Court of Appeal in Northern Ireland Decisions

Neutral Citation No [2012] NICA 46	Ref:	MOR8639
Judgment: approved by the Court for handing down	Delivered:	26/10/2012
(subject to editorial corrections)*

 

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_______

 

THE QUEEN

 

-v-

SEAN CRUIKSHANK

and

EDWARD McELENEY

_______

 

Before: Morgan LCJ, Girvan LJ and Coghlin LJ

_______

 

MORGAN LCJ (delivering the judgment of the court)

 

[1]        The accused were convicted at Londonderry Crown Court on 27 October 2009 of the murder of Liam Devlin on 4 August 2007. Cruikshank appeals with the leave of the single judge on one issue and renews his application for leave to appeal on the remaining issues while McEleney renews his application for leave to appeal.

 

Background

 

[2]        On the evening of 3 August 2007 John Devlin was confronted by Sean Cruikshank at Creggan shops in Londonderry. Cruikshank head butted John Devlin causing injuries to his face. John Devlin returned to the Gillespie house where he and his brother, Liam, were staying and decided to return to his home in Donegal. His father gave him a lift home. In the early hours of 4 August 2007 Liam Devlin was in the company of Stephen Hutton, Declan and Neil Gillespie and Conor Porter walking along Linsfort Drive in the Creggan estate, Londonderry. About a hundred yards from the Gillespie’s house, in Rinmore Drive, there was an encounter with Sean Cruikshank and Edward McEleney. As a result of this encounter Liam Devlin sustained a traumatic axonal injury, bruising to the brain and oedema of the brain as a result of which he died. The prosecution case was that both accused attacked the deceased and were responsible for his death. The evidence of the deceased’s four friends was the principal basis for linking the accused to the attack.

 

[3]        Stephen Hutton described an incident which effectively had three phases. During the first phase, the injured party went to the ground, though this witness could not describe precisely how this occurred. Then Cruickshank was “booting” the injured party in the head, as he lay on the ground, roughly 10 to 12 times. McEleney then joined in, kicking him in the head more than once. The injured party was defenceless. During the second phase, there was a physical engagement involving Neil Gillespie and Cruikshank on the one hand and an engagement of sorts involving Hutton and McEleney on the other. Cruikshank then got back at the injured party, kicking and kicking him on the head and McEleney then did likewise, having first exhorted the applicant Cruikshank to jump on their victim’s head. The injured party was defenceless and did not throw a single punch throughout. On that latter point everyone was agreed.

 

[4]        Declan Gillespie also described three phases. In the first phase Cruikshank and the injured party squared up to each other. McEleney then pushed or pulled Cruikshank out of the way and attacked the injured party by head butting him. Then Cruikshank jumped in and Neil Gillespie tried to pull him away. Both applicants were hitting the injured party, with Cruikshank throwing punches at him, whereupon the injured party went to the ground. This was followed by two separate fights or confrontations between McEleney and Hutton and Cruikshank and Neil Gillespie. By this stage, the injured party was back on his feet. The two groups then separated.

 

[5]        Although Declan Gillespie believed that the incident was finished the two applicants came back down towards the larger group, whereupon this witness exhorted that any further fight take place on a “one on one” basis. The injured party stated that he did not want to fight. The witness then described a final phase, beginning with Cruikshank striking the injured party who fell backwards to the ground for a second time. Then both applicants kicked the injured party in the head repeatedly. The witness thought that he heard McEleney say “jump on his face”, adding that he knew that McEleney told Cruikshank to jump on the injured party’s head. They desisted from their attack but then recommenced it. As the applicants stopped attacking the injured party a taxi approached and the applicants jogged away from the scene. The injured party was defenceless throughout and was unconscious at the end.

 

[6]        In common with the first two witnesses Neil Gillespie also divided the incident into stages. The first of these involved an attempt by the applicants to attack the injured party apparently with limited success on account of the intervention of Hutton and this witness. This precipitated two confrontations or attacks involving Cruikshank and this witness on the one hand and McEleney and Hutton on the other.

 

[7]        The final phase was initiated by an invitation to a one to one fight by Cruikshank which elicited a negative response from the injured party. Cruikshank then ran and punched or head butted the injured party, who went to the ground, where Cruikshank held him down and was kicking him. Cruikshank was kicking the injured party in the head and was stamping on him, while holding him down. This one to one engagement continued until McEleney joined in, kicking the injured party more than once.

 

[8]        Conor Porter described the separate stages of the incident. During the first McEleney was the sole aggressor initially. He head butted the injured party and was then fighting with him. This stimulated a second fight involving Cruikshank and Neil Gillespie. These fights lasted 1 or 2 minutes. As a result, the injured party was dizzy, stumbling and could barely stand, was holding his head and was expressing himself to be unwell. There followed a one on one fight suggestion by McEleney to Cruikshank which was duly implemented by the latter notwithstanding the protestations of the injured party that he was too sick to fight. At this stage, according to this witness, McEleney shouted that the injured party was faking it and exhorted Cruikshank with the words “go down and slap him”. Cruikshank thereupon attacked the injured party, got him to the ground and then kicked him three to five times in the head. After the first or second of these kicks McEleney joined in and kicked the injured party in the head two or three times. The kicking lasted a minute or two. The injured party was defenceless throughout.

 

[9]        The prosecution relied on a number of admissions. Blaithnaid Dobbins said that a short time after this incident McEleney received a call on his mobile phone, following which, visibly shaken, he stated that a boy with whom he was fighting earlier was dead and he would be going to hand himself in. Matthew Colby described McEleney’s reaction to this telephone communication. He testified that McEleney stated “the boy I kicked died” and claimed to have “swung a boot”. According to this witness, McEleney also stated that Cruikshank “… got him on the ground and was dancing on his head”. Ryan Fahy said that sometime after the incident Cruikshank stated that he had kicked the injured party twice.

 

[10]      There was weak supporting evidence for the proposition that Cruikshank’s footwear caused the bruising marks and impressions found beneath the right eye of the injured party. Similarly, there was weak supporting evidence for the proposition that McEleney’s footwear caused certain specific impressions located above the left ear.

 

[11]      In his interviews Cruikshank asserted that the initial combatants were McEleney and the injured party. Cruikshank suggested that he was initially fighting with one of the Gillespies. This was followed by a one to one fight between Cruikshank and the injured party. He described punching the injured party who fell backwards to the ground. He denied kicking him. He acknowledged that the injured party did not strike him. He gave evidence in accordance with this account.

 

[12]      A major feature of McEleney’s interviews was the emphasis which McEleney sought to place on the aggressive conduct of Cruikshank towards the injured party. According to McEleney, describing the initial phase of the events, Cruikshank battered the injured party. At a later stage he claimed that Cruikshank was involved in attacking the injured party again. According to this applicant Cruikshank “… was kicking him and punching him … was throwing boots and all … hitting him hard …”. Following McEleney’s engagement with him, the injured party ”… got up after I hit him … then Cruickshank battered him again … he never even got up … he tried to get up”. The injured party was defenceless throughout, “… he was getting a hiding …”. This applicant admitted saying to Matthew Colby that Cruikshank had been “dancing on his head” offering the explanation that “I meant standing on his head and all like … hitting him boots in the face you know …”.

 

[13]      In cross examination McEleney was questioned in detail about his own physical interaction with the injured party. He stated that after Cruikshank’s initial battering of the injured party, Declan Gillespie attempted to intervene, stimulating a reactive intervention by this applicant. He attempted to head butt Declan Gillespie, struck him around his neck and lost his balance, falling in the process. At this stage, the injured party was on the ground. The essence of this applicant’s account was that the injured party “ … was getting up and I threw a boot”. This applicant repeated this account throughout his interviews. He suggested that the “boot” which he admittedly administered was “ … up round the chest or the head … it was a good boot … in the upper body or head”. The injured party was effectively on the ground when this applicant booted him, with the laced part of his shoe or the instep, “on the chest, the chest around the head”. When this applicant swung his boot at the injured party, the latter “went down again”. The injured party was in a defensive posture, trying to protect himself, when this applicant swung a boot at him. This applicant denied the specific suggestion that he had booted the injured party in the head. He also denied the verbal statement attributed to him by the prosecution witnesses. This applicant acknowledged that he had meant to hurt the injured party, while denying any intention to kill him.

 

Cruikshank’s appeal

 

[14]      Conor Porter was in the Gillespie house when John Devlin returned after he had been attacked by Cruikshank.  In the course of his evidence Conor Porter described the reaction of Ned Kelly, one of those in the Gillespie household.

 

“CP     ..he just said stay away from them

PM      Stay away?

CP       From them

PM      Stay away from who?

CP       Sean Cruikshank and all

PM      Who did he say that to?

CP       All of us

PM      All of you?

CP      Yes. Just said…like listen just stay away from them..

Judge  Yes

CP       Cos they’re a bad crowd

PM      Where was Ned Kelly….”

 

[15]      During the cross examination of this witness the learned trial judge asked for clarification.

 

“Judge You said earlier Ned said stay away from them ones.

CP      Aye..[inaudible]

Judge [inaudible].. ..them ones. Who was he referring to?

CP      Just the group in particular. That they hang about with.

Judge Yes”

 

At this stage Mr McCartney QC intervened and in the absence of the jury made an application to discharge the jury. It appears that in the inaudible portion of the tape the witness said “They’re a bad crowd” or words to that effect. Mr McCartney indicated that he had not considered that the original reference had made a big impact on the jury but the repetition of the remark had damaged his client’s standing before the jury. The learned trial judge rejected the application. He was referred to and took into account the test in R v Lawson [2007] 1 Cr App R 20.

 

“Whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstances of the case, and this court will not lightly interfere with his decision. It follows that every case depends on its own facts and circumstances, including: 1) the important issue or issues in the case; 2) the nature and impact of improperly admitted material on that issue or issues, having regard, inter alia to the respective strengths of the prosecution and defence cases; 3) the manner and circumstances of its admission and whether and to what extent it is potentially unfairly prejudicial to a defendant; 4) the extent to and manner in which it is remediable by judicial direction or otherwise, so as to permit the trial to proceed. We repeat, all these matters and their combined effect are very much an evaluative exercise for the trial judge in all the circumstances of the case. The starting point is not that the jury should be discharged whenever something of this nature is put in evidence through inadvertence. Equally, there is no sliding scale so as to increase the persuasive onus on a defendant seeking a discharge of a jury on this account according to the weight or length of the case or the stage it has reached when the point arises for determination. The test is always the same, whether to continue with the trial would or could, by reason of the admission of the unfairly prejudicial material, result in an unsafe conviction.”

 

He concluded that the jury would be sufficiently informed and realistic not to take such comments into account and would be so directed.

 

[15]      When the trial reconvened Mr McCartney continued his cross examination in the following terms:

 

“BM   ..just to remind you came out with a remark there twice today in relation to      these defendants being part of a bad crowd, is that right?

CP      Yes

BM     And you attributed that remark to Ned Kelly didn’t you?

CP      You mean he said it?

BM     Yes to you

BM     That’s the first time you’ve told this story. First time when you went along to give an interview. The first time when you made this written statements a few months ago you never made that allegation. And you just made that up…

CP      Sorry could you repeat it?

BM     You made that up to make things difficult for these defendants didn’t you?

CP      No

BM     Yes you did

CP      No I did not

BM     Then why didn’t you tell the police?

CP      I must have forgot”

 

We can see no error in the approach of the learned trial judge but in any event the cross examination by Mr McCartney significantly further undermined any risk that the jury could give any weight to these remarks. We do not accept that these exchanges in any way affected the safety of the conviction.

 

[16]      The ground upon which leave to appeal was granted to Cruikshank was the decision of the learned trial judge to prevent Cruikshank from leading evidence that he had pleaded guilty to assault occasioning actual bodily harm to John Devlin. The jury were informed that Cruikshank had head butted John Devlin but were advised that it was not for them to come to any conclusion about responsibility for that in these proceedings. At the same time the jury were informed that Cruikshank had assaulted John Devlin and that his conduct prevented him being entitled to a full good character direction.

 

[17]      The evidence about the earlier event was clearly relevant to the incident which led to the death of Liam Devlin as it may have explained why the confrontation took place in the first instance. The assault by Cruikshank was clearly an act of bad character but it was not put before the jury as giving rise to a propensity. The learned trial judge was of the view that the introduction of the evidence of his plea of guilty to the offence would be more prejudicial to the defendant than its exclusion given that the jury were unaware of any such prosecution.

 

[18]      We accept that it is not for the court to direct the proofs of the prosecution or the defence. All relevant evidence is in principal admissible and if a defendant represented by experienced senior counsel wishes to introduce relevant evidence which is prima facie discreditable to him there are very few circumstances in which the court should intervene. The fact of the conviction for assault occasioning actual bodily harm would undoubtedly have been to Cruikshank’s discredit. The fact that he had pleaded guilty to the offence might have diminished the loss of credit in that the jury could have concluded that Cruikshank did show some element of responsibility. His plea at some later stage is an indication of remorse on his part. On any view, however, Cruikshank’s character was damaged by his behaviour at the earlier stage of the night and he would only have been entitled to the limited good character direction that he received. In our view any benefit to Cruikshank from introducing such evidence was at best marginal and did not affect the safety of the conviction.

 

[19]      The third matter raised on behalf of this appellant is the learned trial judge’s charge to the jury on manslaughter. There is no criticism of the direction relating to the ingredients of the offence but it was submitted that the defence case had not been adequately put to the jury in the review of the evidence. We accept, of course, that it is necessary to strike a fair balance in the charge to the jury between the prosecution case and the defence case and where the prosecution case is strong and the defence case weak there is a need to ensure that the defence case is presented in an even-handed and impartial manner. In this case the criticism focussed on the failure by the learned trial judge to reflect the accused’s case that the injured party was hostile to him as a result of the earlier incident and had willingly become involved in the confrontation.

 

[20]      We do not accept that the learned trial judge failed to put the evidence supporting that case before the jury. He reminded the jury that John Devlin said that the deceased said that he was going to go down to find out why his brother had been hit. He told the jury that  Declan Gillespie said that the deceased was unhappy about what had happened to his brother and was outside pacing up and down for ten or fifteen minutes. He told the jury that Declan Gillespie said that it if there was going to be a fight it should be one to one. He reminded the jury of the evidence of Conor Porter that the deceased and his friends had decided to get the offender the next day for what he did to John Devlin. The defence case was put in an entirely balanced way without omission.

 

[21]      The last point raised on behalf of the appellant concerned the publication of an article in a local newspaper, the Derry Journal, on 23 October 2009. The learned trial judge had started his summing up on 22 October and did not finish until lunchtime on 26 October. The article anticipated that the jury would be sent out that day. It asserted that the deceased had died as a result of being kicked to death. The defence case was that the deceased had tripped on a kerb and fallen striking his head. It was asserted that Cruikshank denied assaulting the deceased’s brother. Cruikshank had in fact pleaded guilty to that assault although the jury did not know that. The article claimed that the deceased was kicked and stamped on the head as he lay defenceless on the ground, an assertion that was denied by both applicants.

 

[22]      The article was drawn to the attention of the judge on the morning of 23 October and he concluded, on the basis of the Lawson test, that with a specific direction not to take into account anything they may see in the press the fair minded and informed observer would not conclude that there was a real danger that the jury would be prejudiced. He then brought the jury in and warned them that it was particularly important at this stage of the trial that they should ignore any media report or broadcast about the trial because their duty was to try the case on the basis of the evidence they heard in court. He also advised them to avoid reading anything in the press, internet or radio because it could mislead. The jury were also warned not to speak about the case to others or discuss it outside the jury room.

 

[23]      We consider that the steps taken by the learned trial judge were both effective and appropriate. The warning given to the jury was in clear terms. The jury were extensively directed on the evidence, including the inconsistencies relied on by the defence and the varying accounts. We consider that there was no error in the approach taken by the learned trial judge.

 

The application of McEleney

 

[24]      The trial in this case lasted approximately 6 weeks. The learned trial judge charged the jury all of Thursday, most of Friday and until lunchtime on the following Monday. Ms McDermott QC, who appeared with Mr Mallon QC for this applicant, submitted that although the learned trial judge's language was elegant and sophisticated there was a real risk that it had not been properly understood by the members of the jury. She noted the use of words such as "consonant", "incumbent" and "contingent". In her submission the length of the charge combined with the complexity of the language was sufficient to render the verdict unsafe.

 

[25]      The second element of the submission related to the provision of written directions. We have previously touched on the issue of written directions in R v Meehan [2011] NICA 10. In this case it appears that there was e-mail correspondence between the learned trial judge and counsel appearing in the trial during the course of the judge’s charge. As a result of that correspondence approximately 23 pages dealing with directions on murder and manslaughter, the role of secondary parties and conflicts in the evidence were produced by the learned trial judge. We are now satisfied that only two documents were actually given to the jury. The first was a document which suggested to the jury the order in which they should approach their conclusion on whether each of the accused was guilty of murder or manslaughter or not guilty. The second document dealt with the difference in the mental element between murder and manslaughter. Both of these documents were handed to the jury and explained towards the end of the charge on Monday morning. Although there is no criticism of the substance of each of these documents it was submitted that they were more likely to confuse than assist and that they compounded the difficulties created by the length and complexity of the charge.

 

[26]      In dealing with the latter issue considerable time in this appeal was spent seeking to establish just what documents were provided to the jury. A careful record of each and every document made available to the jury must be kept by the court clerk and should also be noted by prosecution counsel. In this case no such record was available. With the assistance of the learned trial judge we have been able to establish precisely what occurred but it is completely unsatisfactory that an appeal court should have to piece these things together in this way. Written guidance on the steps leading to the verdict in complex cases is not uncommon and both court clerks and prosecution counsel should now be alert to ensuring that accurate records of what has been received by the jury are clearly available for any appeal proceedings.

 

[27]      Although written directions can be of considerable assistance to juries in complex cases it is absolutely vital that an appropriate opportunity for submissions in relation to those directions is provided before the parties begin their speeches to the jury. We repeat what we said at paragraph 33 of Meehan:

 

“The giving of written directions is only likely to be appropriate in a limited number of complex cases but where such directions are to be given it seems to us that they should invariably be finalised before the prosecution or defence make their closing speeches to the jury.  In that way the parties can then take into account the material which the jury are going to have at their disposal in their final submissions.  In a complex case where it is intended to provide written directions this may require some short period of adjournment between the end of the evidence and the beginning of the speeches.  Although it may be possible to circulate draft directions prior to the end of the evidence it will always be necessary to allow an appropriate time for discussion between the trial judge and counsel on the appropriate directions to the jury in a complex case such as this.”

 

In R v McCredie and French  (30 July 1999) the English Court of Appeal rightly indicated that where no such opportunity for discussion of those documents was given the judge was courting disaster although fortunately it was avoided in that case. The court again emphasise the importance of discussion prior to closing speeches in R v Downer [2011] EWCA Crim 33.

 

[28]      We appreciate that the guidance in Meehan was given after the hearing of this case. It is important, however, to emphasise the limited number of complex cases in which such directions will be appropriate and the importance of ensuring that adequate consideration of the content of any written directions is both discussed and finalised before any of the parties commence their speeches to the jury. The parties must be aware at that stage of the material that the jury is going to bring into the jury room. In our view this was an appropriate case for written directions by way of steps to a verdict and we have annexed to this judgement how that might have been achieved in this case. The judge would, of course, need to explain the law to set the questions in context but in a complex case this should bring focus to the issues and shorten the length of the summing up.

 

[29]      The observations of Lord Hailsham LC in R v Lawrence [1982] AC 510 represent well-established guidance on the content of a judge’s charge to a jury:-

 

“The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's note book. A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.”

 

[30]      This was a case in which there were accounts by four prosecution witnesses in evidence which varied as between themselves and where there was also available to the defence earlier written statements from those witnesses which were in some respects inconsistent with their accounts in evidence. The trial had lasted 6 weeks and the judge had to bear in mind that some of the evidence was not fresh in the minds of the jury. Each of the accused had given evidence. In order to do justice to the defence case this was, therefore, a case in which it was necessary to review to a reasonably intense degree those evidential matters. We accept, however, that there was some force in the submission that this could have been achieved more concisely and indeed the analysis prepared by the learned trial judge highlighting the inconsistencies might have provided an approach which the learned trial judge could have used orally in his summing up to highlight those issues.

 

[31]      We are not concerned, however, with the style of the summing up. Our task is to ascertain whether the manner of the charge raised any issue concerning the safety of the conviction. The learned trial judge meticulously examined the elements of the evidence relied upon by both the prosecution and the defence encouraging the jury to set each piece of evidence in context and assess how it assisted either side. He took breaks during the charge every hour or so to make sure the jury were not overwhelmed. There may have been some sophisticated language but reading the charge as a whole it was delivered in language that was plainly understandable to any juror. The submission in relation to written directions initially proceeded on the basis that the jury had been given extensive documentation on the law and the facts but this subsequently turned out not to be accurate. We conclude, therefore, that this criticism of the charge did not affect the safety of the conviction.

 

[32]      Ms McDermott accepts that the learned trial judge properly directed the jury on the ingredients of the offence of manslaughter as an alternative to murder but criticises the document that was provided to the jury dealing with the comparison of the mental element in both offences. She took issue with the description of manslaughter as a further option and submitted that there was a failure to describe in the document the need for an unlawful act which was objectively dangerous which substantially contributed to the death. We do not accept those criticisms. The document guiding the jury on the order in which they should address the offences showed that manslaughter was to be considered when a conclusion had been reached on the murder counts. In the document which was criticised by Ms McDermott the difference in the mental element between murder and manslaughter is set out in paragraph 2 but paragraph 3 correctly asks whether the prosecution have satisfied the jury beyond reasonable doubt that the defendant concerned assaulted the deceased in a manner likely to cause him some injury without intending that death or serious bodily injury would result. There could be no criticism of that formulation. In any event it is clear that the jury did not get to a point where they had to determine the liability of the applicant on this offence.

 

[33]      The last point concerned the admission of bad character evidence about this applicant and the manner in which the learned trial judge directed the jury about it. The evidence which the prosecution applied to admit was that of a police officer who said that in the early hours of 23 December 2006 he saw the applicant kicking another male who was lying on the ground. When cautioned in relation to this McEleney said, “I’m glad I done it. I want everyone to know I got him back.” The learned trial judge deferred his ruling on the application until the prosecution case had reached an advanced stage. He considered that it was relevant to an important matter in issue between the prosecution and defence, namely whether the applicant kicked the deceased in the manner alleged by the prosecution, that is by kicking him as he lay defenceless on the ground. He concluded that the similarities between that conduct and the conduct alleged were so marked that the evidence established a propensity to carry out attacks of this nature. He did not consider it unjust to admit it as the evidence was focussed on this single incident. These were decisions plainly within the area of judgment open to the trial judge and in our view cannot be characterised as erroneous.

 

[34]      Ms McDermott criticised the direction of the learned trial judge as to how this might assist the jury in their deliberations. The judge told the jury that they could take it into account in deciding whether the applicant was guilty of murder. She submitted that the conduct on 23 December 2006 did not assist with the mental element required for murder. Leaving to one side the inference that might properly have been drawn by the jury from the applicant’s remarks after caution the learned trial judge clearly placed his remarks in context when he invited the jury to consider how this might assist:-

 

“You may properly take the earlier evidence into account in deciding whether he is guilty of murder. The main question for you will be whether you consider the evidence of the earlier criminal conduct demonstrates that Edward McEleney has a tendency, an inclination, to engage in the kind of conduct alleged against him in this trial. If you consider that the earlier criminal conduct does demonstrate such a tendency or inclination, then it is a matter for you to decide to what extent that assists you in determining whether on the night in question he did, in fact, kick or stamp on Liam Devlin on the ground as the prosecution allege. You must bear in mind that it does not follow that just because he behaved in this way on a previous occasion he did so again on the occasion under consideration."

 

Insofar as the applicant submits that the earlier conduct could only be relevant to the actus reus of the offence that is how the learned trial judge directed the jury. We consider, however, that in light of the applicant’s comments after caution the learned trial judge would have been entitled to give a direction supporting an intention to cause serious harm to the earlier victim.

 

Conclusion

 

[35]      For the reasons given we do not consider that the convictions are unsafe. We dismiss the appeal of the first named appellant and refuse leave to appeal in each case.

 

 

 

 

 

Annex

 

Route to verdicts

 

In relation to the defendant Cruickshank (“C”)

 

1. Are you satisfied beyond reasonable doubt that C applied physical force to the deceased on 4 August 2007?

 

If the answer to this question is no then you acquit him

 

2. If the answer to (1) is yes, are you satisfied beyond reasonable doubt that C was not acting in self-defence?

 

If your answer to this question is no then you acquit him.

 

3. If the answer to (1) and (2) is yes, are you satisfied beyond reasonable doubt that C’s actions contributed substantially to the death of the deceased?

 

 If your answer to this question is no then you acquit him.

 

4. If the answer to (3) is yes are you satisfied beyond reasonable doubt that C intended to either kill or cause really serious harm to the deceased?

 

If the answer to (1) (2) (3) and (4) is yes then you find C guilty of murder.

 

If you answer (1) (2) and (3) yes but you answer (4) no if you are satisfied beyond reasonable doubt that the physical force applied would have been likely to cause some harm you find C not guilty of murder but  guilty of manslaughter.

 

In relation to the defendant McEleney (“McE”)

 

If you find the defendant C guilty of murder you should proceed to answer the following questions:

 

1.   Are you satisfied beyond reasonable doubt that McE was acting together with C as part of a joint plan to subject the deceased to physical violence?

2.   If the answer to 1 is yes, did McE intend that the joint actions of C and McE would cause the deceased really serious harm or death?

 

If the answer to 1 and 2 is yes then you will find the defendant guilty of murder.

If the answer to 1 is yes but the answer to 2 is no then if you are satisfied beyond reasonable doubt that the physical violence was such as was likely to cause some harm you will find the defendant guilty of manslaughter.

 

1. If your answer to 1 is no, are you satisfied beyond reasonable doubt that:

 

(a)               McE assisted or encouraged C to subject the deceased to physical violence

(b)              MeE intended or believed that his acts of assistance or encouragement would assist and encourage C to carry out the acts which he did

(c)                McE understood and appreciated the nature C’s acts

(d)              McE foresaw or knew that C would act in the way he did with intent to cause the deceased death or really serious harm?

 

If the answer to each of (a) (b) (c) and (d) is yes you will find the defendant guilty of murder.

 

If the answer to (a) (b) and (c) is yes but your answer to (d) is no you will find McE not guilty of murder but guilty of manslaughter.

 

If you find C not guilty of murder but guilty of manslaughter you should consider the following questions:

 

1. Are you satisfied beyond reasonable doubt that McE was acting together with C as part of a joint plan to subject the deceased to physical violence but did not intend to cause the deceased really serious harm?

If the answer to that question is yes, you will find McE guilty of manslaughter.

 

2. If the answer to 1 is no , are you satisfied beyond reasonable doubt that

 

(a)        McE assisted or encouraged C to subject the deceased to physical violence

(b)       McE intended or believed that his acts of assistance or encouragement would assist and encourage C to carry out the acts which he did

(c)        McE understood and appreciated the nature C’s acts

(d)       McE  did not foresee or believe that C’s acts would cause the deceased really serious harm or death

 

If the answer to (a) (b) (c) and (d) is yes, you will find McE guilty of manslaughter.

 

If you acquit C you will acquit McE.