R v D (Sexual Offences Prevention Order)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 16 December 2005 |
| Neutral Citation | [2005] EWCA Crim 2951 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 December 2005 |
| Docket Number | No: 2003/06956/D1 |
[2005] EWCA Crim 2951
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
The Lord Chief Justice of England and Wales
(Lord Phillips of Worth Matravers)
Mrs Justice Rafferty
Mr Justice Mackay
No: 2003/06956/D1
MR A NEWMAN QC and MISS L BRICKMAN appeared on behalf of THE APPELLANT
MR P J KELSON QC and MR J GOLDSACK appeared on behalf of THE CROWN
Wednesday, 26 October 2005
On 11 November 2003, in the Crown Court at Sheffield, the appellant was convicted of murder and sentenced to life imprisonment. He appeals against conviction with the leave of the full court. The appeal raises an important point of law as to the effect of voluntary intoxication on the defence of self-defence.
The Facts
Mr Richard Pashley was battered to death with a sledgehammer in the appellant's flat in Sheffield in the early hours of Sunday 22 June 2003. In the course of the previous evening the appellant consumed a large quantity of alcohol. At his trial he contended that he had no recollection of Mr Pashley's death and denied being responsible for it. He now accepts that he killed Mr Pashley. For the purposes of this appeal the material facts can be summaries as follows.
Mr Pashley was 49 years of age. He suffered from manic depression and to control the disinhibition which he felt when in manic mood he had been prescribed Lithium. He regularly failed to take this drug and had probably failed to do so on the evening before his death. On that evening he had consumed sufficient alcohol to raise the level in his blood to twice the legal limit for driving. Earlier in the evening he had been behaving in a strange fashion, falsely representing that he had been an officer in the SAS and striking martial art poses. He had exhibit a hatred of homosexuals.
On the evening of 21 June the appellant consumed on his evidence over 20 pints of beer. In the course of the evening he embraced another man in a manner which led the latter to think that he was making a homosexual advance. He is not, in fact, a homosexual.
The appellant and Mr Pashley did not know one another, but met in the early hours of 22 June in a nightclub in Sheffield. From there they drove together in the appellant's car to his flat. At 11.30 on the morning of the 22nd the appellant made an emergency call saying that he had been out all night and had returned to find an unknown man dead in his flat. Near Mr Pashley's body was a sledgehammer. He had sustained multiple injuries to the head, chest and abdomen from at least seven blows struck with an extreme degree of force with this weapon, four to the body and three to the head. A single blow to the head would have rendered Mr Pashley unconscious. Under his body was found a stick, some five feet in length, which belonged to the appellant and which he had fashioned to resemble a samurai sword. An overhead lamp shade had been dislodged, and this could have resulted from a blow from the stick. Although the appellant said that he had no recollection of Mr Pashley's death, he said to the jury, "I have a vague recollection of being involved in an altercation and a vague recollection of the stick involved. I think I was hit with that stick. I believe Mr Pashley hit me with it. I must have believed that I was under attack".
Mr Alan Newman QC wished to found upon the facts that we have just summarised to suggest to the jury that, if the appellant killed Mr Pashley, he might have acted in self-defence. Mr Pashley might have attacked him with the stick, perhaps under the erroneous impression that the appellant was a homosexual, and that the appellant might have used the sledgehammer to defend himself. For this defence to succeed, however, the jury would have to be persuaded that the use made by the appellant of the sledgehammer was or might have been a reasonable reaction to the suggested assault by Mr Pashley. Mr Newman wished to argue that the appellant's drunken state might have led him to believe, mistakenly, that Mr Pashley was an SAS soldier attacking him with a sword. In the absence of the jury he sought a ruling from the judge that the reasonableness of the appellant's reaction fell to be judged according to the facts as he believed them to be, even if that belief was mistaken and the mistake was caused by the drink that he had consumed. He said to Holland J that he intended to indicate to the jury:
"unless your Lordship rules that I cannot do so, that in considering the situation they are entitled to take into account the fact that my client has drunk large quantities of alcohol which may have given him a wholly warped perception of reality."
After hearing argument from prosecuting counsel, Holland J ruled that it was not open to the appellant to rely, when seeking to established self-defence, on a mistake induced by drunkenness. This was established by the decision of this court in R v O'Grady [1987] 1 QB 995, (1987) 85 Cr App R 315. It followed that Mr Newman could not properly invite the jury to have regard to the effect of the appellant's perception of events of the drink that he had consumed.
When summing up on the specific intent that the jury would have to find if they were to convict of murder, the judge directed them that if they were sure that the appellant had killed Mr Pashley, but thought that he might have been so drunk that he was incapable of forming any intent, they should acquit him of murder but convict him of manslaughter. When he came to deal with the defence of self—defence he made no mention of the effect on the appellant's perception of events of the drink that he had consumed. He referred to the appellant's belief that Mr Pashley had hit him with the stick. In that context he asked them to consider two questions: (1) "Are you sure and satisfied that when Jonathan Hatton killed Richard Pashley he did not honestly believe that it was then necessary to use force to defend himself?" (2) "if …. he may have believed that, taking the circumstances as he believed them to be, are you sure and satisfied that the amount of force that he then used was unreasonable?"
Before us Mr Newman has submitted that the judge's ruling and his subsequent direction to the jury were both defective. The judge should have ruled that if the appellant might have mistaken the nature of the attack because of his drunkenness, he was entitled in law to defend himself in a manner that was reasonable having regard to his drunken perception of the danger to which he was exposed. The judge should have directed the jury accordingly.
Mr Newman accepts that this submission is inconsistent with the judgment of this court in O'Grady. He submits, however, that the observations in that case were wrong in principle and were obiter dicta, so that we need not and should not follow them. We turn at once to that case.
The appellant had killed a friend in a fight in circumstances where they were both very drunk. In giving the judgment of the court, Lord Lane CJ gave the following summary of the material parts of the summing-up by the trial judge:
"The judge gave an impeccable direction on the ingredients of murder and upon the way in which intoxication may affect proof of intent to kill or to do serious bodily harm. Likewise impeccable was his direction on provocation, including the correct observation that, when considering whether a reasonable man would have been caused to lose his self-control, questions of drink are irrelevant.
Finally he gave the classic direction on self-defence. He made no mention of the possibility that the appellant might be reason of intoxication have been mistaken as to the threat posed to him by McCloskey's action. This was no doubt because no one had taken the point.
Counsel for the prosecution towards the close of the judge's directions saw fit to invite the judge to remedy what he plainly regarded as this lacuna in the charge to the jury. Counsel for the appellant wisely held his peace. The judge then gave this further direction:
'It might be a view that you might take —I know not —that this defendant thought he was under attack from the other man mistakenly and made a mistake in thinking that he was under attack because of the drink that was in him. If he made such a mistake in drink he would nevertheless be entitled to defend himself even though he mistakenly believed that he was under attack. He would be entitled in those circumstances to defend himself. But if in taking defensive measures, then he went beyond what is reasonable either because of his mind being affected by drink or for any other reason, then the defence of self—defence would not avail because, as I told you earlier on, you are entitled to defend yourself if it is necessary to do so, but the defensive measures that you take must be reasonable ones and not go beyond what is reasonable.'
…."
The jury found the appellant not guilty of murder but guilty of manslaughter. He appealed on the ground that the judge's direction in relation to self-defence had been deficient, but for which he might have been found not guilty of any offence. He contended that the judge erred in not directing the jury that when deciding whether the defendant might have acted reasonably in self-defence, they should judge what was reasonable in the light of any mistake as to the severity of the attack that he was under that his drunkenness might have induced.
Lord Lane went on to quote the following observation made by McCullough J, the single judge, when giving leave to appeal:
"Given that a man who mistakenly believes he is under attack is entitled to use reasonable force to defend himself, it would seem to follow that, if he is under...
To continue reading
Request your trial
-
The Chief Constable, Tayside Police V. Robert Basterfield
...be considered in deciding whether the test of necessity is met. By reference to the decision in R v Halloren 2004 EWCA Crim 233 and R v D 2006 1WLR 1088, counsel for the parties accepted that necessity did not equate with desirability, appropriateness, or usefulness. The court should give c......
-
Queen v Gerald O'Hara
...the case will be remitted back to the learned trial judge for further consideration.” [41] As regards leading English decisions, R v D [2006] 1 WLR 1088; [2005] EWCA Crim 2951 contains several convergent themes and principles. The decision emphasises inter alia that the language of the 2003......
-
Simon Taj v The Crown
... ... 18 of the Offences Against the Person Act 1861 in that he neither intended to kill or cause ... 18 (N.I.)) (use of force in prevention of crime or making arrest). (3) The question whether ... in pragmatism and policy, namely the needs of society to maintain order and to keep public and private violence under control. iv) It ... ...
-
R Denby Collins (A protected party by his father and litigation friend Peter Collins) v The Secretary of State for Justice
...1 All ER 1077; 55 Cr App R 223, PCPutintseva v Russia (Application No 33498/04) (unreported) given 10 May 2012, ECtHRR v Hatton [2005] EWCA Crim 2951; [2006] 1 Cr App R 16, CAR v Keane [2010] EWCA Crim 2514; [2011] Crim LR 393, CAR v O’Grady [1987] QB 995; [1987] 3 WLR 321; [1987] 3 All ER ......
-
Defenceless Castles
...R v Keane; R v McGrath [2010] EWCA Crim 2514, [2011] Crim LR 393 [6] (Hughes LJ).9. R v O’Grady [1987] QB 995 (CA). 10. R v Hatton [2005] EWCA Crim 2951, [2006] 1 Cr App R 247.11. R v Lobell [1957] 1 QB 547 (CCA).12. R v Wheeler [1967] 1 WLR 1531 of the courts, namely that before the issue ......
-
Court of Appeal
...QB 995; R v O’Connor [1991]Crim LR 135), even, surprisingly, where the offence in question requiresa ‘specific’ intent (R v Hatton [2005] EWCA Crim 2951).It was presumed that the respondent’s case would be that PC Sher-wood shot Ashley in the mistaken belief that he was armed and posed ani......
-
Adverse Inferences from Silence and Negligent Legal Advice
...on the facts as they really are. This is theposition at common law (see RvMajewski [1977] AC 443, RvO’Grady [1987] QB 995 and RvHatton[2005] EWCA Crim 2951), and it is now also clearly articulated in statute:Criminal Justice and Immigration Act 200876. Reasonable force for purposes of self-......