (1973) 57 Cr App R 453, were sufficient. Delivering the judgment of the court Stuart-Smith LJ pointed out that in Mackie Stephenson LJ had drawn a distinction between fatal and non-fatal cases. At page 459-460 in Mackie Stephenson LJ said:

These words serve to emphasise two important requirements of causation in cases of death during flight from an unlawful act which, in our view, applied to the present case. First, there must be cause and effect; that is, but for the unlawful act, flight or escape and therefore death, would not have taken place. Second, the nature of the flight or escape proved must be a foreseeable consequence of the unlawful act; in more familiar language, it was not so daft as to make it the deceased's own voluntary act which intervened to break the chain of causation.

Mr Taylor has concentrated his submissions upon the first of these requirements. It was necessary for the prosecution to establish the causative effect between the appellant's unlawful act and Mr Gray's flight into collision with the oncoming car. The unlawful act relied on by the prosecution was the appellant chasing after Mr Gray. That act, it was proposed, was either an assault or an attempted battery or both. Mr Taylor submits that upon the evidence we have summarised, there were two possible routes to a verdict of manslaughter: either (1) the appellant made an aggressive movement towards Mr Gray, which caused Mr Gray to flee; or (2) the act of running was voluntary and became a cause only when Mr Gray realised that he was being pursued and continued to run into collision with the car.

Mr Taylor submits that, on the evidence heard by the jury, there is a realistic possibility that they may have convicted the appellant although they were not sure that the deceased was aware of being chased.

In his written Advice and Grounds of Appeal, Mr Taylor traced for us the nuances of the prosecution assertions made during trial in opening, cross-examination, in discussion with the judge before speeches, and in a final address to the jury. It is unnecessary for us to rehearse this excursion into the events of trial because what we need to resolve is whether the jury received the assistance they required from the judge's legal directions in the summing-up.

The judge handed to the jury a series of questions which amounted to a route to their verdict. It was a course which seems to this court calculated to provide the jury with the greatest possible assistance during their deliberations. They could not otherwise have been expected to retain some lengthy and not altogether straightforward directions on the issues which they had to resolve.

Before dealing with the questions, the judge approached the issue of the appellant's alleged unlawful act. He said this:

Secondly, the judge directed the jury to consider whether the prosecution had proved either an assault or an attempted battery. To prove an assault, the jury would need to be sure that through the appellant's act of chasing Mr Gray, Mr Gray was aware of the risk of personal violence. As Mr Taylor pointed out, attempted battery, however, required only an intention by the appellant to use unlawful force and an act more than preparatory towards using force. It did not require Mr Gray to be aware of the risk of violence.

The judge then turned to the issue of causation. He said:

Are we sure that in chasing him in that way the defendant was acting unlawfully either because he was committing an assault or because he was committing attempted battery or because he was committing both of those offences?

Are we sure that it was as a result of that unlawful conduct that Christopher Gray was running away from the defendant at the time when he collided with Mr Phillips' car and was in consequence killed?

Are we sure that a sober and reasonable person would inevitably have realised that by acting in that way he would inevitably subject Mr Gray to the risk of some harm?

Lastly, are we sure that running away from the defendant in the way that Mr Gray did as at least one of the responses which might have been expected from someone who found himself in his situation?

It is to be noted, as Mr Taylor submits, that the judge did not say to the jury words to the effect: "If Mr Gray was running not because he was aware of being chased, but of his own volition the prosecution will have failed to prove that the defendant's unlawful act caused his death. But what the judge plainly did say to the jury was that they could only convict the appellant if, among other things, they were sure that Mr Gray was running away as a result of (1) being chased by the appellant, which (2) they were sure was unlawful conduct.

Mr Taylor submits that the jury required a specific direction to consider the question whether Mr Gray was aware that he was being chased. If he was not aware, then the running away cannot have been the result of any unlawful act of the appellant's. He drafted for us proposed directions to that effect.

We, however, do not accept the submission. Provided the jury were made aware that cause and effect was an essential ingredient of proof, it was not necessary for the judge to pose the same question in the reverse or negative form. In our judgment, the jury could not have understood question 3 to mean anything else than the "but for" test. It seems to us that the jury cannot have been under any misunderstanding as to the sense in which they were to consider that question. When summarising the appellant's explanation for leaving the scene, the judge said this:

Following a retirement of two-and-a-half hours, the jury sent a note seeking the dictionary definition of the word "chase". Mr Taylor submitted that this may indicate that the jury was troubled by the judge's questions in which the word "chase" was used. He, in common with the court, was not present at trial, although Mr Wall QC, who appears for the respondent, was prosecuting counsel at trial. His recollection is that the only matter which may have caused the jury some concern as to the meaning of the word "chase" was that there was evidence upon which they might find that the appellant had made an instinctive movement of a step or two which, in the ordinary meaning of the word, would not amount to a chase, and it may have been that about which they wanted assistance from the judge. There was certainly no question from the jury which indicated that they were in any difficulty on the issue of causation.

By agreement the jury were told that the word "chase" meant "pursue with a view to catching". If, therefore, there had been any doubt, then it was resolved by the judge's direction.

Placing it in the context of his questions, the judge said:

The second ground upon which the appellant has leave asserts that the judge failed to deal with the issue of novus actus interveniens. Mr Taylor submits that the jury should have been directed not only to consider whether Mr Gray's action in running away was "at least one of the responses which might have been expected from someone who found himself in his situation", but also to consider whether the form of his response was foreseeable. He submits that the judge should have used, as Stuart-Smith LJ did in Williams and Davis, words such as"proportionate" and "daft" so as to bring home to the jury that it may not be every flight response which could be regarded as a foreseeable consequence of the unlawful act.

We accept that the judge could have used such words, but if he did so it would only have been for the purpose of explaining the nature of foreseeability in more common language, just as Stuart-Smith LJ did in Williams and Davis. In the passage which we have quoted from his summing-up, the judge invited the jury to consider both the quality of the unlawful act alleged against the appellant and the nature of the response of the deceased in the circumstances in which those two people found themselves. It was in that context, and after they had considered those circumstances, that the jury was to answer the final question:

We have proceeded to ask the question whether, if the jury had received further directions, as Mr Taylor proposed, they might arguably have come to a different conclusion, namely that Mr Gray's flight into the road was "wholly disproportionate" or a "daft response" to the nature of the threat posed by the appellant. The jury clearly rejected the appellant's case that he did not chase after Mr Gray. The appellant was, as the judge observed when summarising his evidence, 6ft 1in tall and 15 to 16 stones in weight. He was also, on the jury's verdict, an angry man. We consider that the prospect of a different conclusion on this issue can safely be excluded.

We turn finally to the grounds on which Mr Taylor requires our leave. First, he submits that an unlawful act of attempted battery should not have been left to the jury since its proof did not require any awareness by Mr Gray of the risk of violence. Thus there was a theoretical risk that the jury might find causation while not being sure that Mr Gray was aware that he was being chased. In our view, this ground adds nothing to the first. The jury had to be satisfied that but for the chase Mr Gray would not have been in flight. We have concluded that the judge's use of words in his question 3 were to the same effect.

Finally, Mr Taylor submits that verdicts of attempted battery and assault should have been left to the jury as alternatives to manslaughter. They would have enabled the jury to decide that the appellant had committed an unlawful act, without also adding the stigma of causation of death. We have, as he invited us to do, considered the principles established in R v Coutts (HL) [2007] 1 Cr App R 60, and R v Foster and Others [2008] 1 Cr App R 470. We agree that the jury had to consider the issue of the unlawful act, which was therefore central to the charge of manslaughter. However, assault and attempted battery are summary offences which were trivial in the absence of foresight of harm. We do not regard it as arguable on the facts of this case, and upon the terms of the judge's summing-up, that the jury may have convicted because they had no alternative available to them. On the contrary, as we have already observed, the judge's summing-up was so arranged and so expressed as to give the jury the maximum assistance.

For those reasons we refuse leave on the renewed grounds and we dismiss the appeal.