R v. Coutts (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

On a trial on indictment, the judge should leave to the jury any obvious alternative offence which is supported by evidence capable of acceptance by a rational jury. This duty applies irrespective of the wishes or tactical choices of prosecution and defence counsel.

The duty is subject to the defendant’s right to a fair trial. An alternative need not be left where it is insubstantial, unduly prejudicial or, outside the murder-manslaughter context, too trifling to justify complicating the trial. Counsel should ordinarily be alerted before closing speeches.

Failure to leave a viable alternative verdict is a material irregularity and will usually render the conviction unsafe. An appellate court should not speculate about whether the jury convicted the greater offence merely to avoid an acquittal.

The appellant was convicted of murder after the deceased died from compression of her neck by a ligature during what he claimed was consensual sexual activity. The prosecution alleged a deliberate sexual killing. The defence maintained that the death was accidental.

Although the evidence could support manslaughter, prosecution and defence counsel agreed that it should not be left to the jury. The judge therefore directed the jury to choose between murder and acquittal. The Court of Appeal dismissed the appeal against conviction in [2005] EWCA Crim 52, reported at [2005] 1 WLR 1605.

The central issue was whether the trial judge had a duty to leave the alternative verdict of manslaughter despite the parties’ tactical positions, and whether his failure to do so rendered the murder conviction unsafe.

1. Appeal allowed unanimously. Lord Bingham delivered the leading speech. Lord Nicholls, Lord Hutton, Lord Rodger and Lord Mance agreed that manslaughter should have been left to the jury. The omission was a material irregularity, and the House could not be sure that a properly directed jury would inevitably have convicted of murder.

2. Per Lord Bingham, a judge conducting a trial on indictment should, irrespective of counsel’s wishes, leave any obvious alternative offence supported by evidence which a rational jury could accept. An obvious alternative is one which would occur to an ordinarily knowledgeable and alert criminal judge. The duty does not extend to possibilities identified only by ingenious research after trial. It was unnecessary to extend this rule to summary proceedings.

3. Per Lord Bingham and Lord Rodger, the judge bears ultimate responsibility for ensuring that the jury understands every verdict reasonably available on the evidence. Tactical decisions by counsel cannot determine the range of verdicts open to the jury. The duty may apply even where the alternative is inconsistent with the prosecution case and arises only on the defence evidence.

4. The duty remains subject to fairness. A judge may decline to leave an alternative where doing so would cause significant prejudice which cannot be avoided or mitigated. Counsel should ordinarily be told of the proposed direction before closing speeches. Outside the murder-manslaughter context, a remote or trifling alternative may also be omitted where it would serve no sufficient public interest.

5. Lord Hutton considered that the evidence supported unlawful-act manslaughter. Applying the objective test in DPP v Newbury, intentionally tightening tights around another person’s neck was an unlawful and dangerous act carrying a realistic risk of harm. Consent did not make such dangerous sexual conduct lawful. Lord Rodger considered it unnecessary to choose between unlawful-act and gross-negligence manslaughter because the availability of a manslaughter verdict was common ground.

6. Lord Hutton, Lord Rodger and Lord Mance rejected the test stated in R v Maxwell, under which an appellate court asked whether the jury may have convicted to prevent the defendant from escaping punishment for disgraceful conduct. That inquiry was speculative and unworkable. Save in exceptional circumstances, failure to leave an obvious and viable lesser verdict should result in the conviction being quashed as unsafe.

7. The matter was remitted to the Court of Appeal with an invitation to quash the murder conviction and determine any application for a retrial. The appellant was to remain in custody meanwhile.

1. House of Lords: In [2006] UKHL 39, unanimously allowed the appeal and remitted the case to the Court of Appeal with an invitation to quash the murder conviction and consider any retrial application.

2. Court of Appeal (Criminal Division): In [2005] EWCA Crim 52, reported at [2005] 1 WLR 1605, dismissed the appeal against conviction. It held that leaving manslaughter would have introduced a different and inconsistent case and unnecessarily complicated the jury’s task. It reduced the minimum term from 30 years to 25 years and two months.

3. Crown Court at Lewes: The appellant was convicted of murder after the judge, with the agreement of both counsel, left the jury only the alternatives of murder and acquittal.