Salisbury, R v

On a submission of no case to answer, the judge must stop the case only if the prosecution evidence, taken at its highest, could not properly support a conviction. Where its force depends on witness reliability, competing inferences, or other matters within the jury’s province, the case should proceed.

For attempted murder in a clinical setting, the prosecution must prove that the defendant’s real or primary intention was to hasten death, rather than to relieve pain or distress. Witness coaching for a criminal trial is impermissible, but properly controlled witness familiarisation is permissible. Late disclosure of such familiarisation does not make a conviction unsafe unless it produced unfair advantage or unfair prejudice.

The appellant, an experienced nursing sister, was convicted at Chester Crown Court before Pitchford J and a jury of two counts of attempted murder. The prosecution alleged that she administered diamorphine to two elderly patients with intent to hasten their deaths. She contended that the drug was administered lawfully for pain relief and in the patients’ best interests.

Her appeal challenged the rejection of submissions of no case to answer, the use of one count as support for intent on the other, the overall safety of the convictions, and the late disclosure that prosecution witnesses had attended an evidence-giving course. The central issues were whether there was sufficient evidence of intent to kill and whether the witness course or its non-disclosure rendered the convictions unsafe.

1. Appeal dismissed. There was sufficient evidence on both counts for a properly directed jury to infer that the appellant’s real purpose in administering diamorphine was to hasten death. The convictions were therefore safe.

2. Applying R v Galbraith (1981) 73 Cr. App. R. 124, the court held that a judge must stop a case only where the prosecution evidence, at its highest, could not properly support conviction. Questions about the reliability of witnesses and the inferences to be drawn from the evidence ordinarily belong to the jury. The judge was not required to decide whether only one inference could be drawn; that was a matter for the jury where there was evidence capable of supporting guilt.

3. The relevant distinction was between an intention to provide relief from pain or distress and a real or primary intention to hasten death. Knowledge that pain relief might shorten life was insufficient by itself. On the evidence concerning each patient, including the absence of an apparent clinical need for diamorphine, the appellant’s alleged comments, and the surrounding nursing evidence, the jury could properly find the requisite intent.

4. The court accepted the guidance in R v Momodou and Limani [2005] 2 Cr.App.R. 6. Witness coaching or training related to the evidence in a forthcoming criminal trial is prohibited. By contrast, familiarisation with the process of giving evidence is permissible where it does not involve discussion, comparison, or shaping of proposed evidence.

5. The course attended by the prosecution witnesses was properly characterised as witness familiarisation. Its existence should have been disclosed earlier, but the subsequent disclosure and voir dire exposed its content. No unfair advantage had been obtained and no unfair prejudice had been suffered. The non-disclosure did not render either conviction unsafe.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction: [2005] EWCA Crim 3107.
• Chester Crown Court: on 18 June 2004, before Pitchford J and a jury, convicted the appellant of two counts of attempted murder and acquitted her on two further counts.