Shane Cunningham & Ors v R

Where self-defence is raised, the subjective question whether the defendant genuinely believed force was necessary remains for the jury if the evidence permits competing explanations, including revenge or participation in a fight. The issue is assessed at the moment force was used.

A secondary party may be convicted only if the prosecution makes the jury sure that the party was not acting defensively. A direction permitting conviction where the defendant’s conduct “may not” have been defensive reverses the burden of proof. A specific misdirection on that fundamental issue is not necessarily cured by otherwise accurate general directions and may render the conviction unsafe.

The three applicants were convicted after the death of a 16-year-old boy at a birthday party. Shane Cunningham was convicted of murder. Cartel Bushnell and Leo Knight were convicted of manslaughter as secondary parties, and Cartel and Leo were also sentenced to detention.

They applied for leave to appeal to the Court of Appeal (Criminal Division) from convictions and, in Cartel’s and Leo’s cases, sentences. The grounds concerned self-defence, the sufficiency of the evidence, the time allowed for Shane to decide whether to give evidence, and alleged misdirections in the route to verdict and legal directions. The central issues were whether the self-defence questions should have been left to the jury, whether there was a case to answer, and whether the directions misstated the prosecution’s burden of disproving defensive conduct.

1. Reporting restrictions. The proposed challenge to the post-conviction lifting of reporting restrictions was properly not advanced as an appeal ground. The court noted that such a challenge lay by judicial review rather than appeal, referring to R v KL [2021] QB 831; [2021] EWCA Crim 200.
2. Shane’s grounds. The subjective limb of self-defence was properly left to the jury. The evidence permitted a finding that, although Mikey had earlier swung a knife towards Cartel, there was a gap before the fatal stabbing and no clear further offensive act. A properly directed jury could therefore find that Shane did not genuinely believe force was necessary at the critical moment. The judge was also not required to enter the arena and investigate Shane’s decision not to give evidence. Shane had had substantial time after the close of the prosecution case, legal advice, existing special measures and further time on the morning of the decision. Leave was refused on both grounds.
3. Cartel and Leo: no case submissions. The judge was entitled to leave Cartel’s case to the jury because it could prefer his witness’s earlier account to his trial evidence. In Leo’s case, the forensic evidence, his conduct, inconsistent accounts and the surrounding circumstances could collectively enable a properly directed jury to exclude realistic possibilities consistent with innocence. The evidence therefore disclosed a case to answer, although Leo was granted leave on this ground and the appeal was dismissed on its merits.
4. Misdirection. The directions stated that the prosecution had to prove that Cartel and Leo “were not or may not have been acting defensively”. That wording permitted conviction without proof beyond reasonable doubt that they were not acting in self-defence. It materially misstated the burden and standard of proof. The error was not cured by correct general directions or by a separate direction concerning Shane. The principle that accurate directions on the burden and standard of proof are fundamental was supported by R v Miah [2018] EWCA Crim 563 at [32].
5. Orders. Shane’s application for leave to appeal against conviction was refused. Cartel and Leo were granted leave on the misdirection ground, and their manslaughter convictions were quashed as unsafe. Their remaining conviction grounds were rejected. Their applications for leave to appeal against sentence consequently fell away.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 662, Shane’s application for leave to appeal against conviction was refused. Cartel and Leo were granted leave on the self-defence misdirection ground and their manslaughter convictions were quashed as unsafe. Their other conviction grounds were rejected and their sentence applications fell away.
• Crown Court at Bristol: Before Saini J, Shane was convicted of murder, while Cartel and Leo were convicted of manslaughter as lesser alternatives to murder. Shane received detention for life at His Majesty’s Pleasure with a minimum term of 16 years. Cartel and Leo received detention for nine years and nine years and six months respectively.