REGINA v STEVEN FRANCIS BOYLE

An alternative verdict should be left to a jury only where it is an obvious and viable issue on a reasonable view of all the evidence, including the defence. The assessment is fact-specific and primarily for the trial judge. The Court of Appeal will intervene only where the decision was clearly wrong; post-trial ingenuity is insufficient. An agreed fact admitted under s.10 of the Criminal Justice Act 1967 is conclusive in the proceedings and on appeal unless withdrawn with leave. A new ground requires permission to vary, while an extension of time requires good reason and, ordinarily, significant injustice if refused. The court should examine the underlying merits and apply the interests of justice.

The applicant and his co-accused were convicted following a trial at Liverpool Crown Court. The applicant was convicted of murdering John Kinsella and acquitted of attempted murder and a second murder. He received a life sentence with a minimum term of 33 years.

He made a renewed application for an extension of time, permission to appeal against conviction, and permission to vary the proposed grounds. The issues concerned the treatment of an agreed fact about previous convictions, an alternative verdict under s.4(1) of the Criminal Law Act 1967, alleged prosecution non-disclosure, and material concerning the co-accused. The court also considered whether there was good reason to extend time.

Applications refused. The renewed application for an extension of time, the application for leave to appeal against conviction and the related applications to vary the grounds were refused.

1. Agreed fact. Under s.10 of the Criminal Justice Act 1967, a party’s admission of fact is conclusive evidence against that party in the proceedings and on appeal unless the court grants leave for it to be withdrawn. Agreed facts should not be altered lightly. The relevant admission was accurate and, in any event, any alleged partial inaccuracy could not have affected the safety of the murder conviction. The jury had been properly directed on the limited use of the previous convictions.
2. Alternative verdict. The governing approach was stated through R v Coutts [2006] UKHL 39, R v Barr [2016] EWCA Crim 216, R v Braithwaite [2019] EWCA Crim 597 and R v M [2019] EWCA Crim 1094. An alternative must be obvious and arise as a viable issue on a reasonable view of the evidence, including the defence evidence. The decision is fact-specific and primarily one for the trial judge. This court will interfere only where the decision was clearly wrong. The relevant alternative is one which should occur to an ordinarily knowledgeable and alert criminal judge, rather than one identified through ingenious post-trial research. An offence under s.4(1) of the Criminal Law Act 1967 did not meet that test.
3. Variation and disclosure. A proposed ground absent from the appeal notice requires permission to vary under Criminal Procedure Rule 36.14(5) and Criminal Practice Direction IX 39C. The relevant considerations include delay, its explanation, whether the facts were known earlier, the overriding objective and the interests of justice. The hurdle is high. The alleged non-disclosure concerning forensic testing and a witness statement was either unsupported, disclosed before trial, or incapable of affecting the verdict. The proposed ground concerning the co-accused’s separate prosecutions lacked merit and was raised too late.
4. Extension of time. Applying R v Hughes [2009] EWCA Crim 841 and R v Thorsby [2015] EWCA Crim 1, the court considered the merits and the interests of justice. There was no good reason for the substantial delay, and the proposed grounds were without merit individually and cumulatively.

• Court of Appeal (Criminal Division), [2021] EWCA Crim 1788: refused the extension of time, renewed application for leave to appeal against conviction and related applications to vary.
• Crown Court at Liverpool: following trial, the applicant was convicted of murder and sentenced to life imprisonment with a minimum term of 33 years.