R v Coutts

The House of Lords held that where there is evidence on which a rational jury could convict of manslaughter, a trial judge should, as a general rule, leave that alternative verdict to the jury even if neither the prosecution nor the defence invites that course. The court relied on section 6(2) and (3) of the Criminal Law Act 1967 and on established common law principles (for example in Mancini, Hopper and Von Starck) to explain the judge's duty. Exceptions are limited and depend on fairness to the defendant or where the alternative is merely fanciful or trivial; tactical decisions by counsel do not displace the judge's duty. Because the trial judge failed to leave manslaughter to the jury when it was a viable alternative, the conviction for murder was unsafe and the appeal was allowed.

The appellant, tried on an indictment charging murder alone, was convicted after the trial judge, with the consent of prosecution and defence, declined to leave an alternative verdict of manslaughter to the jury. The applicant's account at trial was that the deceased died accidentally during consensual asphyxial sexual activity; prosecution advanced a case of a deliberate sexual killing. Expert and lay evidence at trial, including evidence about risk from neck compression and the appellant's sexual practices, meant a rational jury could, if they accepted certain evidence, have returned a verdict of manslaughter.

The issues before the House were:

• whether, and to what extent, a trial judge must leave an alternative verdict of manslaughter to the jury where there is evidence that would allow a rational jury to convict of manslaughter, irrespective of the parties' tactical positions; and
• if the judge fails to leave such an alternative, whether a conviction for the greater offence will be regarded as unsafe.

The House reviewed statutory provisions (section 6(2) and (3) Criminal Law Act 1967) and authority on the judge's duty to put to the jury issues which properly arise on the evidence (for example R v Hopper, Mancini v DPP, Von Starck). The majority rejected the narrower Maxwell approach that required an appellate court to be satisfied that a jury may have convicted out of reluctance to see the defendant go free before intervening. The correct approach, the court held, is that where an obvious alternative verdict is raised by the evidence the judge should leave it to the jury unless doing so would cause unfairness or the alternative is insubstantial; failure to do so will ordinarily render the conviction unsafe. Applying that test, the House concluded manslaughter was a viable alternative which should have been left and allowed the appeal, remitting the matter to the Court of Appeal.

Appeal allowed. The House held that a trial judge has a duty, subject to limited exceptions, to leave to the jury any obvious alternative verdict (including manslaughter) which the evidence reasonably supports, irrespective of counsel's tactical decisions; failure to leave such an alternative where it is properly raised is a material misdirection making the conviction unsafe. The appellant's murder conviction was therefore quashed and the matter remitted to the Court of Appeal.

Appeal from the Court of Appeal (Criminal Division) ([2005] EWCA Crim 52); by leave to the House of Lords, judgment given [2006] UKHL 39.