R v Keith McCarthy

Leave to appeal should be granted where grounds challenging the admission and use of bad-character evidence, or the adequacy of the evidential basis for rejecting a submission of no case to answer, are properly arguable. The merits must remain for the full court, particularly where material placed before the jury is unavailable.

A proposed additional ground based on a failure to leave an alternative verdict should not be determined without an accurate procedural account and the relevant trial materials. The court may direct service of those materials and reserve both permission and determination of that ground to the full appeal hearing.

The applicant was convicted by a jury of murder and causing grievous bodily harm with intent after his car struck a scooter, killing its rider and seriously injuring a bystander. He had also pleaded guilty to causing serious injury by dangerous driving and causing death by dangerous driving.

Following refusal by a single judge, he renewed applications for leave to appeal conviction and sentence. His pleaded grounds challenged the admission and use of two previous weapons-related convictions, and the rejection of a submission of no case to answer. During the hearing, the court identified uncertainty about the treatment of an indictment count alleging manslaughter.

The central issue was whether the pleaded grounds were arguable and whether further material was needed before any additional ground concerning manslaughter could be considered.

1. Leave to appeal conviction was granted on both pleaded grounds. The first ground, concerning the admission and use of previous convictions as bad-character evidence, required consideration by the full court. The 2011 conviction could arguably bear on whether the applicant drove with intent to cause really serious harm, but its age, the strength of the prosecution case without it, and any risk of impermissible bolstering required assessment. Different considerations could apply to the more recent conviction, in which no violence had been used.

2. The court could not determine whether the factual admissions relating to the 2011 conviction were unduly prejudicial because neither the court nor counsel had the document placed before the jury. The full court should consider both the basis of admissibility and whether the jury direction adequately identified the evidence’s possible significance.

3. The ground challenging the rejection of the submission of no case to answer was also arguable. The trial judge’s written ruling did not set out the prosecution evidence in detail. The court proceeded on the basis that the evidence summarised in the written directions, excluding bad-character evidence, was the evidence held sufficient to establish a case to answer on murder.

4. The possible failure to leave manslaughter to the jury could found a further ground, but the court did not decide that question. It directed the applicant to lodge any proposed ground with an accurate account of the pre-trial and trial treatment of manslaughter and all relevant documents. The prosecution was directed to respond. The full court would decide whether to grant leave on that ground and, if leave were granted, determine it at the same hearing.

5. The application for leave to appeal sentence was adjourned to the full court hearing the conviction appeal. A representation order was granted for leading and junior counsel.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1557, the court granted leave to appeal conviction on two grounds, gave directions concerning a possible further manslaughter ground, and adjourned the sentence application to the full court.
• Single judge: Refused the applicant’s initial application for leave to appeal conviction and sentence.
• Trial court: The applicant was convicted by a jury on 20 October 2022 of murder and causing grievous bodily harm with intent. He had previously pleaded guilty to two dangerous-driving offences.