Numbered references have been quoted from Archbold (2010)
At Graham’s first trial in 2004 the jury had the option of two different verdicts – guilty or not guilty of murder. However, at the House of Lords in 2006 Graham’s appeal was allowed. All 5 Law Lords agreed that based on his account, and the supporting evidence, the jury should have been directed that a third alternative of manslaughter was available to them. As a result, Graham’s conviction was unsafe and subsequently quashed at the Court of Appeal (4-463 & 7-97).
At Graham’s retrial the jury now had the option of three different verdicts – guilty of murder, guilty or “unlawful act” manslaughter or not guilty of either.
This case would not have been easy for any juror to sit through. Firstly it involved the tragic death of a young woman. Secondly, they would have had to confront their own sensibilities and sexual morality regarding Graham’s infidelity to his pregnant girlfriend, as well as his sexual interests and use of pornography. Thirdly, this was a legally complex case. In order for the jury to discharge their duties and responsibilities they would have had to apply cold, hard logic and reason to the evidence. This would require them to set aside any preconceived assumptions and prejudices, and to remove all empathy and emotion. A big ask for any human being to do, and we may never know if all 12 jurors were able to do this.
The jury oath:
“I swear by almighty God that I will faithfully try the defendant and give a true verdict according to the evidence.” (4-252)
The jury affirmation:
“I do solemnly, sincerely and truly declare and affirm that I will faithfully try the defendant and give a true verdict according to the evidence.” (4-252)
So, why did the jury return the wrong verdict?
The legal definition of murder:
“Subject to three exceptions, the crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen’s peace with intent to kill or cause grievous bodily harm.” (19-1)
It should also be noted that:
“(a) the burden of proof is upon the prosecution – it is for the prosecution to establish the defendant’s guilt; (b) before the jury can convict they must be satisfied beyond a reasonable doubt (or be sure) of the defendant’s guilt.” (4-380)
Beyond a <a href=”http://www.grahamcoutts.co.uk/doubt.html”>reasonable doubt?</a>
The “three exceptions” in the legal definition of murder are: provocation; diminished responsibility; and pursuant to a suicide pact. If any of these can be established, murder can be reduced to voluntary manslaughter. However, none of these exceptions are relevant in this case.
There are two classes of involuntary manslaughter – gross negligence involving breach of duty, and what was applied in this case – “unlawful act” manslaughter.
For “unlawful act” manslaughter to be established.
“(a) the killing must be the result of the accused’s unlawful act (1.) (though not his unlawful omission) (2.);
(b) the unlawful act must be one, such as an assault (3.), which all sober and reasonable people would inevitably realise must subject the victim to, at least, the risk of some harm resulting therefrom, albeit not serious harm (4.);
(c) it is immaterial whether or not the accused knew that the act was unlawful and dangerous, and whether or not he intended harm (5.); the mens rea required is that appropriate to the unlawful act in question; and
(d) “harm” means physical harm.” (19-99)
1.Neither Breath Control Play (BCP), or the tying of tights around someone’s neck is unlawful. Consent, as is the case here, renders both of these acts lawful.
2.”(….) an act which is otherwise lawful (such as driving a vehicle) does not become an unlawful act for these purposes if it contravenes the criminal law merely by the manner of its execution, e.g. by driving carelessly (….). Similarly, a clear distinction should be drawn between an act of omission and an act of commission likely to cause harm. If the latter act is unlawful and death results, an accused may be charged with manslaughter. If death results from an act of omission, a charge of manslaughter will not inevitably follow (….)” (19-100)
3.”An assault is any act – and not a mere omission to act – by which a person intentionally – or recklessly – causes another to apprehend immediate unlawful violence” (19-166). BCP is not assault.
4.”on a charge of common assault, it is necessary for the prosecution to prove absence of consent (…). Where actual or grievous bodily harm or a wound is caused, however, consent will be no defence in the absence of good reason (…) the Court of Appeal (…) instanced “properly conducted lawful games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc” (…) the Court of Appeal add rough and undisciplined horseplay to the list, provided there was no intention to injure.” (19-180)
“(…) contact sports, fairly conducted, are now unlawful. Thus it is not manslaughter where death occurs from an injury during a gloved sparring match, fairly conducted. Such a match may become unlawful if the fight continues unreasonably and the parties are placed in danger thereby (…)” (19-104)
5. Although it is immaterial in law, Graham had practised BCP around 200 times to no ill-effect. He had no reason at that time to suspect there was any danger. He knew nothing of vagal inhibition, or other possible risks associated with light to moderate pressure to the neck. And, no harm was intended.
There is a further category the Court of Appeal did not instance on their list (see 4) – ado-masochism. However, it should be noted that the form of BCP Graham had practised over many years was non-extreme. Unlike sado-masochism, the infliction and receiving of pain, or actual/grievous bodily harm, has never been a part of his sexual activity.
Nonetheless, there are 3 leading authorities on consent within the pursuit of sado-masochistic desires (19-182). They raise a number of questions. Firstly, whether consent is a defence when actual bodily harm is intended (or unintended), particularly where there is no aggressive intent. Secondly, had the consenting ‘victim’ in any of the 3 cases died, either as a direct consequence of their sado-masochistic activity, or as a result of an unrelated medical issue, perhaps exacerbated by their activity, the only evidence of consent would be from the account of the accused.
There was a further complication for the jury. The presence of a small quantity of blood (approx. 1 teaspoon). This would seem to indicate some form of injury. If this ‘injury’ occurred prior to Ms Longhurst’s death, perhaps from a nosebleed, her consent is no longer a defenece, and renders the lawful act of BCP into an unlawful act of assault, regardless of whether or not the ‘injury’ was intended. However, it the appearance of blood was a spontaneous expulsion from the lungs due to vagal inhibition, but after Ms Longhurst’s death, perhaps as Graham moved her from the position she came to rest on him, there was no unlawful act and Graham was entitled to a full acquittal. The prosecution has never established whether the appearance of blood was pre-death, and even Graham could not shed any light on this issue. He did not become aware of the blood until after he had moved Ms Longhurst, by which time she was already dead.
So, imagine as a juror sitting through 3 weeks of emotionally charged evidence, and then having to distil what was relevant to the complexities of the legal definitions of the 3 verdicts that were available to them.
Of course, we have no way of knowing how and why the jury reached their verdict in the absence of the physical evidence one might expect to see from an alleged violent assault, and with the additional areas of reasonable doubt;
or if the legal complexities caused any of the 12 jurors difficulties in understanding the definitions of the 3 verdicts that were available to them , and that the burden of proof falls to the prosecution, not the defence; or if after 13 hours of deliberations over 3 days, and a direction from the Judge for a majority verdict, any of them felt under pressure to return a guilty verdict; or that there may have been some yet to be revealed irregularity. But, what we do know is this – it was the wrong verdict.