R v Foster [2007] EWCA Crim 2869, [2007] All ER (D) 507 (Nov); R v Coutts [2006] 4 All ER 353 (HL)
Whenever alternative verdicts should be left to the jury, the judge should so direct them, notwithstanding united submissions on behalf of both the prosecution and the defence to the contrary.
In making this judgment, the judge must be alert to the possibility of any consequent unfairness, usually to the defendant, but not excluding the possibility of unfairness to the prosecution. It does not necessarily follow from the defendant’s admission of a lesser or different crime to the crime charged that the jury must be given an opportunity to return a verdict on the basis of the admitted criminal conduct. The alternative verdict may be remote from the more serious allegation made by the prosecution and the real issues in the case.
Accordingly, not every alternative verdict must be left to the jury. The judge may decide that a lesser alternative verdict should not be left to the jury if that verdict can properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issues in the case.
