Clarke & Anor, R v

In a murder trial, the prosecution must prove both that the defendant inflicted unlawful injury and that the injury was at least a substantial or significant cause of death. Whether another event, including attempted resuscitation, was so overwhelming that earlier unlawful injuries were merely historical is a question of fact for the jury.

A defective ruling or written aid will not render a conviction unsafe where the jury received a correct oral direction and the evidence would inevitably have led to the same verdict. Expert evidence may properly be confined to the witness’s demonstrated field of expertise. A party intending to challenge an opposing expert’s expertise should give written notice and reasons as soon as possible under the Criminal Procedure Rules 2010.

Earl St John Michael Clarke appealed his conviction for murder. Sounaynah Morabir appealed her conviction for assisting an offender. Both convictions followed a trial before HHJ Warner in the Crown Court at Wolverhampton.

Clarke admitted a lower-level assault on the deceased but denied causing his death. The principal issues were whether causation should have been left to the jury, whether a defence pathology expert could give evidence on cause of death, and whether the resulting conviction was unsafe. Morabir challenged the amendment of the particulars alleging that she had concealed the true circumstances of the death, and the refusal to discharge the jury after that amendment.

1. The appeals were dismissed. The trial judge had erred by treating causation as not being a jury issue. In a murder case, the jury had to decide both whether Clarke inflicted unlawful injuries and whether those injuries were a substantial or significant cause of the deceased’s death. Whether injuries caused by attempted CPR were so overwhelming as to displace the effect of earlier unlawful injuries was a factual question for the jury.
2. The errors did not make Clarke’s conviction unsafe. Although the written questions given to the jury did not distinctly require it to decide causation, the judge had made clear that those questions were not legal directions. His oral directions adequately required the jury to decide whether Clarke had caused serious injuries forming part of the multiple injuries from which the deceased died. The unchallenged expert evidence on overall causation was, in substance, all one way.
3. The judge was entitled to limit Professor Freemont’s evidence to the age and character of the rib fractures. His expertise in bone pathology did not equip him to assess all possible causes of death in a suspected homicide, unlike the Home Office pathologist who had considered the totality of the injuries. In any event, the proposed evidence could not have undermined the evidence that multiple blunt-force injuries, including injuries incapable of being caused by resuscitation, caused death.
4. The court criticised both sides’ handling of the proposed challenge to the defence expert. Under Parts 1.1 and 1.2 of the Criminal Procedure Rules 2010, a party intending such a challenge should give written notice and reasons as soon as possible. The timing did not assist Clarke because the exclusion ruling was correct and no alternative qualified expert was identified.
5. The amendment to Morabir’s count was permissible. It did not alter the prosecution case, which had always alleged a cover-up of the true circumstances of death. Morabir’s legal team had already elected to rely on Clarke’s expert, showing that those circumstances were material to her defence. Neither an adjournment nor discharge of the jury was required.

• Court of Appeal (Criminal Division): The appeals against conviction were dismissed: [2013] EWCA Crim 162.
• Crown Court at Wolverhampton: HHJ Warner convicted Clarke of murder and Morabir of assisting an offender.