R (Farnell) v Criminal Cases Review Commission

JurisdictionEngland & Wales
JudgeMr Justice Mitchell,MR JUSTICE MITCHELL
Judgment Date15 April 2003
Neutral Citation[2003] EWHC 835 (Admin)
Date15 April 2003
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4493/03

[2003] EWHC 835 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Mitchell And

The Honourable Mr Justice Maurice Kay

Case No: CO/4493/03

Between
The Queen (on Application By Nicholas Farnell)
Claimant
and
The Criminal Cases Review Commission
Defendant

Mr Tim Owen QC & Miss Rebecca Trowler(instructed byPye-Smiths, Solicitors) for theClaimant

Miss B Lang QC & Mr P Taylorfor theDefendant

Mr Justice Mitchell
1

This is a challenge by way of Judicial Review to the decision of the Criminal Cases Review Commission ('the Commission') on 2 July 2002 not to refer the case of Nicholas Farnell ('the claimant') to the Court of Appeal (Criminal Division) pursuant to section 13 of the Criminal Appeal Act 1995.

2

On 22 March 1996 following a trial the claimant was convicted of murder. His defence at trial was that by reason of his diminished responsibility he was guilty only of manslaughter. The judge decided that on the evidence the issue of 'provocation' ought also to be considered by the jury. They were so directed. It was never part of the defence case that an appropriate verdict should be manslaughter on the ground of 'provocation'. In his closing speech to the jury defence counsel expressly disavowed 'provocation' as being an arguable explanation for the claimant's conduct.

3

The jury heard evidence from a total of four psychiatrists on the issue of 'diminished responsibility'. Two psychiatrists were of the opinion that his responsibility for the killing was substantially diminished. No aspect of the psychiatric evidence was referred to by the judge in his directions upon 'provocation'. The only 'characteristics' with which the jury were told to clothe the 'reasonable man' (or 'ordinary person') for the purposes of section 3 of the Homicide Act 1957 were that he should be of the same 'age and sex' as the complainant.

4

Following the conviction, the claimant's application for leave to appeal against conviction was refused by the single judge on 19 June 1996. The grounds before the single judge contained no reference either to the judge's directions on 'provocation' or to his counsel's decision at trial not to rely at all on 'provocation'.

5

On 22 June 1998 the claimant applied to the Commission for a review of his case. Following extensive representation the Commission reached the provisional decision not to refer the case to the Court of Appeal. The decision is explained in a letter dated 8 March 2001. Further submissions in writing were made to the Commission and the final decision not to refer was set out in a letter dated 27 April 2001. Thereafter, in a letter dated 16 July 2001 the Commission agreed that the claimant's case would be 'considered afresh' on the ground that the Commission's reasoning "may not necessarily reflect the position regarding the law of provocation after the case of Smith." This was a reference to the decision of the House of Lords in R v Smith (Morgan) [2001] AC 146 given on 27 July 2000. On 2 July 2002 (after further representations) the Commission confirmed by letter its provisional decision not to refer the claimant's case. It is this decision which is challenged. An application for leave to apply for judicial review having been refused by the single judge, on a renewed application before the full court leave was granted on 4 December 2002. The court is invited to quash the decision not to refer and require the Commission to give still further consideration to that question. The principal area of complaint, expressed in broad terms, is that the Commission misdirected itself as to the test which the Court of Appeal would apply were it to hear an appeal in this case founded on the trial judge's directions on provocation having regard (i) to the then state of the law; (ii) to the terms in which the jury were directed; (iii) to the development in the law as reflected in R v Smith (Morgan); and (iv) to the fresh evidence provided by three of the four psychiatrists who have now explained the relevance of their 1995/1996 findings as to the claimant's mental state to the issue of provocation and in particular to the issue of 'self-control'. It is accordingly submitted that the Commission's decision that there was no real possibility that the Court of Appeal would not uphold the conviction was tainted by error of law.

6

No issue arises in this case as to the Commission's powers. These were recited and explained in R v Criminal Cases Review Commission ex p Pearson [2000] 1 Cr App R 141 DC and R (Hunt) v Criminal Cases Review Commission [2001] 2 Cr App R 76 DC. Within the guidance to be found in Lord Bingham CJ's judgment in ex p Pearson are the following points:

i) The 'real possibility' test is imprecise "but plainly denotes a contingency which in the Commission's judgment is more than an outside chance or a bare possibility but which may be less than a probability or likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld (149F).

ii) "In a conviction case depending on the reception of fresh evidence the Commission must ask itself a double question: do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? If so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction?" (150 C-D).

iii) The Divisional Court when considering a complaint touching a decision of the Commission not to refer sits as a court of review. The question is not whether the Commission's decision was right or wrong but only whether it was lawful or unlawful (169E).

iv) It is not appropriate to subject the Commission's reasons to a rigorous audit to establish that they were not open to legal criticism. "The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere" (169G).

v) "Had the Commission decided to refer this case to the Court of Appeal, that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgment entrusted to the Commission. If this Court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function. The Divisional Court will ensure that the Commission acts lawfully. That is its only role. To go further would be to usurp the function which Parliament has, quite deliberately, accorded to the judgment of the Commission" (171F —G).

7

This last point was emphasised by Lord Woolf CJ in R(Hunt) v CCRC at p 78:

"[Section 13] is worded in a manner which reserves a residual discretion to the Commission not to refer albeit that the case is one where there is a real possibility the Court of Appeal would not uphold the conviction."

Later, at p 80:

"It is a residual but a very important jurisdiction which the Commission exercises. It imposes a heavy burden on the Commission. It is a jurisdiction which requires the Commission carefully to exercise the discretion which it is given by Parliament. In these circumstances it is important that the courts should not in inappropriate cases allow the Commission to be sucked into judicial review proceedings which are bound to detract it from fulfilling its statutory role."

8

THE ISSUE OF PROVOCATION AT TRIAL

(1) The Facts

It is necessary to summarise the salient facts. The claimant and the deceased (William Pottage) were near neighbours. The deceased and his wife had a young puppy whose barking on the morning of the killing had irritated the claimant. There had prior to that day been no significant hostility between the two households but on the morning of the killing the deceased and his wife, having arrived home in the car with some shopping, were approached by the claimant who got out of his car to speak to them. There was a row involving all three which began as the Pottages were getting out of their car. The row occurred because of the claimant's complaint about the barking dog and his threats to take action about it. Inevitably there is something of a conflict in the evidence about what was and was not said. The Pottages made their way round to the boot of their car to retrieve their shopping. The claimant continued to complain. Mr Pottage began to lose patience and told the claimant to do whatever he had to do. The Pottages opened the boot of their car, at the very least appearing to ignore the claimant who continued to address them. Mr Pottage told him to "fuck off". The claimant returned to his own car and seized a crow bar. He returned to the Pottages. As Mr Pottage moved to stand up from the boot he was struck once with the crow bar. That blow caused his death. The claimant's version of events as narrated to the jury in the summing-up was this:

" "On Saturday, 6 th May I woke up at about 8:30 to the sound of the dog barking. I shouted 'shut up' from the window but it just made it worse. I never complained about it before. I like dogs, and I had no trouble with my other neighbour who in fact kept two. On that morning I intended to go with Alan Young my labourer to fetch some building materials but he was late. I was in a state of agitation about the dog and lots of other things and I wasn't sleeping very well".

"His wife, perhaps you may think, members of the jury, in an effort to take him away from the immediate scene and to calm him down, suggested...

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    • Privy Council
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