No: 95/2057/Z5
BAILII Citation Number: [1996] EWCA Crim 1793
IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand
London WC2
Date: Tuesday 27th February 1996

B e f o r e :
LORD JUSTICE SIMON BROWN
MR JUSTICE ALLIOTT
and
MR JUSTICE OGNALL
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R E G I N A
v
CHRISTOPHER CORBETT
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(Computer Aided Transcript of the Stenograph Notes of John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)
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MR A JONES QC and MR N SAUNDERS appeared on behalf of the Appellant

MR HOCKMAN QC and MR HILLEN appeared on behalf of the Crown
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JUDGMENT

Tuesday 27th February 1996
LORD JUSTICE SIMON BROWN: Mr Justice Alliott will give the judgment of the Court.
MR JUSTICE ALLIOTT: On 23rd February 1995, at the Crown Court at Maidstone, before the late Judge Waley QC, the appellant was convicted of manslaughter and common assault. On 17th March 1995 a breach of bail was put and admitted and he was sentenced to 40 months' imprisonment for the manslaughter and three months' imprisonment, consecutive, for the breach of bail. No separate penalty was imposed for the common assault. He appeals against conviction by leave of the full court, who granted leave in these words:
"The circumstances of the manner in which the victim met his death were most unusual. We have some concern as to whether there might have been a break in the chain of causation and whether in the summing up this issue was adequately dealt with. In those circumstances we grant the application for leave to appeal against conviction. We consider that this issue was worthy of review by the full court." 
The court then went on to make provision for the instruction of leading counsel and the lodging of a fresh Notice of Appeal.
The appellant appeals as of right in respect of the sentence imposed for the breach of bail as a contempt of court, and against the manslaughter sentence by leave of the single judge.
The facts of the matter are these. On 29th November 1993 the appellant and a friend of his called Richard Clark met the victim Eric Bishop in a public house in Maidstone and offered to let him stay the night with them. The evidence of Roy Bishop, the father of Eric Bishop, was read. He said of his adopted son Eric that he was mentally handicapped, having an IQ of about 80, and had at times suffered from mental illness. He also had problems with high alcohol consumption. At the time of his death he had been excluded from the family home, on the advice of the professionals involved, in an attempt to encourage independence. He was 26 years of age.
The following day all three men drank heavily together in a number of public houses. During the afternoon they together collected a social security Giro cheque of Mr Bishop's. At about 9.30 pm the three men took a taxi to a stretch of the A20 road outside Maidstone. Mr Bishop was very drunk and had to be supported into the taxi by the others. Evidence was given, by ten witnesses in cars passing along the London Road and by two in a house nearby, as to the events which followed. A man, whom it was agreed was the appellant, was seen to be chasing another, Mr Bishop, along the road. Mr Bishop was in the road itself and cars were slowing down. The appellant pushed Mr Bishop down on the verge and started to kick or punch him on the ground. One of the cars contained a family, the Salvidges. Alan Salvidge and his daughter Nicola were travelling in his nephew Paul's car. As they passed Alan Salvidge saw the appellant hitting and head butting Mr Bishop who was crouching down and offering no resistance. His daughter and Paul Salvidge saw the appellant throw Mr Bishop down and climb on top of him. Miss Salvidge also saw the appellant head butt Mr Bishop. Having passed, the Salvidges decided to turn back and offer assistance. As they came back they saw a third person, Mr Clark, holding the appellant back whilst Mr Bishop lay on the ground. Mr Bishop, according to Mr Alan Salvidge then got up and went to cross the road. He fell into the gutter. As Mr Salvidge got out of the car he saw Mr Bishop in the road, with his head slumped forward. A car passed, striking his head. The other two occupants of the car gave a similar description. When reference was made to a plan of the immediate area Alan Salvidge's account and an indication of the parties showed that the appellant was being held back by Mr Clark, about 20 metres from Mr Bishop. The other accounts suggested they were nearer.
The car which hit Mr Bishop was driven by Mrs Rodriguez. She had been driving close to the kerb because she was being overtaken. She did not stop, unaware that she had hit a person. She later asked her son to call the police. The appellant approached Mr Alan Salvidge and aggressively asked if they had hit Mr Bishop. He was told they had not, but had seen the fight. The appellant said that Mr Bishop was his friend and they had been drinking together. The appellant went to a nearby house and asked for an ambulance to be called. He said to two members of the public that he had been chasing Mr Bishop and, to one, that it was his fault. He was panicking and excitable. He told a police officer at the scene that they had had an argument and bit of a fight and Mr Bishop had run away. He again said it was his fault in a statement he made later to another officer. The cause of death was head injuries. Mr Bishop's blood contained 306 milligrammes of alcohol per 100 millilitres. The appellant's blood alcohol level, at 2.40 am on 1st December, was 150 milligrammes of alcohol per 100 millilitres.
In interview the appellant said that it had been agreed that Mr Bishop could stay with the appellant and Mr Clark. The argument had started when Mr Bishop had urinated on the appellant's foot as they stood urinating in an alleyway off the London Road, which was a short cut to the caravan site on which they lived. He described chasing Mr Bishop along the road, avoiding cars and catching him and punching him. Mr Clark pulled the appellant off and calmed him down. The appellant then offered his hand to Mr Bishop to shake, at which Mr Bishop turned and ran into the path of a car.
The trial started on 16th February 1995. On Monday 20th February the appellant failed to attend and a bench warrant was issued. The case continued, in his absence, to the conclusion of the prosecution case later that day, following which the judge rejected the submission of no case to answer. The following day the case was adjourned, a telephone call having been received from the appellant by his family. On 22nd February an application to discharge the jury was rejected by the judge and the trial continued. The defence offered no evidence. The jury convicted the next day. The appellant, in fact, remained at large for five days.
The appeal against conviction centres upon the direction on manslaughter given by the judge, and we read now the relevant passages, starting at 17C:
"Manslaughter    unlawful killing of another person or unlawfully causing the death of another person, directly or indirectly...
...
The defendant must be the cause of the death.
What is alleged here is, of course, indirect. It is not suggested that the killing was perpetrated as such by the defendant. What is suggested is that the violence of the defendant, coupled with the real fear of further violence from him, led the victim to do something which resulted in his death. What it was it led him to do was to attempt to escape. You have got to assess from the evidence whether or not the defendant is in law proved to be the cause of that death, albeit indirectly." 
Then the learned judge took the jury through a series of six questions which he had reduced to writing for them:
"These are the questions. Has the evidence proved first and foremost:
'That the victim, Mr Bishop, immediately before he sustained the injuries was in fear of being hurt physically?
'That this fear was such that it caused him to try to escape?
'That while he was trying to escape, and because he was trying to escape, he met his death?
'That his fear of being hurt there and then was reasonable and was caused by the conduct of the accused?
'That the accused's conduct which caused the fear was unlawful,' and
'... such that any sober and reasonable person would recognise it as likely to subject the victim to at least the risk of some harm resulting from it, though that need not be serious harm?'" 
He said further, lower down on page 19:
"Was it in fact the fear of being hurt physically that was causing him, in the brief interlude, if you think it was, to try to escape? What you know is that the third man pulled off the defendant, who was, as the evidence shows, apparently assaulting the deceased. It is for you to say whether that is what was happening or not." 
He continued on page 20C:
"Whether that fear was caused by the conduct of the defendant, the way the defendant was behaving? Whether what the defendant was doing was unlawful?" 
And finally at page 21 B:
"You will, of course, look to see what was the state of the person, the victim, who died at the time. Was what he did within what one might call the foreseeable range? A person in his condition, at that time, trying to escape. You will, of course, look at what had been happening already. Running up the road amongst the cars, trying to stop one to get away. Look at his known condition, because we do know that he was immensely full of drink. Was in fact what he did something that might be expected as a reaction of somebody in that state?
Those are factors that you have to bear in mind. Members of the jury, the important thing is, first of all, for the Crown to establish an affirmative answer, the answer 'yes' to each of those questions on that bit of paper." 
Inspired by the judgment of the full court giving leave, Mr Alan Jones QC has endeavoured to create an argument that the direction given and, in particular, the questions posed, which were clearly based upon the decision in Mackie 57 Cr App R 453, do not adequately deal with causation. He contends that the judge should have told the jury that the Crown had to prove the death occurred as the   stressing the definitive article   natural consequence of what the defendant did. He was disinclined to define the natural consequence but in effect contended that if there was scope for any other consequence the Crown would not have discharged the burden of proof upon them. He cites Beech 7 Cr App R 197, and in particular a passage at page 200 in an attempt to establish that proposition. That passage reads:
"Then it is said that the judge gave a wrong direction as to the law on the subject. He put to the jury, 'Will you say whether the conduct of the prisoner amounted to a threat of causing injury to this young woman, was the act of jumping the natural consequence of the conduct of the prisoner, and was the grievous bodily harm the result of the conduct of the prisoner?' We think that that was a proper direction as far as the law went; we are satisfied that there was evidence before the jury of the prisoner causing grievous bodily harm to the woman. No one can say that if she jumped through the window it was not the natural consequence of the prisoner's conduct. It was a very likely thing for a woman to do as the result of the threats of a man who was conducting himself as this man indisputably was." 
It is true that Mr Justice Darling cites the trial judge as using the phrase "the natural consequence", but in his own commentary on that phrase he speaks of it being a very likely thing for a woman to do   contemplating, as this court considers, a range of reactions by the victim.
Mr Jones then cites Roberts 56 Cr App R 95 and in particular a passage at page 102, where Lord Justice Stephenson, giving the judgment of the court, having approved Beech continues:
"The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so 'daft', in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury." 
Again, that very passage undermines Mr Jones's submission because the latter part of it clearly envisages a foreseeable range of consequences. A daft reaction would be beyond that range and would break the chain of causation.
In Williams and Davis 95 Cr App R 1 this court held that the Mackie direction was inadequate and Mr Jones endeavoured to submit the instant case was one such. We read, first, from the second holding of the headnote:
"Although in most cases, in directing the jury on manslaughter, the direction in Mackie as approved in DPP v Daley (1979) 69 Cr App R 39 sufficed; in the instant case, although the judge followed that direction verbatim, he should have gone on to explain to the jury the test by which the voluntary act of the deceased might be said to have been caused by the defendant's act, as opposed to being a novus actus interveniens, thus breaking the chain of causation between the threat of violence and the death. The jury should have been directed to consider whether it was reasonably foreseeable that some harm, albeit not serious harm, was likely to follow from the threat itself and whether S's reaction in jumping from the car was within the range of responses expected from a victim placed in his situation, bearing in mind any particular characteristic and that he might, in the agony of the moment, act without thought or deliberation. In the absence of any such direction by the trial judge or evidence of the nature of the threat made by [the defendant], his conviction for manslaughter would be quashed, and as the case of joint enterprise against all three defendants had failed." 
The particular passage relied upon by Mr Jones is at page 8 of the report:
"The harm must be physical harm. Where the unlawful act is a battery, there is no difficulty with the second ingredient. Where, however, the unlawful act is merely a threat unaccompanied and not proceeded by any actual violence, the position may be more difficult. In the case of a life threatening assault, such as pointing a gun or knife at the victim, all sober and reasonable people may well anticipate some physical injury through shock to the victim, as for example in Dawson where the victim died of a heart attack following a robbery in which two of the appellants had been masked, armed with a replica gun and pickaxe handles. But the nature of the threat is of importance in considering both the forseeability of harm to the victim from the threat and the question whether the deceased's conduct was proportionate to the threat: that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation. It should of course be borne in mind that a victim may in the agony of the moment do the wrong thing." 
The final passage on that page:
"In our judgment the direction in Daley is not sufficient where there is a real issue as to causation. In that case it could hardly be disputed that a reasonable man should foresee that the victim would flee if he was being stoned and that while fleeing he might slip and fall. In the present case the judge did not include this direction as being part of the necessary ingredients of the offence, relying no doubt on Daley. He referred to the victim's need for a well founded and not a fanciful fear that was out of all proportion to the threat. But that does not relate to his reaction in jumping out of the car. In the last sentence of the passage quoted he refers to the attempt to get out of the car being out of all proportion to the force used. But even here it is put as an alternative and not as an additional requirement and begs the question of what, if any, force was used.
In our judgment the failure of the judge to give any direction on causation was a misdirection and the conviction on this count must be quashed." 
It is apparent from those passages that the court's concern in that case was of what can be described as "the overreaction of the victim" ie reacting in a way outside the foreseeable range. In the instant case the judge, in the passage already cited at page 21B to E, emphasised that the victim's reaction must be in the foreseeable range. At the end of the day this court sees no legal basis whatsoever for the fundamental submission made by Mr Jones. During the course of the argument my Lord, Lord Justice Simon Brown, invited Mr Jones to postulate scenarios, consistent with the appellant's innocence, that were not eliminated by the jury's answer "Yes" to each of the six questions posed to them. Mr Jones gallantly responded with four possibilities:
1. The deceased's irrational disposition to expose himself to danger, coupled with his distress as a consequence of the fight.
2. Possible fear that the occupants of the Salvage's car were going to attack him.
3. Possibly stumbling into the path of the car.
4. Random, drunken wandering.
None of these scenarios, in fact, survives the jury's six affirmatives. The appellant's reaction at the scene belies the ingenious arguments of his learned counsel "Get real, Governor, that's my mate. I killed him, really. If I hadn't have been having a fight he wouldn't have run into the road. It's my fault."
Mr Jones briefly touched upon his second ground which coupled the first ground with the fact that the appellant had absented himself from the trial and how the judge made reference to it. One only has to read the full passage, which appears at page 13F:
"In this case, there is the additional complication that the decision not to give evidence has been underlined by a decision not to favour us with his presence for the last part of the trial. Again, and I have to underline this because it is immensely important, do not draw any inference adverse to the defendant from the fact." 
One only has to read that passage in full to appreciate there is nothing in this point. The appeal against conviction therefore is dismissed.
We turn now to the appeal against sentence. That brought of right against the three months imposed for breach of bail treated as a contempt of court. It does not appeal to this court as little as it did to the single judge. There must be a real sanction where bail is breached and although the appellant was only at liberty for five days the three months will stand to run consecutively with the manslaughter sentence. Addressing us on the latter, Mr Saunders pointed to a number of minor mis recollections, on the part of the judge, nearly four weeks after the conviction. More significantly, he pointed to a number of mitigating features.
1. The immediate remorse demonstrated by the appellant at the scene, of which an instance has already been cited, and his practical assistance there, notwithstanding he was distraught and upset.
2. The absence of any previous convictions for violence in his record.
3. The efforts he made to curb his drinking in the 16 months he was on bail, and the testimonial from his employers. 
Sentencing in these cases is never easy but we consider, with respect to this very experienced judge, that he imposed too long a term. We propose, therefore, to quash the sentence of 40 months' imprisonment and to impose instead a sentence of 30 months' imprisonment. The total sentence will therefore be 33 months. To that extent the appeals against sentence are allowed. 

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