Petch & Anor v R.

A conviction for murder may be quashed on appeal only if it is unsafe. A later prosecution arising from the same events, including a pragmatic acceptance of another participant’s plea to manslaughter and a resulting disparity of sentence, does not retrospectively render an earlier conviction unsafe where the earlier trial was fair and the evidence supported the verdict.

There is no general appellate power to remedy such an anomaly by taking an overall retrospective view in the interests of even-handedness. The question remains whether the conviction under appeal was safe on the evidence and process at that trial.

Thomas Petch and George Romero Coleman were convicted at Teesside Crown Court of murder, causing grievous bodily harm with intent, and wounding with intent. Each received life imprisonment for murder; Petch was given a recommended minimum term of 20 years.

The Crown case was that they participated in a joint enterprise involving serious violence. Kalvant Singh was fatally injured after being pushed through a window by another alleged participant, Jonathan Crossling, known as Bam Bam.

After the appellants’ trial, Bam Bam and Frank Harrison each pleaded guilty to manslaughter. The Crown accepted those pleas and they received substantially shorter determinate sentences. The appellants contended that the disparity, and the later prosecutorial decisions, made their murder convictions an abuse of process and unsafe.

1. Appeals dismissed. The appellants’ murder verdicts were properly reached after a fair trial. The judge had been required to impose life sentences under the Murder (Abolition of Death Penalty) Act 1965.

2. Under section 2(1) of the Criminal Appeal Act 1968, the Court could substitute manslaughter convictions only by first quashing the murder convictions as unsafe. The later disparity of treatment and sentence did not affect their safety. Nor did the Crown’s later conduct, even though the later prosecutions arose from the same events.

3. The Crown had made pragmatic decisions to accept the later manslaughter pleas because of the evidential position at those trials. Its lack of confidence that a jury in June 2003 would convict Bam Bam of murder did not cast doubt on convictions returned on the evidence available in March 2002. The murder charges against the appellants were not overcharges, and ample evidence supported the verdicts.

4. The Court followed the approach in R v Hui Chi-ming [1992] 1 AC 34. A serious anomaly may result when persons involved in the same offence are tried separately, but that does not make a properly conducted prosecution abusive or an evidence-based verdict unsafe. The law did not permit a retrospective, overall reassessment solely to achieve even-handedness.

5. The Court expressed doubt, without deciding the point, that a comparable disparity between determinate sentences could itself justify reducing the earlier sentences. It also observed that later legal developments might justify reconsideration of the approach to second trials in a different case.

• Court of Appeal (Criminal Division): dismissed the appeals against murder convictions: [2005] EWCA Crim 1883.

• Teesside Crown Court: on 28 March 2002, Petch and Coleman were convicted of murder and associated violent offences. Both received life imprisonment for murder.