R v Carey, Coyle and Foster
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,LORD JUSTICE DYSON |
| Judgment Date | 26 January 2006 |
| Neutral Citation | [2006] EWCA Crim 17 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2005/5620/B3 2005/5621/B3 2005/5818/B3 |
| Date | 26 January 2006 |
[2006] EWCA Crim 17
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
MR. JUSTICE FIELD
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dyson
Mr Justice Tomlinson And
Mr Justice Andrew-smith
Case No: 2005/5620/B3 2005/5621/B3 2005/5818/B3
Simon Myerson QC and Heather Weir (instructed by West Yorkshire CPS) for the Appellant
Michael Harrison QC and M. D Colborne (instructed by Yasmin and Shaid) for Claire Carey
Gareth Evans QC and Stephen Wood (instructed by Messrs Lumb and Mcgill) for Sinead Coyle
Paul Watson QC and Simon Myers (instructed by McManus and Seddon) for Kelly Foster
This is the judgment of the court.
These three appellants were tried at Leeds Crown Court on an indictment which charged them with manslaughter (count 1) and affray (count 2). On 30 September 2005, they were all convicted on count 1 and, save for Sinead Coyle, count 2 (she had already pleaded guilty to count 2). On 19 October, they were sentenced as follows. Claire Carey (who is now aged 19) was sentenced to detention for public protection for manslaughter, a minimum of 2 years being specified under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, and to a concurrent extended sentence of 3 years for affray, comprising a custodial term of 2 years' detention and 1 year's extended licence. Coyle (who is now aged 15) and Kelly Foster (who is now aged 17) were both sentenced to 24 months' detention and training order for manslaughter and to a concurrent 18 months' detention and training order for affray.
All three appeal against conviction by leave of the trial judge (Field J), who granted a certificate of fitness for appeal under section 11(1A) of the Criminal Appeal Act 1968 in these terms:
"[1] I directed the jury in accordance with my rulings:
(a) that it was enough to establish manslaughter that all sober and reasonable persons would have realised that the actual infliction of violence on Aimee would subject her to some physical harm;
(b) that it was not necessary to prove that the physical harm actually inflicted was a cause, or a substantial cause, of death; and
(c) that it was immaterial that the defendant could not have known or foreseen either that the affray or any physical harm actually inflicted upon Aimee might cause her to suffer a fatal ventricular fibrillation.
[2] I did not direct the jury that it was necessary for them to be sure that the individual acts or threats of violence of the defendant, constituting her part in the affray, were in themselves a substantial cause of death."
At the outset of the hearing of the appeal, we also gave them leave to appeal against their convictions on the other grounds on which they relied to which we shall come in due course. Field J refused to certify that the case was fit for appeal on sentence. Their application for leave to appeal against sentence was referred by the Registrar to the Full Court.
There was a co-accused, Kevin Hayley. He was acquitted on both counts.
The facts
By the close of the prosecution case, the material facts were not substantially in issue. On 7 June 2005, the deceased Aimee Wellock (aged 15) and three friends, James Devanney, Shelley Robinson and Gemma Doyle went for an early evening walk in the Chellow Dene area of Bradford. This is a local beauty spot near a reservoir. The three appellants had met Kevin Hayley earlier that day. They had spent the afternoon by the reservoir drinking alcohol.
At about 8.30 pm, Aimee and her group met the appellants' group by chance near some steps leading down to the reservoir. Carey and Hayley asked Aimee's group whether they had any cigarettes. When Aimee's group said that they had none, they started poking fun at them. One of them referred to the fact that Aimee danced at a local stage school and called her the "Spotlight Fairy". They also made fun of Gemma and Shelley, calling them "posh". Hayley then squared up to James and asked him if he wanted a smack and falsely accused James of beating him up outside a fish and chip shop. As Aimee's group moved down the steps to get away from them, Hayley shouted "shall we throw them in the water?" Coyle said to Aimee "if I hit you would you hit back?" Carey pointed to Shelley and said "oh she looked really scared". At some point, referring to Shelley, Kevin said "leave her, she looks really scared". But he also said to the others "you wouldn't dare bang one of them". The appellants then began to laugh and one of them told Aimee's group that they had better stop or else they would "bang" them.
Aimee's group tried to move away and the appellants followed them. Carey then without any justification struck James from behind and he moved away from both groups. Two of the female appellants (one of whom was Coyle) walked behind Gemma and stood on her flip-flops. Aimee's group then came to a low broken-down wall and the appellants moved towards them, hemming them in. Foster asked Aimee for her charity wrist band, which she handed over. Coyle kept telling them to stop looking at her. Carey then punched Shelley in the face three times, causing her to fall over. She carried on the assault by kicking her on the nose, mouth and top of the right arm while she was down. She had her back to the other appellants at this point.
Coyle then attacked Aimee, who was about 10 metres away from where Shelley was being assaulted. She pulled her head back and punched her in the face. Aimee dropped to the ground cowering. Foster attacked Gemma by punching her in the face. She pushed her to the ground and started hitting her in the back of the head and pulling her hair and hitting her across the face. The attack on Aimee and her friends lasted about one minute. It stopped when two boys arrived on the scene on a motor-bike. The boys told the assailants to stop and they ran away.
Aimee was the first of the victims to run off. She ran towards some houses covering a distance of 109 metres over rough grass and up a slight slope. The next person of Aimee's group to run was Gemma. Shelley was picked up by one of the boys on the motor-bike. Gemma and then Shelley caught up with Aimee and the three of them started to walk. Shelley said that she felt sick and Aimee said that she felt faint. Shelley and Gemma tried to support Aimee and help her along, but tragically Aimee collapsed. She died that same night.
Two medical experts were called on behalf of the Crown at the trial. Dr Survana, a consultant histopathologist, who examined Aimee's heart and Professor Milroy, who conducted the post mortem. They said that the immediate cause of death was ventricular fibrillation (dysrhythmia). When ventricular fibrillation occurs, the heart stops pumping blood to the vital organs. They said that collapse would have followed within a few seconds of the onset of ventricular fibrillation. She might not have died if she had not run 109 metres. Both doctors accepted that the event most proximate to the collapse and therefore most likely to have been the precipitating factor which led to Aimee's death was her running away from the incident.
The medical evidence established that Aimee suffered from a severely diseased heart, which condition was congenital and progressive. Her vulnerability was unknown to the doctors who had treated her for certain medical conditions which affected her skin, teeth and hair. The lay evidence established that Aimee was physically fit and sufficiently robust to participate in dancing and other physical activities appropriate to her age. Her close family were unaware of any physical limitations to her ordinary activities. After being assaulted by Coyle, she showed no signs of physical injury or distress. Shelley said "when I was running there was nothing apparently wrong with Aimee. When I caught up we started walking�We carried on and then all of a sudden Aimee collapsed". Gemma said: "When I caught up with her there did not seem to be anything seriously wrong with her, though she was scared. Then all of a sudden she said she felt faint and collapsed."
The physical injuries suffered by Aimee were described by Professor Milroy. There was a 0.5 cm area of reddening under the right eye; bruising on the bridge of the nose of 0.8 cm and a red bruise on the back of the right ear 0.6 x 0.2 cm. Professor Milroy described them as relatively small.
Shelley sustained a contusion on her right upper arm 4x 3 cms; swelling of the left cheek bone; a tender left side jaw; and tenderness in the area of the chin. She did not go to her doctor. Gemma suffered tenderness in the right side of the back of her head, nasal bone area, left side of her lower chest and a tender and swollen left cheek bone. James Devanney was hit from behind (he did not know precisely where): he said that he did not really feel it.
None of the appellants gave evidence. Mr Michael Harrison QC told us that, at any rate so far as Carey was concerned, this was because by the close of the Crown case, there were no material outstanding issues of fact.
Submissions of no case to answer
At the close of the Crown case, it was submitted on behalf of the appellants and Hayley that there was no case to answer in relation to count 1 and on behalf of Carey, Foster and Hayley that there was no case to answer in relation to count 2. The Crown case in a nutshell was that all the appellants were guilty of affray and that the affray was an unlawful dangerous act which caused Aimee's death, so that all the appellants were guilty of unlawful act manslaughter. The judge refused to...
To continue reading
Request your trial
-
R v M (J) and Another
...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 wa......
- R (on the application of Leeson) v DPP
-
Court of Appeal
...to testify ‘only undermines the reliability ofthe evidence’.Ben FitzpatrickUnlawful Act Manslaughter: Affray as Dangerous ActR vCarey [2006] EWCA Crim 17On 7 June 2005, the victim and a group of her friends were walking inthe Challow Dene area of Bradford. The three appellants had spent the......
-
Unlawful and Dangerous
...See Jennings [1990] Crim LR 588.19. Contrary to s. 58, Medicines Act 1968. See Andrews [2002] EWCA Crim 3021.20. Carey and others [2006] EWCA Crim 17; M&M[2012] EWCA Crim 2293, [2013] 1 WLR 1083.21. Contrary to s. 1, Children and Young Persons Act 1933. See Gay [2006] EWCA Crim 820.22. John......
-
Kennedy and Unlawful Act Manslaughter: An Unorthodox Application of the Doctrine of Causation
...not the victim’svoluntary decision to inject the heroin simply a foreseeable continuation of thesupply of a ready-to-inject syringe?75 [2006] EWCA Crim 17.The Journal of Criminal Law398 collapsed and died shortly after. The medical evidence in the caseconcluded that the immediate cause of d......
-
Cases: Parts 1, 2, 3, 4
...2690 (Admin), [2006] All ER(D) 381 (Oct) 194R v Abdullahi [2006] EWCA Crim2060 133R v Brady [2006] EWCA Crim 2413 296R v Carey [2006] EWCA Crim 17 110R v Davis [2006] EWCA Crim 1115,[2006] 2 Cr App R 32 298R v Dunlop ( unreported, 11 Septemberand 6 October 2006) 8R v EB [2006] EWCA Crim 294......