Burgess, R. v

A conviction founded on a guilty plea tendered on a wholly erroneous legal basis should not be upheld where the corrected law leaves an untried issue for a jury. The appellate court should not retrospectively determine that factual issue in substitution for a trial.

A person does not commit manslaughter merely by supplying a drug which a fully informed and responsible adult freely self-administers. Liability may nevertheless arise where the evidence permits a finding that the survivor and deceased jointly administered the injection. A prisoner lawfully at large on authorised leave is not in custody, so failure to return does not constitute escape.

Two applications, treated as change-of-law cases, were heard together.

Jeffrey Byram had pleaded guilty at Leeds Crown Court to manslaughter and administering poison after injecting heroin into Jamie Topley, who died from heroin and alcohol. The pleas proceeded on the understanding that R v Kennedy [2005] EWCA Crim 685 governed the case. Following the House of Lords’ decision in R v Kennedy, Byram sought to appeal out of time.

Lee Burgess had pleaded guilty at Sheffield Crown Court to escape and two burglaries after failing to return from an authorised community visit from an open prison. Following R v Montgomery [2007] EWCA Crim 2157, he challenged the escape conviction and renewed his sentence application for the burglaries.

1. The court extended time and granted leave to appeal. Byram’s convictions for manslaughter and the related administering-poison count were quashed. Burgess’s conviction for escape was quashed. Burgess’s renewed application for leave to appeal against the burglary sentences was refused.

2. Byram’s pleas and the Crown Court proceedings had proceeded entirely on the legal approach in the Court of Appeal decision in R v Kennedy [2005] EWCA Crim 685. The House of Lords had subsequently held that a person involved in supplying a Class A drug could not be guilty of manslaughter where a fully informed and responsible adult freely and voluntarily self-administered it.

   The House of Lords had also recognised that two people might jointly administer an injection. Byram’s account could have allowed a jury to find joint participation, since he supplied and prepared the heroin, located a vein and positioned the needle, although the deceased may have depressed the plunger. That possibility did not justify upholding pleas entered on a wholly incorrect legal basis. It would deprive Byram of a jury’s determination of the issue. No retrial was ordered because the Crown did not invite one and Byram had served his sentence.

3. Applying R v Montgomery [2007] EWCA Crim 2157, Burgess was lawfully at large during his authorised community visit and was therefore not in custody. His failure to return breached an obligation to resume custody but did not amount to escape. Any applicable summary-only offence had not been charged.

4. The erroneous description of Burgess as having escaped did not affect the burglary sentences. The burglaries were serious distraction offences directed at elderly and vulnerable victims. Further offending after release and failure to return to custody was significantly aggravating. The sentences were not excessive.

• Court of Appeal (Criminal Division): Granted extensions of time and leave to appeal. It quashed Byram’s convictions for manslaughter and the related administering-poison count, without ordering a retrial. It also quashed Burgess’s escape conviction, but refused his renewed application for leave to appeal against the burglary sentences.

• Sheffield Crown Court: Burgess pleaded guilty to escape and two burglaries. He received consecutive imprisonment for escape and concurrent seven-year sentences for the burglaries.

• Leeds Crown Court: Byram pleaded guilty to manslaughter and two counts of administering poison. He appealed the manslaughter conviction and the count concerning the fatal injection.