Clarke, R. v

A jury must be directed accurately on the distinct elements of murder and unlawful-act manslaughter. The objective requirement that sober and reasonable people would recognise a risk of physical harm forms no part of murder. Directions must also relate the legal consequences to the factual alternatives raised by the evidence.

Where bad-character evidence is admitted, the jury must be told why it is relevant, the particular issues to which it may assist, and the limits on its use. It must not be used to bolster a weak case or generate prejudice. Cumulative misdirections on those matters may render convictions unsafe despite strong evidence.

The appellant was convicted at Woolwich Crown Court of murder and arson with intent to endanger life after a fire in a flat killed one person and injured others. He was sentenced to life imprisonment with a minimum term of 17 years.

The prosecution alleged that he brought petrol into the flat and deliberately ignited it. The defence contended that another person brought the petrol and, alternatively, that the petrol might have been accidentally ignited by a defective lamp switch. The appeal challenged the directions on murder and manslaughter and the jury’s use of the appellant’s previous convictions.

The central issue was whether the summing-up enabled the jury to distinguish fairly between deliberate ignition amounting to murder, the appellant’s deliberate spreading of petrol without proof of ignition, and a failure to prove his involvement.

1. Appeal allowed. The court held that the summing-up, taken as a whole, was unfair and rendered the convictions unsafe.

2. The trial judge wrongly incorporated into murder the objective dangerousness requirement applicable to unlawful-act manslaughter. Murder required proof that the appellant caused death by a deliberate and unlawful act and, at the time, intended to kill or cause really serious bodily harm. The question of what sober and reasonable people would recognise as a risk of some physical harm had no place in that definition.

3. Although the judge later corrected the basic legal error, the repeated and unnecessary references to the reasonable person, together with the response to the jury’s request for clarification, obscured the real factual alternatives. The jury should have been directed clearly on the consequences of finding: deliberate ignition; spreading petrol but possible accidental ignition; or no proved involvement in bringing in the petrol.

4. The court accepted that the previous convictions were admissible through the relevant gateways in Criminal Justice Act 2003, section 101, and that exclusion was not required by section 101(3). However, the jury directions on their use were seriously defective. Following the guidance in R v Hanson [2005] EWCA Crim 824, R v Highton [2005] EWCA Crim 1985, and R v Edwards [2005] EWCA Crim 1813, the jury should have been told the specific issues to which each conviction could be relevant and warned against prejudicial use. Inflammatory references to the appellant’s character compounded the error. The convictions could not assist the jury on the distinction between murder and manslaughter.

5. Although the evidence against the appellant was strong, the court could not be confident that the jury’s conclusion was unclouded by the combined defects. Both convictions were quashed. A retrial on both counts was ordered, on a fresh indictment, with arraignment within two months.

• Court of Appeal (Criminal Division) — Allowed the appeal, quashed both convictions and ordered a retrial: [2006] EWCA Crim 3427.
• Woolwich Crown Court — Convicted the appellant of murder and arson with intent to endanger life, and imposed life imprisonment with a minimum term of 17 years.