Braithwaite, R. v

A judge must leave an alternative verdict to the jury where it is obviously raised by the evidence and is a viable issue on a reasonable view of it. The alternative need not be left where it is artificial, insubstantial, or remote from the real issues at trial.

A private communication between judge and jury concerning a jury question ordinarily offends open justice and may amount to a material irregularity. The message should be recorded and counsel notified so that submissions and any necessary inquiry can be made. The irregularity does not, however, render a conviction unsafe unless its actual circumstances give reason to doubt the jury’s faithful and fair discharge of its task.

The appellant was convicted of murder at Leicester Crown Court after a fatal stabbing outside a party. He maintained that he had produced a knife only to fend off an anticipated attack and had not intended to cause harm. The jury were directed on murder, self-defence and manslaughter based on an intention to cause harm short of really serious injury.

On appeal, he argued that the judge should also have left unlawful act manslaughter based on unlawful brandishing of the knife without a deliberate stabbing. He further argued that a juror’s unrecorded message about leaving the building after the verdicts disclosed a possible jury irregularity which the judge should have raised with counsel.

1. Appeal dismissed. Under section 6(2) of the Criminal Law Act 1967, an alternative verdict of manslaughter must be left where it is an obvious and viable issue on a reasonable view of the evidence. The duty is not governed by counsel’s tactics. It remains subject to fairness and proportionality, and does not require the judge to leave an alternative that is artificial or remote from the real issues.

2. The proposed unlawful act manslaughter alternative did not meet that standard. It required the jury both to reject self-defence and not to be sure of a deliberate stabbing, while accepting that the deceased may have impaled himself on a knife unlawfully brandished by the appellant. That combination was artificial and wholly unreal on the evidence. The judge was therefore entitled not to leave it. The manslaughter alternative actually left, concerning an intention to cause some harm while deliberately stabbing, was properly available and reduced any inappropriate all-or-nothing choice.

3. The judge’s private handling of the juror’s message was a material irregularity. The message and response should have been put in writing and disclosed to counsel. That course would have preserved open justice, allowed submissions, and enabled an appropriate inquiry if any concern underlying the message required it. The observation in R v Ball (Linda Sheila) [2018] EWCA Crim 2896 reinforced that conclusion.

4. The irregularity did not undermine the conviction’s safety. The message plainly concerned departure from the building after verdicts, not any inability to decide the case impartially. There was no evidence of improper conduct or pressure on the jury. The judge’s directions required an open-minded decision based on the evidence and law, and the acquittal on the attempted-wounding count supported the conclusion that the jury had acted fairly and carefully.

• Court of Appeal (Criminal Division): Dismissed the appellant’s appeal against conviction for murder.
• Leicester Crown Court: On 17 October 2017, the appellant was convicted of murder before HHJ Dean QC. On 27 October 2017, he was sentenced to life imprisonment with a 21-year minimum term under section 269(2) of the Criminal Justice Act 2003.