Barnard, R v

A judge must leave an alternative verdict to the jury where it has an evidential basis and is an obvious alternative. The alternative must arise from the evidence and be one that would occur to an ordinarily knowledgeable and alert criminal judge. It does not include a theoretical possibility devised by post-trial research.

An alternative of manslaughter need not be left where the evidence presents only a deliberate fatal assault by the defendant or its commission by another person, and there is no evidential basis for an unintended lesser assault causing death.

The applicant was convicted of murdering her mother after a jury trial in the Crown Court at Chelmsford. The medical evidence established death by sustained manual strangulation, with associated injuries inconsistent with the applicant’s account that she had tried to assist her mother after breathing difficulties.

At trial, the judge declined to leave manslaughter as an alternative verdict because neither party identified an evidential basis for it. Following refusal of permission by a single judge, the applicant renewed her application for leave to appeal against conviction. She contended that her admitted physical contact with the deceased, coupled with her denial of an intention to kill or cause really serious harm, required a manslaughter direction.

1. The renewed application for leave to appeal against conviction was refused. The trial judge had correctly declined to leave manslaughter as an alternative verdict.

2. The governing principle was that an alternative verdict must be left where the evidence supports an obvious alternative. As explained in R v Coutts [2006] 1 WLR 2154, an obvious alternative is one raised by the evidence which would occur to an ordinarily knowledgeable and alert criminal judge. The principle excludes alternatives found only through diligent post-trial research by ingenious counsel.

3. The issue had been specifically considered at trial by the judge and both counsel. Their common conclusion that there was no evidential basis for manslaughter properly reflected the evidence. The applicant’s account of manipulating her mother’s throat and attempting resuscitation could not have caused the injuries identified by the pathologist.

4. The evidential issue was therefore whether the applicant had manually strangled the deceased, or whether another person had done so. There was no evidential basis for an assault which carelessly or accidentally caused death, or for the theoretical possibility that the applicant strangled the deceased without intending at least really serious harm. Manslaughter was remote from the real issue and was not an alternative that the jury should have considered.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused after a single judge had refused permission.
• Crown Court at Chelmsford: the applicant was convicted of murder by a jury on 13 February 2018.