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University of London International Programmes

13 Extract from Ackner LJ’s judgment in Attorney General’s

reference (No. 4 of 1980) [1981] 2 All ER 617

This material relates to the Criminal law subject guide, Chapter 6.

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Attorney General’s reference (No. 4 of 1980) [1981] 2 All ER 617.

Ackner LJ: The deceased was the fiancée of the accused and for some months
before her death they had lived together in a maisonette, consisting of two floors
of a house connected by two short flights of carpeted wooden stairs. The deceased
was employed locally and was last seen at work on January 17, 1979, at about 5 p.m.
Thereafter no one, other than the accused ever saw her alive again.

The deceased met her death on January 18, 1979, although this fact was not known
until over three weeks later when the accused so informed a friend. His account (given
on February 13), the first of a number, was that in the course of an argument on the
evening of January 17 he had slapped her on the face causing her to fall downstairs and
bang her head. He said that he had then put her to bed but discovered next morning
that she was dead. He then took her body to his home town and buried her.

On the following day (February 14) he gave his second account, telling the same friend
that after the deceased had ‘fallen downstairs’ he had dragged her upstairs by a piece
of rope tied around her neck. He subsequently cut up her body with a saw before
burying it. The next day, upon the advice of his friend, the accused went to see a
superior and gave an account similar to the one he had given his friend.

We now come to the statements which he made to the police. On February 27 having
consulted solicitors, the accused was interviewed by the police at his solicitors’ office.
He began by giving the police substantially the same account that he had given to
his friend and his superior but added that instead of burying the deceased he had
‘dumped’ the various parts of her body on a tip. At the police station later that day he
amplified his statement by saying that the incident when the deceased ‘fell downstairs’
occurred at about 7 p.m. on January 17 and that it was the following day, when he found
her motionless, that he pulled her upstairs by a rope around her neck and then cut up
her body in the bathroom. On the following day after much questioning by the police
he changed his account stating that everything had happened on Thursday, January
18, at about 7 a.m. This is what he then said happened. (i) He and the deceased had
an argument on the landing in the course of which each slapped the other, he seized
the deceased and shook her hard; she dug her nails into him and he pushed her away
instinctively, causing her to fall backwards over the handrail, down the stairs head-first
on to the floor. (ii) He went downstairs immediately to find her motionless and on a
very cursory examination discovered no pulse, and no sign of breath but frothy blood
coming from her mouth. (iii) Almost immediately thereafter he dragged her upstairs by
a rope tied around her neck, placed her in the bath and cut her neck with a penknife to
let out her blood, having already decided to cut up her body and dispose of the pieces.

He agreed that his previous account was untrue and he made a detailed voluntary
statement along the lines set out in (i), (ii) and (iii) above describing how subsequently
he had cut up and disposed of her body.

In the course of these interviews at the police station, after the accused had given his
revised account, the following conversation took place:

Officer: ‘How long was it from the time that she went backwards over the handrail to when
you started pulling her up the stairs with a piece of rope around her neck?’

Accused: ‘I went downstairs when she went backwards. I looked at her, tried her pulse. I
tried to lift her and she wee’d, so I put her down again. Then two girls went past (the glass
fronted door) so I covered the door with the blanket. Then I got the piece of rope and
pulled her up the stairs.’

Officer: When did you decide you were going to cut the body up and dispose of it?’

Accused: Just before I pulled her up the stairs.’‘

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Later he was asked by the officer:

‘Is it correct that you hauled (her) to the bathroom, put her into the bath and then cut her
neck with a knife to let the blood out and these were all a continuous series of events?’ To
this the accused answered: ‘Yes, they all happened together’.

Subsequently the police discovered evidence which corroborated the accused’s

account of how, where and when he had cut up the body. They also found the saw he
had used and the shopkeeper who sold it to him. However, the body of the deceased
was never found, only some minute fragments of bone, which were discovered in
the maisonette. There was thus no expert evidence as to the cause of death. The
deceased died either as a result of being pushed and thus caused to fall backwards
over the handrail and backwards down the stairs head-first on to the floor, or by
being strangled with the rope, or having her throat cut. The Crown conceded that it
was not possible for them to prove whether the deceased died as a result of the ‘fall’
downstairs or from what the accused did to the deceased thereafter.

The indictment charged the accused with (i) manslaughter, (ii) obstructing the
coroner in the execution of his duty, and (iii) preventing the burial of a corpse.

The accused pleaded guilty to the third count, the Crown offered no evidence upon
the second and the trial proceeded upon the count of manslaughter.

At the close of the Crown’s case for the accused stated that he proposed to submit
that on the facts proved there was no case of manslaughter capable of going to jury.
It is not easy to follow from the transcript the exact basis of his submissions, but what
he appears to have been contending was that (a) it was not possible for the jury to be
sure what caused the deceased’s death and (b) whether the death was caused as a
result of her ‘fall’ down the stairs or from what the accused subsequently did, believing
her to be dead, in neither event was there a prima facie case of manslaughter.

The judge, although expressing his reluctance to accept that the accused could be in
a better position as a result of his dismembering the body of the deceased, appeared
to have been very concerned at what he described as ‘an insuperable problem of
sentencing,’ were the accused to be convicted of manslaughter. He expressed the
view that the real criminality of the accused’s behaviour was in disposing of the body,
a view which this court is unable to accept. These views appear to have influenced his
decision, which was to withdraw the case from jury and to direct an acquittal on the
ground that the Crown had failed to prove the cause of the death of the deceased.

On the above facts this reference raises a single and simple question, viz: if an accused
kills another by one or other of two or more different acts each of which, if it caused
the death, is a sufficient act to establish manslaughter, is it necessary in order to found
a conviction to prove which act caused the death? The answer to that question is ‘No,
it is not necessary to found a conviction to prove which act caused the death.’ No
authority is required to justify this answer, which is clear beyond argument, as was
indeed immediately conceded by Mr Chadwin on behalf of the accused.

What went wrong in this case was that made jury points to the judge and not
submissions of law. He was in effect contending that the jury should not convict of
manslaughter, if the death had resulted from the ‘fall,’ because the push which had
projected the deceased over the handrail was a reflex and not a voluntary action, as a
result of her digging her nails into him. If, however, the deceased was still alive when
he cut her throat, since he then genuinely believed her to be dead, having discovered
neither pulse nor sign of breath, but frothy blood coming from her mouth, he could
not be guilty of manslaughter because he had not behaved with gross criminal
negligence. What and the judge unfortunately overlooked was that there was material
available to the jury which would have entitled them to have convicted the accused
of manslaughter, whichever of the two sets of acts caused her death. It being common
ground that the deceased was killed by an act done to her by the accused and it
being conceded that the jury could not be satisfied which was the act which caused
the death, they should have been directed in due course in the summing up, to ask
themselves the following questions: (i) Are we satisfied beyond reasonable doubt that
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the deceased’s ‘fall’ downstairs was the result of an intentional act by the accused
which was unlawful and dangerous? If the answer was ‘No’ then they would acquit.
If the answer was ‘Yes’ then they would need to ask themselves a second question,
namely: (ii) Are we satisfied beyond reasonable doubt that the act of cutting the girl’s
throat was an act of gross criminal negligence? If the answer to that question was ‘No’
then they would acquit, but if the answer was ‘Yes’ then the verdict would be guilty of
manslaughter. The jury would thus have been satisfied that, whichever act had killed
the deceased, each was a sufficient act to establish the offence of manslaughter.

The facts of this case did not call for ‘a series of acts direction’ following the principle
in Melli v The Queen [1954] 1 WLR 228. We have accordingly been deprived of the
stimulating questions as to whether the decision in R v Church [1966] 1 QB 59 correctly
extended that principle to manslaughter, in particular to ‘constructive manslaughter’
and if so whether that view was part of the ratio decidendi.