R v Craig Shaw

When considering whether to leave an alternative verdict to the jury, the court must ask whether it is obviously raised by the evidence and represents a realistic possibility. The question is assessed on the evidence at trial and without hindsight. Failure by trial counsel to seek the alternative is not conclusive, although it may be relevant. Where the evidence places a defendant inside premises as part of an armed group, and the weapons were apparent, an alternative verdict of simple burglary may not meet that threshold.

The appellant was convicted of two counts of aggravated burglary after a trial in the Crown Court at Newport. The prosecution case was that he participated in a joint enterprise involving an armed group that entered a house and a static caravan. His defence was that he remained in a car and knew nothing of the offending. On appeal, he argued that the judge should nevertheless have left simple burglary as an alternative verdict because the jury could have found that he participated in the burglary without knowing that weapons would be carried or used.

The central issue was whether simple burglary was an alternative verdict obviously raised by the evidence and a realistic possibility on the facts.

1. The appeal against conviction was dismissed. The convictions were safe.

2. The governing considerations were those identified in R v Coutts [2006] 1 WLR 2154 at [23]: an alternative verdict should be left only where it is obviously raised by the evidence and is a realistic possibility, as explained in R v Craig Frayne [2005] EWCA Crim 1713 at [14].

3. The appellant’s proposed intermediate case was not supported by the evidence. If the jury rejected his account that he remained in the car and concluded that he participated in the burglary, there was no evidence that he stayed outside the house. The victims placed the members of the group inside, and described them as armed. A machete had been openly brandished while entry was being attempted. In those circumstances, it was fanciful to suggest that a participant inside the house, or an occupant of the small vehicle carrying the participants, was unaware of the weapons.

4. The fact that trial counsel had not suggested simple burglary was not conclusive, because the decision was for the judge. It was nevertheless relevant to the assessment of obviousness. The issue had to be evaluated on the evidence adduced at trial, at the time, rather than with hindsight.

5. The test was not met. The court therefore declined to substitute verdicts of simple burglary or to re-sentence the appellant.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed and the convictions were held safe.
• Crown Court at Newport: The appellant was convicted after trial of two counts of aggravated burglary.