Carpenter, R v [2011] EWCA Crim 2568

Case No 2010/2361/D4[2011] EWCA Crim 2568
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WORCESTER
His Honour Judge McCreath
(The Recorder of Worceser)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/11/2011
Before
LORD JUSTICE RICHARDSMR JUSTICE KEITHMR JUSTICE NICOL
Between
The QueenRespondentTracy Maureen CarpenterAppellant
Rex Tedd QC (instructed by Duncan Kenney Solicitors) for AppellantTimothy Raggatt QC (instructed by CPS Worcester) for CrownHearing Hearing date : 20 September 2011
JudgmentLord Justice Richards :
[1]The appellant, Tracy Carpenter, was tried at Worcester Crown Court before HHJ McCreath (the Recorder of Worcester) and a jury on a count of murder (count 1 on the trial indictment) and a count of wounding with intent (count 2). On count 1 she was acquitted of murder but was found guilty, by a majority of 10 to 1, of manslaughter. She was convicted on count 2. She was sentenced to 11 years’ imprisonment on count 1 and to 6 years’ imprisonment concurrent on count 2. She now appeals against her conviction on count 1, by leave of the full court. A renewed application for leave to appeal against sentence was adjourned to the substantive hearing.[2]The appellant’s son, Joseph (Joe) Carpenter, had previously pleaded guilty to the same counts of murder and wounding with intent. He was sentenced to custody for life (with a minimum term of 14 years 4 months, less time in custody on remand) on count 1 and to a concurrent sentence of 6 years’ detention on count 2.[3]The appellant’s husband, Paul Carpenter, was tried together with the appellant and was convicted of manslaughter on count 1 and of a separate count of wounding with intent (count 3). He was sentenced to 11 years’ imprisonment on count 1 and to 6 years’ imprisonment concurrent on count 3. His application for leave to appeal against sentence was refused by the single judge and has not been renewed.

The facts

[4]The Carpenter family and the Price family belonged to the travelling community and had known one another for a number of years. Joe Carpenter (aged 18) and Shane Price (aged 21) had been friends on and off for about three years. They socialised and worked together. At some point, however, they had a disagreement and a conflict arose between them. It resulted in their meeting on 13 February 2009 at a pre-arranged location, in the presence of members of their families, so that the two men could settle their differences in a “fair-play fight”. During that fight Joe Carpenter inflicted a number of stab wounds on Shane Price, as a result of which Shane died. Joe also inflicted knife injuries on Shane’s mother, Eileen Price.[5]Joe admitted his own part in these matters and, as we have indicated, entered guilty pleas in respect of the murder of Shane Price and the wounding of Eileen Price with intent. The trial concerned the involvement of his parents. The prosecution alleged joint enterprise, contending that the Carpenter family went to the scene armed with at least two weapons (Joe had a knife and Paul had a machete) and that the appellant was aware at least of the fact that Joe was carrying a knife. It was alleged that the appellant and her husband held on to other members of the Price family to prevent assistance being given to Shane as Joe attacked him: the appellant held on to Eileen Price whilst her husband held on to Frederick Price Snr. It was also alleged that Joe attacked Eileen Price while the appellant held on to her (an attack in the course of which the appellant herself sustained an accidental wound to the hand from Joe’s knife).

The issue on the appeal against conviction

[6]Leave was granted by the full court on just one ground, as is clear from the transcript of the judgment (see [2011] EWCA Crim 1189) and the order drawn up to give effect to it. That ground relates to the judge’s directions as to joint enterprise in relation to manslaughter.[7]In the first part of his summing up, having given directions as to what the prosecution had to prove for the jury to find the appellant or her husband guilty of murder,

the judge continued:

“Not quite an end of it, because if the prosecution prove, against either Paul Carpenter or Tracy Carpenter, that he or she participated in the violence, and that, when he or she did so, he or she knew that Joe Carpenter had a knife, and intended to use it to cause some injury or harm, but falling short of killing or causing serious bodily harm, or realised that he might use a knife to cause some injury, falling short of really serious harm, then whoever was in that state of mind would be guilty not of murder but of manslaughter. Why? Because the killing would have been unlawful and a shared intention to that extent, but not a shared intention to kill or cause serious bodily harm.”
[8]Thereafter the judge prepared written directions in the form of a “route to verdict” document which was handed to the jury and which the judge then took the jury through. It was expressed in terms of what had to be proved in relation to Paul Carpenter, with an instruction to answer the same questions, with appropriate substitutions, in relation to the appellant. Although only the second part related to the alternative of manslaughter, it is helpful to set it out in full:
“1. In respect of Paul Carpenter, is it proved that by the time he arrived at the car park he knew that Joe Carpenter was armed with a knife? 2. If no, your verdict will be ‘not guilty’. 3. If yes to (1) go on to answer this question: Is it proved that he shared Joe Carpenter’s intention to kill or to do really serious injury or realised that Joe Carpenter might use the knife with that intention and nevertheless took part by restraining Frederick Price sr, to prevent him from intervening in order to protect Shane Price? 4. If yes to (3), your verdict will be ‘guilty’. 5. If no to (3), go on to answer this question: Is it proved that he knew that Joe Carpenter had a knife and intended to use it to cause some injury or harm but falling short of killing or causing really serious injury or he realised that Joe Carpenter might use the knife to cause some injury falling short of really serious injury and nevertheless took part by restraining Frederick Price sr, to prevent him from intervening in order to protect Shane Price? 6. If yes to (5), your verdict will be ‘not guilty of murder but guilty of manslaughter’. 7. If no to (5), your verdict will be ‘not guilty’. You should then answer the same questions in relation to Tracy Carpenter, substituting her name for that of Paul Carpenter and the name ‘Eileen Price’ for ‘Frederick Price, sr’.”
[9]Trial counsel had requested a direction on an alternative verdict of manslaughter and made no complaint about the directions actually given. But Mr Tedd QC, who has come into the case on behalf of the appellant since the trial, contends that there was no scope for a verdict of manslaughter and that no manslaughter direction should have been given, alternatively that the direction given was flawed.[10]The essence of the case advanced by Mr Tedd is that because the offence was murder, the appellant could not be liable for the death as a secondary party unless she shared the intention of the principal, Joe, to kill or to cause really serious harm or she foresaw that Joe might act with that intention. In other words, in Mr Tedd’s submission, in this case it was murder or nothing, and the jury should not have been directed that a verdict of manslaughter was open to them at all, let alone directed in the terms quoted above. A person can be liable as a secondary party in manslaughter only to the extent of the act which he or she foresees, which in this case (as shown by the jury’s acquittal of the appellant on the count of murder) did not include death or life-threatening injury.[11]An alternative way in which Mr Tedd put the argument was that the jury should have been directed that in order to find the appellant guilty of manslaughter they had be sure that Joe acted within the scope of the joint enterprise to which the appellant had lent herself, that is to say a joint enterprise involving foresight of some degree of harm but not of death or life-threatening injury. Mr Tedd observed, however, that it was difficult to see what practical scope there was for a direction of that kind in this case, given that Joe had acted with the intention to kill or to cause really serious harm and had, in Mr Tedd’s submission, thereby acted in a way fundamentally different from that putative joint enterprise. In other words, his alternative way of putting the matter really came back to the first submission, that the appellant was guilty of murder or nothing.[12]Mr Tedd based himself heavily on passages in R v Mendez and Thompson [2010] EWCA Crim 516, [2011] Cr App R 10, which examines issues of secondary liability for murder by parties to a joint enterprise and which refers, for example, at [31] to “the removal of the ability of the jury to return a verdict of guilty of manslaughter in circumstances where D sets out with others on a criminal venture in joint possession of weapons, but without intent to kill or cause serious bodily harm, and P murders V in the course of it”. It was the perception of a possible inconsistency between the judge’s directions in this case and the judgment in Mendez and Thompson which led the full court to grant leave to appeal.[13]Mr Tedd also made some criticism of the judge’s approach in expressing the primary directions and “route to verdict” by reference to the appellant’s husband, Paul Carpenter, and directing the jury to make the requisite substitutions when considering the appellant’s case. He submitted that it was unsatisfactory and undesirable for such crucial directions to be given in this manner. He did not seek to advance the point as a separate ground of appeal but said that it would be relevant to the question whether the conviction for manslaughter was unsafe if his main submissions concerning the judge’s directions were accepted.[14]For the Crown, Mr Raggatt QC submitted that Mr Tedd’s approach to the issue of manslaughter was wrong in fact, law and common sense. The jury must have concluded in this case that there was an overall joint enterprise to commit unlawful violence, that the joint enterprise involved the carrying of a knife and machete by the appellant’s son and husband respectively, that the appellant took an active part in preparation and in preventing the deceased’s parents from coming to his aid, and that she acted in the knowledge that her son had a knife and might use it to cause some harm. The jury blanched only at whether the appellant foresaw that he might use it with the intention of killing or causing really serious harm. It must have been open to the jury in such circumstances to convict of manslaughter; and the defence no doubt preferred the jury to be left with the alternative of manslaughter rather than to be faced with a “murder or nothing” decision. Mr Raggatt submitted that the authorities support that approach and that the judgment in Mendez and Thompson does not have the effect contended for by Mr Tedd. The judge’s directions in this case were therefore correct in law and appropriate to the circumstances.

Discussion

[15]In our judgment, Mr Tedd’s submissions run contrary to a clear and well established line of authority in this court; and whilst they gain superficial support from passages of the judgment in Mendez and Thompson, that case does not in reality represent a departure from the established line of authority and does not provide the appellant with any assistance.[16]For the line of authority against Mr Tedd’s submissions, it is sufficient to go back to R v Roberts and Others [2001] EWCA Crim 1594. In that case there were three appellants alleged to have participated in a joint enterprise to attack the deceased. Two of them had been convicted of murder, whereas the third (Marc Day) had been convicted of manslaughter. It was argued that since the other two defendants had been convicted of murder on a joint enterprise basis, Marc Day could only have been guilty if he participated in the joint enterprise to inflict grievous bodily harm with intent, and in that case he would have been guilty of murder. If his state of mind was only to intend some harm and he did not foresee the infliction of grievous bodily harm by the others, then he was not a participant in the joint enterprise in question and he should have been acquitted. In rejecting that argument, Laws LJ, giving the judgment of the court, said this:
“52. As regards the second point, it is not part of the law of joint enterprise that a secondary party, B, must share the mens rea of the principal offender, A – see Slack [1989] QB 775 and Hide [1991] 1 QB 134 where it was made clear that foresight of what the principal may do is sufficient mens rea for the accessory even if there is no actual agreement between him and the principal. In Powell and English itself a major question was whether a secondary party in a murder case must be shown to have been actuated by the mens rea required in the principal offender, and the question was answered in the negative. The subject matter of a joint enterprise is not a state of mind or intention but an objective act which it is contemplated will or might be done. 53. That proposition we think provides the key to the right result in a class of case which is not, so far as counsel’s researches have revealed, distinctly the subject of any authority. Suppose that the participants in a joint enterprise all propose or foresee the same kind of violence being inflicted on their victim, let it be punching with the possibility of kicking to follow. On that they are at one. But two of them harbour a subjective intention to inflict really serious injury by means of such violence. The third harbours only, or foresees or intends only, that some harm might be done. One of those actuated by an intent to do grievous bodily harm punches or kicks the victim just as all three foresaw. The victim falls and suffers a subdural haemorrhage and dies. The principal is guilty of murder as he had the mens rea required. So also is the accessory who, like him, intended or contemplated the infliction of the serious injury. What of the third adventurer? Mr Fitzgerald submits he must escape altogether because he did not foresee a murderous state of mind would be harboured by his fellows. Yet if his fellows had entertained only an intention to do some harm and otherwise the facts were the same, all three would be guilty of manslaughter. It does not seem to us that that can be right. In such a case there was a joint enterprise to inflict some harm, and that is not negated by the larger intentions of the other two adventurers. In our judgment in such a case there is no reason why the participants should not be convicted and sentenced appropriately as their several states of mind dictate ….”
[17]In R v A and Others [2010] EWCA Crim 1622, [2010] 2 Cr App R 32, a case concerning the liability of secondary parties for murder, Hughes LJ (Vice President), giving the judgment of the court, drew a distinction at para [27] between a case where D2 foresees that D1 will cause death by acting with murderous intent (in which case D2 has associated himself with a foreseen murder) and a case where all that D2 foresees is that death may be caused without that intention (in which case he has associated himself not with a foreseen murder but with foreseen manslaughter). He then cited at para [28] a substantial part of the passage we have quoted above from Roberts, before concluding:
“Thus this court proceeded upon the basis that the second participant was guilty of murder because he at least foresaw the deliberate infliction of GBH, whereas the third was not because he did not. That is precisely the law as we have endeavoured to state it. This court was not beginning to say that D2 could be guilty of murder without foresight that D1 might act with murderous intent.”
The focus was of course on secondary liability for murder, but there was not the slightest suggestion of disagreement with the conclusion reached in Roberts that the participant who lacked the requisite state of mind for murder might nonetheless be guilty of manslaughter.[18]To similar effect as Roberts is the judgment in R v Yemoh and Others [2009] EWCA Crim 930, albeit Roberts does not appear to have been cited to the court in Yemoh. The case concerned a knife killing in which joint enterprise was alleged. One of the appellants had been convicted of murder, the others of manslaughter. In broad terms, therefore, the case had a degree of factual similarity to the present case. One of the arguments advanced on behalf of those convicted of manslaughter was that the judge had been wrong to direct the jury that a defendant would be guilty of manslaughter if it was proved that he participated in the attack and that when he did so “he knew that the knifeman had a knife or other sharp implement and intended to use it to cause some injury or harm, but falling short of killing or causing really serious bodily harm, or he realised that that person might use the weapon to cause some injury, falling short of really serious harm”. In rejecting the appellant’s submissions Hooper LJ, giving the judgment of the court, said this:
“125. This submission cannot succeed in the light of the decision of the House of Lords in Rahman [R v Rahman [2008] UKHL 45, [2009] 1 AC 129], upholding the decision of the Court of Appeal. In Rahman it was argued that the fact that the stabber intended to kill (or may have intended to kill) took (or could take) the stabber’s actions out of the scope of the common design because what the stabber did was ‘fundamentally different’ from what the appellants had intended or foreseen. All that they had intended or foreseen was the infliction of serious bodily harm. That argument was rejected. 126. The argument presented in this case on behalf of those convicted of manslaughter is only a slight variation on this argument. If a defendant knowing that the stabber had a knife intends the stabber to cause some injury to the deceased or realises that he might cause some injury, then the fact that the stabber stabbed the deceased intending to kill him is not ‘fundamentally different’ from what the defendant had intended or foreseen. Counsel could point to no authority to the effect that the fundamentally different rule in manslaughter cases is different to the rule as it applies to murder cases. It follows that, in so far as this argument is concerned, there was no misdirection and it also follows that the judge was entitled if not obliged to leave manslaughter to the jury.”
[19]Mr Raggatt directed our attention to what is said about Yemoh in Smith and Hogan’s Criminal Law, 13 ed. (2011), at pages 225-226:
“In Yemoh the Court of Appeal confirmed that P’s greater mens rea from that which D foresaw will not prevent D being guilty of manslaughter. D, a member of the gang, knew that another member of the gang, P, had a knife and intended that other to cause some injury to V or realized that he might cause some injury. The fact that P stabbed V intending to kill (i.e. with graver mens rea) did not absolve D. If D intended or foresaw that one of the group might cause non-serious injury, D remains liable for manslaughter even if P kills with intent to kill or do gbh, unless P’s manner of doing so is fundamentally different from that D foresaw.”
[20]To similar effect is the commentary in Archbold, 2011 edition, para 19-26, referring inter alia to Roberts (sub nom. R v Day (M)), Rahman and Yemoh.[21]All this is fundamentally at odds with the case advanced by Mr Tedd on the present appeal. Mr Tedd submitted, however, that it cannot stand with Mendez and Thompson, which does not appear to have been cited to the court in R v A and Others (nor indeed in Yemoh) and which we should now follow.[22]The scenario in Mendez and Thompson was that the deceased had met his death from a stab wound after a chase by a group of youths. He had been attacked with punches, kicks and blows with one or more pieces of wood and metal bars. He had also been stabbed with a knife. The two appellants were convicted of murder as secondary parties on the basis of joint enterprise. One of the grounds of appeal was that the judge had wrongly directed the jury in relation to joint enterprise liability, in particular on the question whether use of the knife was fundamentally different from anything the defendants foresaw (in the case of Mendez, at least, there had been no suggestion that he knew that anyone in the group had a knife until after the fatal stabbing had occurred). The court’s consideration of that ground started with a review of the principles of secondary criminal liability.[23]The judgment of the court, given by Toulson LJ, stated at para [18] that, at its most basic level, secondary liability is founded on a principle of causation: a defendant (D) is liable for an offence committed by a principal actor (P) if by his conduct he has caused or materially contributed to the commission of the offence (with the requisite mental element); and a person who knowingly assists or encourages another to commit an offence is taken to have contributed to its commission. At paras [19]-[20] reference was made to early authority that “[i]f the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly commiteth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt”: conduct by P which involves a total and substantial variation from that encouraged by D could not properly be regarded as the “fruit” of D’s encouragement, nor with propriety be said to have been committed under D’s influence. The judgment continued: “21. The judgment of the Court of Appeal in R v Reid (1976) 62 Cr App R 109 at 112 … provides a good illustration of the recognition of the principle. The court commented on R v Anderson; R v Morris (1966) 50 Cr App R 216, [1966] 2 QB 110 …and contrasted the facts of that case with those of Reid. Lawton LJ said: ‘In Anderson and Morris … a distinction was drawn between a mere unforeseen consequence of an unlawful act and an “overwhelmingly supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors”; see the judgment of Lord Parker CJ at … 120. Was O’Conaill’s deliberate firing of the revolver “a mere unforeseen consequence” of the unlawful possession of offensive weapons? We adjudge it was. When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.’ 22. Reid no longer represents the common law in England and Wales on the question of the availability of manslaughter as a possible verdict in cases of that kind, because in Powell and English [R v Powell; R v English [1998] 1 Cr App R 261, [1999] 1 AC 1] the House of Lords adopted a different analysis of Anderson and Morris, which excluded the possibility of a manslaughter verdict in such cases. … However, that is not relevant to the point under discussion. …” ‘In Anderson and Morris … a distinction was drawn between a mere unforeseen consequence of an unlawful act and an “overwhelmingly supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors”; see the judgment of Lord Parker CJ at … 120. Was O’Conaill’s deliberate firing of the revolver “a mere unforeseen consequence” of the unlawful possession of offensive weapons? We adjudge it was. When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.’[24]Mr Tedd placed particular emphasis on the statement that Reid no longer represents the law on the question of the availability of manslaughter as a possible verdict in such cases. The point was picked up again at para [31], in a passage which we have already quoted when summarising Mr Tedd’s submissions:
“Other relevant factors have been … the removal of the ability of the jury to return a verdict of guilty of manslaughter in circumstances where D sets out with others on a criminal venture in joint possession of weapons, but without intent to kill or cause serious bodily harm, and P murders V in the course of it (the scenario considered in Reid).”
[25]The judgment went on to discuss the principle established in Chan Wing Siu v R (1985) 80 Cr App R 117, [1985] AC 168, and reaffirmed in Powell and English, that a secondary party is criminally liable for acts by the primary offender of a type which the former foresees as a possibility but does not intend. Toulson LJ referred to disquiet expressed about that principle but explained how it might be accommodated within the concept of causation which underlies secondary liability. He observed at para [38], with a further reference to Reid:
“Some would argue, in company with Lord Mustill in Powell and English, that where D and P embark on a criminal venture in which P goes further than D wishes, but foreseeably so, D has a measure of culpability for P’s act and V’s resulting death but usually at a lower level than P. When Reid was good law, the difference was accommodated by the possibility of a manslaughter verdict, but that is no longer available; D is guilty of murder.”
[26]A little later he encapsulated and commented on the central submissions before the court in Mendez and Thompson itself, as follows:
“45. The essence of Mr Waterman’s argument can be stated in this way. In cases where the common purpose is not to kill but to cause serious harm, D is not liable for the murder of V if the direct cause of V’s death was a deliberate act by P which was of a kind: (a) unforeseen by D; and (b) likely to be altogether more life-threatening than acts of the kind intended or foreseen by D. Mr Watson QC for the prosecution did not dissent from this proposition. The reference to a ‘deliberate act’ is to the quality of the act – deliberate and not by chance – rather than to any consideration of P’s intentions as to the consequences. … 47. In our judgment the proposition stated at [45] is both sound in principle and consistent with Powell and English and Rahman. It would not be just that D should be found guilty of the murder of V by P, if P’s act was of a different kind from, and much more dangerous than, the sort of acts which D intended or foresaw as part of the joint enterprise.”
[27]On that basis the court accepted the force of criticisms of the directions given by the trial judge and concluded that the conviction of Mendez was unsafe and had to be quashed; and because Thompson had also been convicted as a secondary party, it was conceded that his conviction, too, had to be quashed.[28]We are satisfied that, on proper analysis, Mendez and Thompson does not support Mr Tedd’s submissions. Our reasons are as follows.[29]First, the context was very different. The underlying issue was whether use of a knife to stab the deceased was fundamentally different from anything the secondary party foresaw, so as to fall outside the scope of the joint enterprise, where there was evidence that he foresaw the use of violence and of weapons (fist, foot, pieces of wood and/or metal bars) but not that he foresaw the use of a knife. The particular test of liability for murder set out and approved at paras [45] and [47], and against which the judge’s directions to the jury were tested, was directed to that issue. The court was not considering a case where the use of a knife to do some harm was foreseen but the secondary party did not share or foresee the murderous intention with which the principal actually used the knife.[30]What the court said about the unavailability of manslaughter as a possible verdict has to be read in that context: it was directed to a case where use of a knife was not foreseen, rather than to a case where use of a knife was foreseen but the secondary party did not share or foresee the intention with which it was used. This can be seen very clearly from the passage in Powell and English which the court evidently had in mind when stating at para [22] that Reid no longer represented the law because the House of Lords had adopted a different analysis of Anderson and Morris. The passage is in the speech of Lord Hutton at [1999] 1 AC page 30B-D:
“Accordingly, in the appeal of English, I consider that the direction of the trial judge was defective … because in accordance with the principle stated by Lord Parker CJ in Reg v Anderson, at p.120B, he did not qualify his direction on foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle’s part which English did not foresee as a possibility, then English should not be convicted of murder. As the unforeseen use of the knife would take the killing outside the scope of the joint venture the jury should also have been directed, as the Court of Criminal Appeal held in Reg v Anderson, that English should not be found guilty of manslaughter. On the evidence the jury could have found that English did not know that Weddle had a knife. Therefore the judge’s direction made the conviction unsafe and in my opinion his appeal should be allowed and the conviction for murder quashed.”
[31]It follows that what was said in Mendez and Thompson about the unavailability of a verdict of manslaughter has no bearing on the issue in the present case. The court was simply not addressing a situation where, as here, use of a knife was foreseen but it was not intended or foreseen that the knife would be used with the intention to kill or cause really serious harm. It is therefore unsurprising that cases such as Roberts and Yemoh are not referred to in the judgment and do not appear to have been cited to the court: the issue in those cases did not arise for consideration in Mendez and Thompson.[32]If, contrary to our reading of the judgment, anything said in Mendez and Thompson is to be taken as applying to the availability of a verdict of manslaughter in circumstances such as those of the present case, what was said was plainly obiter (the case was concerned with liability for murder, not for manslaughter) and was expressed without consideration of the Roberts line of authority, and in our view it cannot displace that line of authority.[33]Accordingly, we take the view that the Roberts line of authority remains good law. Its application is determinative of this appeal. We are satisfied that the alternative of manslaughter was properly left to the jury and that there was no material error in the judge’s directions. It might have been better for him to give the jury a separate “route to verdict” in respect of the appellant, rather than directing them to make the appropriate substitutions in the “route to verdict” in respect of her husband, but the jury can have been left in no doubt as to the test they had to apply and there is nothing to cast doubt on the safety of the appellant’s conviction.[34]The appeal against conviction must therefore be dismissed.

Sentence

[35]We turn to consider the renewed application for leave to appeal against sentence. Mr Tedd submitted that a sentence of 11 years’ imprisonment was simply too high in view of the fact that the appellant was a secondary party who was not herself armed and who acted with the limited intention or foresight implicit in the jury’s verdict, and given the available mitigation.[36]The appellant was born on 31 January 1964 and is now therefore 47 years old. She does have two previous convictions for assault occasioning actually bodily harm but they were a very long time ago (in 1982 and 1983 respectively) and were dealt with in one case by a fine and in the other case by a short suspended sentence. She had led a positively good life between then and the present offence, acting for many years as a foster carer. A psychiatric report on her revealed a woman prone to anxiety and depression over many years.[37]Taking everything into account, we do not consider a sentence of 11 years to be arguably excessive. This was an appalling offence, with the appellant playing an important role in the events that led to the death of Shane Price (as well as the wounding of Eileen Price). The mitigation available to the appellant was limited in nature and she did not attract the credit that would have been afforded by a plea of guilty. The sentence was severe but justified.[38]The renewed application for leave to appeal against sentence is therefore refused.

Cited in 1 later judgment