MR. JUSTICE EDMUND DAVIES: In July last at Nottingham Assizesm the appellant, having been indicted for and acquitted of the murder of Sylvia Jeannette Nott, was found guilty of manslaughter and was sentenced by Mr. Justice Glyn-Jones to 15 years' imprisonment. He now appeals to this Court on a point of law against that conviction, and he also applies for leave to appeal against sentence.
The facts may be shortly stated. On Sunday, May 31st, 1964, the dead body of Mrs. Nott was found in the River Ouse within a few yards of the defendant's van which stood near the bank. The corpse bore the marks of grave injuries. The face had been battered, the hyoid bone had been broken and there had been some degree of manual strangulation. These injuries were likely to have caused unconsciousness and eventually death, but they were inflicted a half-hour or an hour before death supervened and did not in fact cause it. According to the medical evidence her injuries were inflicted not long before Mrs. Nott was thrown into the river, but she was alive when that was done, she continued to breathe for an appreciable time afterwards, and the eventual cause of death was drowning.
When the accused was first interviewed about the matter he lied, but ultimately signed a statement admitting complicity in the death. He then said that he had taken Mrs. Nott to his van for sexual purposes, that he was unable to satisfy her and she then reproached him and slapped his face; they then had a fight during which he knocked her out and thereafter she only moaned. The statement continued: "I was shaking her to wake her for about half and hour, but she didn't wake up, so I panicked and dragged her out of the van and put her in the river". He repeated this account at his trial and then said, and said for the first time, "I thought she was dead".
The outline of the case for the prosecution, therefore, was this: The gravity of the injuries inflicted during life clearly pointed to an intention by the accused to cause grievous bodily harm to or the death of Mrs. Nott. Her death was in fact brought about by the action of the accused in shortly thereafter throwing her still-living body into the river.
Did it make any difference, as far as the murder charge was concerned, whether or not the accused believed she was then already dead? On this question the learned trial Judge gave at page 26 CD this direction :
"His case is that he genuinely and honestly believed that she was dead. I direct you that, if that his genuine and honest belief, then when he threw what he believed to be a dead body into the river, he obviously was not actuated by any intention to cause death or grievous bodily harm; you cannot cause death or serious bodily harm to a corpse. Therefore the question for you is: Have the prosecution satisfied you that his story told before you today ... that he believed she was dead, is untrue: and that the truth is that he threw her into the river not caring whether she was alive or dead but simply to get her out of his van, so that he would not be caught and punished for what he had already done to her?"
The Jury were thus told in plain terms that they could not convict of murder unless it had been proved that the accused knew that Mrs. Nott was still alive when he threw her into the river or (at least) that he did not then believe she was dead. We venture to express the view that such a direction was unduly benevolent to the accused and that the Jury should have been told that it was still open to them to convict of murder, notwithstanding that the accused may have thought his blows and attempt at strangulation had actually produced death when he threw the body in the river, if they regarded the accused's behaviour from the moment he first struck her to the moment when he threw her into the river as a series of acts designed to cause death or grievous bodily harm. See Thabo Meli v. Regina. 1954, 1 All England Reports at page 373.
In the present case the Jury, directed as they were, acquitted of murder. They had, however, been told that the trial Judge could see no ground upon which the accused could be acquitted of all crime and they convicted of manslaughter. Against that conviction the accused now appeals on the ground that there was a basic misdirection when the Jury were told (as they were) that, as to the offence of manslaughter, it was irrelevant whether the accused genuinely and honestly believed the body to be dead at the time of immersion.
Against the background of the basic direction regarding the nature of the Crown's burden of proof as to murder, it seems to this Court that at least three possible bases of the manslaughter verdict call for consideration:- (a) Criminal Negligence. A grosser case of criminal negligence it would be difficult to imagine. As the trial Judge put it at page 28 at B to C:-
"What steps did he take to find out whether she was alive or dead? He seems to have made no attempt, according to him, to find out whether she was breathing or not. He seems to have made no attempt to feel whether her heart was beating. Surely these are elementary steps. You have then nothing left but his bare unsupported statement: 'I thought she was dead'. All he had done had been to shake her and she had not recovered consciousness. Do you think that persuaded him that she was dead, or do you not?"
That passage was directed to the charge of murder. As to manslaughter, the following direction was given at page 31D to F:-
"..If, not knowing whether the woman was dead or not, and not having taken the trouble to find out whether she was dead or not, he throws her body into the river, you may (if you think fit) come to the conclusion that that was a negligent act done utterly recklessly without regard to the danger to life or limb that would be caused by it - and that would be another ground on which the throwing of the body into the river would be manslaughter".
That direction has been strongly criticised as wholly inadequate in relation to criminal negligence as expounded in Bateman, 1925, 19 Criminal Appeal Reports, page 8, and Andrews v. The Director of Public Prosecutions, 1937, 26 Criminal Appeal Reports, page 34. But the nature of the direction called for must depend on the facts of each case. In the judgment of this Court, the facts in the present case were such as to render an elaborate direction unnecessary. Utter recklessness was the standard which the Jury were told had to be applied, and the evidence amply justified a verdict that it had been established.
(b) Provocation. There is no room for doubt that the plea of provocation had but a flimsy basis and wholly justified the adverse summing-up on this issue. The injuries inflicted on the deceased in the van were so grave, those sustained by the accused in the alleged fight so trifling, that the question raised by the trial Judge at page 26 C:
"Do you think that that degree of reaction bears any reasonable proportion to the alleged provocation, or do you not?"
permitted of only one answer from a reasonable Jury. But the matter does not stop there, because, as the Jury were told at page 25 C to D:
".. it seems to me impossible to say (and defence counsel concedes this) that the provocation could have extended beyond the infliction of the injuries in the van; it cannot possibly extend to the final act of throwing the body into the river".
Inexplicable though a Jury's verdict may be and improper though it generally is to embark on enquiry as to its rationale (Rex v. Larkin, 1942, 29 Criminal Appeal Reports, page 18),this Court is forced to the conclusion that the verdict returned was not based upon provocation reducing what would otherwise have been a murderous act to one of manslaughter.
(c) An unlawful act causing death. Two passages in the summing-up are here material. They are these; (1) at page 30H:
"If by an unlawful act of violence done deliberately to the person of another, that other is killed, the killing is manslaughter even though the accused never intended either death or grievous bodily harm. If this woman was alive, as she was, when he threw her in the river, what he did was a deliberate act of throwing a living body into the river. That is an unlawful killing and it does not matter whether he believed she was dead or not, and that is my direction to you",
and (2) at page 33A:
"I would suggest to you, though it is of course for you to approach your task as you think fit, that a convenient way of approaching it would be to say: What do we think about this defence that he honestly believed the woman to be dead? If you think that it is true, why then as I have told you, your proper verdict would be one of manslaughter, not murder".
Such a direction is not lacking in authority; see for example Shoukatallie v. The Queen (1962 Appeal Cases, page 81 in Lord Denning's opinion at pages 86 and 92) and Dr.Glanville Williams' Criminal Law, 2nd Edition at page 173. Nevertheless, in the judgment of this Court it was a misdirection. It amounted to telling the Jury that, whenever any unlawful act is committed in relation to a human being which resulted in death there must be, at least, a conviction for manslaughter. This might at one time have been regarded as good law - see, for example, Fenton's case (1830 1 Lewin, page 179). But it appears to this Court that the passage of years has achieved a transformation in this branch of the law and, even in relation to manslaughter, a degree of mens rea has become recognised as essential. To define it is a difficult task, and in Andrews v. The Director of Public Prosecutions (1937, 26 Criminal Appeal Reports page 34) Lord Atkin (at page 45) spoke of "the element of 'unlawfulness' which is the elusive factor". Stressing that we are here leaving entirely out of account those ingredients of homicide which might justify a verdict of manslaughter on the grounds of (a) criminal negligence, or (b) provocation or (c) diminished responsibility, the conclusion of this Court is that an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm. See, for example, Regina v. Franklin (1883, 15 Cox Criminal Cases, page 163), Regina v. Senior (1899, 1 Queen's Bench, page 283), Rex v. Larkin (29 Criminal Appeal Reports page 18,in Mr. Justice Humphreys' Judgment at page 22), Regina v. Buck & Buck (1960, 44 Criminal Appeal Reports page 213 at page 218) and Regina v. Hall (1961, 45 Criminal Appeal Reports, page 366 at pages 370 and 373).
If such be the test, as we adjudge it to be, then it follows that in our view it was a misdirection to tell the Jury simpliciter that it mattered nothing for manslaughter whether or not the accused believed Mrs. Nott to be dead when he threw her in the river. But, quite apart from our decision that the direction on criminal negligence was an adequate one in the circumstances, such a misdirection does not, in our judgment, involve that the conviction for manslaughter must or should be quashed. In the light of Thabo Meli it is conceded on behalf of the appellant that, on the murder charge, the trial Judge was perfectly entitled to direct the Jury, as he did at page 24 C to D that:
"Unless you find that something happened in the course of this evening between the infliction of the injuries and the decision to throw the body into the water, you may undoubtedly treat the whole course of conduct of the accused as one".
But for some reason not clear to this Court, appellant's Counsel denies that such an approach is possible when one is considering a charge of manslaughter. We fail to see why. We adopt as sound Dr. Glanville Williams' view in the book already quoted from at page 174 that,
"If a killing by the first act would have been manslaughter, a later destruction of the supposed corpse should also be manslaughter".
Had Mrs. Nott died of her initial injuries a manslaughter verdict might quite conceivably have been returned on the basis that the accused inflicted them under the influence of provocation or that the Jury were not convinced that they were inflicted with murderous intent. All that was lacking in the direction given in this case was that, when the Judge turned to consider manslaughter, he did not again tell the Jury that they were entitled (if they thought fit) to regard the conduct of the accused in relation to Mrs. Nott as constituting throughout a series of acts which culminated in her death, and that, if that was how they regarded the accused's behaviour, it mattered not whether he believed her to be alive or dead when he threw her in the river. Having regard to the summing-up as a whole, the difference between what was said to the Jury and that which, in the opinion of this Court, should have been said is so minimal that we consider that no substantial miscarriage of justice resulted. On the whole of the facts and upon such a direction as we have indicated, we are satisfied that the proper and inevitable verdict would have been one of guilty. It cannot conceivably be said, in our judgment, that the misdirection referred to deprived this appellant of a chance of total acquittal on the indictment which was fairly open to him. We accordingly regard this as a proper case to apply the proviso to Section 4(1) of the Criminal Appeal Act, 1907, and, having done so, dismiss the appeal against conviction.
As to sentence, the trial Judge said:
"I think this is the worst case of manslaughter I have ever heard of".
It was unquestionably a terrible case, and young though the accused was (being merely 21 at the time of the crime) and minor though his previous convictions were, this Court cannot say that the sentence of 15 years, while undoubtedly severe, was wrong in principle. We have been urged to hold that, as it appears to have been said in another place that a life sentence involves incarceration of up to 10 years, it was wrong in principle that this accused, convicted of manslaughter, should be called upon to remain in prison at least as long as, and possibly longer, than he would have been had the Jury convicted him of murder. That consideration this Court cannot have regard to. As this Court said in Regina v. Singh on 23rd February 1965, but unreported,
"... the Court has in mind that 'life sentence' means a sentence for life, and that any remission as a result of which a prisoner is released is a matter entirely for the Home Secretary".
The application for leave to appeal against sentence is accordingly also dismissed, MR. JAMES: My Lords, in respect of the appeal against conviction would your Lordships certify that a point of law of general public importance is involved; the point that I have in mind is this, that in respect of death by criminal negligence, what is the duty of care owed by an accused person in dealing with that which is believed to be inanimate?
MR. JUSTICE EDMUND DAVIES: I have not consulted my Brethren yet, Mr. James, but I should have thought off-hand that the basic fallacy in the reasoning of that question is: supposed to be inanimate. That presupposes that the belief that one was dealing with an inanimate object was a reasonable belief which was not arrived at by criminal negligence.
MR. JAMES: It must be the subjective test, and judged in the light of the reasonable objective basis.
MR. JUSTICE EDMUND DAVIES: In relation to the death.
MR. JAMES: By criminal negligence. What is the duty of care owed by an accused person in dealing with that which he believes to be inanimate?
(Their Lordships conferred)
MR. JUSTICE EDMUND DAVIES: Thank you, Mr. James, but your application is refused, the Court being unable to certify.
