R v Church [1965] 49 Cr App R 206

Church violently assaulted Mrs Nott in his van, rendering her unconscious, then threw her into a river believing, he claimed, that she was dead. She drowned. The Court of Appeal upheld his manslaughter conviction and clarified the test for unlawful act manslaughter.

Facts

The appellant, Cyril David Church, was tried at Nottingham Assizes for the murder of Sylvia Jeannette Nott. He was acquitted of murder but convicted of manslaughter and sentenced to 15 years’ imprisonment.

On 31 May 1964, Mrs Nott’s body was found in the River Ouse, close to the appellant’s van. The body showed grave injuries: the face had been battered, the hyoid bone broken and there was some manual strangulation. Medical evidence indicated that these injuries, inflicted half to one hour before death, were sufficient to cause unconsciousness and eventual death but did not in fact do so. The deceased was alive when thrown into the river, continued breathing for an appreciable time, and ultimately died by drowning.

Church initially lied when interviewed but later signed a statement. He said he took Mrs Nott to his van for sexual purposes, was unable to satisfy her, and that she slapped his face, leading to a fight in which he knocked her out. The statement continued:

“I was shaking her to wake her for about half and hour, but she didn’t wake up, so I panicked and dragged her out of the van and put her in the river”.

At trial, he maintained this account and, for the first time, added that he thought she was dead when he put her into the river.

Issues

1. Murder charge and belief that the victim was dead

The prosecution’s case was that the severity of the injuries showed an intention to cause grievous bodily harm or death, and that the subsequent act of throwing the still-living victim into the river caused her death. The issue arose whether it affected the murder charge if the accused believed she was already dead when he immersed her.

The trial judge directed the jury that they could not convict of murder if they accepted that the accused genuinely and honestly believed the woman to be dead at the time of immersion, because one cannot intend to cause death or grievous bodily harm to a corpse. The Court of Appeal later described this direction as unduly favourable to the accused and indicated that the jury could have been directed, following Thabo Meli v Regina, to treat the whole sequence from the initial assault to the immersion as one continuous transaction.

2. Basis for the manslaughter verdict

Church appealed against his manslaughter conviction on the basis that there had been a misdirection when the jury were told that, for manslaughter, it was irrelevant whether he honestly believed the body to be dead at the time he threw it into the river.

The Court examined three potential bases for the manslaughter verdict:

• manslaughter by criminal negligence;
• manslaughter by reason of provocation; and
• manslaughter by an unlawful and dangerous act (unlawful act manslaughter).

Judgment

(a) Criminal negligence

The trial judge had severely criticised the appellant’s failure to take elementary steps to discover whether the woman was alive, pointing out at one stage:

“What steps did he take to find out whether she was alive or dead? He seems to have made no attempt, according to him, to find out whether she was breathing or not. He seems to have made no attempt to feel whether her heart was beating. Surely these are elementary steps. You have then nothing left but his bare unsupported statement: ‘I thought she was dead’. All he had done had been to shake her and she had not recovered consciousness. Do you think that persuaded him that she was dead, or do you not?”

On manslaughter, the judge directed that if, not knowing whether she was dead and not taking the trouble to find out, he threw her into the river, the jury might regard this as a negligent act done utterly recklessly and thus as manslaughter:

“..If, not knowing whether the woman was dead or not, and not having taken the trouble to find out whether she was dead or not, he throws her body into the river, you may (if you think fit) come to the conclusion that that was a negligent act done utterly recklessly without regard to the danger to life or limb that would be caused by it – and that would be another ground on which the throwing of the body into the river would be manslaughter”.

Although this direction was criticised on appeal as inadequate when measured against authorities such as R v Bateman and Andrews v DPP, the Court of Appeal held that, on these extreme facts, an elaborate direction was unnecessary. The description of “utter recklessness” was an appropriate standard, and the evidence amply supported a verdict that it had been established.

(b) Provocation

The plea of provocation rested on a very weak factual basis. The injuries to the deceased were grave, whereas any injuries to the appellant were trivial. The judge invited the jury to consider:

“Do you think that that degree of reaction bears any reasonable proportion to the alleged provocation, or do you not?”

Further, the judge noted that any provocation relied upon could not extend beyond the assault in the van and could not apply to the later act of throwing the body into the river:

“.. it seems to me impossible to say (and defence counsel concedes this) that the provocation could have extended beyond the infliction of the injuries in the van; it cannot possibly extend to the final act of throwing the body into the river”.

The Court of Appeal concluded that the jury’s verdict of manslaughter was not based on provocation.

(c) Unlawful act manslaughter

The trial judge also directed the jury on manslaughter by way of an unlawful act causing death, stating, among other things:

“If by an unlawful act of violence done deliberately to the person of another, that other is killed, the killing is manslaughter even though the accused never intended either death or grievous bodily harm. If this woman was alive, as she was, when he threw her in the river, what he did was a deliberate act of throwing a living body into the river. That is an unlawful killing and it does not matter whether he believed she was dead or not, and that is my direction to you”

and later:

“I would suggest to you, though it is of course for you to approach your task as you think fit, that a convenient way of approaching it would be to say: What do we think about this defence that he honestly believed the woman to be dead? If you think that it is true, why then as I have told you, your proper verdict would be one of manslaughter, not murder”.

The Court of Appeal considered that this direction, although supported by some authority, amounted to a misdirection. It effectively told the jury that any unlawful act which happens to cause death necessarily results in manslaughter. The Court held that, with the development of the law, some degree of mens rea was required even for constructive manslaughter.

The Court formulated the modern test: for an unlawful act causing death to amount to manslaughter (excluding cases based on criminal negligence, provocation, or diminished responsibility), the unlawful act must be such that all sober and reasonable people would inevitably recognise it as subjecting the victim to at least the risk of some harm, albeit not necessarily serious harm.

On that basis, it was wrong to direct the jury in simple terms that it did not matter for manslaughter whether the accused believed the woman to be dead when he threw her into the river.

Single transaction reasoning and the proviso

The Court accepted that, in relation to the murder count, the trial judge had correctly applied the principle in Thabo Meli in directing that the jury might treat the whole course of conduct, from the initial assault to the immersion, as one continuous transaction:

“Unless you find that something happened in the course of this evening between the infliction of the injuries and the decision to throw the body into the water, you may undoubtedly treat the whole course of conduct of the accused as one”.

It was argued for the appellant that this approach should not apply to manslaughter, but the Court rejected that contention. Adopting the view expressed in Glanville Williams’ text, the Court agreed that:

“If a killing by the first act would have been manslaughter, a later destruction of the supposed corpse should also be manslaughter”.

The Court considered that if Mrs Nott had died from the initial injuries, a manslaughter verdict might well have been open on grounds such as provocation or lack of murderous intent. The only omission in the summing-up was that the jury were not expressly reminded, when manslaughter was considered, that they could treat the entire conduct as a single series of acts culminating in death, making the accused’s belief about her being dead at the point of immersion immaterial on that analysis.

However, viewed as a whole, the Court regarded the difference between what was said and what should have been said as minimal. Applying the proviso to section 4(1) of the Criminal Appeal Act 1907, it held that no substantial miscarriage of justice had occurred. On the facts and on a correct direction, the proper and inevitable verdict would still have been guilty of manslaughter, and the misdirection did not deprive the appellant of any fair chance of total acquittal.

Sentence

The trial judge described the matter as:

“I think this is the worst case of manslaughter I have ever heard of”.

Although recognising that the accused was young (21 at the time) and had only minor previous convictions, the Court of Appeal held that the sentence of 15 years, while severe, was not wrong in principle. It declined to reduce it. In addressing comparisons with the practical length of life sentences, the Court reiterated, in line with an earlier decision in R v Singh:

“… the Court has in mind that ‘life sentence’ means a sentence for life, and that any remission as a result of which a prisoner is released is a matter entirely for the Home Secretary”.

Accordingly, the application for leave to appeal against sentence was dismissed.

Certificate of point of law

Counsel sought a certificate that a point of law of general public importance arose concerning the duty of care owed in dealing with something believed to be inanimate, in the context of death by criminal negligence. After brief exchanges with counsel, the Court refused the application:

“Thank you, Mr. James, but your application is refused, the Court being unable to certify.”

Implications

This decision is significant for clarifying the law of unlawful act manslaughter. It establishes that not every unlawful act causing death suffices; the act must be objectively dangerous in the sense that all sober and reasonable people would recognise it as exposing the victim to the risk of some harm.

The case also confirms that the “single transaction” principle from Thabo Meli applies to manslaughter as well as murder, so that a continuous course of conduct culminating in death may be treated as one whole for the purposes of assessing liability. Additionally, it illustrates the high threshold for appellate intervention on sentencing in very serious cases of manslaughter and the limited role of perceived practical sentence lengths for life sentences in reviewing fixed-term sentences.

Verdict: The Court of Appeal dismissed the appeal against conviction, applied the proviso under section 4(1) of the Criminal Appeal Act 1907, refused leave to appeal against the 15-year sentence, and declined to certify a point of law of general public importance.

Source: R v Church [1965] 49 Cr App R 206