R v Scarlett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM |
| Judgment Date | 07 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Crim J0507-5 |
| Docket Number | No. 93/0211/Y2. |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 May 1993 |
[1993] EWCA Crim J0507-5
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Beldam Mrs. Justice Ebsworth and Mr. Justice Tuckey
No. 93/0211/Y2.
MR. R. M. HARRISON Q.C. and MR. P.E. ROBERTSHAW appeared on behalf of the Appellant.
MR. S. W. WILLIAMSON Q.C. and MR. R. THOMAS appeared on behalf of the Crown.
The appellant, John Scarlett, appeals against his conviction on 23rd November 1992 in the Crown Court at Leeds before His Honour Judge Baker Q.C. and a jury of an offence of manslaughter. He was sentenced to nine months imprisonment. He appeals against his conviction with the leave of the full court granted on 23rd March 1993.
After hearing argument on Thursday, 29th April 1993, we were satisfied that the verdict of the jury was unsafe and unsatisfactory and that the conviction could not be sustained. The evidence relied on by the prosecution was insufficient and the directions given by the learned judge were inadequate to support the verdict of the jury. Accordingly we allowed the appeal and quashed the appellant's conviction stating that we would give our reasons later. We took this course to ensure the appellant's immediate release, though regrettably he had already served almost the entire sentence imposed upon him. This unfortunate miscarriage of justice might well have been avoided if the clear advice of the Criminal Law Revision Committee in 1980 had been implemented. That distinguished Committee recommended abolition of the antiquated relic of involuntary manslaughter based on the commission of an unlawful act and the adoption of the more rational and systematic approach to the offence of manslaughter they proposed. The present law is in urgent need of reform in spite of recent judicial attempts to make law more compatible with a modern system of criminal justice.
The appellant was charged with unlawfully causing the death of a Mr. Larkin. The events which gave rise to the charge were that the appellant, now 40 years of age, was the licensee of the Queen's Road Tavern Public House in Halifax. Ten minutes after closing time on 12th June 1991 the deceased, Mr. Larkin, a large, heavily built man, entered the public house the worse for drink and approached the bar. He indicated he wanted to be served and the appellant who was behind the bar was cleaning up said:
"You've no chance".
The deceased then said to the appellant:
"What are you talking to me like that for. I haven't asked you a question yet".
The appellant repeated that there was no chance of his being served. Still the deceased persisted and eventually the appellant said:
"Look, get out now or I'll put you out".
The deceased replied:
"You and who else".
The appellant came from behind the bar through the gap in the counter moving towards the deceased who said:
"You're not going to put me out",
indicating to at least one of those present in the bar that he was not going to leave voluntarily.
The appellant went to take hold of the deceased's right arm to escort him from the bar but with a wide, sweeping movement the deceased threw his right arm round in an arc. The appellant said that he thought that the deceased might strike him, though in fact he did not, so he placed himself behind the deceased and put his arms around his body restraining him by pinning both arms to his side. It was a manoeuvre that the appellant had learnt from his service in the Army and in his view it had the advantage that neither of them could come to any harm. It prevented a potential assailant from striking any blows. The appellant was of smaller build than the deceased who struggled and resisted as the appellant tried to get him to the door. The only witnesses on whom reliance was placed described the appellant as "bundling the deceased towards the door". On the way to the door the deceased and the appellant bumped into the door by a cigarette machine.
The entrance to the public house is somewhat awkwardly placed. The door into the bar is a swing door hinged upon the right hand side when facing it, which opens out across a lobby. The lobby, which is 5' x 4', gives on to a flight of five steps leading down to the street. On either side of the steps are substantial handrails. The steps are not particularly steep and there is an outer door separating the lobby from the steps but it is normally held back against the wall until the public house is closed for the night.
Due to the position of the door the appellant had to turn sideways still holding on to the deceased in order to push it open with his body, turning as he did so through an angle of ninety degrees to place the deceased in the lobby. The appellant pushed open the door with his body and moved into the lobby, the door closing behind him. Apart from the appellant's account, there was no evidence of what then happened in the lobby. According to the appellant, he placed the deceased with his back against the wall and the frame of the outer door. In the lobby against the wall was an advertisement board of a kind frequently seen advertising snacks, etc. Having placed the deceased in the lobby, the appellant turned to re-enter the bar and had his right hand on the inner door handle when the deceased called out:
"Well you haven't thrown me out yet".
At that moment the advertisement board came over on top of the appellants's legs and he saw the deceased fall from the top step. A passer-by also saw the deceased fall from the top step backwards into the street, apparently striking his head. The appellant then went down and spoke to the deceased who did not move. The appellant re-entered the bar and was heard to say:
"He's fallen down the steps".
The appellant said that he was quite worried and flustered and that he had intended to go to call am ambulance but he then went back to have another look at the deceased and saw that he was apparently seriously injured having struck his head. He was unconscious. As he was lying across the pavement, the appellant moved him into a small alleyway at the side of the public house and placed him in the recovery position. He then returned to the public house and telephoned for the ambulance.
The ambulance arrived and the deceased was taken to hospital where it was found that he had sustained a serious injury to his head from which he later died.
Not unnaturally, when asked for his explanation by police, the appellant tended to underplay the manner in which he had found it necessary to bundle the deceased towards the door of the bar and much was later to be made of the fact that he had not told the police that he had put his arms around the deceased. Nor did he tell them of the aggressive gesture made by the deceased when the appellant went to take hold of his right hand; yet the independent evidence clearly established both these facts. The appellant was told that he would be arrested for murder. The court asked for an explanation how, in the light of the evidence, such a course could have been taken. No explanation whatever was given. The appellant understandably was shocked and terrified. He was interviewed on three occasions and again much was made of matters which he had forgotten or omitted to tell the interrogating officers but in the course of those interviews he consistently denied the use of excessive force on the deceased. On the contrary, it was clear that throughout he was denying any intention to cause harm to the deceased.
The case advanced for the prosecution was that the appellant was guilty of manslaughter because when bundling the deceased towards the door of the bar the appellant had used excessive force and thus had committed an unlawful act. The prosecution disclaimed any suggestion that the appellant had pushed the deceased towards the top of the steps or that he had recklessly placed him in a position from which there was a serious risk of his falling and sustaining injury. The case was based solely on the assertion that by his unlawful act of using excessive force in the bar he had imparted such a momentum to the deceased that the deceased's fall was a consequence of the unlawful act, and his death consequently manslaughter.
Before coming to the directions given by the learned judge to the jury, it is necessary to quote part of the evidence given by the appellant:
"The only thing I intended in manoeuvring him as I did was to remove him from the premises. I didn't cause him any injury. I didn't want to cause him to fall down the steps. I didn't cause him to fall down the steps and I didn't think he would fall down the steps in the position I had put him in. I thought I had used the minimum amount of force. When I pushed him out of the bar area, I may have been holding him more tightly than necessary but even if I was I thought it was reasonable at the time and I didn't think there was any likelihood that he would fall down the steps. I didn't think he would get hurt at all."
The learned judge began his summing-up to the jury by telling them that the case boiled down to one fairly short question which they would have to ask themselves:
"Am I sure that Mr. Scarlett used unnecessary and unreasonable and therefore unlawful force in ejecting Mr. Larkin from his public house and did that force, unlawful force, actually cause his fall?"
Later he directed them:
"Manslaughter means the unlawful causing of his death and this means if the killing is the result of the accused man's unlawful act, like an assault, which all reasonable people would inevitably realise must subject the victim to some form of harm even if it is not serious....
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