Case No: 2012/01775/B5: 2012/01797/B5
Neutral Citation Number: [2012] EWCA Crim 2293
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT IN NEWCASTLE
MR JUSTICE CHRISTOPHER CLARKE
T2011/7450
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/11/2012
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE RODERICK EVANS
and
MRS JUSTICE THIRLWALL DBE
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Between :

	R	Appellant	
	- and -		
	JM and SM	Respondents	

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Mr Graham Reeds QC for the Crown
Mr Robert Smith QC and Mr A Finlay for  JM
Mr Christopher Knox for SM

Hearing dates: 11th October 2012
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Judgment
The Lord Chief Justice of England and Wales: 
1.	This is a prosecution appeal under s.58 of the Criminal Justice Act 2003, with the leave of the trial judge, against the ruling given at Newcastle upon Tyne Crown Court on 13th March 2012 that taking the prosecution case at its highest, it would not be open to the jury to convict either respondent of manslaughter.  The ruling was made, with the agreement of all those involved, before the jury was sworn.  It addressed a question of law relating to involuntary manslaughter, following a violent incident at a night club in Consett on 12 December 2010 which culminated in the death of a doorman, Peter Jopling.  The ruling was confined to count 1, which charged manslaughter, and had no bearing on count 2, which charged affray.  For present purposes we shall refer to the respondents as the defendants and proceed on the basis that there is no distinction to be drawn between them in relation to the ruling now under consideration.
2.	The events leading up to Mr Jopling’s death are virtually undisputed, and for the purposes of the ruling, largely reflect events recorded on CCTV. 
3.	Mr Jopling was an experienced doorman, aged 40, who, like everyone else, believed himself to be in good health.  Unknown to anyone he was suffering from a renal artery aneurysm which was about 0.7cm in diameter.  He started work in the early hours of 12 December 2010.  Not far short of 3.30a.m. trouble began in the night club when,  after he was seen to light up a cigarette inside the club, JM was asked to leave.  His brother joined him, and after some pushing and shoving, they were put out of the club by the upstairs fire door.  This opened onto a fire escape, consisting of a landing at a height of about 12ft-14ft above the ground, enclosed by a rail, with a flight of stairs descending to the pavement.  After a verbal altercation the doormen closed the fire door and returned inside the club and the defendants started to make their way down the stairs. That should have been that. 
4.	At 3:24:00 JM returned from half way down the stairs and kicked the fire door.  SM continued to walk to the bottom of the stairs but, when he heard the kick delivered to the door, he turned round.  He may have said something to JM, and then they both started walking down the steps.  In the meantime the kick at the door caused two doormen to open it, and step out to the top of the steps.  Mr Jopling joined them shortly afterwards, as part of the team of doormen who became involved in controlling the subsequent affray.  
5.	This began when the defendants rushed back up the stairs and started fighting with the doormen.  Quite which of the two went up first, and who followed whom may be uncertain, but for present purposes there was overwhelming evidence that they went up there together.  At 3:24:41, a doorman later identified as Francis Foster, and SM fell down the stairs while locked together, and landed at the foot of the stairs. In the meantime JM continued the fight at the top of the stairs.  At 3:24:43 Mr Jopling quickly descended the steps, either as a result of being propelled downstairs by JM’s struggle with those with whom he was fighting, or indeed to defend and assist his colleague Frankie Foster.  It is not clear from the video recording whether he fell as he was descending.  At the bottom of the stairs SM, Frankie Foster and Peter Jopling can be seen on the recording, but it is not possible to identify each person or to say what each of them was doing, nor to make out with precision what was happening between them.  
6.	There is no evidence that Mr Jopling threw any punches at all.  It was equally possible that he himself was never pushed or struck or subjected to direct physical violence. All Mr Jopling himself did was talk the defendants into leaving and make himself available to offer immediate assistance to his colleagues in a very unpleasant incident.  
7.	Within a very short time of climbing back up the stairs, Mr Jopling collapsed and slumped into a gaming machine and then fell to the floor.  He died shortly afterwards.  The cause of death was blood loss resulting from the rupture of an aneurysm in his renal artery.  The prosecution alleged that this rupture was consequent on shock and a sudden surge in blood pressure due to the release of adrenalin into the circulation during the attack by the defendants on the group of doormen and that the rupture occurred either while the affray was in progress or in its immediate aftermath.  Spontaneous or coincidental rupture of the artery was “very unlikely” or “highly unlikely”.  
8.	From the moment the door was kicked by JM to the doorman walking back up the stairs afterwards to return to the club, the incident lasted for about 2 minutes.  For present purposes it was accepted that, although the defendants pleaded “not guilty” to affray, the argument should be approached on the basis that the defendants were involved in an affray in which the doormen, and Mr Jopling in particular, were not the aggressors.  Again for present purposes, it was accepted that the violent incident was a substantial cause of Mr Jopling’s death, and the ruling proceeded on the basis that there was no causation issue.  In the event of a trial, it is clear that the cause of death and whether there is any link between the rupture of the aneurysm and the affray will be explored in depth.
9.	Christopher Clarke J directed himself that in order for either defendant to be guilty of manslaughter the jury would have to be satisfied “… first - that the defendant had himself committed an unlawful act or acts or was responsible under ordinary joint enterprise principles for an unlawful act or acts committed by his co-defendant.  Second – that the unlawful act or acts was or were recognisably dangerous.  Third – that the unlawful act or acts caused or significantly contributed to the victim’s death”.    He then elaborated each of these three requirements, in particular the second.  This requirement was a “convenient summary of a more precise test.  The unlawful act or acts must be ones which any reasonable and sober person would inevitably realise would subject the victim to the risk of some physical harm – albeit such harm need not be serious”.  He went on to identify three important features of the second requirement, the third of which was that “the risk must be related to the characteristics of the victim which were apparent to the defendant when he – or those for whom he is responsible – committed the relevant wrongful act or acts.  The question is whether there was an obvious risk of harm to such a person”.  He derived these principles from the decision of this court in Carey, Cyoel and Foster [2006] EWCA Crim 17 and Dawson [1985] 81 Cr. App. R 150. He believed that in order to sustain a conviction for manslaughter in this case at any rate there was a fourth requirement – “namely that the victim died as a result of the sort of physical harm that any reasonable and sober person would inevitably realise the lawful act in question risked causing.”
10.	He concluded his judgment:
“The jury could not reasonably conclude that they were sure that any sober and reasonable person, having the knowledge that the defendants had during the incident, would inevitably realise that there was a risk that Peter Jopling – an apparently fit, 40 year old experienced doorman – would suffer an increase in blood pressure leading to a fracture of an aneurism as a result of anything that occurred on that night … This is a completely different form of physical harm than that harm of which there was a recognisable danger such as the danger of his being hit or suffering injuries from a fall in attempting to deal with the defendants.”
11.	The judge gave leave on the following basis:  
“The critical question was whether I was right to determine that it was a requirement of establishing manslaughter that the victim died as a result of the sort of physical harm that any reasonable and sober person would inevitably realise the unlawful act in question risked causing; and whether I was right to conclude that that was what the case of Carey itself mandated.”
12.	The defendants were charged with what is normally described as involuntary manslaughter on the basis that they did not intend Mr Jopling’s death or serious injury.  However his death resulted from a joint unlawful and dangerous act or acts by the defendants.  Unless it is appreciated that the level of danger required for the offence is not high, the reference to “dangerous” as part of the definition of involuntary manslaughter is liable to mislead. The risk of harm to be recognised is not dangerous in the sense that it must be potentially lethal or even serious harm: it is dangerous for this purpose because of the risk of “some harm”.  The principle, now long established, is explained in Church [1966] 1 QB 59:
“… the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm”.
13.	In DPP v Newbury [1977] AC 500 the House of Lords considered a certified question in the following terms:
“Can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs, if he did not foresee harm to another?”  
The answer was that he could be convicted of manslaughter whether he foresaw harm or not.  In short, provided the defendant’s actions were unlawful, and all sober and reasonable people would inevitably recognise the risk that some harm would result from his unlawful actions, he is not entitled to be acquitted merely because he himself did not foresee harm.   
14.	For the purposes of involuntary manslaughter an affray can constitute an unlawful and dangerous act, whether it takes the form of fear created in or direct violence suffered during the course of the affray. (See, for example, Carey and others). 
15.	The problems faced by the judge arose in the context of the clear understanding that the harm envisaged in Church did not extend to general stress and anxiety, but was confined to physical harm, of which shock is one manifestation. His attention was drawn to Dawson [1985] 81 Cr. App R 150. A petrol attendant, who was suffering from a heart condition, died of a heart attack during the course of a robbery in which, while the defendant remained outside the petrol station and the attendant was protected by armour plated glass, the defendant brandished a replica handgun.  The jury was directed to take account of the victim’s heart condition in deciding whether the Church test was satisfied.  This was held to be a misdirection, because the heart condition was not and could not have been known by the reasonable sober bystander. By contrast, in Watson [1989] 1 WLR 684, the victim was an 87 year old man, living alone, who suffered from a serious heart condition.  He was woken when a brick was thrown through his window.  Two men then entered his flat, and there abused him verbally, and after a lengthy stay in the flat, they made away without stealing anything.  Shortly afterwards the victim died as a result of a heart attack.  The conviction was quashed on a point arising from a direction given by the judge in response to a question asked by the jury after they had retired.  This court nevertheless endorsed the approach the judge had taken in his summing up when he directed the jury that in considering the recognition of possible harm required by a reasonable bystander, the knowledge gained by the defendant from his lengthy stay in the flat of a frail elderly victim was relevant.  The defendants “and therefore the bystander” … must have become aware of the victim’s frailty and approximate age.
16.	These decisions were analysed in Carey and others.  The young victim of a minor affray ran some 109 yards up a slight incline away from the scene where she suffered a heart attack and collapsed.  Later that evening she died.  She had been suffering from a serious, but unknown, congenital heart condition.  The defendants were convicted of manslaughter after the case was left to the jury on the basis of what we can conveniently describe as aggregation.  That approach was flawed, and the conviction was quashed.  However the judge’s view that the manslaughter charge should not be left to the jury on the basis that the affray had caused the victim to suffer shock which led to her heart attack was endorsed.  “The affray lacked the quality of dangerousness in the relevant sense.  This is because it would not have been recognised by a sober and reasonable bystander that an apparently healthy 15 year old (or indeed anyone else present) was at risk of suffering shock as a result of this affray”.  
17.	It was submitted by Mr Graham Reeds QC that the decision in Carey should be approached with considerable care. It did not alter the well established principles identified in Church and applied consistently ever since.  Quite apart from what he described as “important factual differences” between Carey and the present case, including the minor nature of the affray in Carey rather than the serious incident which occurred here,  Carey was decided on the basis of the flawed “aggregation” misdirection.  The Crown did not pursue the case on the basis of a direct physical assault on the victim. It was accepted that the victim’s death was not caused by injuries which were a foreseeable result of the assault “in the sense that the risk of such injuries would have been recognised by a sober or reasonable person having the knowledge the appellants had”, or that the death was caused by the victim running away because of fear of being attacked or threatened with violence and so, making her escape.  In short, in Carey there was no evidence of dangerousness in the sense required by Church. 
18.	Without contradiction from Mr Christopher Knox, Mr Robert Smith QC (who did not appear in the court below) accepted that the judge misdirected himself when he required the Crown to establish the fourth ingredient, that is, that the reasonable and sober person envisaged in Church must realise that that was a risk that the unlawful act would cause the sort of physical harm as a result of which the victim died.  We agree that such a requirement provided a gloss on the ingredients of this offence which is not justified by the authorities and does not follow from the reasoning in Dawson and Carey.  Indeed, the observations at the end of the judgment appear to elevate the requisite risk from an appreciation that some harm will inevitably occur into foresight of the type of harm which actually ensued and indeed the mechanism by which death occurred.  Of course, unless the Crown can prove that death resulted from the defendant’s unlawful and dangerous act, the case of manslaughter would fail on causation grounds.  However a requirement that the bystander must appreciate the “sort” of injury which might occur undermines the “some” harm principle explained in Church, and on close analysis, is not supported or suggested by Dawson or Carey.
19.	It is indeed striking that in Carey the court plainly accepted that if “the facts had arguably supported” the case that the affray had caused the victim to suffer shock from which she died, the manslaughter issue should properly have been left to the jury. The heart of the judgment on this question is that the affray lacked the necessary quality of dangerousness. Although reference is made to the risk of “suffering shock” as a result of the affray, that has to be seen in context as a reference to the fact that no one would have recognised any risk of this 15 year old suffering any harm or injury as a result of the particular affray.  
20.	In our judgment, certainly since Church and Newbury, it has never been a requirement that the defendant personally should foresee any specific harm at all, or that the reasonable bystander should recognise the precise form or “sort” of harm which did ensue.  What matters is whether reasonable and sober people would recognise that the unlawful activities of the defendant inevitably subjected the deceased to the risk of some harm resulting from them.
21.	As we emphasise, in the present case we are concerned with and confine our decision to the circumstances of an affray in which the deceased was personally involved in the fighting which constituted the affray, rather than an individual who happened to be walking down the street and came to the scene of the fight without getting involved in it.  The question whether the reasonable sober person would inevitably recognise the risk of harm going beyond concern and fear and distress to physical harm in the form of shock would have to be resolved as a question of fact rather than law.  
22.	In our judgment there is evidence from which a jury properly directed could conclude that sober and reasonable people observing events on 12 December 2012 would readily have recognised that all the doormen involved in the effort to control the defendants were at the risk of some harm, and that the fatal injury incurred while it was in progress or in its immediate aftermath while Mr Jopling was still subject to its effects.
23.	Accordingly this appeal will be allowed.