Cooper, R. v

On 12^th April 2017, following a trial in the Crown Court at Winchester before Warby J and a jury, the appellant was convicted by a majority (11:1) of manslaughter. He was sentenced to six years' imprisonment.

He appeals against his conviction by leave of the single judge and he renews an application for leave to appeal against sentence, following refusal by the single judge.

Before we enter into a detailed consideration of this case, it is clear that the event was a tragedy for the deceased, Mr Stacey, and his family; and, although there is no equation between their position and that of the appellant and his family, it also represents a terrible waste of time and a loss of innocence for the appellant. There has been a considerable impact on his family and on him.

At the time of the offence the appellant was a 20 year old law student who had no previous convictions. He had a positive good character. He spent the evening of Saturday 13^th February and much of the early morning of Sunday 14^th February either out to dinner with his family, or drinking in his family home, or out in Newport town centre on the Isle of Wight. The Crown relied on a number of episodes during the early morning of the Sunday, many of which were captured on CCTV footage which was shown to the jury.

The appellant ended up drinking in Yates' wine bar. At around 2.08am the staff wanted him to leave. The evidence from a member of staff was that he had been aggressive in the wine bar and he was escorted to the door. However, he calmed down, was apologetic and was allowed to remain, despite threatening to sue the door supervisor. However, a little later, at 2.43am, he was ejected from Yates' wine bar. This was not a violent episode, although the appellant used some strong language.

CCTV then showed the appellant outside a Chinese restaurant. He was there alleged by the Crown to be involved in tripping a man up, causing him to fall to the ground, standing over him, holding him down and then dragging him up by the top of his shirt. The CCTV footage of this incident was played a number of times to the jury. That man was called Tariq Yilmaz. In evidence the appellant agreed that he had used his feet to trip up Yilmaz, thinking that he was about to attack a friend of the appellant. He said that he used a sweeping motion to trip him up and then held him by the scruff of the neck to enable him to get up from the ground.

In the next episode in sequence the appellant was seen in the bus station by a prosecution witness who described him as being rude and abusive to her. Soon after that, the appellant became involved in the episode which led to the death of Gary Stacey.

Mr Stacey was 49 years of age. At the time of the episode he was in the course of eating a burger, which he held in his left hand. This episode was captured on the CCTV camera outside Ming's Chinese Restaurant. That footage was critical evidence in the trial. The jury were able to view it a number of times, both in its original and an enhanced form. The judge summed up this crucial footage to the jury in full terms.

The footage occupies a period of 20 seconds and, as the judge observed, "within that period there are a couple of seconds in which the punch was thrown or punches were thrown, whichever you think it is". Mr Stacey comes into the picture and the appellant leaves. The appellant then returns. There is some sort of confrontation between Mr Stacey and the appellant's companion, Alex Wright. Then, as the judge described it, there was some form of encounter between the appellant and Mr Wright. The appellant then turned to face Mr Stacey with his arms out. The appellant punched Mr Stacey and Mr Stacey fell. The appellant moved off but turned and made to come back to the scene but was pushed away by Mr Wright. The interpretation of the CCTV footage was for the jury, a task which the judge described as follows:

The judge recounted the appellant's account to the jury, which was in substance that Mr Stacey had misunderstood some shouting directed at him and his companions as coming from the appellant and his companions, rather than from another group. Mr Stacey, he said, "would not listen and he said he would knock us out". It had all blown up in less than a minute. The appellant said that Mr Stacey was shouting and moved towards him with his fists clenched. The appellant put his arm out and punched him once. He did that because Mr Stacey's fist was clenched and he said that he would knock out the appellant.

As we have indicated, Mr Stacey fell backwards and hit his head on the pavement. He never recovered consciousness. Indeed, it is obvious from the CCTV footage that he did not move at all. He died the next morning from a brain bleed and swelling: a fatal closed head injury. The Crown's case was that this was a “two punch” manslaughter. The appellant's case was that he punched once and had acted in lawful self-defence.

There was relevant scientific evidence, some of which was uncontentious. When paramedics put Mr Stacey on the spinal board at the scene, they saw that he was bleeding from his mouth. On arrival at the hospital, it was discovered that he had a fractured eye socket. That is an indication of the forcefulness of the blow which had felled him.

However, the contentious evidence for present purposes falls into two areas. Firstly, evidence was led before the jury that the appellant had consumed some cocaine on the evening in question. Secondly, there was evidence before the jury of text messages between the appellant and his girlfriend which were said to demonstrate a propensity for aggression. In each case, Mr Mousley QC, who appears on behalf of the appellant, says that the evidence should not have been admitted and that it renders the conviction unsafe. We will address those issues in turn.

The Crown's case in relation to cocaine was as follows. The appellant had made contact with the police by means of a 999 call on the Sunday afternoon (the afternoon following the death). The Crown suggested that it was significant that he had waited so long, and suggested that his motive was to permit sufficient time to pass so that all the substances which he had ingested the night before would be gone from his body. However, a urine specimen taken from him after his arrest was tested and it indicated the use of cannabis and cocaine.

In the course of his interview following arrest, but before the results of the urine test were available, the appellant denied using cocaine on the previous evening.

The scientific evidence of the urine test results was given in a report from Dr Darkins, a senior toxicologist. His report concluded that the urine test revealed metabolites of cocaine and of crack cocaine. The relevant metabolite of crack cocaine is known by the acronym AEME.

In the course of a pre-trial hearing before the Recorder of Winchester, the appellant argued that the evidence of cocaine ingestion should be excluded. That application failed. The argument was renewed before Warby J at the outset of the trial on 28^th March 2017. At that point the evidence of metabolites, both of powder cocaine and of crack cocaine, was still being relied on by the Crown. The ruling of the trial judge favoured the prosecution.

At that point the judge's attention was drawn to a number of the aspects of Dr Darkins' report. The judge observed as follows:

Part of the background to this evidence was that, at 10.07pm on the night in question, the appellant had sent a text message to a group of friends. It said: "I just did the biggest line of cocaine". In a further message at 10.34pm he texted: "it was fantastic. I feel like I'm invisible. So happy I came back to clear my head and chill out". Seven minutes later, he sent a further message: "Sorted head right out. Also half a litre of vodka helped". These messages, of course, were in direct conflict with the appellant's denial in the course of his police interview that he had taken cocaine.

Before the relevant scientific evidence came to be given to the jury, there arose a development which restricted its ambit. It became clear that there was at least a potentially significant difficulty with the processes in the relevant laboratory, which meant that the evidence of the metabolite AEME, indicating the consumption of crack cocaine as opposed to powdered cocaine, might be unreliable. As a result, the appellant's sample was re-tested. On this occasion, no AEME was detected. For that reason, the Crown elicited no evidence to suggest that the appellant had ingested crack cocaine. When Dr Darkins came to give his evidence, it was therefore confined to the conclusion that the metabolites of powdered cocaine had been detected. He also gave evidence that the stimulant effects of powdered cocaine would last for 30 to 60 minutes and that, whilst there would be "come-down" effects after that, sufficient time had passed between the ingestion of the cocaine at around 10pm and the fatal episode at around 4am, to mean that the cocaine could not have had an effect on the appellant's behaviour during the fatal episode.

At the conclusion of the Crown's case, which immediately followed the evidence of Dr Darkins, Mr Mousley applied to the judge to discharge the jury, on the ground that they had heard the allegations and evidence of cocaine use by the appellant on the night in question. On a proper analysis, this was not relevant to any issue which the jury had to determine, but that it had a significant prejudicial effect which could not be cured by any direction that could be given. In the alternative, the judge was invited to give an immediate direction to the jury that the evidence was incapable of proving anything of relevance to their deliberations.

The judge declined to accede to either application. He gave his reasons subsequently in writing. Having recited the background and given an account of how the cocaine issue had developed during the prosecution case, the judge said this:

In the course of his reasons, the judge also indicated that he would invite submissions as to the proper direction he should give to the jury in due course.

When he gave evidence, the appellant described taking some powdered cocaine on the evening before the fatal episode, and thus admitted that he had not told the truth in interview. He said the reason was that he did not want to reveal it to his parents. He described taking a very small amount of cocaine from the end of a key.

When he came to sum up the matter to the jury, the judge gave a careful direction in the following terms:

The judge went on to integrate the issue of cocaine in the direction about lies in the following terms:

Mr Mousley on behalf of the appellant takes two linked points concerning this area of the case. Firstly, he says that the evidence of consumption of cocaine should never have been admitted before the jury. Secondly, he repeats the submission made in the course of the trial, that the jury should have been discharged once it was clear that the cocaine evidence could no longer be held relevant to the behaviour of the appellant at the time of the fatal incident. He says that it was speculative from the beginning as to whether cocaine ingestion could have had any direct pharmacological effect on the appellant's behaviour at around 4am. He argues that it was, and would always have been, an insufficient basis for the admission of this evidence to demonstrate the appellant's lie in interview as supportive of guilt, or to bear on credibility generally. The directions given to the jury were correct as to the irrelevance of the taking of cocaine to the appellant's behaviour, but Mr Mousley says that they were "incorrect to identify it as of potential relevance to the issue of the appellant's credibility". The appellant goes on to make the point that, despite the judge giving a full good character direction in relation to the appellant and despite the considerable quantity of positive evidence of good character which was adduced from both prosecution and defence witnesses, this evidence may have served unfairly to undermine his character in the eyes of the jury. In essence, the appellant's submission on this area of the case is threefold: firstly, that the evidence should not have been admitted, pursuant to section 101(d); secondly, that if ruled admissible, it should have been excluded as being more prejudicial than probative and as satisfying the test for exclusion; and thirdly, that its prejudicial effect is such as to render the conviction unsafe.

In reply, Mr Houston for the Crown argues that the judge's directions on the relevance of cocaine, on not proceeding on the basis of prejudice, and specifically emphasising that the ingestion of cocaine can have played no direct part in the critical events, together mean that it was appropriate to admit the evidence, appropriate to decline to discharge the jury, and thus that there was no error in the way the judge proceeded or in the admission of evidence capable of undermining the conviction. Further, the Crown argues that the evidence was indeed properly admitted as being relevant to the appellant's credibility concerning this offence, as well as more generally, and in any event could not possibly render the conviction unsafe.

We have carefully considered this ground of appeal. We accept that the process was rendered more difficult because of the shifting position in relation to the original findings, subsequently undermined, as to the metabolite of crack cocaine. This inevitably meant that the judge had broader considerations in mind to start with, when facing the initial application to exclude this evidence, than later in the process.

Clearly, the evidence as eventually it was before the jury could not be probative as to the appellant's state of mind during the index episode, in the sense that it could not be said the cocaine had any effect upon his emotions or reactions in a direct pharmacological sense. But the jury were never under the misapprehension that that was so. That point was clear both from the evidence of Dr Darkins and from the summing-up. However, taken together with the messages sent by the appellant that night, we consider that it was relevant and admissible as to the appellant's credibility, and to his state of mind – the state of mind in which he approached events that evening. In those respects, the summing-up was impeccable.

We further consider that any prejudice which arose from this evidence will have been limited. On any view, the appellant and all those with him – and indeed the victim – had consumed a very large amount of alcohol over a long period of time. We reject the submission, in that context and with reference to current attitudes to the ingestion of cocaine of a small quantity and for personal consumption. We reject the submission that it was unreasonable on the part of the judge not to exclude the evidence. We think it unrealistic that there will have been such prejudice in the minds of the jury, particularly in the face of the strong and clear directions given by the judge, so as to mean that we should regard this conviction rendered in any way unsafe by the admission of this evidence. We therefore reject this ground of appeal.

The relevant text messages for this ground are those introduced by the Crown and which passed between the appellant and his then girlfriend on 8^th June 2015, some eight months before the fatal episode. The evidence was contained in written admissions given to the jury. They read as follows:

The Crown had applied to introduce evidence of an episode in January 2015 between the appellant and another young man, with other accompanying text messages, which the judge rejected as being prejudicial and insufficiently relevant.

The Crown sought to admit these text messages as demonstrating a propensity to a violent lack of control and as important evidence explanatory of the fatal incident. The basis for the last point was that there had been, and was evidence of, a form of separation or break between the appellant and his girlfriend, Miss Hutchings, on the Friday – two days before the fatal episode on the Sunday night.

The judge admitted the text evidence we have quoted above in the face of objections from the defence. His reasoning was as follows:

In due course the judge gave a written direction in relation to these texts in the following terms:

There is no complaint on behalf of the appellant about the summing-up; nor could there be. The complaint is simply that no summing-up was capable of removing the prejudice engendered by this material. It is also submitted that the evidence was not capable of establishing a propensity to use violence and that the circumstances did not provide evidence to show motive. There was no evidence, says Mr Mousley, correctly, that any violence had taken place. Time had passed since these text messages were sent, and there was evidence of an amicable separation from Kat. Taken together, these matters meant that these texts were of very limited probative value. Moreover, he says, it was not possible to separate out these messages, which were said to demonstrate a future intention to use violence if there was a separation from the appellant's girlfriend, Miss Hutchings, from the excluded evidence concerning jealousy of Baker (a male friend of Miss Hutchings). To divorce the one from the other meant that these text messages would be taken out of context. The messages dated from a considerable period before, and arose in quite different circumstances.

In addition, there was evidence from other prosecution witnesses that the relationship between the appellant and Miss Hutchings was episodic; that there were break-ups between them in the intervening eight month period between the text messages and the critical weekend; and that pattern was underscored by the fact that they resumed their relationship immediately after the appellant's release from police custody. In any event, there was evidence before the jury for their consideration that the appellant was not upset at the "split" over the weekend of 13^th to 14^th February.

Those are the arguments and the submissions presented on behalf of the appellant. In our judgment, the judge was right to admit this evidence. The factual points advanced by the defence were for the jury to evaluate. It may very well be that Mr Mousley was right to submit that the other evidence which bore on this question was likely to mean that the jury would place little reliance on this material. However, we reject the argument that the description by the appellant of his own temperament and reactions, given in private to his girlfriend, were not capable of being divorced from the specific context of jealousy of Baker. In this evidence the appellant was – or at least it was open to the jury to find that he was – explicitly speaking about his reactions in the future, and not about his historic reactions. As we have already pointed out, the appellant had himself texted that evening that he had come back and "sorted [his] head right out" by the use of cocaine and vodka. His intention clearly was to become disinhibited and intoxicated by the use of both substances, at a time when, on the prosecution case, he had just split from his girlfriend.

The jury were entitled to consider this evidence as bearing on the appellant's credibility and on his state of mind that evening, just as in the rather different factual and legal contexts which arose in R v Playdell [2005] EWCA Crim 1447, [2006] 1 Cr App R 12 and R v Ashworth [2012] EWCA Crim 1064. This evidence, in our judgment, was perfectly properly admitted. It does not render the conviction unsafe. We therefore reject this ground of appeal.

For these reasons the appeal against conviction is dismissed.

We turn to the renewed application for leave to appeal against sentence. In his submissions, Mr Mousley acknowledges the decisions of this court in Attorney General's Reference No 60 of 2009 (R v Declan Appleby and Others) [2009] EWCA Crim 2693, [2010] 2 Cr App R(S) 46, and the ensuing guidance from this court in Attorney General's Reference No 16 of 2014 (R v Lewis Gill) [2014] EWCA Crim 956. Essentially, Mr Mousley argues that in the two guideline cases mentioned, and in the cases reviewed within those authorities, the sentencing range identified specifically by Treacy LJ in Lewis Gill as six to seven years' custody following a contested trial falls to be distinguished from the position of this appellant. Mr Mousley argues that this appellant was a young man with no previous convictions, of positive good character and without some of the aggravating factors which applied in the cases reviewed. He also says that the judge should have found, on the evidence before him in the course of the trial, that a threat had been uttered by Mr Stacey before the fatal punch. He also should have placed more weight on the appellant's young age (then 20).

We accept that Mr Mousley's point in relation to the earlier authorities and to the cases reviewed within them may be correct, so far as the point goes, but there were aggravating features in this case. Not only was the judge, in our judgment, entitled to sentence on the basis that this was not a "one punch" manslaughter, as the appellant, in his view, struck more than one blow. Further, the evidence made it clear that the appellant had, at least at some points in the course of that night, behaved in an aggressive fashion elsewhere. In addition, there was no obligation on the trial judge specifically to conclude, on the piece of evidence advanced by the appellant and supported by one other witness (Mr Power), that there had been a threat from Mr Stacey. It is not necessary for a sentencing judge to provide an explanatory essay as to every significant piece of evidence in the course of sentencing remarks.

As always, the trial judge was in a markedly better position than this court to evaluate the offender and the offence. The judge noted a number of lies told by the appellant. He took the view – and he was entitled to take the view – that the lies were told "in an attempt to concoct an innocent explanation and to cover up your guilt". He noted that the appellant had seen the deceased fall, knew that he was unconscious, knew that he might be seriously hurt, but had then run away. The judge added this:

The judge reviewed the decision in Lewis Gill and correctly identified the range of six to eight years' custody, depending on the facts. Applying that approach, he noted that the blow delivered by the appellant was a "powerful punch" which was "bound to cause some harm". That was well-founded, given the fractures to the face, which had been derived from the punch, not from the consequent fall.

Despite the favourable factors, and in particular the appellant's good character, his genuine remorse and sympathy, the judge considered that the appropriate sentence was six years' custody.

It is not for this court to re-sentence today. We regard the sentence as not capable of challenge. It is not manifestly excessive.

Accordingly, the renewed application for leave to appeal against sentence is refused.