Hai, R. v

A trial judge must leave an alternative verdict where it is obvious on the evidence, a jury could reasonably reach it, and it can be left without unfairness. The duty does not extend to speculative alternatives identified only after trial by fresh counsel. An alternative which did not arise on the evidence or the parties’ cases, and which would require a new factual and legal inquiry, should not be introduced in the summing-up. A late application founded on such an unmeritorious ground will not justify an extension of time to seek leave to appeal.

The applicant had been convicted of murder at the Central Criminal Court after a group attack in which the deceased sustained fatal stab wounds. His defence at trial was that he had not been present. The trial proceeded on the basis that, if he had participated, he was either the knifeman or a participant in a joint enterprise involving a knife.

More than two years later, he sought leave to appeal. Ground 2 alleged that the judge should have left an alternative verdict. The argument moved from manslaughter to causing grievous bodily harm with intent, an attempt to commit that offence, actual bodily harm, or violent disorder. The court considered whether any such alternative was required under Coutts [2006] UKHL 39.

1. The court refused an extension of time to seek leave to appeal on ground 2. That ground lacked arguable merit and there was no good explanation for the substantial delay.

2. The court accepted that, under section 6(2)(c) of the Criminal Law Act 1967, an attempt to commit an offence under section 18 could in principle be an alternative verdict on an indictment for murder. That point did not assist the applicant. There was no evidence of grievous bodily harm outside the knife attack, and the trial had not raised any separate intention to cause grievous bodily harm.

3. Applying Coutts [2006] UKHL 39, an alternative verdict must be obvious to an ordinarily knowledgeable and alert criminal judge, supported by the evidence, and capable of being left without unfairness. The suggested alternatives did not arise on the evidence or on either party’s case at trial. They were late formulations by newly instructed counsel.

4. A direction on section 18 or an attempt would have required a new inquiry into intention and causation. It would have conflicted with the basis on which the case had been tried and would have been unfair to both Crown and defendant. The court therefore did not decide the wider reach of the Coutts principle beyond its established application to an obvious alternative verdict of manslaughter.

5. Ground 1, based on fresh evidence, remained outstanding. The court directed that it be listed for a further hearing with the relevant witnesses available.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 2157, the court refused an extension of time in respect of ground 2, concerning alternative verdicts. It gave directions for a later hearing of the separate fresh-evidence ground.
• Central Criminal Court: On 12 September 2005, the applicant was convicted by a jury of murder before HHJ Roberts QC and sentenced to life imprisonment with a minimum term of 16 years.