Neutral Citation no. [2001] NICA 9	Ref:     	NICE3316	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	09.03.2001	
(subject to editorial corrections)	 	 	

 	

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
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THE QUEEN
 
V
 
TREVOR McCANDLESS
 
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NICHOLSON LJ
 
1.         Introduction
	I have had the benefit of reading the judgment (in draft) of the Lord Chief Justice on behalf of the majority of the court.
	The appellant unlawfully killed his wife in the early hours of 14 May 1998.  He was convicted of murder by a jury at Ballymena Crown Court on 6 May 1999.  Issues at the trial included (a) whether he lacked the intent to kill or cause grievous bodily harm through the consumption of alcohol, (b) whether he was suffering from diminished responsibility and (c) whether he was provoked.
	The Lord Chief Justice has dealt with the factual background and I gratefully adopt it.  The trial judge left to the jury the issues to which I have referred in view of the evidence and he was right to do so.  By their verdict the jury found that the prosecution had established the requisite intent, eliminated provocation and that the appellant had failed to prove that he was suffering from diminished responsibility on the balance of probabilities.  
 
2.         The Previous Conviction
	One of the issues on the appeal was that the trial judge allowed the psychiatrist called by the defence to be cross-examined by counsel for the Crown about a previous conviction of the appellant.  The trial judge made it clear to the jury that the conviction which had occurred 12 or 13 years previously should not be held against the appellant and should be disregarded completely so far as he was concerned.  It was only relevant to the credibility of the psychiatrist.  In my view the trial judge was entitled in the exercise of his discretion to allow this cross-examination as to credit although I have reservations as to whether  it was necessary.  I respectfully agree, therefore, with the reasoning of the majority on this issue.
 
3.         The Direction on Provocation
	Another issue was whether the trial judge directed the jury adequately on the issue of provocation.  In view of the majority decision of the House of Lords in R v Smith (Morgan) that the personal characteristics of the defendant in so far as they are relevant to the standard of self-control to be expected of him must be taken into account in assessing the standard of self-control of the reasonable man under Section 7(1) of the Criminal Justice Act (Northern Ireland) 1986, it is clear that the trial judge mis-directed the jury.  He declined to give a direction in terms approved by the Court of Appeal in England before the trial and later upheld by the majority in the House of Lords.  Accordingly I respectfully agree with the reasoning of the majority of the court on this issue.  The conviction must therefore, be set aside and, as stated at the end of the hearing of the appeal,  we ordered a re-trial.
 
4.         The Verdict of the Jury
	A third issue, which was canvassed by the trial judge with counsel and raised in his charge to the jury, related to the question whether a verdict of manslaughter can be upheld if the jury is unable to agree (subject to the majority rule) on the basis of their verdict of manslaughter.  In the present case such a verdict might have been brought in on the ground of lack of the relevant intent, or provocation or diminished responsibility or a combination of two or three grounds, different groups of jurors reaching their verdict by different routes.
	The trial judge did not tell the jury that they should disagree on the charge of murder if they were unable to agree (subject to the majority rule) on the basis of a verdict of manslaughter.
	But, logically, it appears to me to follow that, if one accepts the proposition that a verdict of manslaughter can only be brought in if the jury is agreed on the basis for it, the charge of murder remains.  Either the votes of individual jurors count or they do not.  If different groups agree that the prosecution failed to establish the necessary intent, failed to eliminate provocation and failed to neutralize `diminished responsibility’  they should return a verdict of `Not Guilty of Murder’ but `Guilty of Manslaughter’ or, because of the direction of the trial judge that they must be agreed on the basis of their finding of manslaughter and cannot agree, they should disagree on the charge of murder.
	One approach which I share is that the prosecution has proved an unlawful killing but has failed to prove murder and a verdict of Not Guilty of Murder but `Guilty of Manslaughter’ should be entered.  A second approach is that the jury should be told that they must disagree on the charge of murder and the third approach is that they should find the defendant Not Guilty of Murder but disagree on the verdict of manslaughter because they cannot agree on the answer to questions put to them by the trial judge.
	The majority of the court certainly take the third approach but I am not sure whether they take the second approach.  Observations of Lord Goddard CJ in R v Matheson (1958) 42 Cr App R 145 at 153, the decision in R v Brown (1984) 79 Cr App R 115, the decision of the Court of Appeal in England in R v Jones (The Times, 17 February 1999) and R v Gribben, a decision of the Court of Appeal in Northern Ireland (1999, unreported on this point) are discussed by the Lord Chief Justice.
 
5.         The Decision in R v Matheson
	At the end of his judgment in Matheson  Lord Goddard, LCJ said:-
“Before parting with the case, this is a convenient opportunity for laying down a rule of practice in cases where a defence of diminished responsibility is raised …  The issue must be left to the jury just as the issue must be if the defence is insanity.  It may happen that on an indictment for murder the defence may ask for a verdict of manslaughter on the ground of diminished responsibility and also on some other ground such as provocation.  If the jury return a verdict of manslaughter, the judge may, and generally should, then ask them whether their verdict is based on diminished responsibility or on the other ground or on both.”
 
	The majority of this court consider that the inference to be drawn from these dicta is that Lord Goddard was stating that the jury must be unanimous (majority verdicts were not allowed at the time) as to diminished responsibility or on the other ground or on both.  The other ground might have been provocation but it is clear that he had in mind other grounds (such as lack of the relevant intent, I presume).  But the defence of diminished responsibility only arises if the accused would otherwise have been found guilty of murder.  A finding of lack of the relevant intent for murder is a separate ground for a verdict of manslaughter.  Therefore, it seems to me, with respect, that when Lord Goddard stated that the judge should ask the jury whether their verdict was based on both diminished responsibility and the other ground, he must have realised that the verdict of some of the jury might be based on diminished responsibility (where the onus of proof rests on the defence) and others on provocation or lack of the relevant intent for murder (where the onus of proof is on the prosecution).  If they agreed that it was based on diminished responsibility rather than provocation or vice versa, this might assist the judge on sentence, but if the answer was `both’ this would not be so helpful, not least if the jury were split into two or three groups.
	In my view it is only if the jury inform the judge that they are agreed (subject to the majority verdict rule) on the basis of their verdict that they should be asked about it and, ideally, they should give it as part of their verdict.  Once they have given their verdict it is preferable that they should not be questioned about it and they should be told in the course of summing-up that they are not obliged to answer the judge’s questions.
 
6.         The Decision in R v Kevin Brown
In Brown (1984) 79 Cr App R 115 the appellant was charged with fraudulently inducing investments contrary to section 13(1)(a) of the Prevention of Fraud (Investments) Act 1958.  On four counts he was alleged to have fraudulently induced four separate persons to enter into agreements to acquire shares in a company, by making a number of misleading statements to each of them.  The jury asked the trial judge “if the individual members of the jury find him guilty of different parts of the count, is he guilty of the whole count, and is the verdict of guilty unanimous?”  They were directed that it was sufficient if all agreed that there was a dishonest inducement even if they differed as to the statements in the particulars which they relied upon as the inducement.  The appellant was convicted and appealed on the ground that the jury had been misdirected.
It was held, it would appear, that the judge’s direction led the jury to believe that they did not have to agree that he had made at least one of the statements inducing the victim to agree to acquire shares in a company but that if some agreed that he had made one and some agreed that he had made another statement this was sufficient.
	Eveleigh LJ, giving the judgment of the court stated:-
“In a case such as that with which we are now dealing, the following principles apply:  
 
1.         Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).
 
2.         However, where a number of specified matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that only one of them is proved:  but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury.  The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.”
 
	In other words it was not enough for different members of the jury to be satisfied that different misleading statements were made.  They must all be satisfied that one of the misleading statements induced the victim to agree to acquire the shares.
	Earlier, however, after discussing another case in which this problem did not, arise, he said:
“Different members of the jury may arrive at their conclusions by different routes.  Far from invalidating their final conclusion, different approaches which lead to the same result may often be seen as strengthening the verdict.  They may be able to say, which ever way one looks at it, the case is proved.  A juror may reach his conclusion by relying upon certain parts of the evidence and, having reached that conclusion, find it unnecessary to proceed to see whether he accepts other parts of the evidence.”
 
	In R v More (1988) 86 Cr App R 234 the House of Lords stated that each ingredient of an offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction) and stated that there was no basis in that case for validly contending that the assistant recorder failed … to give an appropriate direction on the lines of the principle laid down in Brown’s case, assuming always that that case was properly decided and that this case properly attracted such a direction.  See also the passage in the judgment of Lord Bingham in R v Smith [1997] Cr App R 14 at pp17 to 19.
 
7.         The Decisions in R v Jones and R v Gribben
	I rely on the passages in the judgment of Rose LJ set out in Jones (The Times:  17 February 1999) by the Lord Chief Justice in his judgment.  I refrain from setting them out again.  I also agree with the judgment of this court (of which I was not a member) in R v Gribben (Unreported on this point:  29 January 1999) although I realise that the Lord Chief Justice has decided on reflection that what was said there on this point is incorrect.
	I consider that the ratio decidendi of Brown can be distinguished from the ratio of Jones.   The former concerns the proof of essential ingredients for an offence; the other concerns the conviction of an accused for a less serious offence than the offence with which he is charged because the prosecution has failed to prove the more serious offence and has proved the essential ingredients for the lesser offence and it is open to them to convict of the lesser offence, when the accused is charged only with the more serious offence.  
 
8.         The Homicide Act 1957 and the Criminal Justice (Northern Ireland) Act 1966
	It has to be remembered that in 1957 the death penalty was the punishment for murder.  The Homicide Act 1957 sought to lessen the severity of the law relating to murder.  In my view it did not create new statutory offences.  Section 1 abolished the doctrine of “constructive malice”.  Section 2 sought to provide a `defence’ for those who were unable to show that they were insane within the MacNaghten Rules and to follow the more liberal approach in Scotland (cf Section 5(1) of the 1966 Act).  Section 3 widened the `defence’ of provocation (cf Section 7 of the 1966 Act).
 
9.         Different Routes to a Verdict of Murder
	It might be argued that a jury should be directed as to the route which they must follow if they are to find an accused Guilty of Murder.
	In many cases the prosecution will rely on a confession, on evidence of identification and on forensic evidence.  The defence may seek to say that the confession is unreliable because the accused has a low IQ and is easily persuaded, that the evidence of identification is of poor quality and that the forensic evidence is unsound.  If four of the jury are sure that the confession is true but have a reasonable doubt about the quality of the identification and the forensic evidence, four are sure that the evidence of identification can be safely relied on but not the confession or the forensic evidence and four are sure that the forensic evidence establishes guilt but are doubtful about the reliability of the confession and the evidence of identification, all the jurors are satisfied (on the evidence) that the essential ingredients of the offence, namely the killing and the intent to kill or cause grievous bodily harm have been proved.  It follows that groups of jurors may join with other jurors in reaching a verdict of murder, although the evidential routes which they follow are markedly different.
 
10.       Different Routes to a Verdict of Not Guilty of Murder
	The question arises as to whether a jury should be directed as to the route which they must follow if they are to find an accused Not Guilty of Murder.  In many cases, the defence may raise the issues of self-defence and accident and perhaps throw in an alibi for good measure.  If four jurors consider that the accused may have acted in self-defence but reject accident and the alibi, four others reject self-defence and accident but have a reasonable doubt based on the alibi and four others consider that death may have been accidental but reject self-defence and the alibi, the prosecution have failed to prove to the satisfaction of all the jurors essential ingredients of the offence of murder.  The jurors have followed different routes but all have a reasonable doubt about the Guilt of the accused.  Individual jurors or groups of jurors may approach `defences’ to the charge of murder in different ways but unite in a verdict of `Not Guilty’.
If, then, the charge is Murder and the issues of intent, provocation and diminished responsibility are left to the jury as they were in the present case, and one group of jurors consider that the accused was so intoxicated that he intended only to cause actual bodily harm but reject provocation and diminished responsibility, another group consider that he was provoked so as to lose his self control and act as he did and that a reasonable man might have done the same but are sure that he intended to cause grievous bodily harm and reject the defence that he was suffering from diminished responsibility, and a third group are satisfied on the probabilities that he was suffering from diminished responsibility, it follows that they are entitled to find the accused Not Guilty of Murder.  Are they to disagree on the charge of Manslaughter, when the prosecution has proved the essential ingredients of manslaughter, namely an unlawful killing by the accused?

 
11.       Questions to the Jury about their Verdict
	I consider that a judge who decides to  ask the jury questions on matters about which he has given directions should tell the jury that they are not obliged to answer the questions.  The judge has no more right to require them to answer his questions than others have to re-open verdicts as a result of statements made by jurors about their deliberations after they have been discharged.     If there is to be a reform of trial by jury, requiring them to give reasons for their verdict, so be it.  It does not arise in the instant appeal.
	The reason why judges wish to know what led to the verdict of the jury is in order to impose the appropriate sentence.  Yet I have never known a judge to ask the jury, when they convicted an accused of murder, whether the conviction was based on an intent to kill or an intent to cause grievous bodily harm.  Although the sentence of life imprisonment is mandatory for murder the period of imprisonment which the judge may recommend as a tariff in England could be affected by the answer to such a question.  
Sentencing is as a general rule a matter for the judge who has heard the evidence; the criminal record of the person who has been convicted may not be known to the jury; it may include crimes of violence.  The plea in mitigation may reveal facts that, for the purposes of the trial, were not considered appropriate for the jury to hear or were irrelevant to the charge; psychiatric or pre-sentence reports may affect the sentence if it is not mandatory, and may affect the tariff in England, when the life sentence is mandatory.  In Northern Ireland we do not have a tariff but we are entitled to make a recommendation as to the minimum period which the accused is to serve for murder.
	With respect, I do not accept the criticism by Glanville Williams in his Textbook of Criminal Law at p630 of the decision of the Court of Appeal in England in R v Larkin [1943] 1 KB 174 that if a verdict of a jury is plain and unequivocal and unambiguous in its terms the jury should not be questioned about it.  
In R v Warner (1967) 51 CAR 437 at 443 Diplock LJ said:
“It may well be … that once a jury has brought in a verdict of Guilty or Not Guilty, they have performed their function and are entitled to be discharged; and that they are under no obligation to answer any further questions which the judge may put to them, although it is common practice in murder trials for the judge to do that in order to discover what the reason for the manslaughter was”.
 
In R v Cawthorne [1996] 2 Cr App (S) the Court of Appeal in England said:  “There are grave dangers in asking juries how they had reached a particular verdict:  for example, they might not all have reached the verdict by the same route” per Swinton Thomas LJ.  In that case a verdict of manslaughter was returned on a count of murder.  The issue was whether the verdict had been returned on the basis of unlawful killing without the necessary intent, provocation or from negligence.  The judge asked the jury whether they were prepared to indicate the basis of their verdict but the foreman declined.  This is not, with respect, contrary to the decision in Matheson.  Lord Goddard did not say that the jury should be directed that they consider separately the different grounds on which they might bring in a verdict of manslaughter nor did he say that if they could not reach an agreed verdict on either issue, they should state that they had disagreed.  
	Archbold 2001 states at 5-17:  “The extent to which it is permissible or desirable for a sentencer to question a jury about the basis on which they have arrived at a particular verdict was considered in R v Solomon and Triumph (1984) 6 Cr App R(S) 120.  The Court of Appeal said that it was generally undesirable to ask a jury to explain an otherwise unambiguous verdict:  to invite them to refine their decision could only lead to confusion.”  The headnote reads in part:-  
“The only instance where it might be said to be common practice to go behind the general verdict and enquire from the jury the basis on which they had reached the verdict was in manslaughter where the jury may have reached their verdict on alternative grounds which had been left to them by the judge.  In such cases the judge may, and generally should, seek guidance from the jury concerning the basis for their verdict.  The jury was not however bound to answer any questions put by the judge, and the judge was entitled to reach his own view on the facts even if the jury do express their own opinion as was shown in particular by Whittle [1974] Crim LR 487 …  The court had emphasised in Stosiek  (1982) 4 Cr App R(S) 205 that juries should not be asked to explain an otherwise unambiguous verdict:  the jury may have reached agreement on the general verdict, although not necessarily on the same basis of fact.  Many questions on which a judge had to make up his mind for the purpose of sentence were quite unsuitable for determination by a jury.”

 
Archbold adds:- 
“Where it is proposed to attempt to elicit the basis of the jury’s verdict, the necessary questions should preferably be left with the jury when they retire:  the foreman should not be asked to intimate the basis on which the verdict has been reached after the verdict has been returned”.  
None of the cases referred to by Archbold suggest that the judge should direct that they can only return a verdict of manslaughter if they are unanimous (subject to the majority verdict rule) on a specific ground such as provocation or diminished responsibility or lack of the necessary intent, unless one argues that Matheson implicitly indicates it.  In my view Lord Goddard did not say so.
	Blackstone 2000 at B1-25 and Archbold 2001 at paragraph 19.90 are at odds.  The former, following the decision in Jones favours the view which I have put forward.  The editors of Archbold share the view of the majority of the court, disagreeing with Jones.  
 
12.       Where the Jury find the accused Not Guilty of Murder but Disagree on Manslaughter
	If the DPP decides to proceed with a second trial after the jury has found a defendant Not Guilty of Murder but has disagreed on a verdict of manslaughter as a result of the directions of the trial judge, how is the trial to be presented by the prosecution?  They must presumably ask the judge for leave to tell the jury that the accused has been acquitted of murder; but the defendant may object.  He is charged only with manslaughter; why should the jury be told that he was charged with murder and was acquitted?
	If the prosecution is not advancing on the charge of manslaughter any evidence of “diminished responsibility” how can it open the case on that basis?  If the only evidence of provocation came from the defence at the first trial, is the prosecution obliged to call that evidence, not least if they do not regard it as credible?  If the evidence, oral and/or forensic, supports the view that the killing was unlawful and, unless explained, amounts to murder, how can the legal issues be presented properly by the prosecution so as to get the jury to decide guilt on one basis rather than another?  If they decide not to proceed after the jury has disagreed for a second time, is there not bound to be a public outcry.  The accused has unlawfully killed – probably by shooting, stabbing, battering or kicking a person to death.
	For the reasons which I have given, I respectfully disagree with the majority on this important point.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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THE QUEEN

V

TREVOR McCANDLESS

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JUDGMENT

 
OF

 
NICHOLSON LJ

 
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