Court of Appeal, Criminal Division
Published December 10, 2007

Regina v Foster
Regina v Newman
Regina v Kempster
Regina v Birmingham

Before Sir Igor Judge, President, Lord Justice Latham, Mr Justice Grigson, Mr Justice Andrew Smith and Mr Justice Pitchford Judgment November 30, 2007

There was no absolute obligation on a trial judge to leave an alternative lesser verdict for the jury to consider whenever the defence to the more serious charge on the indictment involved an admission of a lesser or different offence; sometimes it would be appropriate, but sometimes it would not.

The Court of Appeal, Criminal Division, so held when: (i) dismissing an appeal by Mark Foster against his conviction at Stafford Crown Court (Mr Justice Goldring and a jury) on January 23, 2003, of attempted murder; (ii) dismissing an appeal by Lee Newman against his conviction at Basildon Crown Court (Judge Cleggs and a jury) on May 15, 2006, of attempted murder; (iii) dismissing an appeal by Mark Kempster against his conviction at Southampton Crown Court (Mr Recorder Hughes and a jury) on March 30, 2001, of three counts of burglary and one count of attempted burglary, and (iv) refusing an application by Gareth Birmingham for leave to appeal against his conviction at Liverpool Crown Court (Judge Globe, QC, and a jury) on August 18, 2006, of murder and conspiracy to rob.

Mr Henry Blaxland, QC, assigned by the Registrar of Criminal Appeals, for Foster; Mr Roderick Henderson for the Crown. Mr Benn Maguire, assigned by the Registrar, for Newman; Miss Samantha Leigh for the Crown. Mr Michael Mansfield, QC, assigned by the Registrar, for Kempster; Mr Gordon Bebb, QC, for the Crown. Mr Jonathan Goldberg, QC, assigned by the Registrar, and Mr Gary Grant, pro bono, for Birmingham; Mr Jonathan Clarke for the Crown.

THE PRESIDENT, giving the reserved judgment of the court, said that the appeals raised important questions about the ambit and application of the decision of the House of Lords in R v Coutts ( The Times July 24, 2006; [2006] 1 WLR 2154).

The appellants submitted that the effect of Coutts was that when at trial the defendant admitted in evidence any lesser criminal offence than the offence charged in the indictment, the judge had always to direct the jury in a way that enabled them to acquit of the more serious offence and convict of the offence admitted by the defendant, and if that was not done the conviction of the more serious offence would be unsafe.

They contended that Coutts demonstrated a principle of law that in a trial on indictment any obvious and viable alternative verdict should ordinarily be left to the jury where there was evidence to support it, irrespective of the wishes of the parties, and even when the alternative verdict would be inconsistent with the prosecution case.

In their Lordships’ judgment, nothing in the speeches in Coutts suggested expressly, or by necessary implication, that the situation which had arisen in these appeals, and which had arisen and would no doubt continue to arise in many trials, created an obligation on the trial judge to leave an alternative lesser verdict whenever the defence to the more serious charge on the indictment involved an admission of a lesser offence; sometimes it would, but sometimes it would not.

In addition to any specific issues of fairness, there was a proportionality consideration. A judge would not be in error if he decided that a lesser alternative verdict should not be left to the jury if that verdict could properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issues in the case.

However, when the defence to a specific charge amounted to the admission or assertion of a lesser offence, the primary obligation of the judge was to ensure that the defence was left to the jury.

If it was not, on elementary principles, the summing up would be seriously defective and the conviction would almost inevitably be unsafe.

The judge had to examine whether the absence of a direction about a lesser alternative verdict or verdicts would oblige the jury to make an unrealistic choice between the serious charge and complete acquittal which would unfairly disadvantage the defendant.

There was no indication in Coutts that the broad principles there expressed extended beyond the ambit of section 6 of the Criminal Law Act 1967 and, given that the indictment should reflect the prosecution case against the defendant, their Lordships rejected the submission that the principles in Coutts extended outside the ambit of that statutory framework.

On appeal, the problem which arose was not whether a direction in relation to a lesser alternative verdict was omitted, and whether its omission was erroneous, but whether the safety of the conviction was undermined.

Solicitors: Crown Prosecution Service, Stafford; CPS, Basildon; CPS, Southampton; CPS, Merseyside

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