Today, in Plymouth Crown Court, Garnham J acceded to a half-time submission and withdrew counts of murder and manslaughter from the jury. Simon Wotton had been charged with murder following the discovery of the dead body of Colin Baines. The two men were friends and had spent the previous day, and most of the night, drinking heavily. They had also engaged in drunken fighting, some of it playfighting, at other times less playful and more confrontational. The police were called by a neighbour and when they entered the flat, they saw Simon Wotton, his girlfriend – both clearly the worse for wear due to alcohol – and the body of Colin Baines. Simon Wotton said he could remember nothing of the night before and nothing about any fighting. That evidence came from his girlfriend who described the men as arguing and wrestling on the floor before Baines became unconscious.
The pathologist noted injuries to both sides of the face and – the fatal injury – a torn artery in the neck. Importantly, she confirmed that a punch or kick to the jaw or cheek using moderate force would have been sufficient to cause the injuries, but so would forceful wrestling, or grappling involving the head and neck, which wrenched the neck.
The law is that consensual playfighting that causes injury is not unlawful, unless someone intends to go beyond playfighting and cause harm. On the basis that no jury could be sure this fatal injury was caused outside playfighting between two consenting men, the judge agreed with Adam Vaitilingam QC’s submissions and stopped the case.
In September, a jury acquitted Jake McNairn of murder and manslaughter arising from an allegation that he had pushed his grandmother down the stairs in a fit of drunken anger. In that case, the defence case was that he had not caused his grandmother to fall, had been unaware of it at the time and that soon after becoming aware of it, he telephoned the emergency services. Again, in that case, Adam made a half-time submission on the basis that there was no evidence upon which the jury could safely convict on either count. That submission was rejected but the jury went on to acquit of both counts.