Coutts, R v [2005] EWCA Crim 52

Case No 2004/01244/D1

[2005] EWCA Crim 52

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM LEWES CROWN COURT

HIS HONOUR JUDGE RICHARD BROWN

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 21 January 2005

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

MR JUSTICE CRESSWELL

MR JUSTICE SIMON

Between

RRespondent

Graham James CouttsAppellant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Edward Fitzgerald QC and Mr Paul Taylor (instructed by Fisher Meredith, LondonSE11) for Appellant

Mr John Kelsey-Fry QC and Mr Richard Barton (instructed by Treasury Solicitors) for Respondent

Judgment

The Lord Chief Justice: This is the judgment of the Court:

[1]On 4 February 2004, at the Crown Court in Lewes, before His Honour Judge Brown, Graham Coutts (“the appellant”) was convicted of the murder of Jane Longhurst (“the victim”). The appellant was sentenced to life imprisonment with a minimum term of 30 years. The appellant appeals against conviction and sentenceby leave of the single judge.

[2]On 19 April 2003 the victim’s burning body was discovered on Wigginholt Common, West Sussex. This was thirty-six days after she had first disappeared. It was the prosecution case that the appellant had deliberately murdered the victim in order to satisfy his macabre sexual fantasies, and that the murder was the manifestation of his long-standing sexual fixation for women who are helpless and being strangled. It was the defence case that the death of the victim was an accident which had occurred in the course of his having consensual asphyxial sex with her as part of his long standing fetish involving women’s necks.

[3]There is no dispute that the victim had died at the appellant’s flat on 14 March 2003 and that her dead body had been in his custody for a five week period, between 14 March and 19 April 2003.

[4]The Amended Perfected Grounds of Appeal against Conviction and Sentence dated 2 December 2004 contain six different grounds of appeal against conviction. There is also an appeal against sentence. This is as to the length of the minimum term. The most important issue in this appeal is, however, as to when it is necessary for a judge to leave an alternative verdict of manslaughter to a jury when there is no alternative count of manslaughter in the indictment.

Facts

[5]As it is necessary for us to consider the fairness of the course adopted by the judge at the trial, it is necessary to refer to the facts in greater detail than normally would be desirable in a case of this nature. The victim lived in Brighton where she worked as a special needs teacher. When she went missing on 14 March 2003, the alarm was raised by her partner, Malcolm Sentance, who was concerned not to find her at their flat when he returned home from work.

[6]The burning body of the victim was discovered in woods on Wigginholt Common, near Pulborough, West Sussex, on 19 April 2003. A passer-by had reported the fire and, upon attending the incident, the fire brigade found the victim’s burning body. Petrol had been used as an accelerant for the fire. The body was naked except for a scarf covering the victim’s face which, once removed, revealed a ligature fashioned out of a pair of tights tied twice around her neck, with a knot on the right-hand side. There was no evidence of sexual assault but this could not be excluded in view of severe charring to the external areas of the body including the genitalia.

[7]The appellant worked as a part-time musician, teaching music and playing his guitar. Since 2003, he had also worked from home as an independent ‘Kleeneze’ (a home shopping ‘catalogue’ company)distributor. He lived in a flat in Hove with his girlfriend, Lisa Stephens. It was through Lisa Stephens that he had met the victim in 1998. The two women were good friends, and the appellant and the victim knew each other socially. They had been swimming together on approximately six occasions and had a mutual interest in keeping fit.

[8]The police initially interviewed the appellant on 21 March 2003. He said that he had spoken to the victim on the telephone on the day of her disappearance. She had wanted to speak to Lisa Stephens and had said that she would call back the following day.

[9]On 24 April 2003, following the appellant’s return from a camping trip with Lisa Stephens (they had gone away because she was upset at the discovery of her friend’s body), the police visited the appellant at his flat and questioned him about his whereabouts on 14 March and 19 April 2003. The appellant was arrested and taken to the police station for further questioning after one of the police officers noticed a ‘Kleeneze’ box inside his flat similar to the one in which the victim’s body had been wrapped.

[10]The appellant was initially interviewed at the police station without a solicitor and gave an account of events confined to that which he had already told them. In a later interview, his solicitor stated that the appellant was tired and in shock, and would not be saying anything further. The appellant was released on bail later that day.

[11]At the trial, the appellant maintained that the reason he did not tell the truth to the police in these interviews was because he did not want to put Lisa Stephens’ pregnancy at risk. He had felt unable to talk to anyone about what had happened except Lisa Stephens, but this was impossible as she was pregnant with twins of whom he was the father. She had previously experienced pregnancy-related problems but, at the age of 37, had finally become pregnant following fertility treatment.

[12]The victim died at the appellant’s flat on 14 March 2003. Her body was stored by the appellant in his car and then his shed. On 25 March 2003, the appellant moved her body to a storage facility, Unit C50, which he had rented using a false name, Paul Kelly, and used a forged utility bill as proof of identity. The storage contract was for ‘personal items.’

[13]Following the receipt of information from the storage company, the police re-arrested the appellant on 28 April 2003. CCTV footage revealed that the appellant had made multiple visits to Unit C50 during the period in which the victim had been missing. Using a key taken from his bunch of keys, the police obtained access to, and attended, Unit C50 later that day.

[14]A number of items linking the appellant to the victim were found inside Unit C50: a condom (containing the appellant’s semen on the inside, and body fluids matching the DNA of the victim on the outside), the appellant’s severely blood-stained shirt (subsequently found to contain traces of the appellant’s semen and DNA matching the victim’s DNA), a petrol can, two pairs of woman’s knickers (the victim’s DNA was found on one pair and Lisa Stephens’ DNA on the other pair), and ‘Andrex’ toilet rolls and black sacks matching those that the appellant had been seen purchasing in a Texaco garage on 19 April 2003.

[15]Following the discovery of those items (although the outcome of forensic tests was pending at the time), the police interviewed the appellant again on 29 April 2003. The appellant was crying and upset, saying that he did not want to talk about things and did not know what had happened.At trial, the appellant denied that his silence in this interview was because he had yet to think of a defence. As previously indicated, he explained that his refusal to give his own account of events at this stage was because he had wanted ‘buy time’ to protect Lisa Stephens and the unborn twins, fearing that she might suffer a miscarriage or choose to have a termination if the truth were known. In addition, he did not want his family to know what had happened.

[16]It was several weeks later that the appellant told a legal representative his account of what had happened. He said that he had not intended to kill the victim or cause her serious harm, and that he had never caused harm to anybody in the past when using ligatures in sexual activities. Evidence at Trial Cause of Death

Evidence at Trial

[17]The Crown and the appellant each called their own expert evidence at trial. Dr. Vesna Djurovic, theCrown’s pathologist, had conducted a post-mortem examination of the body soon after its discovery. Dr. Richard Shepherd, thedefence pathologist, conducted a post-mortem examination on 20 May 2003. Both experts concluded that the only tenable cause of death was the compression to the victim’s neck brought about by the ligature (ligature strangulation). However, they were not in agreement as to the precise way in which asphyxial death had occurred. This largely arose out of their taking different views of the evidence regarding the tightness and position of the ligature, and there being alternative explanations for the presence of a significant quantity of the victim’s blood on the appellant’s shirt and the apparent absence of bruising to her neck.

Three Types of Death by Asphyxia

[18]Dr. Djurovic explained that there were three types of death caused by strangulation. First, she referred to ‘the vascular effect’ or ‘vascular strangulation.’ This occurs when the arteries in the neck are obstructed, causing the supply of oxygenated blood to the brain and, in turn, the return of blood to the heart, to be blocked. This results in unconsciousness in a matter of seconds and, if pressure is sustained, death in two to three minutes. Secondly, she referred to ‘respiratory strangulation’. This involves obstruction of the airway itself through compression of the windpipe, preventing air from entering the lungs to oxygenate the blood. Again, death occurs within two to three minutes but it is likely that a victim would struggle. Thirdly, she referred to the ‘reflex mechanism’ or ‘vagal inhibition’. This is caused by the application of pressure to receptors (sensitive nerve endings) high in the neck (just below the jaw), which can send signals to the brain to slow down the heart. The mechanism quickly leads to death and normally does so without leaving any classical asphyxial signs or marks on the neck.

Position and Tightness of the Ligature

[19]A forensic expert for the prosecution had made a model of the knot in the ligature found on the victim. He explained that the ligature had been made as a half-knot from one leg of a pair of tights. This would have enabled a person to easily tighten the ligature and pull on it with more force. He believed that the knot could have been tighter when the ligature had initially been pulled but had slackened off when the grip was released. He thought it most likely that the knot was tied when the victim was facing the appellant but could not say whether such activity had been consensual.

[20]A textiles technologist, who gave evidence for the defence regarding the manufacture and construction of the tights, conducted a number of experiments. He confirmed that the tights were designed to keep their shape and that the ligature would not have tightened as a result of the fire. The forensic expert (who gave evidence for the prosecution) was unable to say whether the fibres in the tights may have shrunk since the victim’s death, as he had not studied a section of the tights which had been exposed to intense heat.

[21]Dr. Djurovic explained that the ligature was tied tightly around a relatively low point of the victim’s neck and that, when she removed the ligature, she had found a pale indented ligature mark around the neck. However, the textiles technologist concluded that those indentations were caused in part by the nylon fibres of the tights continuing to exert a retractive force on the neck tissue after death. Dr. Shepherd noted that the victim’s body could have become swollen after death due to pressure from the ligature or distension by gas. This would potentially have had the effect of altering the appearance and depth of the ligature. He concluded that the jury should attach limited significance to how tight the ligature might have been prior to death.

Presence of the Victim’s Blood and Apparent Absence of Bruising

[22]Dr. Djurovic dissected the victim’s body, examining her voice box, and the layers of muscle and blood vessels in her neck. She found no evidence of deep bruising, or of any fractures to the voice box or spine, but did note that a possible explanation for this was that the decomposition and/or partial burning to the body had rendered such evidence undetectable. She explained that strangulation was often associated with copious bloodstain secretions from the mouth and nose, and so one would expect blood emanating from the victim’s mouth and nose to have contaminated any item that came into contact with it (including the appellant’s shirt).

Medical Experts’ Views on the Precise Cause of Death

[23]Dr. Djurovic concluded that the victim’s death was more likely to have been caused by vascular or respiratory strangulation. This was because of the tightness of the ligature and the fact that any bruising would have disappeared as a result of decomposition; decomposition along with charring to the body had prevented her from seeing any other indicators. She felt that it was very unlikely that the victim had died as a result of ‘vagal inhibition’. This was because pressure would have had to be applied to a relatively localised area high up on the victim’s neck, yet the ligature was found on too low a part of the neck for this to be the case. While under cross-examination she admitted that death by ‘vagal inhibition’ could not be entirely ruled out, she stated that this method was unlikely to have caused the large amount of blood found on the appellant’sshirt (there being no other wounds on the victim’s body that could account for this). ‘Vagal inhibition’ could cause the ejection of bloodstained mucus but this would not be the same amount as that caused by either respiratory or vascular strangulation.

[24]Dr. Shepherd reached a different conclusion to Dr. Djurovic. It was his view that, in the absence of any bruising on the victim’s neck, the most likely cause of death was ‘vagal inhibition’. This would have occurred when the victim’s heart slowed down to a state called arrhythmia (where the heart is still moving but not pumping blood) and she would have died if the heart was not kick-started back into a normal rhythm. Although he accepted that the most common site for the vagal receptors was higher up on the neck, he stated that the vagal receptors were also distributed throughout the carotid sinuses and in the arch of the aorta (running down each side of the neck) and therefore the application of a ligature to any part of the neck could stimulate the vagal receptors leading to death. In his view, this is why it is unsafe to squeeze anyone around any part of the neck.

[25]Dr. Shepherd agreed with Dr. Djurovic that vascular or respiratory strangulation was often associated with copious bloodstain secretions but felt that ‘vagal inhibition’ could also account for the presence of the victim’s blood on the appellant’s shirt (due to the victim’s mouth, nose or face, by some mechanism, coming to rest against it). He also accepted that ‘vagal inhibition’ alone was very rare and rarer still when caused by a ligature rather than the use of fingers being applied directly to the neck. However, he remained sure that death had primarily been caused by this method even if respiratory or vascular strangulation had also been in play.

Storage of the Body

[26]Dr. Djurovic noted that the decomposition of the body was consistent with death having occurred 4 to 5 weeks earlier, but that there was no evidence of infestation, suggesting that it had been stored in a manner preventing access by flies or other insects. A similar conclusion was reached by a research entomologistwhogave evidence for the Crown. He commented that the body had been stored within a very short period of time after death and in conditions where fly infestation was less likely, such as in a well-sealed cardboard box or tarpaulin.

[27]Three employees of the storage company gave evidence at the trial. Two of those witnesses’ evidence are relevant for the purposes of this appeal:• The manager of the storage facility had discussed the size of unit that the appellant required with him on 25 March 2003. He described the appellant as being very distant, not ‘with it’, red-faced and not appearing to be able to concentrate. On 9 April 2003 he sold the appellant a large brown box and, on 17 April 2003, he dealt with him again when the appellant triggered an alarm by incorrectly entering his PIN number for Unit C50. He said that the appellant appeared very relieved when told the cause of the alarm.

• Another employee gave evidence that, on 18 April 2003, at the appellant’s request, she had upgraded his membership to provide after-hours access to Unit C50. She also gave evidence that a smell had started to emanate from the ground floor (where Unit C50 was located) by 15 April 2003, which had become very bad by the weekend of 19and 20 April 2003 but noticeably went after that weekend. The Appellant’s Sexual History The Appellant’s Interests in Women’s Necks

The Appellant’s Sexual History

[28]The appellant claimed that he had held a fascination for women’s necks for approximately 20 years. He described how his fetish had evolved from initial curiosity, into something that was a matter of some concern to him for a while, but eventually into something that he was comfortable with. When he was younger he had thought he was the only person who had had such thoughts and was worried that they might lead to something going wrong, and that someone might die. However, these fears had subsided by the time he was older as he had discovered that his fetish was not connected with violence. He had no interest in violence to women and his fetish for necks had generally remained the same since it started. His fetish did not extend to women being strangled to death for sexual purposes.

Sandra Gates

[29]The appellant was in a relationship with Sandra Gates between 1988 and 1996. Sandra Gates gave evidence as to the relationship. Initially, their sexual relationship was normal, but after approximately six months they became more adventurous. The appellant would put his hand around her neck during sex or foreplay, telling her that it would heighten her feelings. He then started to use tights and knickers which he put around her neck. On one occasion he put a pillow over her face to restrict her breathing and at other times he had tied her hands behind her back. This would happen during sexual intercourse or whilst he was masturbating. She said his preference was to masturbate himself with one hand whilst holding her around the neck. She had never indicated to him that she liked the neck holding but it was never against her will and she did not suffer any harm from it. She claimed that sometimes he had wanted her to struggle whilst he held her around the neck and on other occasions he wanted her to act as if she was unconscious. The appellant denied this latter claim, but his evidence otherwise generally conformed with Sandra Gates’ evidence. The appellant accepted that he had got much more from this sexual interplay than she had, but made it clear that he would not allow her to become uncomfortable, and would slacken his hold if she had wanted him to. He thought that such activities between them had happened on approximately sixty occasions.

[30]In her witness statement, Sandra Gates said that the appellant had previously expressed concerns to her during the course of their relationship that his fetish might lead to him killing a woman. She also mentioned seeing photographs of young women where the appellant had drawn nooses around their necks. The judge ruled these were inadmissible. This was because the evidence of the conversations and drawings was not sufficiently proximate (in time to the alleged murder) for its probative value (whether the appellant still harboured these desires) to outweigh its prejudicial effect.

[31]Sandra Gates also gave evidence that the appellant had appeared to be sexually aroused by her being distressed. She recalled one occasion when she had been crying over a family problem and that he had told her that he was becoming sexually aroused and that he wanted to have sex with her. She declined and he masturbated in front of her. She claimed that this was repeated on a number of other occasions. The appellant, in his evidence, denied this. He said that Sandra Gates was wrong to say that he became sexually aroused when she was distressed. He accepted that he had masturbated in front of her on one occasion when she had refused to have sex with him, but attributed this to his being young at the time and unable to deal with the situation. He did not know why he had become sexually aroused.

Nichola Stainthorpe

[32]Nichola Stainthorpe gave evidence that she was in a relationship with the appellant between 1996 and 1997. Their sexual relationship had started normally but had become more adventurous after a few months. Initially he tied her hands together; things then progressed to touching her neck and shoulders, and asking her to put her hands around his neck during sexual intercourse. He wanted her to continually press harder until he passed out but she refused to go that far. She then began to let him put his hands around her throat and he said he wanted her to black out, but she again refused to let him do this. He would put pressure on her windpipe during sex and would sometimes use a stocking tied around her neck, which he would pull from both sides. She often had to tell him to stop and he always did so when asked. She allowed him to do such things because it made him happy but she never enjoyed it herself.

[33]The appellant’s own account of his relationship with Nichola Stainthorpe generally conformed with her evidence but he felt that she had herself obtained satisfaction rather than just tolerating it. He also said that Nichola Stainthorpe had never expressed any concern or discomfort about what they were doing and, if they did stop, it would have been because he thought that the ligature might have been too tight, rather than because of any complaint by her. He said that they had engaged in sex of this sort together on at least one hundred occasions.

Lisa Stephens

[34]According to the appellant, ‘breath control play’ had also been a feature of his sexual relationship with Lisa Stephens, but only on approximately six occasions. This was because it had not enhanced sex for her and thus he had not really enjoyed it. He and Lisa Stephens had twice previously been separated. On the first occasion, he had had a sexual relationship with a girl called Nina which had involved breath control play. On the second occasion, he had had a ‘one night stand’ with a girl called Norma Blundell which involved some bondage activities.

Norma Blundell

[35]Norma Blundell gave evidence for the defence that she had gone home with the appellant one night from the pub where she worked. She had become upset after talking about her recent relationship break-up and the appellant had comforted her. This led to more intimate contact. They started to undress each other and the appellant bound her wrists with masking tape. He then started to stroke her arms, neck, breast and legs whilst masturbating himself. Significantly, he kept his shirt on. She did not suggest that he put his hand around her neck. Having unbound her, they later went to bed and had normal sex. She said that she had been happy to be bound by the appellant but had not really indulged in such activities before. The Victim’s Relationships Lincoln Abbotts

The Victim’s Relationships

[36]Lincoln Abbots gave evidence that he was in a normal, non-deviant sexual relationship with the victim between 1996 and 1997. However, a former teaching colleague of the victim, Ruth Davis, gave evidence of a ‘whispered conversation’ with the victim in the staff room. During that conversation, the victim indicated that her sexual relationship with Lincoln Abbotts (her boyfriend at the time) involved the intentional stopping of breathing or the cutting-off of breath. This did not appear to disturb the victim. Inresponse to this evidence, Lincoln Abbotts stated in cross-examination that the topic of asphyxial sex was “categorically never raised” between him and the victim; they had never discussed breath control play. He said that he was surprised to hear that the victim might have discussed their relationship with another teacher.

Malcolm Sentance

[37]Malcolm Sentance was the boyfriend of the victim at the time of her death. They had been in a relationship together since 1999. Malcolm Sentance gave evidence that they had had a good relationship, but did admit that his starting a new job in 2003 had put their relationship under strain. This was consistent with evidence given by the appellant of how the victim had, on one occasion, stayed the night at his and Lisa’s flat in Hove during this period.

Michael Downs

[38]Michael Downs(who was in a relationship with the victim between 1994 and 1996) also stated that he had had a very happy and normal sexual relationship with the victim. The Internet Evidence

[39]The prosecution called two computer experts to give evidence. Part of the evidence related to the two computers found in the appellant’s flat. Records on the computers in the appellant’s flat indicated that he had visited a number of pornographic websites at crucial times prior to and after the victim’s death. A CD computer disk containing images of violence towards women, apparently burnt from the appellant’s computer between late 2001 and early 2002, was also found.

[40]A time-line of the appellant’s Internet usage compiled by one of the experts showed the particular websites he had accessed, and the search terms he had used. These included words such as “rape”, “murder” and “necro”. The websites visited by the appellant could be classified (according to the contents of the images they contained) as:

“genuine deceased appearance”; “asphyxiation and strangulation”; “rape torture and violent sex”; and “general pornographic”

. An expert gave evidence that many of the “asphyxiation and strangulation” images did not appear to be consensual and that the women in these clips and images appeared more like victims.

[41]The appellant was found to have looked at a number of websites on 13 March 2003, the day before the victim’s death, including one website entitled “Death by asphyxia”, for approximately 1 hour and 45 minutes. There was a marked reduction in activity between 14and 24 March 2003. Of potential significance, the appellant had accessed websites such as “Necrobabe” on the day that he was unable to obtain access to Unit C50 because the alarm had gone off. The Appellant’s Explanation for

The Internet Evidence

[42]The appellant gave evidence that he had become interested in Internet pornography in 1996 through a news group organised for people with an interest in asphyxial sex. He accepted that he had accessed the material seen by the jury and also accepted that it showed images of death and violence towards women. He would search for websites involving asphyxia to find pictures of women’s necks that fitted in with his fetish, entering the various search terms to get the sort of image he wanted; sexual asphyxiation was entwined with his sexuality but sex with dead women was not something that would arouse him. There were very few web sites dealing with non-violent asphyxial sex and he would put out of his mind the violence to women when viewing those websites. His sole objective was to find asphyxial images of women that fitted in with his fetish.

[43]The appellant said that he had no recollection of visiting the “Necrobabe” website on the day that the alarm went off at Unit C50. Nor could he remember viewing images which included a girl being strangled to death, or where a dead woman’s body was referred to as “entertainment material” the previous day. His explanation for the pattern of his Internet usage after the victim’s death was that he must have got into the habit of visiting such sites beforehand which continued after her death.

The Case for the Defence

[44]It was the defence case that the appellant and the victim had had consensual asphyxial sex together on 14 March 2003, and that the victim’s death had been a tragic accident.

[45]Giving evidence in chief, the appellant claimed that he and the victim had arranged to go swimming together on 14 March 2003. The victim had suggested that they do so when she called to speak to Lisa Stephens that morning. The appellant had picked the victim up from her flat as arranged but, as she did not appear to be her usual self, he had invited her back to his flat for a cup of tea and a chat instead of going straight to the swimming baths.

[46]The victim was upset and crying, and his efforts to comfort her eventually led to kissing and intimate touching in the bedroom. He started to undress her but kept his shirt on. In cross-examination, the appellant accepted that if the Crown were right, and that he had strangled the victim, then he would still have been wearing his shirt, but he maintained that the only reason he did not take it off was because of his embarrassment about being slightly overweight at the time.

[47]The appellant put on a condom but was unable to sufficiently maintain his erection to have sexual intercourse, so they continued to kiss and fondle each other in an intimate way. At some point he caressed, touched and kissed the victim’s neck. She took hold of the hand he had around her neck and squeezed it tighter, in effect tightening his grip. This surprised him. She appeared to have an orgasm as he stimulated her with one hand whilst holding her neck with his other hand. He then introduced the idea that they use a pair of tights that were in the bedroom. The benefit of the ligature to him was a visual thing but as far as the woman was concerned it could restrict the oxygen flow to her brain and heighten sexual pleasure. She jokingly queried whether he was going to wear them, but then agreed to his idea. He explained the ground rules of what they were going to do and said that if she was uncomfortable, or did not want to continue, then she should tell him and he would stop. She answered in the affirmative. There was more kissing and touching and he then put the tights around her neck, reiterating the ground rules.

[48]At that point they were face to face on the bed. He tied a half-knot in the tights at the front of her neck and then took the two ends and held them behind her neck with his left hand. He then started to masturbate and after a while ejaculated into the condom which he was still wearing. At some point before he ejaculated he must have let go of the tights and closed his eyes. When he opened them he was aware of the victim lying over him and not moving. The appellant did not know what had happened to her and could not answer why he had not removed the ligature after she very first appeared to be in trouble. He remembered there being lots of blood but could not recall what had happened in the moments immediately after her death. He only had ‘photo-type’ images in his head of what had happened.

[49]In cross-examination the appellant maintained that he did not know how the victim had died. He said that he was holding the ligature and pulling on the tights when the victim died but that this was not tight enough to cut off the blood supply and kill her. She did not have any shortness of breath and he had not been holding the tights up. He did not agree with Dr. Djurovic’s conclusions. Although he accepted that use of the ligature could be dangerous, at the time he only thought it might be dangerous if a person were doing it alone.

[50]In the weeks after her death he said he had gone on ‘autopilot’ and could not recall doing many of the things that subsequently he must have done, such as cleaning-up his flat, removing blood from the bed and buying a tarpaulin in which to wrap the body from a DIY store. In cross-examination, he accepted that within a relatively short period of time he was acting as if he was trying to cover up what had happened. He sought to justify his actions on the basis that his major concern was preventing his girlfriend, Lisa Stephens, from finding out what had happened and avoiding anything happening to the unborn twins.

[51]He had originally intended to dispose of the body on the following day, 15 March 2003, but could not bring himself to do so. Thus, he moved the body to his locked shed on 15 March instead. He went to the shed on two occasions between 15 and 25 March 2003 but denied getting any sexual satisfaction from looking at the body on those visits.

[52]He said that it was the visit of the police to his flat on 21 March 2003 that first prompted him to move the body from his shed to the storage facility, but it would appear that he may have been thinking about such a course of action before then, as he had telephoned another company about a storage box on 20 March 2003. He accepted that he had hired Unit C50 under a false name, and recalled transferring the tarpaulin-wrapped body into a white ‘Kleeneze’ box in the car park, which he then taped up and placed in Unit C50 along with a bin-liner full of the victim’s belongings.

[53]He made a number of visits to Unit C50 but denied any sexual interest in the body. On one occasion he opened the box to do something about the smell but then taped it up again. On the evening of 18 April 2003, due to the increasingly bad smell emanating from the store and the fear that a member of staff might open it, he transferred the tarpaulin-wrapped body to his car, using a white ‘Kleeneze’ box as a liner, which he later returned to the store. However, he could not bring himself to dispose of the body that night, and left the victim’s body in the boot of his car overnight. Realising that the only way to dispose of the body would be to burn it, he bought a petrol can and some petrol the following evening and drove to West Sussex. Eventually reaching Wigginholt Common, he removed the tarpaulin from the car, dumped the victim’s body and set fire to it. He then drove back to Unit C50 where he returned the bin-liner full of the victim’s belongings which it did not seem right to burn. Grounds of Appeal The First Ground: Failing to Leave Manslaughter

Grounds of Appeal

[54]Mr Fitzgerald, on behalf of the appellant primarily relies on this ground of appeal against conviction. As we stated at the start of this judgment, it raises an issue of general importance. This is, whether the trial judge wrongly failed to direct the jury that it was open to them to return an alternative verdict of manslaughter? Technically, the appellant needed leave to raise this point but insofar as he needed leave to raise this or any other ground, we gave him leave at the hearing of this appeal.

[55]In view of the exchanges which took place at trial between counsel for the prosecution and defence and the judge in the absence of the jury as to what directions the judge should give the jury, it may appear at first sight surprising that Mr Fitzgerald raises this point. However, as we will see, Mr Fitzgerald’s argument cannot be dismissed out of hand.

[56]The nature of the exchanges that took place between

the judge and counsel are illustrated by the following extracts from the transcripts; Mr Kelsey-Fry:

“Ordinarily, of course, in a charge of murder there is an alternative verdict available… The way the Crown have put the case, from start to finish, is that this was a deliberate killing; and it is a contest between the Crown’s allegation of a deliberate killing on the one hand, and an accident on the other. It is true that one could mount an argument in law to suggest that the defence account, even if accepted, might amount either to gross negligence, on the one hand or, arguably, an unlawful or dangerous act on the other; and so there would be room, arguably, for an alternative verdict, even on the defence account, of manslaughter. The Crown’s view is that that would be quite unfair and quite wrong in this case. Having set out the case as a contest between deliberate killing and the defence version; if we failed to prove the deliberate killing, in our submission the defendant is entitled to a full acquittal.”

Later, Mr Kelsey-Fry added:

“…from the Crown’s point of view, this case is about a deliberate and macabre murder, and the Crown have never advanced the case on the alternative basis and it is wrong to do so now.”

Judge Brown then said to Mr Gold (then leading counsel for the defence):

“I need to put the specific question to you: are you inviting me to put manslaughter on any basis to the Jury?”

Mr Gold:

“Your Honour, can I provisionally answer the question: ‘No, I am not’. And your Honour, I have not had the opportunity to discuss this, as yet, in detail with Mr Coutts; if the position changes may I raise it briefly with your Honour in the morning?”

Mr Gold took instructions and made no further submissions on the point. It is clear that he and his client decided that the prosecution approach was acceptable to the defence. The judge also referred counsel to the case of R v Emmett (unreported) [1999] No. 99011191/Z2 because this was a decision of this Court where it was held that, if asphyxial consensual practices took place similar to those admitted by the appellant here, they constituted an offence, at least by the man. In the light of the submissions that had been made to him, the judge directed the jury as follows (summing-up p. 93-94):

“…if you think that this was or might have been an accident during consensual asphyxial activity, not guilty. If you are satisfied so that you are sure that this was no accident, that Jane Longhurst died because the defendant intended to kill her or at least cause her really serious bodily harm, your verdict will be guilty of murder.”

The position could not have been more clearly left to the jury.

[57]Until some recent decisions, both in this jurisdiction, and in Australia and Canada, this argument would not have had any prospect of success. However, while these authorities do initially appear helpful to the appellant, when they are carefully considered, it can be seen that they do not give the appellant the support he needs to enable his argument to succeed for the reasons we will now seek to develop.

[58]It is to be noted that there are two critical features of this case, which distinguish it from the previous cases. First, as we have seen, is the fact that both counsel for the prosecution and the defence thought that it would not be in the interests of the fair trial of the defendant, if the offence of manslaughter was left to the jury. The second distinction is that the only basis upon which the jury could convict the appellant of manslaughter, was factually wholly different from the case that the prosecution was advancing in order to obtain a conviction of murder. It was not, for example, a case where it would be possible for the jury to come to the conclusion that the appellant was not guilty of murder but guilty of manslaughter on the case for the prosecution.

[59]The prosecution’s case was that this was a deliberate killing using a ligature to achieve this purpose. The prosecution’s case had nothing to do with the factual scenario on which the appellant relied; namely that death occurred during consensual asphyxial sex by the mechanism of vagal inhibition. On the prosecution case nothing consensual of a sexual nature took place.

[60]The usual defences, Mr Kelsey-Fry submits, that a defendant has to a prosecution for murder could have no application here because of the manner in which the case was presented by the prosecution. The crucial issue for the prosecution to establish was that this was a deliberate killing to satisfy sadistic and necrophiliac tendencies. There was no possibility of the appellant relying on provocation, self defence or lack of the necessary intent, if the prosecution’s case was correct.

[61]In addition, at that stage of the case all the evidence, on behalf of both the prosecution and the defence, had been given so it could well have caused unfairness to the appellant to change fundamentally the nature of the case against him during the summing-up. While it is conceded that there was a viable basis for a verdict of manslaughter based upon the appellant’s account, namely that it involved an unlawful and dangerous act of tightening the ligature around the victim’s neck during consensual asphyxial sex, such a view of the facts would be wholly inconsistent with the case for the prosecution. So, for the judge to introduce the possibility of a verdict of manslaughter on these grounds would have transformed the nature of the case that the appellant was required to meet. The jury would not only have had to decide whether the victim may have died in the course of consensual sexual intercourse, but they would also have had to come to a conclusion as to the degree of danger that consensual asphyxial sexual intercourse, as practised by the appellant, involved.

[62]Where there is evidence of a partial defence, or a defence to the case as presented by the prosecution, the judge has, in normal circumstances, a duty to place that case before the jury even if it is not relied upon by the defendant. The rationale for the duty is that the possibility of an accident, provocation or self-defence, once they arise on the evidence, are matters the jury have to exclude before they can convict. The need, in ordinary circumstances, to leave such issues to be determined by the jury when they are supported by evidence is explained in the article, Alternative Defences: The “Invisible Burden” on the Trial Judge [1991] Crim LR 878.

[63]The more extensive argument advanced by Mr Fitzgerald is based on the case of Von Starck v The Queen

[2000] 1 WLR 1270

. This is a decision of the Privy Council in which the opinion was given by Lord Clyde. The principle expressed by Lord Clyde is that it is the judge’s duty to leave to the jury a viable verdict that arises on the facts, whether the Crown or the defendant want it left or not. The duty is subject only to certain very limited exceptions – none of which arise here.

[64]Mr Fitzgerald submits that the performance of that duty is particularly important where the consequences of not leaving the alternative verdict of guilty to a lesser offence, exposes the defendant to a risk that the jury will convict of the only offence left to them, rather than let a person guilty of disgraceful and/or unlawful conduct go free.

[65]The Court of Appeal has to quash a conviction, Mr Fitzgerald submits, where the judge fails to leave an alternative verdict if the Court is “satisfied”that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. It will be observed that this approach involves a substantial degree of scepticism as to how a jury performs their function. It is part of the submission that, because there is not a lesser verdict on which the jury can convict, they will, rather than acquit the defendant, find him guilty of a grave offence notwithstanding the fact that the offence has not been proved to their satisfaction. It is not our view that this is how juries perform their role based upon our experience of jury trials. But if the authorities require the opposite conclusion, we would of course apply them.

[66]In the case of Von Starck, the defendant had fatally stabbed a Jamaican woman in the chest. On being arrested, the defendant admitted killing her and admitted that he had the knife which he had used to do so. He gave the police officer a pouch containing a knife, on which blood of the same group as that of the deceased was found, and a jar containing cocaine. He blamed the cocaine for causing him to commit the crime. He did not give evidence but made an unsworn statement from the dock. He did not deny killing the deceased, or mention taking cocaine, but said that he did not know what had happened. The judge thought that the unsworn statement was inconsistent with the defendant’s previous statements, and in his summing-up directed the jury that the defence of the use of cocaine was not before them. The judge thus withdrew from the jury the question whether the defendant was guilty of manslaughter, not murder, because, although he had killed the deceased, he had been so far under the influence of cocaine that he lacked the requisite intent for murder.

[67]Allowing the appeal, it was held that the trial judge had a duty to place before the jury all the possible conclusions that they were entitled to reach on the evidence presented in the trial, whether or not they had all been canvassed by either of the parties in their submissions. If there was evidence on which a jury could reasonably come to a particular conclusion, there were few circumstances, if any, in which the judge had no duty to put that possibility to the jury. In this case, there was evidence, which strongly indicated that the defendant had killed the deceased when he was under the influence of cocaine so that he lacked the specific intent required for murder. This account, if believed, would have resulted in a conviction only of manslaughter. Lord Clyde, in the course of his judgment, pointed out:

“As a matter of law it is not disputed that the voluntary consumption of drugs, as well as the voluntary consumption of alcohol, may operate so as to reduce the crime to murder to one of manslaughter on the ground that intoxication was such that the accused would not have been able to form the specific intent to kill or commit grievous bodily harm.”

Lord Clyde also said:

“The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way, which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them. If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognised in Xavier v The State (unreported), 17 December 1998; Appeal No. 59 of 1997 a low one, and, as was also recognised in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury. For tactical reasons counsel for a defendant may not wish to enlarge upon, or even to mention, a possible conclusion which the jury would be entitled on the evidence to reach, in the fear that what he might see as a compromise conclusion would detract from a more stark choice between a conviction on a serious charge and an acquittal. But if there is evidence to support such a compromise verdict it is the duty of the judge to explain it to the jury and leave the choice to them. In Xavier v The state the defence at trial was one of alibi. But it was observed by Lord Lloyd of Berwick in that case that, ‘If accident was open on the evidence, then the judge ought to have left the jury with the alternative of manslaughter.’ In the present case the earlier statements together with their qualifications amply justified a conclusion of manslaughter and that alternative should have been left to the jury. The approach adopted by the Court of Appeal restricts the judge’s responsibility and the scope of the jury’s considerations to the particular.”

[69]In relation to that paragraph, we draw particular attention to what Lord Clyde said with regard to “the principle of fairness” and “the overall interests of justice”. We do so since it would, in our view in this case, have created a real risk of conflict with both those principles to have left manslaughter to the jury. What Lord Clyde said in that case involves the judge’s duty being wider than we have so far indicated. However, Lord Clyde expressed his views in terms that are more extensive than was necessary for the decision in that case and, with great respect to that very distinguished judge, we do not believe he would have expressed himself in those terms if he had in mind the sort of situation being considered here.

[70]On the facts of the case before them, we have no difficulty with the decision of the Privy Council. But to apply its reasoning to the present appeal would, in our view, not advance the cause of justice. Of course, the explanation may be that we are dealing here with one of the “few circumstances” that Lord Clyde did not identify which he realised could require different treatment.

[71]As further examples of the strengthening of the requirement on a judge to leave to the jury any reasonable possible verdict available on the evidence, Mr Fitzgerald also relies on Shaw and Campbell [8 June 2001] CARC 3417, Hunter and another v R

[2003] UKPC 69

and the Australian case of Gilbert v The Queen [2000] HCA 15.

[72]Shaw and Campbell is a decision of the Court of Appeal of Northern Ireland. In the course of giving the judgment of the court, Carswell LCJ reviewed earlier authorities including Von Starck and the two earlier cases of R v Fairbanks

[1986] 1 WLR 1202

and R v Maxwell

[1990] 1 WLR 401

with apparent approval, pointing out that neither of those cases had apparently been cited to the Privy Council in Von Starck.

[73]In the Fairbanks case the complaint was that the judge had not left careless driving to the jury where the defendant had been charged with driving a motor vehicle on the road recklessly. In accepting that the alternative should have been left, Mustill LJ said:

“These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case has been presented to the Court: for example if the defence has never sought to deny that the full offence charged has been committed but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense. We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and jury, and where the possibility of convicting for a trivial offence would be an unnecessary further complication. On the other hand the interests of justice will sometimes demand that the lesser alternatives are left to the jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater.”

[74]In Maxwell, the defendant did not dispute that he had hired two other men who entered his former partner’s house to commit robbery. It was his defence that he did not contemplate violence, and that he was only guilty of the offence of burglary. The prosecution declined to add a count of burglary and opposed leaving that offence to the jury, maintaining that the crime was always intended to be a robbery, and that it was not a burglary which had gone wrong. The jury accepted this view.

[75]In his speech in the House of Lords, Lord Ackner reviewed the correctness of Mustill LJ’s judgment in Fairbanks and in a passage cited by Carswell LCJ, expressly opposed the view expressed by Mustill LJ himself in the Court of Appeal’s judgment in Maxwell, namely that:

“In the first place, we adhere to the general observations in Fairbanks on the duties of the trial judge. Naturally the judge is not obliged to leave an alternative offence just because the defence ask for it: see Reg. V Kearney ((1998) 88 Cr App R 380), where it was held that the judge rightly refused to leave manslaughter as an alternative to murder where this was inconsistent with the case advanced by the defendant himself. But in the other cases there will be a viable alternative to a conviction on the major offence as charged, and no conviction at all, and if so the judge should leave the Jury with the full range of choice. In still other cases, there will be no real place for an acquittal: for instance, where a person accused of murder admits an unlawful killing, but maintains that in the circumstances it amounted to no more than manslaughter, in which event the Jury should be left only with a choice between verdicts for the greater and the lesser offence. The right course will vary from one case to another, but the judge should always use his powers to ensure, so far as practicable, that the issues left to the Jury fairly reflect the issues which arise on the evidence.”

In concluding his speech Lord Ackner said, at page 408, that the test to be applied by the Court of Appeal in such a case is as follows:

“What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. If they are so satisfied then the conviction cannot be safe or satisfactory.”

[76]Carswell LCJ added:

“It was argued on behalf of the Crown that this test was not satisfied in the present case, where there was, it was submitted, ample evidence to justify the conviction of Campbell for murder. It seems to us that the test is material where the possible alternative is a relatively trifling offence, consideration of which would only distract the jury. It is clear from the terms of the passage which we have quoted from Mustill LJ’s judgment in R v Fairbanks that other considerations may require a lesser offence to be left. In the present case it does appear that it was a tenable possibility that the jury might reject the evidence of Dawn Shaw about the conversation in her house, in which event the jury would need direction about the matters requiring proof if Campbell was to be convicted of murder on the basis of having taken part in a joint enterprise. In such event they might have acquitted him of murder, though finding him guilty of assisting the offender.”

[77]Carswell LCJ also made it clear that a flexible approach is required when he added, at page 12:

“[Defence counsel] submitted that it was for the judge to ensure that all material issues were placed before the jury, even if not argued overtly by him in closing. We feel impelled to agree with this submission. For the reasons which we have stated, we are of the opinion that the case does not fall within the category of those in which the issue does not arise in the way in which the case has been presented to the court. It is not one in which Campbell has admitted that the offence was committed. The possibility was there that he took some lesser part in the affair than full complicity in murder, and that possibility was not removed by his denial that he had anything at all to do with the attack. We therefore must conclude that the judge should have left the lesser offence to the jury and given them an appropriate direction on the law relating to join enterprise.”

[78]We turn to the decision of the High Court of Australia in Gilbert v The Queen [2000] HCA 15. In that case, the appellant, the appellant’s brother and another man were charged with murder. The appellant had driven the victim, the appellant’s brother and the other man to a remote place where the fatal assault occurred. It was the Crown’s case that the appellant did so with the purpose of enabling or aiding his brother to commit the offence of murder. There was ample evidence to support the prosecution’s case. However, the defence case was that all the appellant knew was that his brother intended to assault the victim. The appellant was therefore contending that he was guilty of manslaughter not murder. The judge however, instructed the jury that manslaughter was not available.

[79]In the course of their judgment, Gleeson CJ and Gummow J, in Gilbert pointed out:

“From one point of view it might appear that such a direction was unduly favourable to the appellant. Such an appearance, however, may be deceptive. Sometimes when there is a misdirection of law, it is risky to seek to assign the advantage of the misdirection exclusively to one party, and the disadvantage exclusively to another.”

[80]They also said:

“The system of criminal justice as administered by appellate courts requires the assumption, that as a general rule, juries understand, and follow the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.”

[81]Mr Fitzgerald contends that these remarks are supportive of his contention, as there is, on the facts of this appeal, a specific danger of an improper conviction when the jury had no alternative, on the basis upon which the case was left to them, but to find the appellant guilty or not guilty of murder. Where the facts are sufficiently horrendous, as in the present case, he submits this danger is particularly high. He submits that as this is an emotive case, with odious elements, the jury may have felt a public pressure not to return a verdict of total acquittal.

[82]We cannot speak in generalities, but we find no justification whatsoever for saying in this case that the jury would have convicted, even if not satisfied of the appellant’s guilt, just to deflect possible criticism for finding him not guilty of any offence. Juries are faced every day with doing just that, where there is no possible alternative offence and they in fact acquit defendants of all responsibility for the most horrendous offences.

[83]However, it is not just on the basis of our experience that we have come to the conclusion that Mr Fitzgerald’s approach should not be applied. What is important here is that the judge accepted it would be unfair, and therefore unjust, to leave the alternative count for the very good reason that it involved a different and inconsistent case from that put forward by the prosecution. If, in this case, manslaughter had been included, and the jury convicted the appellant of this offence, an appeal would almost inevitably have followed, and it is doubtful whether the conviction could have been regarded as safe. There may be cases where the approach based upon not withdrawing a defence from the jury should be extended to situations where the alternative verdict would not be a defence, but this case is not that situation. The judge’s task is, as far as practical and appropriate to simplify the task of the jury, not to make it more complicated than it would otherwise be.

[84]As our detailed consideration earlier in this judgment of the facts is intended to make clear, the case for the prosecution required the jury to consider a formidable body of circumstantial evidence. The critical issue for the jury to determine, however, was whether it was possible for the victim’s death to have been an accident. In this situation, to introduce an alternative count, would make the jury’s task far more complicated without enhancing the interests of justice. Properly understood, the authorities only require a jury to bedirected as to manslaughter, as an alternative to murder, when it is in the interests of justice for this to happen. It is not in the interests of justice for this to happen where it would result in unfairness to a defendant, or where it would make the task of the jury far more difficult withoutthere beingany sufficient counter veiling benefit whichjustifies an additional burden being placed upon the jury. We turn to consider the other grounds of appeal. The Second Ground – The Unjustified Allegation of Necrophilia

[85]The second ground of appeal is that there was no proper basis for the allegation of necrophilia and that its introduction was prejudicial to the appellant. Technically, leave was also required in relation to this ground and we granted leave at the hearing of this appeal.

[86]Mr Fitzgerald submitted that the allegation that the motive for the killing was to have access to the deceased’s dead body in order to have sexual gratification, was not justified by the evidence. He contended that there was no basis for the assertion that any sexual activity must have taken place after death, and that such an allegation blurred the issues and must have had a very strong emotional impact on the jury.

[87]Mr Kelsey-Fry submitted in answer that it was not possible to say when the condom found in Unit C50 had been used; however, if it was not on an occasion subsequent to the day of the killing, then it was (as the appellant conceded) on that day. The Crown had an evidential basis, on the prosecution’s case, for the submission that the appellant had killed the victim in order to commit necrophilia. In addition to the computer-related evidence and the evidence of the appellant’s former girlfriends, there was the presence of the knot in the ligature and the blood on the appellant’s shirt. Further, the appellant’s conduct in relation to the body after death was evidence of his sexual fascination with a dead woman. The prosecution’s case had been opened on the basis that the “murder … was the manifestation of the (appellant’s) long-standing fixation with helpless and strangled women in a sexual context.”

[88]In our judgment there was sufficient evidence to justify the prosecution presenting the case in the way in which they did. There is no substance in this ground of appeal.

The Third Ground – The Internet Evidence should have been ruled inadmissable

[89]The third ground of appeal is that the judge erred in his ruling that the evidence of the appellant’s viewing of pornography obtained from the Internet was relevant and admissible. Alternatively, if the Internet evidence was relevant and admissible, its prejudicial effect outweighed its probative value, and the judge should have excluded it in his discretion.

[90]Mr Fitzgerald submits that such evidence was inadmissible since it went only to propensity. The evidence was not admissible on any of the bases advanced by the prosecution (to rebut the defence of accident, motive and inconsistency with accident). The mere fact of access to asphyxial images was consistent with an inclination towards sexual role-playing in which women were subjected to some pressure on the neck. As to the separate suggestion that the appellant was interested in necrophiliac images, there was little or no evidence of this. The central issue was whether the appellant deliberately strangled the deceased, or whether her death may have been a tragic accident in the course of consensual sex. The Internet evidence did not go to any proper issue in the case. Alternatively, if it potentially did so, Mr Fitzgerald submitted that its prejudicial effect was so overwhelming that the judge should have excluded it in the proper exercise of his discretion.

[91]Mr Kelsey-Fry for the prosecution pointed out that the computer-related evidence fell into several categories. The list of search terms typed into search engines on the appellant’s computer included ‘strangled women’, ‘dead women’, ‘rape, murder, mpegs’, and ‘strangulation mpegs’ (‘mpegs’ denotes short film sequences). The Internet history file on the appellant’s computer recorded the websites actually visited by the appellant. Websites accessed over several months by the appellant included websites with names such as ‘necrobabes’, ‘violentpleasure’, ‘rapepassion’, ‘hangingbitches’ and ‘deathbyasphyxia’. It was from this history of addresses accessed by the appellant that the prosecution computer expert produced exhibit DJR/13 (see the fifth ground below), being a series of web pages downloaded from some of these addresses on 28 May 2003. In order to avoid any risk of prejudice to the appellant, the prosecution prepared a written summary of the contents of DJR/13. As to images on the computer, the prosecution expert was able to obtain 809 pornographic images from the memory of the appellant’s computer. Of these, 699 (over 85%) were categorised as (non-consensual) ‘asphyxiation and strangulation’, ‘rape, torture and violent sex’ or ‘genuine deceased appearance’.

[92]The appellant’s membership of certain websites showed that he was actively seeking out images of women apparently being strangled, raped and killed. As to the CD (exhibit SPB/4), the appellant made a back-up copy of some of the material he had obtained from the websites. The CD included mpegs and jpegs (pictures) depicting strangulation and rape scenes. On 13 March 2003, the day before the victim’s death, the Internet history file revealed significant activity, including visits to web pages such as ‘violentpleasure’, ‘rapepassion’, ‘rapesection’, ‘hangingbitches’ and ‘deathbyasphyxia’. After 14 March (the day the victim died) there was an apparent pause, until the activity recommenced, and occurred in particular on 16 and 17 April, being the days leading up to the final disposal of the body on Wiggonholt Common. The material recovered from the Internet cache of the appellant’s computer contained the actual images and web pages most recently visited. From the cache, the prosecution expert was able to re-assemble some web pages and partial web pages as they would have been viewed by the appellant on his computer in April 2003.

[93]Mr Kelsey-Fry argued before the judge that the computer-related evidence was admissible under three headings:(i) to rebut the defence of accident;

(ii) as relevant to motive; and

(iii) as inconsistent with the acts of a man who had been involved in a tragic accident. Before this Court he contended that, given the way in which the defence case was advanced, it would have been open to the prosecution, had the judge initially ruled the computer-related evidence inadmissible, to invite the judge to reconsider his ruling and allow the evidence to be led in rebuttal. The computer-related evidence, he argued, was crucial to the jury’s consideration of the appellant’s case (accident in the course of consensual breath control play) as against the prosecution’s case (violent strangulation).

[94]The judge gave a full and careful ruling on this subject on 13 January 2004. He referred to DPP v P

[1991] 2 AC 447

and David John R [28 May 2000, CACD, Henriques J]. The judge said:

“The crucial factor for me to consider … is: to what issue does this evidence go? There is, in my view, one clear answer to that. It goes to rebut the defence that in an otherwise consensual activity something wholly undesired occurred and death resulted by accident. … the issue [is]: accident versus design; it goes to rebut accident. In my view, a jury would be entitled to weigh up the likelihood of such an event occurring by accident and it happening by coincidence within hours of a man having fuelled his fantasies for such activities by one of his regular visits to sites on his computer dealing with such activities. In my view, the Internet evidence and the evidence of the defendant’s movements after her death is admissible to rebut the defendant’s claim of accident. … [I]n reaching my decision I have considered section 78 and have taken the view that the admission of the Internet evidence would not have such an adverse effect on the fairness of these proceedings that I ought to exclude it.”

[95]In our judgment the evidence in question was admissible to rebut the defence of accident, for the reasons given by the judge in his comprehensive ruling. The Fourth Ground – Inadequate Direction to the Jury on the Internet evidence

[96]The fourth ground of appeal is that if the Internet evidence was properly admitted, the judge failed adequately to direct the jury as to how they should approach this evidence.

[97]Mr Fitzgerald submitted that it was important to distinguish between the asphyxial and necrophiliac pornographic material. There was the potential for an illegitimate chain of reasoning; namely, that if someone looked at the Internet evidence on day 1, they were more likely to commit murder on day 2. The vital seconds for the jury to consider were those surrounding the victim’s death on 14 March. It was difficult to see how the Internet evidence could assist in determining the issue as to what the appellant’s real interest was, in a way which did not simply point to propensity. Mr Fitzgerald submitted that the judge should have warned the jury about treating evidence of fantasy as evidence as to what the appellant in fact did.

[98]Mr Kelsey-Fry submitted that there were no grounds to criticise the way in which the judge directed the jury on their approach to the computer-related evidence. The judge had been at pains to ensure that the jury used computer-related evidence only for permissible purposes.

[99]In our judgment, the judge’s directions (summing-up page 11 et seq.) as to the Internet evidence were both appropriate and accurate. He emphasised to the jury that they had to be very careful about how they used this material, adding; “the fact that he accesses such material, of course, does not prove that he is guilty of murder”. As to Mr Fitzgerald’s submission that the judge should have warned the jury about treating evidence of fantasy as evidence of what the appellant in fact did, the judge correctly stated that:

“the fact that it appears that he has an interest in rape, asphyxiation and strangulation of women, and in dead female bodies, … does not prove that he is guilty of the allegation set out in this indictment”

. The judge directed the jury that if they thought the appellant was or might be telling the truth about why he had accessed the various pornographic sites, then they should put the Internet evidence out of their minds. The judge went on to explain the possible relevance of the Internet evidence – to rebut the defence of accident. The judge concluded his directions by repeating that the jury should approach the Internet evidence with great care in accordance with his directions. There is no substance in this ground of appeal.

The Fifth Ground – Exhibit DJR/13 should have been excluded

[100]The fifth ground of appeal is that, if the judge was correct in his ruling that the Internet evidence should be admitted, this should not have extended to exhibit DJR/13 (evidence of the contents of websites on 28 May 2003 to which the appellant had previously subscribed).

[101]Mr Fitzgerald submitted that there was no evidence to show that the appellant had ever viewed the material contained on these websites in May 2003. Even if the material had been in existence in March and April 2003, there was no evidence to show that the appellant had ever accessed it.

[102]Mr Kelsey-Fry pointed out that exhibit DJR/13 was not placed before the jury; all they saw was the written summary. The summary was accepted by the defence as being accurate. It was the prosecution’s case that what the defendant would have seen when he visited the sites would have been material of a similar nature. The images accessed by the prosecution expert showed that the names of the websites accurately reflected the material in fact displayed on these sites. The summary of DJR/13 did not do anything more than confirm that the websites visited had accurately descriptive titles. Further, the web pages and partial web pages re-assembled from the Internet cacheas they would have been viewed by the appellant on his computer in April 2003, included materials from three of the websites listed in DJR/13.

[103]We have considered the summary of DJR/13 placed before the jury. It was prepared by the prosecution to avoid any risk of prejudice. It was limited in its terms. In our judgment the summary was, for the reasons referred to by Mr Kelsey-Fry, properly placed before the jury. The Sixth Ground – Re-introduction of evidence previously agreed or ruled to be: inadmissible

[104]The sixth ground of appeal is that there was a material irregularity in that evidence that had previously been either agreed to be inadmissible by the Crown, or ruled inadmissible by the judge, was introduced in the course of the appellant’s cross-examination by the prosecution.

[105]The prosecution, by agreement, did not seek to adduce evidence of what the appellant had said about his fetish to doctors some years before. Further, the judge ruled against the admissibility of certain comments allegedly made by the appellant to Sandra Gates during the course of their relationship. Mr Fitzgerald therefore submitted that the prosecution should not have asked the appellant in cross-examination, “over the years, were you ever worried or concerned where your fetish might lead?” because the question was intended to elicit evidence agreed or ruled to be inadmissible.

[106]Mr Kelsey-Fry pointed out that the appellant’s evidence in chief was that his fascination did not extend to women being strangled to death for sexual purposes. In these circumstances, Mr Kelsey-Fry submitted that it was a permissible line of questioning to inquire whether the appellant ever feared or contemplated that his fascination might lead him to cause harm to women. The prosecution made no reference to the evidence ruled inadmissible

[107]In our judgment the question was not improper and did not contravene what had been agreed either between the parties or the judge’s ruling. The evidence which the appellant gave in chief made the questioning perfectly fair. It was not objected to at the time. An objection was raised when the appellant was asked whether he had done anything about his fears. After this objection the line of questioning was not pursued.

Appeals against sentence

[108]The trial judge had to consider the question of sentence in accordance with the provisions of the Criminal Justice Act 2003, which came into force in December 2003. In passing sentence, Judge Brown pointed out that everything that he had heard about the victim showed her to have been “the sort of person whose life enriched all of those who came into contact with her”. He then referred to the appellant’s sordid and evil fantasies that had resulted in the appellant taking her life. He referred to the persistent denial of the appellant, putting those the victim loved through the ordeal of reliving in the courtroom the last moments of her life. The judge considered that the appellant had “shown not one jot of remorse”. The judge of course had the advantage of hearing the evidence, including that of the appellant.

[109]The first ground of appeal is that the judge failed to give the credit he should have done for the period during which the appellant had been remanded in custody. This is required because credit is not automatically given. The need for due credit is provided for in sections 269(3)(b) and the Criminal Justice Act 2003. The appropriate period for which credit should have been given is ten months. As credit was not given for that period, the appeal has to be allowed to the extent of reducing the minimum term of thirty years by ten months.

[110]It is also argued that it was wrong to take a thirty year starting point under Schedule 21 of the Criminal Justice Act 2003. On any reading of Schedule 21, it is difficult to regard this as anything other than an offence where the seriousness was “particularly high”. There is nothing wrong with the starting point of thirty years.

[111]This was, however, a case where paragraph 10 of Schedule 22 of the 2003 Act had to be complied with. Paragraph 10 provides for the situation which we have here, where the offence was committed prior to the 2003 Act coming into force. Paragraph 10, in these circumstances, prevents the court making an order for a minimum term “which in the opinion of the Court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify” as a minimum term in such a case.

[112]The problem is that it is very difficult to determine what the Secretary of State’s practice was before December 2002. Delay had occurred in the Secretary of State fixing minimum terms in the period prior to December 2002. One thing is, however, clear and that is that in serious cases of which this is one, the statutory guideline significantly increased the level of minimum terms compared to those which had been set out in the practice directions of the respective Lord Chief Justices. (See generally R v Sullivan and others

[2005] 1 Cr App R 3

[113]We confess that we would have welcomed assistance from the Crown as to what the prosecution considered the appropriate level in this case. Unfortunately, as a result of a misunderstanding of a message which was passed to junior counsel for the Crown, no assistance was available. So that there is no misunderstanding in the future, we emphasise that prosecuting counsel must always be prepared, where there is an appeal against conviction and sentence, to assist the court on the question of sentence if the appeal against the conviction fails.

[114]We were given assistance by Mr Fitzgerald for which we are grateful. We agree with him, that if a starting point of thirty years is taken in this case, then that starting point would accommodate any aggravating features that existed, so 30 years would be the top of the scale. As to mitigating features, there was the lack of previous convictions for the appellant and the possibility, about which we are by no means satisfied, that there was no premeditation. In addition, Mr Fitzgerald submits that since the offence was committed before 18 December 2003, the transitional arrangements in Schedule 22 of the Criminal Justice Act 2003 apply, (see s 276 of the Act and Practice Direction (Criminal Proceedings: Consolidation) para IV. 49 (as substituted by Practice Direction (Crime Mandatory Life Sentences) (No. 2) 29 July 2004). Under paragraph 10 of Schedule 22, the Court may not pass a sentence greater than that which would have been notified by the Secretary of State under the practice followed before December 2002. He submits that in accordance with para IV. 49. 26 of the Practice Direction, a starting point of 15/16 years should have been taken. He further submits that the lack of premeditation and lack of previous convictions were mitigating factors, and that there was no safe basis for finding any aggravating factors other than the concealment of the victim’s body. We re-emphasise that the higher starting point of 15/16 years is, as it is stated to be, a “starting point”. Furthermore, we are by no means satisfied that there was no premeditation.

[115]The complaint is made that the judge appears to have sentenced on the basis that the appellant had engaged in sexual activity with the deceased post mortem. It is said that there is no proper evidential basis for this conclusion. However, we have already dealt with this as a ground of appeal against conviction and, in doing so, we have pointed out that there was an appropriate evidential foundation. In any event, on our approach to the length of the minimum term, this would not have increased the minimum term.

[116]The judge made no reference to paragraph 10 in his sentencing remarks. Doing the best we can, in a situation that is far from satisfactory, and taking into account the court’s own significant experience of the minimum terms which were imposed by the Secretary of State before December 2002, our conclusion is that the Secretary of State would not then have imposed a minimum term of less than twenty six years. Accordingly, in order to comply with the statute, we have to reduce the minimum period set by the judge to that figure, which we do. In addition, again to comply with the statute, there must also be further credit for the ten months already served on remand.

[117]Subject to the above the appeal is dismissed.