Case No: 2000/5923/X3
Neutral Citation Number: [2002] EWCA Crim 632
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 15th February 2002
Before :

LORD JUSTICE KENNEDY
MR JUSTICE AIKENS
and 
MR JUSTICE PITCHFORD
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Between :
	R		
	- and -		
	James Byrne		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Ms Korner QC & Mr A Pilling  for the Appellant
Mr B Houlder QC for the Crown

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JUDGMENT
(As Approved by the Court)

Mr Justice Aikens: 
1.	On 25 September 1996 Terence Bush was fatally stabbed in the hallway of his home.  The incident was witnessed by Terence Bush’s wife, Maureen Bush.  She informed the police that three brothers, Dennis, Anthony and James Byrne were responsible for the attack and for Mr Bush’s death.  She named them as  James (“Shay”) Byrne,  Dennis Byrne and Anthony  (“Rocco”) Byrne.  Mrs Maureen Bush’s evidence has always been that all three brothers had knives and that all three attacked and stabbed her husband, thereby killing him.    All three brothers have been tried for the murder of Mr Bush.  But, most unfortunately, they have all been tried in different courts on different occasions.  
2.	Dennis Byrne was tried first.  He was acquitted of murder but convicted of manslaughter.  He did not seek leave to appeal his conviction.  Anthony was tried second and was convicted of murder in the Central Criminal Court on 26 September 1998.  James fled to Ireland and was extradited in January 1999.   He was therefore out of the jurisdiction at the time of the trials of his brothers.   At the first trial of James Byrne in July 1999 he was acquitted of murder but convicted of manslaughter.    
3.	On 13 March 2000 the Court of Appeal (Lord Bingham CJ, Alliott and Newman JJ) dealt with an application for leave to appeal against conviction by Anthony and an appeal against conviction by James.   The application of Anthony raised a number of points, all of which the Court of Appeal dismissed except for one.  That was an application by Anthony to call the evidence of his brother James.   Because James was out of the country when Anthony was tried, James was not available as a witness.  The Court of Appeal granted Anthony leave to appeal so that the Court could consider the issue of whether  the evidence of James should be admitted.
4.	The Court of Appeal then dealt with the appeal of James.  At the trial of James the Crown’s case had been that James was part of a joint enterprise with his two brothers to commit a murderous attack on Mr Bush.   At paragraph 21 of the judgment of the Court the Lord Chief Justice set out the possible hypotheses that the jury would have had to consider at the trial of James.   He identified them as follows: 
 “(1) If the Jury accepted that all brothers had knives and stabbed the deceased, then James was guilty of murder either as a principal or on the basis of joint enterprise.
(2) If the jury were satisfied that one of the brothers other than James had a knife and used it to stab the deceased and that James participated in the attack on the deceased knowing of his brother's possession of the knife and foreseeing that it might be used to inflict really serious bodily harm on the deceased, then James was guilty of murder on the basis of joint enterprise.
(3) If the jury were satisfied that one of the brothers other than James had a knife and used it to stab the deceased and that James participated in the attack on the deceased knowing of the brother's possession of the knife and foreseeing that it might be used to inflict injury falling short of serious bodily harm on the deceased, then James was guilty of manslaughter on the basis of joint enterprise.
(4) If the jury were satisfied that one of the brothers other than James had a knife and used it to stab the deceased, but that James participated in the attack on the deceased not knowing of that brother's possession of the knife and not foreseeing that a knife might be used to inflict any injury at all on the deceased, then James was not guilty of murder and not guilty of manslaughter.”
5.	The Lord Chief Justice stated (paragraph 22) that the issues of (i) whether James had a knife and (ii)  whether he foresaw the use of a knife to inflict any injury on Terence Bush,   were or might have been crucial to the jury’s verdict on hypotheses (2), (3) and (4).     As to the second of those issues there had been much evidence on incidents on 24 September involving Dennis but not James, at which a razor or Stanley knife had been produced by Dennis.   There was an issue on whether James knew of this fact.   The Court of Appeal held that the trial judge had given a material misdirection on whether they could consider evidence suggesting that James had been told by others that Dennis had had a knife on that previous occasion. 
6.	The Court of Appeal therefore allowed the appeal of James and ordered a retrial.  The Lord Chief Justice made these comments on a retrial at paragraph 34 of the judgment:
“The question of a retrial has already been touched on.  We fully appreciate that there are practical difficulties confronting the prosecution in presenting this case in reliance on the evidence of Mrs Bush.  We also appreciate that James Byrne has already spent a considerable period in custody.  These, however, are not matters which cause us to conclude that it would be other than in the interests of justice to order a retrial.  Whether the prosecution proceed with that retrial is a matter for their judgment.  It seems to us that in accordance with the interests of  justice that we should so order.”
7.	As James Byrne had been acquitted of murder at the first trial he could only be tried for manslaughter on the retrial.  That trial took place before HHJ Tilling in June 2000.  The jury failed to agree upon a verdict and were discharged.   On 30 June 2000 the prosecution expressed their intention to proceed to a second  retrial.   On 24 August 2000,  at the Central Criminal Court, the Common Serjeant heard and  rejected two submissions by the defence in relation to the forthcoming retrial.  The submissions were: (i) that it would be an abuse of the process of the court to permit a third trial of James Byrne;  and (ii) that the prosecution should not be permitted to rely upon the evidence of its principal witness, Mrs Maureen Bush.
8.	The third trial of James Byrne started before HHJ Hawkins QC on 18 September 2000.   The defence raised again the two preliminary issues that had been argued before the Common Serjeant.  Judge Hawkins refused to stay the trial and he refused to exclude the evidence of Mrs Bush.   
9.	At the end of the prosecution case the judge rejected a submission of no case to answer.   On 22 September 2000 James Byrne was convicted of manslaughter by a majority of 10 to 2.  He was sentenced to 7 years imprisonment.
10.	James Byrne appeals against his conviction of manslaughter by the leave of the single judge,  although leave was granted  for only two of the four grounds that were raised.    Miss Korner QC renewed before us her application to pursue the other two grounds and we permitted her to do so.  The four grounds put forward were:
(1) that the trial should not have proceeded as it amounted to an abuse of the process of the court;
(2) that the evidence of Mrs Maureen Bush should not have been admitted;
(3) that the submission of no case to answer should have been upheld;
(4) that the judge failed properly to direct the jury as to the limited essential mens  rea of manslaughter in accordance with the principles set out in R v Church [1966] 1 QB 59.
11.	At the hearing before us on 4 February 2002, the argument concentrated particularly on point (2) above.  At the conclusion of the argument we announced that the appeal would be allowed for reasons to be given later.   We give them now.  We are indebted to Miss Korner QC and Mr Bruce Houlder QC for their very helpful submissions. 
First Ground: Was the third trial an abuse of the process of the court?
12.	Miss Korner made two principal submissions under this head.  First she submitted that a third trial was oppressive and thus an abuse of the process.   Therefore the Common Serjeant and Judge Hawkins had been wrong to refuse to stay the third trial.    Miss Korner relied on both the delay since the death of Mr Bush and the fact that this was James’ third trial in respect of his alleged part in Mr Bush’s death.   Secondly she submitted that if at the third trial the prosecution adduced the evidence of Mrs Maureen Bush it would effectively undermine the decision of the jury in James’ first trial when he was acquitted of the murder of Terence Bush.   Therefore the third trial was an abuse of the process.   We think that the second submission is so bound up with the second ground of the appeal that we should consider it in that context.
13.	We cannot accept the first submission advanced by Miss Korner.    As far as any delay is concerned, much of it is accounted for by the appellant’s own actions in going to Ireland.   In our view the timing of the first trial and the second and third trials were all within a reasonable time once James Byrne had been extradited in January 1999.   
14.	We also reject the submission that it was wrong in principle to permit a third trial at all.    There is a convention that if a jury disagrees on the first trial and then a second jury also disagrees, the prosecution will then formally offer no evidence.  (See Archbold Criminal Proceedings and Practice (2002 Ed) at para 4 – 440).  However this is no more than a convention.  There is no rule of law that forbids a prosecutor from seeking a second retrial after a jury has disagreed.  This view of English criminal procedure was affirmed by the Privy Council in Forrester Bowe (Junior) v The Queen (Privy Council Appeal No 48 of 2000) [2000] UK PC 19; see paragraph 37 of the Advice delivered by Lord Bingham of Cornhill.
15.	In the present case the Court of Appeal ordered a retrial after it allowed an appeal from the conviction of manslaughter at the first trial because of a misdirection of law by the first trial judge.   The second retrial was sought and permitted after the jury had disagreed on the first retrial.  So the situation is not the same as in a case where two juries have disagreed.    Having considered the timing and the circumstances in which the second retrial took place we are satisfied that the decision to allow a second retrial was clearly reasonable.  Therefore it did not amount to an abuse of the process.  We reject the first ground of appeal.
Second Ground: Should the prosecution have been permitted to lead the evidence of Mrs Maureen Bush?
16.	At the trial before Judge Hawkins the prosecution had to consider carefully how it put its case against James, given his acquittal of murder at the first trial.   At the first trial of James Byrne the prosecution case had been that all three brothers were engaged in a joint enterprise to murder Mr Bush.   But as a consequence of James’ acquittal of murder, at the third trial the prosecution could not, in practice, advance a case that James had a knife and stabbed Mr Bush with it.   To do so might suggest that the prosecution was going behind the jury’s verdict.   Accordingly the prosecution had to advance the case that James was a secondary party to a joint enterprise of the three brothers to commit an unlawful attack on Terence Bush.   The prosecution could put forward this case on two bases.   First it could have said that James did not know one of his brothers had a knife at all.  Secondly the prosecution could suggest that he did know, but he did not foresee that the knife might be used to inflict really serious bodily harm.   (Those are, respectively the fourth and third hypotheses referred to in paragraph 21 of the judgment of Lord Bingham CJ on James’ appeal from the first trial).
17.	We were told by Mr Houlder that during the trial before Judge Hawkins there was a great deal of discussion about precisely how the prosecution was putting its case against James.  There is a reference to this in the ruling that Judge Hawkins made when rejecting the submission of no case to answer.   We were told by Mr Houlder that ultimately the prosecution had to put its case on the basis of hypothesis (3) as identified in the judgment of Lord Bingham CJ on James’ appeal after the first trial.  Thus the prosecution case against James at the third trial was as follows: (i) that there was a joint enterprise by all three brothers to commit a deliberate and unlawful assault on Terence Bush; (ii) James Byrne was present at the attack on Terence Bush;  (iii) James Byrne was not carrying a knife himself; however (iv) James Byrne took part in this joint enterprise by his presence and his intention, in being there, to encourage the attack;  (v) one of the other two brothers caused the fatal stab wound in the course of the attack on Mr Bush;  (vi)  James Byrne participated in the attack knowing that one or other brother had a knife,  but realising only that the knife might be used to inflict injury falling short of really serious harm on Mr Bush.
18.	This way of putting the prosecution case was reflected in the Judge’s summing – up.  It is not necessary to set the passages out in full. The references in the transcript are: pages 4D to 6E; 7A to E; and 60A to E.
19.	The defence put forward by James Byrne was that he was present at the time of the attack but he took no part in it.  His evidence was that he was trying to restrain his brother Dennis from stabbing Mr Bush, but he was unable to do so.
20.	The only person who saw the attack on Mr Bush was his wife, Mrs Maureen Bush.   Apart from one piece of evidence that emerged only at the third trial (and we think is irrelevant to the present issues), her evidence at all three trials of James Byrne was to the same effect.  It is accepted that her evidence was fully and accurately summarised in the summing up of Judge Hawkins as follows.  (The references to “Shay” are references to James Byrne).  First at pages 20 – 22 the judge stated:
 “Now, members of the jury I will remind you of the important evidence of Mrs Bush, when she comes to deal with the evening in question.  She said in the early evening, she and her husband were watching television.  There was no-one else in the house.  She said that she heard excitable Irish voices; and she put it at minutes rather hours – the time was given to when the ambulance arrived: 7.48 – before that.  "These excitable Irish voices were coming into my front gate.  I heard, 'Is that it?  Is that it?  I was," she said, "in the lounge."  You have got the plan.  You appreciate where that is.
She said, "It worried me, and I told my husband I thought it was the Byrnes.  I recognised, "she said, "Shay's voice.  They knocked at the door.  My husband opened it.  I said, 'Don't open it' and he did.  I followed him into the kitchen.  I was standing just at the end of the kitchen, towards the passage.  I could see my husband at the door.  I saw my husband open the door.  I could see who was outside the door – Denny, Rokko  and Shay.  I followed him and he walked through the kitchen to get to the door; and I could see properly and I see the three brothers standing on the doorstep.  I saw them coming up the steps.  I saw that when I was in the kitchen; and my husband said, 'what did you want?'  They had had a drink and were very excitable."
She referred to them asking for Billy and Tommy.  "I asked what they wanted" – and that Terry her husband, would give them a message;  and he said could he give a message?  She said, "They said,  'You can have it then, you cunt!'"  She said, "It was Shay who said that."  She said,  "They had knives on them; and I told Terry to close the door.  He tried to, and the three of them pushed the door.  He was pushed back onto the stairs and he fell back onto the stairs.  They started stabbing him: Dennis Rokko and Shay – all three.  Terry tried to defend himself with his hands.
I was standing in the little gap that leads out of the kitchen into the hall.  They were stabbing him everywhere.  I was hysterical.  I couldn't do anything.  I was there on my own.  I could not say anything.
I begged Rokko to stop stabbing.  He was the one, she says, “who was nearest to me.  He came into the lounge through the hallway, and said, 'You can have fucking some of it!' and pulled the bayonet to me which was already in his hand.  He came in the lounge way, and I ran through the kitchen.  When I see him doing it, it was too much; because I ran into the lounge through the kitchen.  Then Rokko was near me – only Rokko was there, with me, then; I couldn't see what was happening in the hallway, then…”
“I ran through the kitchen, back the way I came, into the hallway, Shay and Denny were there.  They were still over Terry; I ran out into the street to get help.  Rokko said, 'Are you going to fucking go and get the Old Bill?'  I said,  'That’s exactly what I am going to do'.  Dennis was standing by the wall, " she said,  "Shay in the middle and Rokko was closest to me.  They were stabbing from those positions”.          
21.	Secondly at pages 26 to 27 the Judge further summarised  Mrs Bush’s evidence as follows:
“Shay tried to kill Terry – and did, in fact, more than the brothers.  The three were as bad as each other.  All three stabbed my husband.  My husband was breathing until the blow was delivered by Shay.  I think he was unconscious, breathing.  Shay gave him the last blow.  Shay was, at all times, the one in front of my husband, in the middle.  At the beginning, my husband put his arms up to ward off the blows.  After that he was lifeless."  It was put that all Shay was trying to do was pull off Denny; and she said, "No; he was as bad as the other two.  He might be worse.”   
22.	At page 9 of his summing up the Judge had referred to another piece of evidence of Mrs Bush as follows:
 “Let me say some more about Mrs Bush, before I come to the details of the evidence.  I want to remind you of this.  She said in evidence that Shay plunged the knife in an upward motion in his stomach – her husband, that is.  He was leaning over.  I heard the air come out of his body.  That is exactly what he did do.  He was a bad as the other two – maybe, worse.”
23.	It will be immediately obvious that the evidence of Mrs Bush, which was that James Byrne had a knife and actually used it on Mr Bush with murderous intent, was quite contrary to the way that the prosecution was putting its case against James Byrne at the second retrial.   The prosecution case was that he did not have a knife and did not stab Mr Bush at all, let alone with any intent to kill or do really serious bodily harm to him.   Therefore the only part of Mrs Bush’s evidence that was probative of the prosecution case as put was that James Byrne was present at the attack and that he did not restrain his brother Dennis or attempt to do so.
24.	The prosecution was, of course, well aware of this difference between the way it put its case against James Byrne and the evidence that Mrs Bush would – and did – give.   It sought to deal with it in three ways at the second retrial.  First the prosecution invited the judge to direct the jury that James Byrne had been acquitted of the murder of Mr Bush at his first trial and that this acquittal was conclusive evidence on a charge of murder.  The judge did so at pages 4H – 5A of his summing up.  Secondly the prosecution said that it would not rely on that part of Mrs Bush’s evidence that indicated that James Byrne had a knife and stabbed Mr Bush in the attack.   The prosecution invited the judge to remind the jury in his summing up that this was the prosecution’s position.  They also invited the judge to give the jury a direction that they should treat Mrs Bush’s evidence with caution.   The judge did both of these things:  see pages 10B to 11B of the summing - up.   Thirdly the prosecution stated that it would rely upon the evidence of Dr Paula Lannas,  a forensic pathologist.  Her evidence (which was not challenged) was that all the wounds inflicted on Mr Bush were consistent with being inflicted by one or more single edged weapons and were to the upper part of Mr Bush’s body.   Dr Lannas’ opinion was that the fatal stab wound (designated wound No 3 in her report) was a vertical stab wound over the upper part of the right chest just above the sternal notch.   Therefore, the prosecution submitted to the jury,  this scientific evidence disproved any suggestion by Mrs Bush that the fatal wound to Mr Bush came from a stab by James to Mr Bush’s lower abdomen.
25.	The judge dealt with these latter two points in his summing up as follows (at pages 9  - 11):
“Let me say some more about Mrs Bush, before I come to the details of the evidence.  I want to remind you of this.  She said in evidence that Shay plunged the knife in an upward motion in his stomach – her husband, that is.  He was leaning over.  I heard the air come out of his body.  That is exactly what he did do.  He was a bad as the other two – maybe, worse.
Mrs Bush drew a knife that she says she saw the defendant carrying --  a bayonet-type knife that was double edged.  Doctor Lannas's evidence which was undisputed, is that in her opinion the knife that caused the fatal wound was caused by a single edged knife;  and the prosecution, in their final speech, do not ask you to act on her evidence that he plunged the knife in that way into Mr Bush.  The case for the prosecution depends upon the evidence of Mrs Bush.
As I have already said to you, you are entitled to rely upon some or all of what a witness has said, because that is a matter of fact, and you consider it in the light of all the evidence that has been placed before you.    But in the light of what Crown counsel said in the closing speech --- and in the light, indeed of Doctor Lannas's undisputed evidence – I direct that you should approach the evidence of Mrs Bush regarding the events of 25th September with caution, in all the circumstances of this case.  You should bear that warning in mind before relying upon any part of her evidence.  Of course, the defence say – and this was a submission for you to consider; they are saying, in the circumstances of this case, you should not rely upon it at all.  But, as I say, the facts are entirely a matter for you to consider.”
26.	The argument raised by the defence, (in its application to the Common Serjeant, then to Judge Hawkins and before us), is as follows: (i) the evidence of Mrs Bush, particularly that about James having a knife and stabbing Mr Bush in the stomach, is irrelevant to the way in which the prosecution put its case against James Byrne at the second retrial;  (ii) therefore such evidence is inadmissible;  (iii) further the irrelevant evidence of Mrs Bush is so prejudicial to James Byrne that whatever directions the jury was given about its reliability or the contrary evidence of Dr Lannas,  the jury was bound to be affected by Mrs Bush’s evidence, so that James Byrne could not have a fair trial.  Miss Korner pointed out, correctly in our view, that apart from the evidence of  Mrs Bush, there was no credible evidence to put before the jury to indicate that James Byrne had been present at the attack and that he had, by his presence intended to encourage and did encourage his brothers in the unlawful assault on Mr Bush.
27.	In support of the proposition that the prosecution cannot be permitted to adduce irrelevant evidence as part of its case,  Miss Korner referred us to a decision of this court in R v Sandhu (Case No 96/1727/W5: 10 December 1996).  There is a short report of the case at [1997] Crim LR 288 but we were referred to the full transcript of the judgment of Lord Bingham CJ.   The appellant had bought a Grade II Listed Building in very poor condition.   He obtained listed building consent to carry out certain defined works to the building.  Works were performed between July 1993 and April 1995.    Mr Sandhu was charged with seven offences of causing work to be executed for the alteration of a listed building without authorisation,  contrary to section 9(1)  of the Planning (Listed Buildings and Conservation Areas) Act 1990.    The thrust of the prosecution case was that the works that were actually carried out were not those authorised by the grant of the listed building consent that had been given.  It was said that he had replaced windows when the originals should have been repaired and he had removed original fittings and not kept them  for future re – use.  Mr Sandu was convicted before a jury on six of the seven charges.   
28.	It was agreed before the trial judge and the Court of Appeal that the offences were of strict liability. Therefore issues as to the defendant’s intent or state of mind, motive or knowledge were irrelevant to the issue of guilt.     However,  at the trial counsel for the prosecution proposed to adduce evidence that suggested that the defendant had been clearly warned by the local authority’s representative and by his own surveyor as to what he could or could not do to the Listed Building,  but the defendant chose to ignore those warnings.     The objections of the defence were rejected by the trial judge and evidence to show the attitude of mind of the defendant (i.e. that he would ignore the restrictions of the planning consent and do what he wanted) was led by the prosecution.
29.	The defendant appealed on the ground that the conviction was unsafe because  the judge should not have permitted admission of the evidence that went solely to his motive or state of mind because it was irrelevant to the matters to be proved and so inadmissible.   The Court of Appeal accepted that submission.   It identified five questions that had to be answered by the jury in that case.    At page 9 of the judgment,  the Lord Chief Justice stated:

“In our judgment it is important to have regard to the principles which have to be observed in a case of this kind.  Any evidence adduced by the prosecution was, as we think, relevant if and to the extent that it went to answer any one of the five questions already indicated.  Evidence which did not go to answer any of those five questions was irrelevant and therefore inadmissible.  There are of course cases in which evidence, although irrelevant and inadmissible, is not prejudicial to a defendant and thus will not threaten the safety of the conviction.  Such is the case where the evidence is neutral.  But where evidence is irrelevant, inadmissible and damaging to a defendant, then it is in truth mere prejudice.  Its admission will serve no purpose other than to incline a jury to think badly of that particular defendant…….”
30.	Miss Korner also referred us to another decision of this court:  R v Pacey (Case No 92/6419/X2: 21 February 1994).    However we think that Pacey does not particularly assist on the present issue.
31.	We accept, of course, that R v Sandhu was a case involving strict liability.  But we think that the general principle stated by the Lord Chief Justice in that case is equally applicable in a case where the offence involves mens rea.   As a  general rule the prosecution is entitled to adduce evidence that is sufficiently relevant to an issue in the case as advanced by the prosecution.   But all that is irrelevant or is not sufficiently relevant to the case as put should, generally speaking, be excluded.   (See Cross & Tapper on Evidence 8th edition page 56: Hollington v  Hewthorn & Co [1943] 1KB 587 at 594 per Goddard LJ).   The second part of this principle must be particularly observed where the admission of irrelevant evidence (which, by definition, is not probative of the alleged offence) is likely to be prejudicial to the defendant.
32.	In our view the evidence of Mrs Bush that James Byrne had a knife and that he used it to stab Mr Bush in the stomach was irrelevant to the prosecution case as put.  That case was (we repeat) that Mr James Byrne did not have a knife;  that he did not stab Mr Bush;   but that he was present and encouraging others in the attack and was intending to do so, whilst only realising that a knife might be used to cause some harm to Mr Bush that fell short of really serious harm.  
33.	The evidence of Mrs Bush about James Byrne and a knife could not prove the prosecution case as advanced.   On the contrary the evidence of Mrs Bush concerning James Byrne and the knife was about as prejudicial as it could be towards the defence of  James Byrne.    We have concluded that no direction of the judge,  however strongly worded,  that James Byrne had been already acquitted of murder;  that the prosecution did not rely on the evidence of Mrs Bush with regard to James Byrne having and using a knife in the attack and that the jury should be very cautious before accepting such evidence, could  be guaranteed to undo the prejudicial effect of  the irrelevant parts of Mrs Bush’s evidence.    
34.	Accordingly we accept Miss Korner’s submission to this extent: the evidence of Mrs Bush that James Byrne had a knife and used it to stab Mr Bush in the attack was irrelevant to the prosecution case; was therefore inadmissible and was damaging to the defendant, so that it was mere prejudice.   We conclude that the admission of that evidence served no purpose in fact other than to incline the jury to think badly of the defendant.  Therefore Judge Hawkins should not have permitted the prosecution to adduce the evidence of Mrs Bush in the form that it was given.   
35.	Did its admission make the conviction unsafe?   Once the evidence of Mrs Bush was admitted concerning James Byrne and the knife, it is impossible to tell what effect it might have had on the minds of the jury.   The jury may have thought that her evidence suggested that James Byrne had in fact committed murder.   However, because the judge had directed them that James Byrne had been already acquitted of murder, they may have been swayed by her evidence  to convict him of manslaughter.   As we have no idea how the jury reacted to this irrelevant, inadmissible and prejudicial evidence, we feel bound to conclude that the conviction of manslaughter was unsafe.  It must therefore be quashed.
36.	We appreciate that the prosecution was put in a very difficult position given what we hope were the unique facts of this case.   It might have been possible for the prosecution to call Mrs Bush to give only very limited evidence, to the effect that she saw James Byrne at the scene of the attack.   It would then have been for the defence to decide what further evidence to elucidate from her.  If she then gave evidence that prejudiced James Byrne the defence could not have complained.   But there may well have been practical reasons why such a course could not have been adopted at the second retrial. 
Third Ground: that the submission of no case to answer should have been upheld.
37.	In the light of our conclusion on the Second Ground of Appeal, we do not need to consider this issue.   We think that this ground of appeal fails to focus on the right point, which is the anterior question of whether Mrs Bush’s evidence should have been admitted as it was.   And if the evidence of Mrs Bush had been limited in the way we suggest above, then there would have been a case to answer.
Fourth Ground: failure of the judge to give a Church direction.
38.	Once again, given our conclusion on the Second Ground of Appeal, it is unnecessary to consider this point.  However in our view there is nothing in it in any case.    The prosecution’s case was that James Byrne was a secondary party to a joint enterprise to commit an unlawful attack on Mr Terence Bush.  It was common ground at the second retrial that Mr Bush had died as a result of the unlawful assault.   Miss Korner acknowledges that the judge directed the jury (several times) that (i) they had to be sure that one of James’ brothers caused the fatal stab wound; and (ii) that James participated in the attack (by encouragement) knowing of a brother’s possession of a knife and (iii) realising that the knife might be used to inflict injury falling short of really serious bodily harm.    As a matter of settled law the last of those ingredients constitutes the defendant’s mental state that has to be proved in order to convict a person of manslaughter where he is accused of being a secondary party to a joint enterprise to commit an unlawful assault on another as a result of which the victim has died.   Therefore there is no need for a judge to give any further direction to the jury as to the state of mind of either the defendant secondary party or the principal party in the joint enterprise who inflicts the fatal wound on the victim.   Accordingly we hold that the judge was correct not to give the jury any “Church”  direction on the mens rea needed for manslaughter. 
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LORD JUSTICE KENNEDY: This case was listed before us on Monday, 4th February.  On that day we concluded the hearing of the appeal.  The appeal was allowed. The reasons for that decision are now available and may be obtained by anyone who wishes to reads them.