R v Merriman

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeLord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Diplock,Lord Salmon
Judgment Date19 July 1972
Judgment citation (vLex)[1972] UKHL J0719-5
Date19 July 1972

[1972] UKHL J0719-5


Lord Reid

Lord Morris of Borth-y-Gest

Viscount Dilhorne

Lord Diplock

Lord Salmon

Director of Public Prosecutions
Merriman (on Appeal from the Court of Appeal (Criminal Division))
Lord Reid

My Lords,


For the reasons given by my noble and learned friend, Lord Diplock, I would allow this appeal and dispose of the case as he suggests.

Lord Morris of Borth-y-Gest

My Lords,


Frank Merriman and his brother John Michael Merriman were charged on indictment in September, 1970, at the Crown Court at Manchester. The indictment contained two counts. In the first count the statement of offence was:

“Wounding with intent contrary to section 18 of the Offences against the Person Act, 1861


The Particulars of Offence were as follows:—

“Frank Merriman and John Michael Merriman on the 11th day of July 1970 in the County Borough of Rochdale wounded William Parry with intent to do him grievous bodily harm”.


The second count was a charge against John Michael Merriman. The offence charged was “Assault occasioning actual bodily harm”. The Particulars of Offence were as follows:

“John Michael Merriman on the 12th day of July 1970 in the County Borough of Rochdale assaulted David Donoghue thereby occasioning him actual bodily harm.”


When the accused were arraigned Frank Merriman pleaded guilty to the first count. John Michael Merriman pleaded not guilty but was prepared to plead guilty to unlawful wounding. He pleaded not guilty to the second count. The Prosecution declined to accept his pleas. Frank Merriman stood down. A jury was then sworn and the trial of John Michael Merriman took place on the charges preferred against him.


After the case for the Prosecution had been opened the learned Commissioner said that he proposed to direct the jury to make up their minds whether John Michael Merriman actually stabbed Mr. Parry with a knife and that they could dismiss from their minds any question whether he had acted in concert with his brother Frank. The learned Commissioner had read the deposition of Mr. Parry's evidence. He said—“It might assist if I say this, having read the evidence of Mr. Parry—what view the jury take of his evidence is a matter for them not me—but his evidence is that he says he was actually stabbed by this defendant. I am going to direct the jury to make up their minds about that and dismiss from their mind any question of acting in concert”. He further said—“by way of explanation ‘I was going to stop the fighting between my brother and Parry’—and I think it would be unsafe for the jury to consider the question of acting in concert if they were unable to accept Mr. Parry's evidence in toto because if they accept his evidence completely then what he says is, ‘I was stabbed by this defendant. I was also stabbed by his brothers’ and that is what I am going to direct the jury to make their minds about.” So—for the reasons he indicated—he thought that it would be better to eliminate any consideration of the question whether the brothers had acted in concert. No reference was made by any one to the case of Reg. v. Scaramanga [1963] 2Q.B. 807 and to later cases which followed it.


The course adopted by the learned Commissioner would, I think, seem to everyone to have been both reasonable and sensible. Certainly it was eminently fair to the accused man. Indeed, it was in his favour as eliminating a possibility of his being convicted without its being held that he himself had stabbed Mr. Parry with a knife. The clear words of the indictment named him as having wounded William Parry with intent to do him grievous bodily harm. Could it be irrational to direct the jury that they could find him guilty if they were satisfied that he did wound William Parry with intent to him grievous bodily harm?


The point of law that is raised in the appeal may thus be stated. The count in the Indictment coupled the two accused together in a charge of wounding with intent. Is it the law that in those circumstances if one accused pleads guilty to the offence the other accused can only be convicted if he is found to have acted jointly and cannot be convicted if, though it is found that he did wound with intent, his deed was committed independently?


I can briefly narrate the events which bring the point of law for your Lordships' decision. Pursuant to the course that the learned Commissioner had said that he would follow he directed the jury that they need not trouble to consider whether there had been a joint or common purpose between the two brothers. In a careful summing-up he gave clear guidance to the jury on the points in issue. The first count related to events that followed a visit by the two brothers and their father to a public house of which Mr. Parry was the licensee. Mr. Parry thought that they had got into a condition that did not warrant their being served with more to drink and that they ought not any longer to be allowed to remain on his licensed premises. He told them and two companions of theirs to leave. Mr. Parry was ejecting the party when he felt a blow (which proved to be a stab wound) in his back: he turned round and identified John Michael Merriman (who had a knife in his hand) as the one who was responsible. Thereafter Mr. Parry was stabbed a number of times (some seven in all) by the two brothers. Various matters were raised by the defence all of which were fairly put to the jury. The second count, with which only John Michael Merriman was concerned, charged him with assaulting and occasioning actual bodily harm to a Police Constable who after the incidents outside the public house went to the accused's home.


The jury needed a retirement of only eleven minutes before returning verdicts of guilty on both counts. Frank Merriman was then sentenced to five years imprisonment. John Michael Merriman, who was five years older than his brother (and had a worse record) was sentenced to six years imprisonment on the first count and to nine months imprisonment (consecutive) on the second count. In his case there was a six months suspended sentence. It was brought into operation and directed to be consecutive to the other two sentences. That was on the 10th September, 1970.


John Michael Merriman appealed to the Court of Appeal against his conviction on count 1. The first and most prominent ground of appeal (which I feel sure would have mystified the Appellant) was that there was misdirection in that the count being a joint count against him and his brother, and his brother having pleaded guilty, the learned Commissioner ought not to have told the jury to ignore the question of acting in concert and of joint design.


There was no doubt that the learned Commissioner had directed the jury that they need not concern themselves with the question whether or not the accused who was before them had acted in concert with his brother. Applying the decisions in Reg. v. Scaramanga [1963] 2 Q.B. 807 and in Reg. v. Parker [1969] 2 Q.B. 248 the Court of Appeal “although with the utmost reluctance” felt obliged to allow the appeal and to quash the conviction on count 1.


The Court held that inasmuch as the charge in the indictment was a joint charge and as Frank had pleaded guilty to it there could only be a conviction of John Michael if it was held by the jury that the two brothers were acting in concert. Having referred to the terms of the summing-up the Court held as follows—“But when one recalls that this was a case where the co-defendant had pleaded guilty to the joint charge, it was not, in the judgment of this court, right to say that to convict this man on that joint charge, it was sufficient to establish that he started the trouble without adverting to the fundamental allegation that the two accused were acting in concert. We are driven to the conclusion that this jury, who presumably acted upon the direction that they were given, may well have asked themselves only one question: Are we satisfied on Mr. Parry's evidence that this man stabbed him in the back? Because of the nature of the charge and of Frank's plea, and in the light of the authorities, we are forced to the conclusion that that was a misdirection. Furthermore, it is a misdirection of such a kind that it would, in our view, be improper to apply the proviso to cure the mischief which resulted therefrom.” That was on the 17th May, 1971. A point of law of general public importance was certified as being involved and leave to appeal was given. That left unaffected the sentences other than that on count 1. We were informed by counsel that John Michael Merriman (who had been in custody since the 29th July, 1970,) was in fact released from prison on the 1st June, 1971. The Court of Appeal made no order under the provisions of section 37 of the Criminal Appeal Act, 1968. It does not appear whether they considered making an order or whether they thought that there was no occasion to make one. The present case illustrates that it is desirable for all concerned to have the provisions of the section in mind.


The point of law which was certified by the Court of Appeal was thus expressed:

“Whether it is open to a jury, when trying a joint charge to which one defendant has pleaded guilty, to convict the remaining defendant of committing independently the offence which is the subject-matter of the joint charge.”


My Lords, I would unhesitatingly answer that question in the affirmative and if authority points to a different coinclusion I would say that such authority should no longer be followed. But in answering the question it is important to consider what is meant by a “joint charge”. In my view, it only means that more than one person is being charged and that within certain rules of practice or convenience it is permissible for the two persons to be named in one count. Each person is, however, being charged with having...

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