Coutts, R v

A trial judge need not leave manslaughter as an alternative to murder merely because the evidence makes that verdict viable. The governing question is whether doing so serves the interests of justice. It will not do so where the alternative depends on a factual case wholly inconsistent with the prosecution case, would unfairly transform the case the defendant must meet, and would complicate the jury's task without countervailing benefit.

Evidence of Internet searches and material may be admissible to rebut a defence of accidental death where it bears on whether the death was accidental or deliberate. Under the Criminal Justice Act 2003, the transitional limit in Schedule 22 restricts the minimum term for a pre-commencement murder to that likely to have been notified under the former Secretary of State's practice.

The appellant was convicted at Lewes Crown Court of the murder of Jane Longhurst and sentenced to life imprisonment with a minimum term of 30 years. The prosecution alleged a deliberate sexually motivated killing by ligature strangulation. The defence alleged that death was an accident during consensual asphyxial sexual activity.

On appeal, the principal issue was whether the trial judge should have left manslaughter as an alternative verdict, although neither party invited that course. The appellant also challenged the evidential basis for the necrophilia allegation, the admission and direction on Internet material, a website-content summary, and cross-examination. His sentence appeal raised remand credit and the transitional sentencing limit under the Criminal Justice Act 2003.

1. The conviction appeal was dismissed. A judge's duty to leave an alternative verdict is governed by the interests of justice. Manslaughter was a viable verdict only on the appellant's account that death occurred during consensual activity involving a dangerous ligature. That factual account was wholly inconsistent with the prosecution case of deliberate murder. Leaving manslaughter at the summing-up stage would therefore have changed fundamentally the case which the appellant had to meet and risked unfairness.

   The jury's real task was whether accidental death was reasonably possible. Adding manslaughter would have made that task substantially more complicated without sufficient benefit. The wider language in Von Starck v The Queen [2000] 1 WLR 1270 had to be read consistently with fairness and the overall interests of justice.

2. There was sufficient evidential basis for the prosecution to advance its allegation that the killing was connected with a sexual interest in a dead body. The Internet evidence was admissible to rebut the defence of accident. The trial judge's directions correctly limited its use and made clear that viewing such material did not prove murder. The written summary of exhibit DJR/13 was appropriately limited, and the impugned cross-examination was fair in light of the appellant's evidence in chief.

3. The sentence appeal was allowed in part. The 30-year starting point under Schedule 21 was justified by the seriousness of the offence. However, paragraph 10 of Schedule 22 required the court to cap the minimum term for this pre-commencement offence at the period likely to have been notified under the Secretary of State's former practice. That period was 26 years. A further ten months had to be credited for time spent on remand under section 269(3)(b).

• Court of Appeal (Criminal Division) — conviction appeal dismissed; sentence appeal allowed only to reduce the minimum term in accordance with the transitional provisions and remand credit: [2005] EWCA Crim 52 .

• Lewes Crown Court — on 4 February 2004, the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 30 years.