Benjamin Luke Field v R

This case comes before the court as a result of a reference by the Criminal Cases Review Commission (“CCRC”) dated 28 August 2025. It relates to the conviction at trial of the appellant of the murder of Peter Farquhar. Mr Farquhar was 69 years old when he was found deceased by his cleaner on the sofa at his home address on the morning of 26 October 2015. The appellant was convicted of his murder on 9 August 2019, after being tried with two others on an indictment containing 8 counts. Those two others were acquitted of the offences alleged against them.

There have been two previous judgments of the Court of Appeal Criminal Division in this case. The appellant’s appeal was dismissed by the full court (Fulford LJ, Vice-President of the CACD, Whipple and Fordham JJ), in its judgment of 18 March 2021, [2021] EWCA Crim 380 (“CACD Judgment 1”). A differently constituted court (the President of the Queen’s Bench Division, Sir Nigel Davis and Sir Stephen Irwin) refused his application to re-open that appeal in its judgment of 16 March 2022, [2022] EWCA Crim 316 (“CACD Judgment 2”). The facts of the case are set out in CACD Judgment 1, and also appear in CACD Judgment 2. In this third judgment we will only identify those facts which are necessary to determine the points which we have to decide. Paragraphs 7-39 of CACD Judgment 1 set out the facts, and we gratefully adopt that summary which appears as an annex to this judgment for ease of reference.

At paragraph 145 of its statement of reasons, the CCRC expressed the nub of the issue in this way:-

This means that after a long and complex trial, involving a number of defendants and a large amount of evidence, and an unusual appeal process, the issue before us concerns two parts of a long summing up and the response by the judge to a question posed by the jury. We will focus on that, in a way which is easier now that it is all that is in issue, than it was for the judge who had so much else to deal with under the usual pressures of a criminal trial.

The CCRC considered that both bases advanced to the CCRC by Mr David Jeremy KC on behalf of the appellant deserved consideration by this court. These were put in these terms:-

The second of these grounds is an argument that CACD Judgment 1 was wrong and perhaps also that CACD Judgment 2 was wrong in not saying so. Before entertaining it we should state the basis on which we do so. Mr David Perry KC, on behalf of the prosecution, fairly and, in our judgment, correctly did not seek to defeat the argument on the basis that we were bound by the rules of precedent to reject it. The first argument is, in our judgment, not really new. The problem created for the law by consent to sexual activity which was secured or influenced by deception is not at all new. The oldest authority cited to us on the subject was Papadimitropoulos v The Queen (1957) 98 CLR 249. We were then invited to follow it through R v Linekar [1995] Q.B. 250, Assange v Sweden [2011] EWHC 2849 (Admin), R (Monica) v DPP [2019] Q.B. 1019, and R v Lawrance [2020] 1 W.L.R. 5025. All of these cases preceded both CACD Judgment 1 and CACD Judgment 2. We shall address the merits of this argument below, quite briefly, and mention it here to emphasise the fact that the real argument is the second one. It is important when entertaining a contention that a previous decision of this court that a conviction is safe was wrong to be very clear about the basis on which it is before the court.

In R v Hayes (Tom) and R v Palombo (Carlo) [2024] EWCA Crim 304; [2024] 2 Cr. App. R. 6 (“Hayes & Palombo”) the Court of Appeal reviewed the rules of precedent as they are applied in this court. The Supreme Court at [2025] UKSC 29; [2025] 2 Cr. App. R. 21 reversed the decision on grounds to which we will return later, but did not comment on this passage. That case also involved a CCRC reference, but not one under section 13(2) of the Criminal Appeal Act 1995:-

Section 13 of the Criminal Appeal Act 1995 provides as follows:-

In CACD Judgment 2, the court refused to consider the merits of the causation argument which had been rejected in CACD Judgment 1. The court held, applying CrimPR 36.15, that such a course under the re-opening procedure would only be taken where it was necessary to avoid a real injustice and where the circumstances were exceptional. The court found that these tests were not met and refused to entertain what it described as a “second go”. Later, it said this:-

It is implicit in that approach that if the CCRC refers a case for a “second go” under section 13(2) of the 1995 Act, the court will not refuse to consider the merits of the argument simply because the previous court’s decision is binding. That is a necessary consequence of the enactment by Parliament of section 13(2) of the 1995 Act. The list of exceptions to the rule on stare decisis given by the Court of Appeal in Hayes & Palombo should perhaps be extended to include CCRC references under section 13(2).

This is an argument that CACD Judgment 1 was wrong when it was decided, not that subsequent developments of the law have changed the position, so section 16C of the Criminal Appeal Act 1968 does not apply. Further, although it looks much like an application to re-open an appeal, it is not. Section 9(2) of the Criminal Appeal Act 1995 provides:-

Therefore, the procedural requirements in 36.15 for re-opening an appeal do not require consideration in this court on such a reference. The CCRC has determined that the circumstances are exceptional for the purposes of section 13(2) of the 1995 Act and Parliament has conferred on it the power so to act. It would be wrong for this court on such a reference to apply its own procedural requirements. It must simply decide for itself whether the conviction is safe, paying due regard to CACD Judgment 1, but not being bound by it. On that basis, it is not necessary to consider CACD Judgment 2 any further. The court in that decision refused to re-open the appeal on other grounds, including bias, which are not material to the appeal before us. We agree with their conclusion at [73] that in almost all cases where it is said that a decision of this court was wrong, the correct course is for the CCRC to consider whether to refer the case under section 13(2). This is what has happened here, as the court in CACD Judgment 2 contemplated.

The expert evidence was that death was probably caused by the ingestion of Dalmane, a medically prescribed sedative, and whisky. There was no expert evidence of smothering, but this did not mean it had not happened. The amount of the Dalmane in Mr Farquhar’s body at post mortem was a consistent with a therapeutic dose. There was no direct evidence about how that dose had been administered. The most obvious ways in which that might have happened were either that it had been taken voluntarily by Mr Farquhar, or administered by the appellant without Mr Farquhar’s knowledge. There was a history of the appellant doing this with other drugs in the past which had been documented by the appellant himself. In those documents there was a reference to “feeding” Dalmane, which we set out below at [15]. The last documented incident of covertly administering drugs was a few weeks before Mr Farquhar’s death and did not involve Dalmane.

It was agreed by the appellant that he had made the bottle of whisky available to Mr Farquhar. He said he had left it for him as a temptation, but the prosecution alleged that he had been present when Mr Farquhar had drunk the whisky and they had drunk it together. On either footing, it was clear that Mr Farquhar had drunk the whisky knowing what it was, and voluntarily. There was evidence from experts about the state of his liver after his death, and other sources which showed that he was not an alcoholic, although he liked malt whisky and, on his own account, drank too much of it. He was not therefore subject to any addiction which may have made him less able to take a free and informed decision than others about whether to drink whisky. CACD Judgment 1 at [39] said:-

We highlight in passing the use of the alternative conjunctions in the form “and/or”. We shall return to that.

One of the appellant’s journal entries (see CACD Judgment 1 [28] and [29]) contained what the prosecution alleged was a plan for the murder:-

The judge summarised the prosecution case in his legal directions, saying:-

The judge then said:-

The Route to Verdict contained these questions:-

During the trial, the jury asked the following questions:

The judge discussed the second of these questions with counsel in the absence of the jury and, when they returned to court, said this [we have emphasised certain critical passages]:-

In CACD Judgment 1, the court set out the argument as it understood it in these terms:-

Those submissions were rehearsed before the court in CACD Judgment 2, and advanced again to the CCRC and again to us. In the process, they have acquired additional elements, including, in particular a contrast between a part of paragraph 63 in the draft judgment distributed by the court in CACD Judgment 1, and that which is found in the judgment as handed down:-

There has also been argument about what came to be known as the “weak swimmer” analogy, which was recorded by the court in CACD Judgment 1 as a concession by Mr Jeremy described in this way at [49]:-

The weak swimmer analogy played an important part of the court’s decision in CACD Judgment 1.

We have not found it helpful to consider the events which occurred at trial which led to the legal directions being given as they were, or the events at and following the first appeal concerning the draft judgment and the use made of the weak swimmer analogy. We do not intend to be drawn into a detailed examination of the history of the case. The question is whether the judge’s directions were right, and not how he came to give them. The question is whether the court in CACD Judgment 1 was right in its final judgment as handed down, and not how it reached its decision.

In CACD Judgment 2, the court was concerned to capture the reasoning of the court’s judgment in CACD Judgment 1. At [35] the court said “The core of the Court’s reasoning [in CACD Judgment 1] is to be found in paragraph 59 to 63 of the judgment. In view of the submissions now made to us it is unavoidable that we set them out in full”. We find ourselves in the same position, and set them out here again:

We have therefore captured the essence of the submissions made by Mr Jeremy KC, and the parts of CACD Judgment 1 which deal with them.

Rather than setting out the submissions made on behalf of the respondent at different stages of these proceedings, we will summarise very concisely the written and oral submissions placed before us by Mr David Perry KC who appeared with Ms Victoria Ailes in place of trial counsel for the prosecution, both of whom have now been appointed to the Bench.

In his written submissions Mr Perry emphasised that the House of Lords in R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269 (“Kennedy (No 2)”) said that an act by someone other than the defendant (in our case the victim) will break the chain of causation between the alleged misconduct and the prohibited outcome (in this case the death of the victim) only if that act is free, deliberate and informed. That formula has been abbreviated by some of the academic commentators as “FDI”. FDI is the test for establishing whether the act was “voluntary” in law so that it alone is treated as the cause of the prohibited outcome. In this case it is the last of those words which is engaged. Was Mr Farquhar’s decision to drink the whisky “informed”? Mr Perry submits that it was not, for the reason given in CACD Judgment 1, namely that he was not informed of the fact that the person with whom he was drinking intended that he should die. This is true, as a matter of fact, because on the directions they were given the jury must have been satisfied that the appellant had directly provided the drink, which was consumed in his presence. They must also have been sure that the appellant did intend that Mr Farquhar would die, and that Mr Farquhar did not know this. The question, therefore, is whether that intention was legally relevant to the voluntariness of the decision of Mr Farquhar to drink the whisky.

In his oral submissions, Mr Perry made a somewhat more expansive argument. He emphasised the depraved nature of the appellant’s conduct, as admitted or determined by the jury. He relies on this passage from Lord Bingham in Kennedy (No 2) at [15]:-

He points to the answer in Kennedy (No 2) to the certified question as revealing the importance of the factual context in making any judgment about causation.

The certified question was:-

The answer was, at [25]:-

Mr Perry referred also to R. v Hughes [2013] UKSC 56; [2014] 1 Cr. App. R. 6 (p.46) where Lord Hughes and Lord Toulson giving the judgment of the court said:

Mr Perry referred to R. v Wallace [2018] EWCA Crim 690; [2018] 2 Cr. App. R. 22 in support of his submission and took us through the criticism of that decision by Professors Simester and Sullivan in Causing Euthanasia (2019) LQR 135 January at page 21, to show that it was misplaced. Professor Simester has developed the theme of that casenote in Modern Criminal Law, Essays in Honour of GR Sullivan (2024) in his essay “Free, Deliberate and Informed?”. The date of that essay enabled Professor Simester to appraise the decision in CACD Judgment 1 in this case.

In our judgment the key questions we have to address in deciding this appeal are:-

The critical importance of correctly identifying the issues in a case which are properly issues of law for the judge and those which are issues which must be left to the jury to decide was emphasised by the Supreme Court in this case.

The academic criticism of the decision in this case is summarised by Professor Simester in his 2024 essay we have referred to above. Smith, Hogan and Ormerod’s Criminal Law (17th ed) at 85-86 makes similar criticisms. Essentially, they say that the Court of Appeal in Wallace and in CACD Judgment 1 have departed from Kennedy (No 2) and failed to apply the FDI principle of autonomy. They say that this is wrong both as a matter of precedent and because the autonomy principle is an important way of limiting legal responsibility in the criminal law for acts which are truly not the acts of the defendant. Professor Simester (echoing Professor Glanville Williams) argues that the responsibility, if any, in such cases should rest on the secondary liability of those who are complicit in the act of the principal rather than by erroneously attributing the act of the principal to a person who may be, at most, a secondary party. Here, of course, no question of complicity arises because if Mr Farquhar caused his own death, he committed no crime in doing so. But the analysis is said to support the principle which should be applied to this case. The reason why there is no complicity was explained in Kennedy (No 2) at [18]:-

We are first, therefore, required to consider whether this academic criticism is correct. In this case, this involves deciding whether the covert intention of Field that Mr Farquhar should die truly means that his act of drinking the whisky was not free, deliberate and informed. This requires some analysis of principle and of the decision in Kennedy (No 2). The relevant part of the opinion of the committee, as delivered by Lord Bingham, is actually an explanation for a concession made by Mr Perry, who argued the case for the prosecution. He had conceded that because of the FDI principle, the prosecution had to prove the first offence created by section 23 of the Offences Against the Person Act 1861 (“offence (1)”), as the unlawful act on which the charge of manslaughter was based. This requires proof that D “administered” the noxious substance to V. The second and third offences could not amount in law to causes of death, because of the FDI principle. The account of that principle was not confined to this question but is at a high level and of general application. It is in these terms:-

The qualifications in paragraph 14, described as “internal limitations on the principle” by Professor Simester in Free, Deliberate and Informed? at page 5, do not apply in this case, unless they are modified. CACD Judgment 1 found that because he was not fully informed about the appellant’s state of mind, his decision to drink the whisky was not to be treated as an autonomous act within the principle in Kennedy (No 2). It is at this point that the CCRC suggests that the cases about what kind of deception may vitiate consent in a case involving an alleged sexual offence may come into the analysis. We doubt that there is much to be gained by importing that difficult subject into this more straightforward area of the law. We venture to suggest that the state of the authorities about sexual cases is not entirely coherent and this is not a suitable case to attempt to resolve that and then import whatever the result may be into this analysis. There is no evidence in this case that the appellant deceived Mr Farquhar with the result that he drank the whisky. He certainly did deceive him, and ruthlessly preyed upon him with the intention that he should die and that he would benefit financially from that death. That deception was the context in which the whisky was drunk, but the jury was not directed that it should decide whether a direct causal link between it and the decision to drink that whisky was made out.

In CACD Judgment 1 [60], cited above, the court decided that Field’s undisclosed intention that Mr Farquhar should die “changed the nature of the act” of Mr Farquhar in drinking whisky. He thought he was drinking whisky with someone who “cared for him, not someone who wished for his death”. It was in this context that the weak swimmer analogy became relevant. But there was no evidence that Mr Farquhar believed himself to be in any danger as a result of drinking whisky, something he did often, or that his decision was affected by any thoughts he may have had about what the appellant might do if he were to get into difficulties. The weak swimmer chose to swim because an accused had “promised to provide assistance if the swimmer encountered difficulties”. As the matter is put in Smith, Hogan and Ormerod (17th Ed) at page 86:-

It is true that the authors misunderstood the facts in one respect, because Field did not merely leave the bottle of whisky out to tempt Mr Farquhar to drink. He did more than that on the jury’s finding, see [14] above. However there was no evidence that he did anything which could amount to “administering” the whisky, within the meaning of section 23 of the Offences Against the Person Act 1861 (offence (1) in the passage quoted from Kennedy (No 2)) and so the same problem which caused Mr Perry to make his concession in that case arises here. There was no evidence that the appellant’s act in relation to the whisky was in any legally material way different from the act of the drug supplier in Kennedy (No 2).

That being so, we respectfully disagree with the court in CACD Judgment 1, and consider that they were bound by Kennedy (No 2) to quash the conviction. We also respectfully disagree with their decision to refuse to certify that their decision involved a point of law of general public importance and ought to be considered by the Supreme Court, for the purposes of section 33(2) of the Criminal Appeal Act 1968. A better course, in our judgment, would have been to allow the appeal and grant such a certificate so that the prosecution could have sought a ruling from the Supreme Court on the scope of Kennedy (No 2). Since we take the view that this is what that court should have done, this is what we will now do.

Should the jury have been directed that they had to be sure that Mr Farquhar’s decision to drink the whisky was not free, informed and deliberate? Should they have been directed in terms that the only basis on which they could so find was that the appellant’s undisclosed intention that he should die had changed the nature of the act of drinking whisky in the way suggested in CACD Judgment 1, leaving it to them to decide the issue? The importance of leaving questions of fact for the jury to decide is the essence of the decision of the Supreme Court in Hayes & Palombo. In those cases, a failure in this regard led to the quashing of convictions where the issue which had been wrongly withdrawn (the meaning of two documents) was much less central to that case than the voluntariness of Mr Farquhar’s decision to drink whisky was in this one. For this reason also, therefore, we would quash this conviction for murder.

The fourth paragraph on page 22 of the written directions is quoted above at [17], and is there underlined. The expression “even if he agreed to drink it” withdraws from the jury the question on which their verdict in this case would actually turn, once they rejected the appellant’s factual case.

When the judge gave further directions orally in answer to the jury question, he did give the jury a direction about the relevance of the appellant’s intention to kill. This was a new direction. Its cogency was affected by the fact that it concerned only the whisky (because that is what the jury had asked about) but included the formula from the written directions and route to verdict “physically giving him alcohol and/or Dalmane and/or by smothering him”. The question the jury were invited to answer was whether, when doing one, two or all three of those different things, the appellant had intended to kill Mr Farquhar. This begged the question. The appellant certainly, on the jury’s finding, intended that Mr Farquhar should die as a result of drinking the whisky. As the judge put it, the plan was that he should “die an alcoholic’s death”. Whether that was an intention to kill him depends on whether in law the act of giving him the whisky was a cause of death, or whether the sole cause was Mr Farquar’s free, deliberate and informed choice to drink it.

Further, the revised way of putting the case which emerged in these oral directions posited two options: either the appellant gave the whisky intending to kill Mr Farquhar but kept that intention secret, or Mr Farquhar was fully informed in that he knew that the whisky was intended to kill him. Only in the latter case would his act of drinking the whisky amount to a free, deliberate an informed act which was, in law, the sole cause of his death. CACD Judgment 1 later explained why that might be an appropriate analysis of the case, but the issue was never put to the jury in the terms which were used in that explanation. The jury was not directed that it had to be sure that the appellant’s hidden intention that Mr Farquhar should die as a result of drinking the whisky meant that Mr Farquhar’s decision to drink was not free, deliberate and informed because it “substantively changed the nature of the undertaking upon which PF embarked, in this particular case”, CACD Judgment 1 at [59]. This was the view of the facts formed by the Court of Appeal and one which the jury may very well have shared, but was not a question which they were required, in terms, to decide. We do not agree, therefore, with this conclusion contained in the revised paragraph 63 of CACD Judgment 1, see [22](ii) above:-

This is a short point which is an additional reason for finding the conviction for murder unsafe. It arises from the use, throughout the legal directions, including the rephrased way in which the jury was directed orally in answer to a question, of the formula which involved three different methods of causing death, joined by the expression “and/or”. This is found in Question 2 of the Route to Verdict in these terms:-

As we have explained in answer to Question 2, an additional question was necessary to invite an answer to the question of whether the ingestion of “drink and/or Dalmane” was, in law, voluntary. The jury could, at that point, have been directed that if they were sure that smothering was a cause of death, question 3, as it would have been, did not arise. Linking these three different acts with the conjunction phrase “and/or” did not assist in clarifying the different considerations which may have applied to the circumstances in which each of them may or may not have played a part in causing death.

The evidence of the pathologist was that the only cause of death of which there was evidence was the combination of alcohol and Dalmane. It was not that it could have been either. There was no expert evidence that suffocation had been a cause of death, save that there were no external signs of trauma, and no evidence that it was alcohol alone. The written notes kept by the appellant, quoted above, contained evidence of an intention to smother Mr Farquhar should it be necessary:-

Therefore, Question 2 of the Route to Verdict left it open to the jury to convict on the basis that the cause of death may have been alcohol, on its own, or Dalmane, on its own, or smothering on its own, or some combination of them. Clearly, if smothering was a cause of death it was inflicted on Mr Farquhar and did not result from any voluntary act on his part. If, however, it was either alcohol or Dalmane, or both, then that issue did arise for consideration.

CACD Judgment 1 summarised the pathology evidence at [27]:-

In retirement, the jury asked their question about alcohol alone, which the judge answered in his oral directions set out above. These directions continued to use the “and/or” formula, but the last part focusses only on the drink as the sole cause of death. It says:-

So the jury may have convicted on the basis that the alcohol was the sole cause of death, having been previously directed that they might find that it was Dalmane on its own, or smothering on its own. They were also directed that “it would not be right to convict” the appellant “if Peter Farquhar drank in the knowledge that Ben Field was giving him the drink, he, Ben Field, intending to kill Peter Farquhar”. We have corrected the transcription so that it reads as we understand it. This means that it would not be right to convict the appellant if Mr Farquhar knew that the appellant intended that to kill him when he gave him the whisky.

However, they may also have convicted on the basis that Dalmane was the sole cause of death, or a cause of death in conjunction with alcohol, but the jury was not directed about the circumstances which might justify a finding that the Dalmane had been ingested as a result of some act by the appellant, rather than as a result of a free, deliberate and informed decision to take it. The fact that death was caused by both drugs in combination was dealt with in the factual part of the summing up, but was dealt with in the legal directions in the way we have described.

The sentencing remarks set out the judge’s own findings of fact about the way in which Mr Farquhar died. The judge found that the appellant covertly gave him the drug Dalmane, got him to drink a large quantity of very strong whisky and if that combination had not killed him, finally suffocated him in a way that left no trace. That suggests that he considered that there was no sufficient evidence that smothering had played a part in causing death. The appellant’s note had established an intent to do this if necessary, but not that it had been done. The judge’s directions therefore left a possible cause of death to the jury of which there was no sufficient evidence. This is a significant deficiency in them.

Mr Perry sought to persuade us that there was an overwhelming inference that the Dalmane was administered covertly. If that was so, then no question of a voluntary or informed decision to take it could arise. Further, the decision to drink whisky would not be fully informed either, because its danger was substantially increased by the unknown presence of Dalmane. If the prosecution could prove that the Dalmane had been covertly administered by the appellant with the intention that he would then drink alcohol and die, that would be a perfectly straightforward way of charging murder. That, however, is not how it was put to the jury, and we do not know whether the jury accepted that the prosecution had proved that the appellant administered Dalmane (the word in the directions is “gave” or “giving”) without Mr Farquhar’s knowledge. They were not asked to decide that question by the judge’s legal directions. Had they been, and had there been a conviction, it would not have been necessary for CACD Judgment 1 to rely on the undisclosed intention of the appellant as changing the nature of Mr Farquhar’s act in drinking the whisky.

For these reasons, we take the view that the way in which the jury was directed did not sufficiently direct the jury to consider and make a finding about the circumstances in which the Dalmane came to be consumed. The directions also left it open to the jury to convict on the basis that Mr Farquhar had been killed by smothering, without requiring the jury to make a finding that this was so and when there was insufficient evidence for them to make any such finding. Finally, the jury were not directed correctly and in accordance with the pathologist's evidence as to the cause of death, either in the two questions they were required to answer (the steps to verdict) or in the answer to the jury note. 

We therefore find ourselves in respectful disagreement with the court in CACD Judgment 1. We find that the conviction for murder was unsafe, for the reasons given and will, in due course, quash it.

We circulated a draft of this judgment to the parties under embargo in accordance with the usual practice. In it we indicated that we intended to decide whether to order a retrial on the basis of written submissions. We originally intended the hand down to be remote, but on the day when that was listed we decided to hand the judgment down at a hearing instead and directed written submissions on all consequential matters which we have now received and considered. This was to avoid any difficulties with the course we had indicated in the draft when dealing with that issue and the other consequences of our decision that the murder conviction was unsafe.

In the draft, we said:-

We wrote that because it seemed to us inevitable that the prosecution would invite this court to certify a point of law and to give leave to appeal. It was also inevitable that we would agree to certify a point. We wished to shorten the period during which these proceedings were subject to the uncertainty of a further appeal, particularly given that we thought it likely that the appellant would be detained pending its outcome and, if the re-trial is to take place thereafter, pending that event as well. For that reason we decided that we would give leave to appeal if asked to certify a point of law, as we now have been. We felt that it would be helpful for the parties to know how we viewed the consequences of our decision so that they could address the issues on an informed basis. Of course, since these views were set out in a draft, they were capable of revision in the light of the submissions we received. A decision becomes a decision when it is made, not when it is set out in a draft judgment distributed under embargo. In any event, as we have said, we delayed the hand down and directed written submissions on all consequential matters, and a hearing to resolve any outstanding issues.

Mr Jeremy’s remarkable tenacity in these proceedings does him great credit. In his written submissions he seeks to persuade us that our decision involves no point of law at all, still less one of general public importance. We reject that submission as unrealistic in the highly unusual circumstances of this case.

We agree with Mr Perry, on behalf of the respondent, and will order accordingly. He puts the matter this way in his written submissions:-

We will certify that a point of law of general public importance is involved in our decision and ought to be considered by the Supreme Court further to section 33(2) of the Criminal Appeal Act 1968. We will also grant leave to appeal. Mr Jeremy says that there is no urgency in this case because the appellant “is a serving prisoner and will remain one for some years whatever the outcome of this appeal”. This observation has caused an enquiry into the sentences which were imposed for the other offences concurrently with the life term. This has revealed that the warrant issued by the Crown Court is not consistent with the judge’s very clear sentencing remarks. The Crown Court is directed to correct the record, so that a warrant reflecting the judge’s sentence as explained in court, is issued. In fact the other sentences imposed totalled an effective determinate sentence of 16 years. There is some uncertainty about the relevant early release provisions and the Prison Service, for obvious reasons, has not yet calculated a release date. However, it appears to be the case that the appellant may be eligible for release rather sooner than Mr Jeremy suggests. In those circumstances we consider that in the interests of the appellant himself, we should do what we can to avoid any unnecessary delay. In any event, as we said in our draft judgment, the rule in Kennedy (No 2) is a matter of public importance and if any clarification is required it is in the public interest that this should happen without any avoidable procedural delay.

We will direct a re-trial. Whether that will take place, and what the law is which will apply at it if it does will, of course, be affected by the Supreme Court’s decision on the appeal. The prosecution has applied for an order for a re-trial and Mr Jeremy, sensibly, makes no submissions to the contrary. He has also made no application for bail on behalf of the appellant, whose detention pending the outcome of the appeal we direct under section 37(2)(a) of the Criminal Appeal Act 1968.

We record a discussion which took place at the start of the hearing. Because of the possibility of a re-trial we raised the question of whether a reporting restriction should be imposed in relation to these proceedings under section 4(2) of the Contempt of Court Act 1981. In view of the fact that all the earlier proceedings have been published, and that there has been very extensive publicity about this case over a number of years, both counsel accepted that such an order would achieve nothing and we decided not to make one.

We remind everyone of the terms of section 4(1) of the Contempt of Court Act 1981:-

The appellant accepted that from late 2012 until mid-2017 he had pretended to be in a genuine and caring relationship first with the deceased, Peter Farquhar (“PF”) and subsequently, with Anne Moore-Martin (“AMM”), when instead he was seeking to manipulate and exploit them for his own gain. He admitted several frauds against PF and AMM, along with burglaries at the homes of other elderly people in the same street.

PF was aged 69 years old when he died in October 2015. He lived at 3 Manor Park, Maids Moreton, Buckinghamshire having shared the house with his mother until her death in 2002. He was a retired English teacher, although he continued to lecture at the University of Buckingham. He was a novelist. He experienced good health, remained mentally sharp and kept detailed journals. He found it difficult to resolve his strong Christian beliefs with his gay sexuality. As a consequence, throughout his adult life he remained celibate and although he was close to his family and had a wide circle of friends, he was said to have been a lonely man who craved love and affection.

The appellant, in his early twenties and studying at the University of Buckingham in 2012, appreciated and ruthlessly exploited PF’s vulnerability. He set about seducing PF, claiming to share the same interests and beliefs. He moved in with PF in 2013. The two men commenced what PF thought was a mutually loving and supportive relationship. In 2014, the appellant proposed, and they arranged, a “betrothal ceremony”. PF was persuaded to change his will so that the appellant would receive a large inheritance. In 2015, the appellant gave the impression that he was caring for PF, who appeared to be suffering from a mystery illness, potentially some form of dementia. In fact, the appellant was covertly drugging PF but suggesting to others that the latter was drinking too much and was developing a suicidal ideation.

PF was found dead in his home by his cleaner on 26 October 2015. He appeared to have drunk himself to death. The appellant inherited substantially from his estate.

The issue left for the jury by the judge on count 1 was whether they were sure the appellant, with intent to kill, had given PF alcohol and/or Dalmane (a drug prescribed for insomnia), and/or smothered him causing his death. Whether the judge’s directions to the jury in this regard were correct in law is the focus of this appeal.

Shortly before PF was found dead, the appellant also began a relationship with AMM, aged 83, the circumstances of which were relevant to the course of the investigation into the death of PF.

AMM lived alone at her home, 6 Manor Park, in the same street as PF, and was also a retired teacher. She was a regular Catholic churchgoer with a strong faith. She suffered from two brain conditions, but her intellectual powers were still good for her age. As with PF, the appellant realised that she was lonely and therefore vulnerable to his seduction and exploitation.

The appellant sent AMM cards, gave her gifts and researched sex with the elderly on the internet. Only a month after PF’s death (in November 2015), the appellant began a sexual relationship with AMM. He again set about falsely persuading her that he loved her, so that he could exploit her. He wrote messages on mirrors in 6 Manor Park, successfully persuading her that they were messages from God. These were designed by the appellant to persuade her to change her will and to leave her home to him, rather than to her niece.

He persuaded AMM to give him money for a car and to fund a dialysis machine for his brother’s invented kidney disease. Without her knowledge, he also took pictures of her performing a sex act on him, so that he could use these against her in the future, should the occasion arise.

When, in late 2016, AMM attempted to change her will in the appellant’s favour, coincidentally she went to the same firm used by PF and the solicitor became suspicious. She informed AMM that the appellant had inherited from PF’s will, causing AMM to change her mind. However, the appellant increased his efforts and eventually in December 2016, she altered her will, despite, as she was to express to police later, feeling uncomfortable about doing so.

In November 2017, AMM became ill and went into hospital. While she was there, the appellant removed items from her home that he feared may incriminate him. Her niece, Ann-Marie Blake, who encountered him at the premises, became suspicious of his behaviour and alerted the police. Shortly afterwards, however, AMM passed away from natural causes.

The prosecution relied on the hearsay statements of AMM to the police prior to her death, regarding her relationship with the appellant. There was evidence on this issue from Ann-Marie Blake. The Crown introduced medical evidence, regarding AMM’s various health conditions and her visits to doctors prior to her death.

During the ensuing investigation into AMM’s death, the police reconsidered the death of PF. The appellant was initially arrested on the fraud offences but in due course he was charged with the murder of PF and conspiring/attempting to murder AMM. Other than a short, prepared statement, the appellant gave no account when interviewed by the police.

On count 1 (murder), the Crown alleged, therefore, that the appellant falsely persuaded PF that he loved and cared for him and PF as a consequence fell in love. This was the beginning of a detailed plan, about which the appellant kept a detailed record in journals and notes. He had determined to manipulate PF into changing his will, with the intention thereafter of killing him. He sought to make PF’s death appear to have been suicide.

Having moved in with PF in November 2013 and following the “betrothal ceremony” in 2014, the appellant set about covertly drugging PF. From at least January 2015 to the end of September 2015, the appellant regularly administered prescription and hallucinogenic drugs to PF, often disguised in food or drink. The toxicological analysis of PF’s remains demonstrated repeated administrations of sedating drugs in the months preceding his death. These included lorazepam, trazadone, diclazepam, and flubromazolam. The appellant’s diary documented these covert administrations, and the amounts and timings broadly correlated with symptoms experienced by PF as detailed in his own journal entries.

The appellant “gaslighted” PF, that is he persistently manipulated and brainwashed him, thereby instilling self-doubt and a diminished sense of perception, identity, and self-worth. He secretly moved objects around the house and hid things. His purpose was to ensure there was no suspicion that PF had been murdered but instead, whilst ill and when alone, he had drunk himself to death.

Once PF had changed his will in the appellant’s favour, the latter took the next step in the plan and murdered him on 25 October 2015. The prosecution relied on the simple and self-evident proposition that in order for the fraud relating to the will to succeed the victim had to die. The prosecution needed to prove that the appellant gave PF the alcohol and/or the Dalmane, and/or smothered him in circumstances that materially contributed to his death.

The evidence the Crown relied on came from a variety of sources. The prosecution presented a detailed timeline identifying the key events which they linked to the relevant documentary evidence. The journals kept by PF provided hearsay evidence chronicling his life and thoughts over the period he was being deceived by the appellant. The prosecution relied on evidence from the friends and family of PF, regarding his character, his drinking habits and his relationship with the appellant. There was medical evidence detailing the prescription drugs taken by PF and his various visits to doctors in the months before his death. As to the death of PF, the Crown introduced evidence from PF’s cleaner, along with the paramedics and the police, about the finding of PF’s body on 26 October 2015. DNA and fingerprint evidence matching that of the appellant was found on the glass and the bottle next to PF when he died.

There was pathology evidence as to the cause of death and the presence of alcohol and drugs in PF’s system both before and at the time of his death. In this regard we note a number of expert witnesses examined PF’s body after he had died. It was suggested that there was no medical evidence to support the suggestion that PF was an alcoholic or had any mental health issues. When this evidence was considered with the other evidence in the case, in particular the notes and journals, it suggested a systematic campaign by the appellant to drug PF and encourage him to drink, in order to make it look like there was something wrong with him, when in fact there was not.

The evidence of Dr Bailey, who conducted the first post-mortem, was that PF’s body showed a blood alcohol level of approximately three times the legal drink drive limit. At the time, he concluded that the quantity was sufficient to cause acute alcoholic intoxication, coma, and death in a person who was not a persistent heavy drinker, and he recorded the cause of death as “acute alcohol toxicity”.

However, once the police investigation into the appellant’s behaviour towards AMM was underway, a second post-mortem examination was carried out by Dr Lockyer. He found that the cause of death was acute alcohol toxicity and Dalmane use. Alcohol and Dalmane should not be used in combination and Dr Lockyer’s evidence was that the combination of the two was likely to have resulted in the potentiation of the sedative effects of both substances, and could have proved fatal by decreasing the level of PF’s consciousness, thereby creating a threat to the maintenance of an adequate airway. He could not rule in, nor rule out, the possibility of smothering as it was possible to do this without leaving any evidence. However, there was no pathological evidence that PF had been smothered.

In the light of this evidence, the prosecution argued that the appellant had a motive to kill PF (in order to inherit from his will) and his notes as to how he intended to go about the murder accorded with the method he had actually used on the night of 25 October 2015. By way of detail, the jury were provided with extracts from the journals and notes of the appellant, evidencing his thoughts and intentions, detailing his covert drugging and “gaslighting” of PF and his research into alcoholism, strong whisky, suicide and the methods by which one might kill another. The appellant had a white notebook which contained extensive notes concerning PF. A comparison of these notes showed in some detail the drugs and alcohol administered to PF in 2015 and the effects they had upon him. It was suggested by the Crown that this was a plot long in the making: one of the appellant’s notes set out “I moved in [that is, in 2013] so he could die [which took place in October 2015].” The appellant’s notes revealed that he explored the possibility of inducing his victim to commit suicide; but this approach failed, as the notes also recorded (“It became clear that he suicides not”). The allegation against the appellant was that he then conceived a plan that PF should appear to have succumbed to an alcoholic’s death. To that end, he created a false narrative that the victim was drinking to excess and/or suffering from dementia. He sought to establish that his death was an unsurprising event, and he was assisted in this endeavour by the effects of the drugs he was covertly administering, which appeared to others to indicate that PF was intoxicated.

The prosecution suggested that the appellant in one of his notes set out what he had planned, and thereafter put into effect, in order to kill PF on 25 October 2015 – “High percentage malt £. Suffocation only a mistake if either survival or evidence ensues. Feed Dalmane and alcohol and less air”.

Diana Davis, the solicitor, gave evidence concerning the changes to PF’s and AMM’s wills. The prosecution relied on the appellant’s propensity, namely his guilty pleas in relation to various frauds and burglaries, and a video made by the appellant at the care home where he worked which established his exploitation of another elderly person. There were various relevant emails between the appellant and his co-accused. The Crown relied on the appellant’s failure to mention multiple facts in interview which he relied on at trial. There was a schedule of Agreed Facts.

The defence case was that, despite the appellant’s admitted and repulsive behaviour towards PF, he had not, in fact, intended to kill PF and he had not murdered him. He accepted he had lied to and deceived almost everyone he came into contact with between 2012 and 2017. He admitted he had lied to PF as to his true feelings and that he had intended to inherit from him on his death. He had similarly lied to AMM and had defrauded her of various sums of money. He burgled the properties owned by other elderly people in the street, because, in his words, “he could”.

He acknowledged that he had drugged and gaslighted PF, causing him great suffering. He had manipulated AMM (although he denied having drugged her or encouraged her to commit suicide) and he accepted this had caused her regret and misery when she discovered what he had done, shortly before her death. He accepted that he was a “snake talker” and prided himself on his ability to manoeuvre people to achieve his ends without ever actually asking them directly to do what he wanted them to do. However, he denied ever intending to kill PF, he denied having any part in his death and he denied conspiring to or attempting to kill AMM.

Between 2012 and 2017, he had also engaged in casual relationships with various women, including particularly Lara Busby and Satara Pracha to whom, he accepted, he had consistently lied. He maintained that he was not homosexual, albeit had had a number of sexual experiences with men, which he suggested he had not enjoyed but had used to test himself. He accepted he had lied about the extent of his sexual experiences with men during examination-in-chief because, as he suggested, he had felt ashamed talking about these experiences in front of his parents. He insisted, however, that he had told the truth in evidence about all other matters.

Focussing on the journals and notes, the appellant suggested he had lived an isolated and internalised life since his school days. He had acquired the habit of reading extensively, including dictionaries, and he made copious notes (some of which the police found within computer files). He maintained that in the absence of genuine relationships or communication with others, he used to write as a means of working out his thoughts and as an outlet for frustrations and feelings that he could not otherwise express. While the appellant’s notes included numerous references to various ways in which both PF and AMM might die, his writings also included many references to other – what he suggested to be – wholly fantastical ideas.

He used the white notebook to write about PF. He claimed that he was genuinely interested in PF’s journals, which he copied out in large part. He also made notes about characters and storylines for PF’s last book, on which he claimed they were collaborating. He said that although some of the things he had written represented his thinking and intentions, others did not and were simply for amusement, to blow off steam or to see how they looked on paper. He maintained that he had written many of the notes in the white notebook, including the note “Feed Dalmane and alcohol and less air”, after PF’s death. This otherwise highly incriminating entry therefore did not reflect his future intentions or a settled plan to kill PF.

On 25 October 2015, the appellant went away for the weekend and he asked MS (Martyn Smith) to stay with PF on the Saturday night. He had bought a bottle of whisky for MS as a “thank you”. MS ended up leaving the bottle at the house when he left on the Sunday morning. Having arrived for dinner on the Sunday night, the appellant decided to leave the bottle out as a temptation and a test for PF. The victim had been trying to abstain from drinking on the advice of his doctor after his apparent illness. The appellant’s account was that when, as he claimed, he left the house after dinner, neither he nor PF had drunk any whisky. He was not aware that PF had taken any Dalmane that night. He tried unsuccessfully to call PF several times later that evening and during the following morning. He was informed of PF’s death by the cleaner.

The appellant accepted that whilst the bottle of whisky must have played some part in the fatality, he had not intended to kill PF. He maintained he had played no direct part in PF drinking alcohol that night and he was not present when he died.

His case was summarised by the judge as follows:

The appellant accepts that the jury must have rejected his account that he left the whisky for PF as a temptation and a test that night. They must have concluded that the appellant was present and provided alcohol (and/or Dalmane and/or smothered him).