Jabber, R. v

On a submission of no case to answer, including where the prosecution case is circumstantial, the question is whether a properly directed reasonable jury would be entitled to draw the adverse inference. The judge need not be satisfied that every reasonable jury would be bound to do so. A conviction remains possible only where the jury can reject all realistic innocent explanations on the evidence as a whole.

A charge of perverting the course of justice may be based on evidence also relied on for a substantive offence. It requires a positive act of perversion, such as concealment or distortion, which goes beyond fleeing the scene and later denying involvement.

The appellant was convicted at Birmingham, by a majority verdict, of manslaughter and perverting the course of justice following a retaliatory attack on a man attempting to break into cars belonging to his family.

The prosecution case was circumstantial. It relied on evidence placing the appellant with his brother near the injured man, evidence of an attempted false account to the emergency services, and the removal of the relevant BMW from the scene. At the close of the prosecution case, the Recorder rejected a submission of no case to answer.

On appeal, the appellant contended that the evidence did not establish his participation in the attack and that the perverting count improperly duplicated the manslaughter allegation. The central issues were the correct approach to circumstantial evidence at half-time and whether the alleged conduct amounted to a positive act of perversion.

1. Appeal dismissed. The Recorder correctly left both counts to the jury. On the manslaughter count, the governing question at the close of the prosecution case was whether a properly directed reasonable jury could draw the inference that the appellant had participated in the fatal attack. It was not whether every reasonable jury would be compelled to draw that inference.

2. Although a jury may convict on circumstantial evidence only after rejecting realistic innocent explanations, the judge does not decide whether such explanations must be rejected. The judge asks whether the evidence, viewed as a whole, permits a jury reasonably to reject them. The court declined to apply the literal effect of the observation in Kwan Ping Bong and another v The Queen [1979] AC 609 as a half-time test.

3. Here, the evidence permitted a jury to infer that the appellant was present with his brother, participated in the initial false account of the incident, and left with the BMW in circumstances pointing to participation rather than innocent assistance. Those inferences were properly left to the jury.

4. The overlap between the evidence for manslaughter and perverting the course of justice did not make the latter charge improper. A perverting offence requires a positive act, normally but not invariably involving concealment, or an act distorting the true position. Mere escape from a crime and a subsequent denial of involvement are insufficient.

5. The appellant's part in removing the BMW, which linked the family and the deceased to the attack, and in facilitating and checking the false account to the emergency services was capable of amounting to such a positive act. The court therefore upheld the conviction for perverting the course of justice.

• Court of Appeal (Criminal Division) Dismissed the appeal against convictions for manslaughter and perverting the course of justice.

• Birmingham The appellant was convicted by a majority verdict of manslaughter and perverting the course of justice.