R v Bobby George Nethercott

A conviction is unsafe where the judge materially misstates evidence bearing on the central issue and does not clearly correct the error. The appellate court must consider whether the error may have been decisive, particularly where the evidence appears to provide independent expert support for one factual account.

A householder case under Criminal Justice and Immigration Act 2008 requires the statutory conditions to be met. Even then, force that is disproportionate but not grossly disproportionate is not automatically reasonable. The jury must decide whether the force was reasonable in all the circumstances as the defendant believed them to be.

The absence of written directions does not by itself make a conviction unsafe. The decisive question remains whether the directions actually given were correct and sufficient.

The appellant was tried at Chelmsford Crown Court for offences arising from disorder at a party. He was convicted of manslaughter and two assaults occasioning actual bodily harm, and received a total sentence of eight years' imprisonment.

His case was that he acted in self-defence. On the manslaughter count, he maintained that he pushed the deceased with an open hand rather than punched her. The prosecution case required the jury to be sure that he had punched her.

On appeal, the principal issue was whether the judge's inaccurate account of the pathologist's evidence rendered the manslaughter conviction unsafe. Further grounds concerned bad-character evidence, written directions, the householder defence, and sentence.

1. The appeal against the manslaughter conviction was allowed. The court quashed the conviction on count 6 and ordered a retrial. Although the judge repeatedly identified the essential issue as whether the appellant punched rather than pushed the deceased, she incorrectly told the jury that the medical evidence showed that the fatal fall resulted from a punch. The pathologist had accepted that a hard push could also have caused the relevant blow and fall. The judge did not expressly correct the misstatement. In a case involving fast-moving and unreliable eyewitness evidence, the erroneous indication of agreed independent expert support for a punch could have been decisive. The court could not be satisfied that the conviction was safe.

2. The court rejected the remaining conviction grounds. Under section 74(3) of the Police and Criminal Evidence Act 1984, the appellant was to be taken to have committed the prior Bristol offences unless he proved otherwise on the balance of probabilities. As he did not seek to discharge that burden, he could not use the present trial to challenge the fairness of the Bristol proceedings. The trial judge was entitled to admit the convictions as relevant propensity evidence and not to exclude them under the Criminal Justice Act 2003.

3. The trial judge should have supplied written legal directions, but their absence did not itself make the remaining convictions unsafe. Applying the principle in R v Grant [2021] EWCA Crim 1243, as endorsed in R v BQC [2021] EWCA Crim 1944, the court assessed the oral directions and route-to-verdict document. They did not misdirect the jury on the matters relevant to counts 2 and 3.

4. There was no householder case. The alleged force was used outside the house and not against a person whom the appellant believed to be a trespasser. In any event, consistently with R on the application of Collins v Secretary of State for Justice [2016] EWHC 33 Admin and R v Ray [2017] EWCA Crim 1391, section 76 does not deem force reasonable merely because it is not grossly disproportionate.

5. The renewed applications concerning the other conviction grounds and sentence were refused. The court also held that a retrial of count 6 was in the interests of justice, directed service of a fresh indictment and rearraignment, and ordered the retrial at Chelmsford Crown Court.

• Court of Appeal (Criminal Division) Allowed the appeal against the manslaughter conviction, quashed it and ordered a retrial. It refused the renewed applications concerning the other conviction grounds and sentence.
• Crown Court at Chelmsford The appellant was convicted of manslaughter and two offences of assault occasioning actual bodily harm. He received eight years' imprisonment for manslaughter, with concurrent 12-month sentences for the assaults.