Pateco-Te, R v

An alternative verdict need be left to a jury only where it is obviously raised by the evidence, in the sense that a jury could reasonably return it. A lesser alternative already left may meet the interests of justice if it realistically addresses the viable factual finding. Manslaughter need not be left where it would require speculation about the defendant’s state of mind and the evidence shows that, if present and participating or encouraging, the defendant intended at least really serious harm.

The applicant was convicted at the Central Criminal Court of murder and violent disorder arising from two armed attacks by occupants of a stolen van. The prosecution alleged that he rode a moped to join the van and participated in the violence as part of a joint enterprise. He denied being present and said another man had borrowed his phone, moped and equipment.

At trial, the defence requested that manslaughter be left as an alternative verdict to murder. The judge declined, but left violent disorder as the lesser alternative. The applicant renewed applications for leave to appeal against conviction and against the 27-year minimum term imposed for murder.

The central question was whether the evidence required a manslaughter direction and, separately, whether the minimum term was manifestly excessive.

1. The renewed applications for leave to appeal against conviction and sentence were refused. The murder conviction was not arguably unsafe.
2. Applying R v Coutts [2007] 1 Cr.App.R 6, an alternative verdict must be left only where it is obviously raised by the evidence and is one which a jury could reasonably reach. A requested direction does not itself establish that threshold.
3. The central issue was whether the applicant was present in the van, rather than his intention if present. The evidence, if accepted, showed an armed and ferocious group attack from which the jury could infer an intention to cause at least really serious harm. The applicant’s denial of any presence did not provide a realistic evidential basis on which the jury could find intentional participation in unlawful violence causing death, while being unsure of an intention to cause really serious harm. The medical uncertainty about the number of weapons or assailants did not alter that conclusion. Violent disorder was an appropriate lesser alternative for the unlikely possibility that the jury found participation in general violence but not the necessary intent for murder.
4. For sentence, the murder fell within paragraph 5A of Schedule 21 to the Criminal Justice Act 2003, giving a 25-year starting point because knives or similar weapons had been taken to the scene. Planned, armed group violence, the revenge motive, use of a stolen van, persistence in seeking victims, concealment and the earlier violent disorder were proper additional aggravating features. The court could infer an intention to kill from the motive and ferocity of the attack despite uncertainty as to who inflicted the fatal injuries. A two-year increase before allowance for age and absence of proven gang membership was not arguably manifestly excessive.

• Court of Appeal (Criminal Division) Refused the renewed applications for leave to appeal against conviction and sentence: [2020] EWCA Crim 196.
• Central Criminal Court On 3 April 2019, convicted the applicant of murder and violent disorder and imposed life imprisonment with a 27-year minimum term, with a concurrent 30-month term for violent disorder.