Life in crime

The facts in R v Coutts [2006] UKHL 39 were lurid and extraordinary. The deceased (L) lived with her partner in Brighton. The appellant (A) and his girlfriend (S) lived in Hove. S and L were friends, which was how A became acquainted with L. On 14 March 2003, L died at A's flat. A stored her body first in his car, then in his shed, then in a commercial storage facility. On 19 April, he took L's body to an area of woodland and set fire to it. It was found burning and unclothed and had a ligature made from a pair of tights tied twice around her neck with a knot on the right-hand side. A was interviewed before and after L's body was found. He prevaricated, for reasons he sought later to justify. He subsequently told a legal representative he had not intended to kill or cause serious harm to L and that he had never caused harm to anybody in the past when using ligatures during consensual sexual activity. A was tried and convicted of murder.

The expert pathologists agreed that the cause of L's death was compression of her neck by the ligature, causing her to be asphyxiated. However, the Crown expert thought the most likely explanation for the mechanism was vascular or respiratory strangulation, whereas the defence expert thought it was vagal inhibition. The significance lay in how long death would have occurred. In the former case, it would have been within two to three minutes, whereas in the latter case, it would have been possibly only one to two seconds.

Trial

A principal area of evidence at trial concerned A's sexual habits and propensities. One prosecution witness described a seven-year relationship with A during which, with her consent, he had placed his hands around her neck, before and during intercourse and had used tights and knickers around her neck. With S, A had been involved a few times in 'breath control play'.

A gave evidence that he had been obsessed with women's necks for about 20 years, but that he had no interest in violence and his fetish did not extend to strangulation. On the day of L's death, A said he had had consensual asphyxial sex with her. Her death had been a tragic accident.

The Crown led evidence that both before and after 14 March 2003, A had visited pornographic websites showing violence to women.

Parties' positions at trial

The Crown's case was that there was a deliberate killing and Crown Counsel submitted to the trial judge that although a legal argument could be mounted to suggest manslaughter by gross negligence or an unlawful and dangerous act, it would be wrong to put the case on an alternative basis. Defence counsel initially agreed, although he subsequently suggested the possibility of a verdict of 'no intent manslaughter'. The judge asked defence counsel whether he wanted him to put manslaughter on any basis to the jury and was given a provisional negative answer. Defence counsel expressly reserved the right to discuss the question with A and raise the matter again. It was never raised again with the judge, but it was discussed further with A, who confirmed in a statement he did not wish the alternative verdict to be left to the jury. The jury rejected the defence of accident.

'Invisible burden' on the trial judge

Edward Fitzgerald QC for the defence submitted that where there was credible evidence that would, if accepted, support a verdict of manslaughter, that alternative verdict should be left to the jury for their consideration, unless it would be unfair to do so, even where the defence had not advanced such a case or sought such a verdict and even though the Crown has not raised, or has rejected, that possibility. This raised the question of the 'invisible burden' placed upon the trial judge. John Kelsey-Fry QC for the Crown submitted that this was a deliberate and sadistic killing. The jury must have found that the full elements of murder had been established following a clear and unchallengeable direction on accidental killing, and that there was therefore no material irregularity.

The House of Lords unanimously agreed with Fitzgerald. Lord Bingham stated that the interests of justice required that defendants are neither over-convicted (of a greater offence) nor under-convicted (of a lesser offence), nor acquitted when they have committed a lesser offence of the type charged. Ultimately, responsibility to alert juries to the options to achieve this objective lies with the trial judge. In the present case, the trial judge had a duty to leave a possible manslaughter defence arising on the evidence, even where such a defence had not been advanced, or even where it had been expressly disavowed at the trial.

In the absence of unfairness, which was not suggested, he concluded that the trial judge's failure to leave a manslaughter verdict (although wholly understandable) was a material irregularity as no appellate court could be sure, even where the case against A was clearly strong, that a jury, fully directed, would not have convicted of manslaughter.

The appeal was therefore allowed and the case was remitted back to the Court of Appeal (which had refused the appeal) for it to quash the conviction and determine whether A could face a retrial.

More alternative counts?

The Crown case was a strong one and A had clearly sought to take advantage of the fact that, on his instructions, the alternative defence had not been run at trial, and yet he now claimed, that that meant he had not had a fair trial. The House of Lords judgment is both highly principled and courageous. It reiterates that it is fundamental to justice to consider whether a defendant may not have had a fair trial, if the trial judge abdicates his or her responsibility generally to direct the jury on possible alternative verdicts that may arise on the evidence. If A is to be retried, an interesting new question will arise as to whether a count or counts of manslaughter would need to be added to the indictment. The clear impression from the judgment is that in future, many more indictments will contain alternative counts.