R.

v Brian Dawson
R. v Stephen Thomas Nolan
R. v Ian Walmsley

Court of Appeal

14 March 1985
(1985) 81 Cr. App. R. 150

Lord Justice Watkins , Mr. Justice Wood and Sir John Thompson

November 12, 13, 1984, March 14, 1985

Manslaughter—Unlawful Act Resulting in Death—Act Exposing Victim to Harm—Meaning

of Harm—Unlawful Act That So Shocked The Victim as to Cause Him Physical Injury.

After midnight one night two masked men, one carrying a pickaxe handle and another armed
with a replica gun, while a third kept watch, demanded money from a 60 year old petrol filling
station attendant who, unknown to them, suffered from heart disease. The attendant pressed the
alarm button and the three men fled. Shortly after the police arrived, the attendant collapsed
and died from a heart attack. Some 11 months later the appellants confessed to being the three
men who attempted to rob the attendant, but said they had only heard of his death at a later
date. They were charged, inter alia, with his manslaughter. At their trial medical experts were
of opinion that the attempted robbery was responsible for the attendant's death; but they could
not rule out the possibility of a heart attack having occurred before the attempted robbery. The
jury were directed, inter alia , that putting a person in such terror that he might suffer such
emotional or physical disturbance as would be detrimental could for the relevant purpose
constitute harm; and that when considering whether all sober and reasonable people would
realise that the unlawful act must inevitably create the risk of some harm that meant “all
reasonable people who knew the facts that you know.” The appellants were convicted and
appealed, on the ground, inter alia , that the jury had been misdirected.
that emotional disturbance was not sensibly descriptive of injury or harm to a person through
the operation of shock produced by terror or fright. If the jury acted upon the basis that an
unlawful act which caused an emotional disturbance was enough to constitute harm, they did
so under a misdirection. Further, the harm referred to in the second element of the offence of
manslaughter ( i.e. an unlawful act must be one that all sober and reasonable people would
realise was likely to cause some, albeit not serious, harm), meant physical harm; accordingly,
a proper direction should have been that the requisite harm was caused if the unlawful act so
shocked the victim as to cause him physical injury. The jury had been also misdirected in that
they might have been given an erroneous impression of what knowledge could be ascribed to
the “sober and reasonable man,” i.e. a man attempting to rob and no more: it was never
suggested that these appellants knew that their victim had a bad heart. For those reasons the
convictions for manslaughter were unsafe and unsatisfactory and the appeals would be allowed
and the convictions quashed.
[For manslaughter, see Archbold, 41st ed., paras. 20—47 et seq. ] *151
Appeals against conviction and sentence.
On June 20, 1983, in the Crown Court at Newcastle-upon-Tyne (Glidewell J.) the appellants
each pleaded guilty to offences of robbery (count 1) and attempted robbery (count 2). On June
27, 1983, each appellant was convicted on count 3 of the same indictment of manslaughter.
Dawson and Nolan were each sentenced to six years' imprisonment on count 1, to seven years'
imprisonment on count 2 and to nine years' imprisonment on count 3, all to run concurrently.
Walmsley was sentenced to five years' imprisonment on count 1, to six years' imprisonment on
count 2 and to 71/2 years' imprisonment on count 3, all to run concurrently. In addition Dawson
was sentenced to six months' imprisonment on another indictment charging assault occasioning
actual bodily harm, to run consecutively, with the nine years on the first indictment. One
months' imprisonment concurrent was imposed for a breach of a conditional discharge. Nolan
was also sentenced to three months' imprisonment concurrent for taking a conveyance without
authority on a second indictment, five similar cases being taken into consideration. Eight
penalty points were also imposed. Thus in all, Dawson was sentenced to 91/2 years'
imprisonment, Nolan to nine years' imprisonment and Walmsley to 71/2 years' imprisonment.
The following facts are taken from the judgement:
The facts concerning the attempted robbery and manslaughter were that a Mr. Robert Black,
then 60 years of age, worked on night duty as a petrol attendant at a filling station in Wardley,
Tyne and Wear. Since about June 1981 he had suffered from severe ischaemic heart disease.
In the middle of that year and in October 1981 he had heart attacks. He continued to suffer
from angina pectoris. This was relieved by sucking a tablet of nitro-glycerine which he did at
least once every day.
On Monday, February 8, 1982, he arrived at the filling station at about 10.45 p.m. He seemed
to the man he relieved, Mr. Rutherford, and to Mrs. Rutherford who came to collect her husband
shortly before 11 p.m., quite normal. During the next four to five minutes or so a number of
people who saw Mr. Black noticed nothing about his condition to cause them concern. At about
midnight Mr. Shepherd, a taxi proprietor, and one of his employees, Miss Burke, called at the
filling station for a can of petrol which was required for a stranded taxi. Mr. Shepherd collected
and paid for the petrol he required and got back into his taxi when Miss Burke commented on
Mr. Black's appearance. Mr. Shepherd then realised that Mr. Black seemed to look a bit anxious
and grey. Mr. Black sat within a kiosk behind a protective glass screen. At one minute past
midnight he pressed an alarm button. This had a delayed effect. Accordingly, just under five
minutes later an alarm bell started to ring. It was then very nearly six minutes past midnight.
Neither Mr. Shepherd nor Miss Burke heard that sound. Mr. Mainland and Mr. Spoor arrived
at the filling station in search of both food and petrol. Just as they got there the alarm bell
started to ring. Both of them noticed that Mr. Black seemed to have a small pill in his mouth
and was holding his chest. He was very pale. His face was almost white and he was breathing
heavily. At 12.15 he telephoned the owner of the filling station. Soon afterwards two police
constables arrived. They had a short conversation with Mr. Black, who suddenly collapsed and
fell to the floor unconscious. He was driven immediately to hospital but was found to be dead
on arrival there. On January 11, 1983, Walmsley approached a police officer in Durham. He
said he had a confession to make about an armed robbery and another offence which he wanted
to get off his chest. He was interviewed on January 15. Later in the same day Dawson and
Nolan were also interviewed. They all said that they had attempted to rob Mr. Black a short
while before, as they *152 afterwards learnt, he died. They had gone to the filling station in a
car driven by Nolan. Walmsley, wearing a balaclava covering his face, carried a pickaxe
handle. Dawson, who had a replica gun, wore a woman's stocking over his face. Nolan stayed
in the background as Walmsley banged on the counter with his pickaxe handle and demanded
money. Dawson stood alongside him and pointed his gun at Mr. Black. They then saw that Mr.
Black was pressing a button and they fled.
At the trial, conducted by Glidewell J., medical evidence informed the jury that after each of
the two heart attacks in 1981 Mr. Black was seen by Dr. Hasan, a consultant physician. On
each occasion he spent about a week in hospital but continued to be treated as an out-patient
periodically. On the very day of the attempted robbery he had seen Dr. Hasan who found his
heart condition to be stable and satisfactory. But he was, said Dr. Hasan, destined to die of
heart disease and he was liable to die from that cause at any time. Dr. Hasan expressed the
opinion that if a person in Mr. Black's condition was subjected to sudden stress or shock or
fright it was highly probable that angina would be triggered off, the heart would stop and death
would soon follow.
A Home Office pathologist carried out a post mortem examination on February 9, 1982. He
found the cause of death to be ischaemic heart disease. He said that in his opinion what most
probably occurred was that the shock of the attempted robbery triggered off angina and a fatal
heart attack.
Both doctors said it was possible that independently of the attempted robbery Mr. Black could
have suffered a major heart attack which caused his death. If, they said, that had happened
shortly before midnight it would have been revealed at post morten examination. They both
said it was their belief that the attempted robbery was responsible for a heart attack and the
death of Mr. Black, but they could not rule out the possibility of a heart attack having occurred
before the attempted robbery; this was a possibility.
The grounds of appeal are set out in the judgment.
The appeal was argued on November 12 and 13, 1984.
F. J. Muller, Q.C. and Helen Paling (assigned by the Registrar of Criminal Appeals) for the
appellants Dawson and Nolan. F. J. Muller Q.C. and J. Evans (assigned by the Registrar of
Criminal Appeals) for the appellant Walmsley. James Chadwin, Q.C. and Roger Thorn for the
Crown.
Cur. adv. vult.
March 14.
Watkins L.J. read the following judgment of the Court.
On June 20, 1983, in the Crown Court at Newcastle-upon-Tyne the appellants pleaded guilty
to robbery and attempted robbery. On June 27, 1983, they were convicted of manslaughter.
The appellants Nolan and Dawson each pleaded guilty to a further offence on a separate
indictment. All three appellants were thereafter sentenced as follows: Dawson for robbery six
years, attempted robbery seven years and manslaughter nine years' imprisonment to run
concurrently, for an assault occasioning actual bodily harm six months' imprisonment to run
consecutively and for a breach of a conditional discharge in respect of another offence of
assault occasioning actual bodily harm one month's imprisonment to run concurrently, a total
of 91/2years' imprisonment, an offence of theft being taken into consideration. *153 Nolan for
robbery six years, attempted robbery seven years and manslaughter nine years' imprisonment
to run concurrently, for taking a conveyance without authority three months' imprisonment to
run concurrently. Walmsley for robbery five years, attempted robbery six years and
manslaughter 71/2 years' imprisonment to run concurrently.
Each of them appeals against conviction for manslaughter and his sentences by leave of the
single judge.
[The learned Lord Justice stated the facts and medical evidence and continued:]
The perfected grounds of appeal against the convictions of all appellants are that the judge,
wrongly in law: (1) failed to withdraw the offence of manslaughter from the jury seeing that
the medical evidence amounted to it being no more than a high probability or that it was most
probable that the attempted robbery started the heart attack which caused death; (2) directed
the jury that putting a person in such terror that he may suffer such emotional or physical
disturbance as would be detrimental could for the relevant purpose constitute harm. It is argued
that it is not open to a jury to convict if they find merely that an emotional disturbance that was
detrimental was suffered by a deceased; (3) directed the jury upon the burden of proof with
regard to the expert medical evidence as to the cause of death. Both medical witnesses said
they could not be sure that the robbery started the heart attack. They said it was no more than
highly probable that it did; (4) failed to direct the jury that the opinion it was highly probable
that death was so caused was based on the assumption that the deceased's condition was stable
minutes before the attempted robbery; (5) failed to direct the jury that if the heart attack had or
may have started before the attempted robbery there was no or no sufficient evidence that the
attempted robbery substantially caused death; (6) directed the jury that the sane and reasonable
people referred to in the test for the creation of the risk of some harm to the person must connote
people who know all the facts, including, it is to be inferred, that the deceased suffered from
chronic heart disease. There was no evidence that the appellants were aware of that condition.
Whilst Walmsley did not include this in his perfected grounds, we shall assume that he seeks
to rely on it nevertheless.
At the conclusion of his summing-up the judge said: “Members of the jury, it is a difficult task
you have.” No one could possibly gainsay that and no one should be surprised that at the close
of the prosecution's case the judge was invited by all counsel for the appellants—upon the basis
of Galbraith (1981) 73 Cr.App.R. 124 —to withdraw the case from the jury and to direct them
to return verdicts of not guilty. In declining to do so he said that there was, in his opinion,
evidence upon which a jury, properly directed, could properly convict, and in reaching that
decision he had based himself in part upon what was said by Ormrod L.J. in giving the
judgment of this Court in Bracewell (1979) 68 Cr.App.R. 44 at 49 :
“You must remember this, that a doctor, and you may have thought that Dr. Green was a
splendid example of fairness, is speaking from a scientific point of view. He was saying, ‘I
cannot as a scientific certainty rule out that which you postulate, namely partial asphyxia,
recovery and then a heart attack,’ but, he said, ‘I incline strongly against that view.’ You will
remember ladies and gentlemen that your duty is not to judge scientifically or with scientific
certainty. You judge so that as sensible people you feel sure and even say that what might not
satisfy Dr. Green as a scientific certainty, might, with propriety, satisfy you so that you felt
sure. Do not be misled. There is no such thing as certainty in this life, absolute certainty. You
ask yourselves the simple question upon the whole of the evidence do I feel *154 sure? Take
account of course of the doctor's evidence. It is the most important evidence on this aspect. He
is really the only one qualified to speak here. Take account of his reservation fully. That
direction, in our judgment, correctly draws the distinction between what might be described as
scientific proof on the one hand and legal proof on the other. It is, with respect, an admirably
lucid and succinct way of dealing with a problem which often arises in connection with
scientific evidence. It is, of course, part of cross-examining counsel's duty to invite expert
witnesses to consider alternative hypotheses and, after examining them in detail, to conclude
by asking, ‘Can you exclude the possibility?’ The available data may be inadequate to prove
scientifically that the alternative hypothesis is false, so the scientific witness will answer, ‘No,
I cannot exclude it,’ though the effect of his evidence as a whole can be expressed in terms
such as, ‘But for all practical purposes (including the jury's) it is so unlikely that it can safely
be ignored.’ This is in substance what Dr. Green said.”
Following the ruling of the judge on the submissions of “no case to answer,” the jury heard no
further evidence save that provided by Dr. Ranasinghe who was recalled for the purpose of
being questioned about his post morten report on the deceased which had not previously been
produced. When this pathologist made that report he was not aware of the full facts of the
attempted robbery. His ultimate opinion as to the cause of heart failure was arrived at much
later and after he had acquired that knowledge.
In dealing with the burden of proof with particular regard to the medical evidence the judge
based himself upon the direction given by Boreham J. to the jury in Bracewell as set out above.
He put the matter thus:
“How then should you approach the doctors' evidence? Your task, using your experience and
your common sense, is to ask yourselves whether you are sure of guilt beyond a reasonable
doubt. You are not asked to say you are absolutely certain. Indeed there are few things in this
trial which are absolutely certain. The doctors gave their evidence to you as experts. Their
standard is the standard of medical science. So when they say in effect, in my opinion it is
highly probable that Mr. Black's death was caused by the shock of the attempted robbery but I
cannot rule out the possibility that it was caused by an episode of heart disease unconnected
with the attempted robbery, you may think that it is in the context of medical science that they
are using the phrases ‘highly probable’ and ‘cannot rule out the possibility.’ The doctors'
opinions do not necessarily oblige you to say that you cannot be sure. If they did then of course
there would have been no point in inviting you to judge this matter. Of course, the doctors'
opinions are of the utmost importance in this case and you will take full account of them. But
when you have done so make up your own minds on the whole of the evidence.”
His intention so to direct the jury must, in our view, have been a strong influence upon his
decision to refuse to withdraw the case from the jury in that he thought, justifiably we think,
that upon the whole of the evidence it was open to the jury to decide that the possibility of heart
failure having been caused by something unconnected with the attempted robbery could safely
be excluded.
Can the judge be properly criticised for allowing the jury to reach their own conclusions? The
facts in Bracewell ( supra ) were very dissimilar to those in the present case, but the
considerations arising from the medical evidence in both cases bore such a similarity as, in our
view, to entitle the judge to take the Bracewell direction, suitably altered to accord with the
evidence he had to bear in mind, as a guide in his endeavour to direct the jury into a permissible
way of regarding the *155 medical evidence alongside the overall requirement to be, if minded
to convict, sure of guilt.
When account is also taken of all the other evidence the judge, whilst obviously conscious of
the difficult task, as he put it, confronting the jury, cannot be said, we think, to have offended
in principle in allowing the trial to run its course. His, too, was a difficult decision in that
respect. Whilst it could possibly and understandably have gone either way, as it was, we see
no reason to hold that it was wrong. We reach the same conclusion about the judge's version
of the Bracewell direction. Thus we would dispose of grounds 1 and 3.
Grounds 4 and 5 have given us little or no difficulty. The various possibilities as to when
precisely the deceased began to suffer from heart failure not long before his death were
explored in cross-examination of the doctors in considerable detail. In any event, in the light
of that and the other evidence it is, we think, rather fanciful to suppose that the jury had to
contemplate the possibility of the attempted robbery worsening a heart attack already begun
and to what extent. Moreover, medical opinion was obviously based upon the premise that
either the heart attack was triggered off by the attempted robbery or the heart attack had already
stained and the attempted robbery had no appreciable effect on its progress. We should add that
the judge did direct the jury that the unlawful act had at least to be a substantial cause of death.
Counts 2 and 6, which can be taken together, have caused us much concern. It has, in our
experience, been generally understood that the harm referred to in the second element of the
offence of manslaughter, namely, the unlawful act, must be one that all sober and reasonable
people would realise was likely to cause some, albeit not serious, harm, means physical harm.
We observe that in Smith and Hogan, Criminal Law (5th ed., 1983) at p.319 , the authors state:
“Whether frightening is itself ‘harm’, so that an act which is likely only to frighten amounts to
manslaughter if it in fact kills, is less clear. In Reid (1975) 62 Cr.App.R. 109 , causing fright
by threats to use firearms was regarded as harm. P was in fact shot dead and whether the court
would have taken the same view if the guns had not been loaded and P had died of fright is
open to question.”
However, there seems to us to be no sensible reason why shock produced by fright should not
come within the definition of harm in this context. From time to time one hears the expression
“frightened to death” without thinking that the possibility of such event occurring would be an
affront to reason or medical knowledge. Shock can produce devastating and lasting effects, for
instance upon the nervous system. That is surely harm, i.e. injury to the person. Why not harm
in this context?
In another context, section 1 of the Prevention of Crime Act 1953 , this Court in Rapier (1980)
70 Cr.App.R. 17 , seems to have had no difficulty in comprehending that one effect of shock
can be to produce injury to the person. At p.19 Park J. said:
“The judgment of the Court in that case [ i.e. Edmonds (1963) 47 Cr.App.R. 114; [1963] 2 Q.B.
142 ] was delivered by Winn J. (as he then was). Towards the end of the judgment, at p.121
and pp.150, 151 of the respective reports, he said: ‘The justification, the court assumes, which
the learned commissioner had in mind for the adoption of his own phraseology including
reference to intent to frighten is to be found in a decision of the Divisional Court reported in
the name of Woodward v. Koessler [1958] 3 All E.R. 557; [1958] 1 W.L.R. 1255 . That was a
case where upon the facts it was plain that a sheath knife had been so brandished with such
*156 accompanying threatening behaviour that injury might very well be conclusively assumed
to have been done as a result of the shock thereby caused. Whether that case must stand upon
its own facts, it seems to the court that it is, to put it at its lowest, unsafe and undesirable that
directions to juries based upon section 1(4) of the Prevention of Crime Act 1953 should include
any reference to intent to frighten unless it be made clear in the passage in which such reference
is made that the frightening must be of a kind for which the term ‘intimidation’ is far more
appropriate and of a sort which is capable of producing injury through the operation of shock
….’ This Court in the instant case wishes to emphasise that passage in the judgment of Winn
J. In our view, in directing a jury in respect of an offence under this section the use of the word
‘intimidate’ should be avoided unless the evidence discloses that the intention of the person
having with him the article alleged to be an offensive weapon was to cause injury by shock and
hence injury to the person; it would seem that circumstances giving rise to that situation must
be exceedingly rare.”
We shall assume without deciding the point, although we incline to favour the proposition, that
harm in the context of manslaughter includes injury to the person through the operation of
shock emanating from fright and examine how the judge dealt with this in the second element
of the offence. He said:
“But the second question is, would all reasonable people realise it must inevitably create the
risk of some harm to Mr. Black? That is to say, all reasonable people who knew the facts that
you know, including the fact that the gun was a replica and could not fire and thus knew that
actually Mr. Black could not be injured by a bullet, in other words, but also knowing that Mr.
Black did not know that; that he might very well think he was being threatened by a real
firearm. He did not know it was not loaded with live ammunition. He did not know that at any
minute the trigger might not be pulled. All of them have accepted that they intended to secure
the money by putting Mr. Black in fright. So fear was both to be expected and was intended. I
direct you that if an act puts a person in such terror that he or she may suffer emotional or
physical disturbance which is detrimental then that disturbance is harm within the meaning of
what you have to consider. If, therefore, you conclude that all sober and reasonable people,
which means you, because it is your standards that have got to be applied, could only come to
the conclusion that the result of the threats with the pickaxe handle and the firearm in the middle
of the night was likely to be that inevitably there was a risk that Mr. Black would be put in such
terror that he would suffer some such disturbance which would be bad for him, then that can
be harm and the second element that you have to find is made out.”
These directions have been roundly attacked as being wholly erroneous. It was argued that,
contrary to an indication given by him to counsel, the judge in that passage directed the jury
that a definition of harm was “emotional disturbance which is detrimental produced by terror.”
He had, as we have seen from a transcript of discussion between him and counsel, intended to
direct the jury that a definition of harm for present purposes was emotional and physical
disturbance produced by terror. We think it was unfortunate that the judge, probably through
inadvertence, used the disjunctive “or.” As it was, the jury were left with a choice. Which they
chose and acted upon we cannot tell. If they acted upon the basis that emotional disturbance
was enough to constitute harm then, in our judgment, they would have done so upon a
misdirection. Emotional disturbance does not occur to us as sensibly descriptive of injury or
harm to the person through the operation of *157 shock produced by terror or fright; moreover,
we do not think the word “detrimental” assists to clarify whatever the expression “emotional
disturbance” is meant to convey. The further phrase used, namely, “some such disturbance
which would be bad for him” is likewise not helpful.
In his endeavours to give the jury appropriate guidance upon the meaning of harm within the
facts of this case the judge was sailing uncharted seas. We have every sympathy with him.
Unfortunately we think that what he said, other than the use of the phrase “physical disturbance
which is detrimental” (this was, we think, by itself, though easier to understand, inadequate)
could have led the jury to contemplate merely a disturbance of the emotions as harm sufficient
for the purpose of the second element when clearly, in our view, it is not.
In our judgment, a proper direction would have been that the requisite harm is caused if the
unlawful act so shocks the victim as to cause him physical injury.
We look finally at the direction, “That is to say all reasonable people who knew the facts that
you know.” What the jury knew included, of course, the undisputed fact that the deceased had
a very bad heart which at any moment could have ceased to function. It may be the judge did
not intend that this fact should be included in the phrase “the facts that you know.” If that was
so, it is regrettable that he did not make it clear. By saying as he did, it is argued “including the
fact that the gun was a replica” and so on, the jury must have taken him to be telling them that
all facts known to them, including the heart condition, should be taken into account in
performing what is undoubtedly an objective test. We think there was a grave danger of that.
This test can only be undertaken upon the basis of the knowledge gained by a sober and
reasonable man as though he were present at the scene of and watched the unlawful act being
performed and who knows that, as in the present case, an unloaded replica gun was in use, but
that the victim may have thought it was a loaded gun in working order. In other words, he has
the same knowledge as the man attempting to rob and no more. It was never suggested that any
of these appellants knew that their victim had a bad heart. They knew nothing about him.
A jury must be informed by the judge when trying the offence of manslaughter what facts they
may and those which they may not use for the purpose of performing the test in the second
element of this offence. The judge's direction here, unlike the bulk of an admirable summing-
up, lacked that necessary precision and in the form it was given may, in our view, have given
the jury an erroneous impression of what knowledge they could ascribe to the sober and
reasonable man.
For these reasons we see no alternative to quashing the convictions for manslaughter as unsafe
and unsatisfactory. The appeal against the convictions for manslaughter is therefore allowed.
As to the appeals against sentence, it is pertinent to observe of Dawson that he has a previous
conviction for violence. That was in 1982. When convicted he was 24 years of age. Nolan was
then 22 years of age. He has previous convictions, but none for violence. Walmsley was 24
years of age. He has previous convictions which include possession of an offensive weapon.
When this matter was before the court previously and argued in full as to conviction and
sentence, we listened with care to all that was submitted with regard to the possibility of a
reduction in sentence here on the basis that the convictions for manslaughter were quashed. We
do not doubt that, regardless as to whether any one of these men had previous convictions,
what they did upon this occasion was so serious that nothing but very severe sentences were
called for. In our *158 judgment none of the sentences passed here for robbery and attempted
robbery were excessive. They were wholly appropriate in the circumstances of both those
offences. Accordingly the appeals against sentence are dismissed.
Representation
Solicitor: Director of Public Prosecutions , for the Crown.
Appeals allowed in part. Convictions for manslaughter quashed.
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