202501491 B4 - [2025] EWCA Crim 969

It seems to us that there are at least four outcomes which we should deal with. We leave out of account the submission that we should allow the appeal because the retrial cannot be fair. A similar submission was made in Bayode without success. If the retrial cannot be fair, then it should be stayed by the trial judge. If he wrongly fails to take that step, then an appeal lies to this court after any conviction even if the ruling is not made within a preparatory hearing to enable an appeal to be brought before trial. Before staying the retrial the judge would explore all options to ensure that prejudicial evidence is not wrongly admitted, against ANL and those options, in this case, might include severing the trial from that of the other person who faces a retrial. The judge was clearly right to take this view.

These four outcomes to the submission that no retrial can lawfully take place, even if it is a fair trial:-

We do not consider that either (iii) or (iv) in paragraph 41 are appropriate outcomes. The judge considered that he may have had a power to quash or in some other way dispose of the jury’s verdict convicting ANL of manslaughter. We do not agree. Equally, neither party has sought to appeal against that conviction, attacking the decision (with which both agreed) that the verdict should taken in the circumstances which prevailed. The appeal is brought against the ruling in the preparatory hearing that a retrial for murder should take place notwithstanding the conviction for manslaughter. That is the decision with which ANL is unhappy. Under section 35(3) of the Criminal Procedure and Investigations Act 1996 on hearing this kind of appeal, we may confirm, reverse or vary the decision appealed against. There is nothing there to suggest that we have any greater powers in relation to the decision than the judge had.

For the reasons identified above, we do not consider that the decision in Bayode was right on issue (iii). We therefore turn to the question of whether we are bound by it.

We have explained above at [22] something about the ambit of the decision in Saunders. We have also explained above how the prosecution argued the case in Bayode. As we have pointed out at [27] above, the prosecution did not seek to argue that there is no rule that a person cannot be convicted of both manslaughter and murder in respect of the same killing. The jury cannot convict of both, by reason of the Criminal Law Act, and the circumstances where both convictions might co-exist are very rare, probably limited to the case where a plea to manslaughter has been entered but rejected and the present situation where a jury has convicted of manslaughter and failed to agree on murder. There is no authority cited for the proposition advanced at paragraph 33 of Bayode. Although Hazeltine was mentioned by the court, the important passage cited above does not seem to have been relied upon by the prosecution. Moreover, the prosecution did not point out that the assertion of a power in the court to prevent a retrial where the prosecution was hostile to that course was obiter and inconsistent with the subsequent development of the law of abuse of process in R (ex Bennett) v. Horseferry Road Magistrates’ Court [1994] 1 AC 42. It asserts a species of abuse which does not fit in the classification adopted in this case and now firmly established in the criminal law. Had that argument been made successfully, that court’s approach may have been affected.

The prosecution drew our attention to the common case where, after a person is convicted of an offence of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, the victim dies. This has never been held to bar a prosecution for murder. It is a further indication that the Rule is not soundly based which was not fully addressed in Bayode.

We have pointed out above that the exercise of identifying the ratio of a decision which rested on more than one ground is not always straightforward, and the case of Bayode on issue (iii) is a good example of this. In our judgment, having regard to the matters set out above it is open to this court to hold that it should be treated as not essential to the decision dismissing that prosecution appeal which was justified by another ground. For the reasons given we hold that we are not bound to follow it, and decline to do so.

That being so, we hold that there is no authority which justifies the Rule, and a finding that the mere existence of a conviction for manslaughter is a bar to a trial, or retrial, for murder arising out of the same killing.

For these reasons we hold that the judge’s order was correct and dismiss the appeal.