Foster & Ors, R v

A trial judge must leave an alternative verdict only where it is obvious and viable on the evidence. The mere fact that a defendant admits lesser criminal conduct does not make that conduct an alternative which the jury must consider. The judge must assess fairness, whether the alternative reflects the real issues, and whether it is trivial or remote in its legal and factual context.

The duty derived from R v Coutts applies within the statutory alternatives in section 6 of the Criminal Law Act 1967. It does not require the court to amend an indictment to add every further offence disclosed by the evidence. On appeal, the decisive question remains whether the conviction is unsafe.

Four defendants raised issues arising from the duty to leave alternative verdicts to a jury. Foster and Newman had been convicted of attempted murder after attacks involving strangulation. Each denied an intention to kill while admitting conduct which could amount to a lesser assault.

Kempster had been convicted of burglary and attempted burglary. He contended that theft or handling stolen goods should have been left as an alternative on one count. His appeal also contained a separate fresh-evidence ground concerning ear-print evidence.

Birmingham renewed applications for leave to appeal convictions for murder and conspiracy to rob, and his sentence. He argued that provocation should have been left to the jury despite his principal case of self-defence and defence of his brother.

1. The appeals of Foster and Newman were dismissed. Kempster’s appeal on the alternative-verdict ground was dismissed, while his fresh-evidence ground was adjourned. Birmingham’s renewed applications were refused.

2. The court was bound by R v Coutts [2007] 1 CAR 60. In a murder case, where evidence could support manslaughter, the judge must leave that verdict despite the parties’ contrary submissions, unless doing so would be unfair because a party has not had a proper opportunity to address it. The same approach requires an alternative verdict under section 6 of the Criminal Law Act 1967 to be left where it is obvious and viable.

3. That duty is not automatic whenever a defendant admits a lesser offence. The judge must examine the evidence and the real issues at the close of the case. An alternative may properly be withheld if it is trivial, insubstantial or remote from those issues, or would not provide a realistic true verdict. The primary obligation remains to leave the defence actually advanced to the jury.

4. R v Coutts did not extend the duty beyond the alternatives available under section 6. Although an indictment may in suitable circumstances be amended without injustice, the prosecution defines the charges it seeks to prove. A trial judge will only very rarely be required at the end of the evidence to add non-included offences.

5. For Foster and Newman, the sole realistic issue was whether each appellant had intended to kill. The admitted section 47 assaults were trivial in context, and attempted grievous bodily harm with intent was unrealistic. For Kempster, dishonest receipt of the bank cards was remote from the issue whether he had committed the linked dwelling-house burglaries. No appellant was disadvantaged by the absence of an alternative verdict.

6. In Birmingham’s case, the evidence supported self-defence or defence of another, but did not support a loss of self-control. Provocation therefore did not arise. The minimum term of 25 years was not excessive, and the extension of time was granted only to refuse the renewed applications.

• Court of Appeal (Criminal Division) — Foster’s and Newman’s conviction appeals, and Kempster’s appeal on the alternative-verdict issue, were dismissed. Kempster’s separate fresh-evidence ground was adjourned. Birmingham’s renewed applications for leave to appeal conviction and sentence were refused.

• Crown Court at Stafford — Foster was convicted of attempted murder on 20 January 2003. His conviction was later referred by the Criminal Cases Review Commission.

• Crown Court at Basildon — Newman was convicted of attempted murder on 15 May 2006 and sentenced to imprisonment for public protection.

• Crown Court at Southampton — Kempster was convicted in 2001 of three burglaries and attempted burglary.

• Crown Court at Liverpool — Birmingham was convicted in 2006 of murder and conspiracy to rob, and received life imprisonment for murder with a 25-year minimum term.