R v Horncastle and another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,Lord Justice Thomas,Lord Justice Dyson |
| Judgment Date | 03 July 2009 |
| Neutral Citation | [2009] EWCA Crim 734,[2009] EWCA Crim 964,[2009] EWCA Crim 1304 |
| Docket Number | Case No: 200700312 C3,Case No: C3/2007/00312,Case Nos: 2008/1011/C2, 2008/1850/C2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 July 2009 |
Before : Lady Justice Hallett
Mr Justice Penry Davey And Mrs Justice Gloster
HHJ FINDLAY-BAKER QC
Case No: 200700312 C3
T20057349
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ST ALBANS
Mr E Fitzgerald QC and Mr P R Taylor (instructed by Birds) for the Appellant
Ms F Oldham (instructed by Central Criminal Court Trials Unit) for the Respondent
Hearing dates: 17 th June 2009
Lady Justice Hallett: :
The appellant and his wife lived together for 37 years. By 2005 their marriage had been on the rocks for some time. Mrs Symmons described the appellant as controlling and frightening. He bugged her telephone calls. She was scared he might kill her. He claimed she was the one who was over assertive and in control of their relationship. He accused her of taunting him about his impotence and being rude about his mother.
She discovered he was having an affair and began divorce proceedings. They went to see a marriage guidance counsellor. Mrs Symmons began distributing her money and property in case anything happened to her and to prevent the appellant finding them.
On the evening of 5 th September 2005 they went together to see the counsellor, they had dinner and returned home. That night the appellant killed his wife. He battered and strangled her to death. He claimed he was acting in self defence and because he was provoked. He wrapped his wife's body in polythene, put her in the boot of his car and drove to France. He was in touch with his mistress on the way.
He was tried at the St Albans Crown Court before HHJ Findlay-Baker QC and convicted of murder on 11 December 2006. He was sentenced to life imprisonment with a minimum term of 16 years. He appealed against conviction on a number of grounds, based for the most part on fresh medical evidence relating to his mental state at the time of the killing and at trial. Although two experienced psychiatrists had assessed the appellant for the purposes of the trial and opined that he was not suffering from a depressive illness at the time of the killing, the defence instructed Professor Eastman to make another assessment post conviction. On the basis of the appellant's account to him, the professor was of the opinion the appellant may have been suffering from a depressive illness at the time of the killing. This may have amounted to an abnormality of mind as defined in the first limb of section 2 of the Homicide Act 1957. The doctor had doubts, however, about whether the appellant could overcome the hurdle in the second limb of section 2 of establishing that his responsibility for his actions was substantially diminished. This court differently constituted, presided over by Dyson LJ, heard the appeal and decided to hear from Professor Eastman de bene esse.
On 7 th April 2009 the appeal against conviction was dismissed. We do not need to rehearse the facts and the arguments to any greater degree which are clearly set out in the judgment of the court delivered by Dyson LJ. Suffice it to say the court rejected the factual premises of Professor Eastman's opinion and therefore rejected the opinion itself. Professor Eastman relied heavily upon the appellant's account of his own symptoms which the court found “wholly unreliable”. Far from accepting the appellant was suffering from depression at the time of the killing the court was of the view there was evidence which pointed the other way. It was hoped that the same constitution would hear the appeal against sentence but this has proved impossible.
We begin with the judge's sentencing remarks the relevant parts of which have been helpfully summarised for us. The trial judge stated that he would sentence on the basis
(a) The killing was an impulsive act and therefore unplanned;
(b) The intention was to kill;
(c) Neither self-defence nor provocation played any significant part;
(d) The personality disorder upon which the appellant relied did not significantly reduce the culpability;
(e) The conduct after the killing was cold and callous and a significant aggravating feature
(f) His age was “a factor to be considered” and “to a lesser extent [his] good character”.
Mr Fitzgerald QC argued the minimum term of 16 years was excessive for two principal reasons. First, the appellant is in his early sixties. If the minimum term of 16 years stands, he will be 78 at his earliest release date. He may die in prison. This was clearly a case in which a whole life tariff would not have been justified yet this may be the effect of a tariff of 16 years. This is a relevant factor which, Mr Fitzgerald insisted, the judge failed sufficiently to acknowledge. Mr Fitzgerald referred us to two decisions of this court on the issue of the relevance of age to the setting of a minimum term. The first was Malcolm Horsman 2007 EWCA Crim 2589. Moses LJ giving the judgment of the court stated in the final line of para 9:
“he can hardly rely to any great extent upon his age bearing in mind that he chose to kill his wife when he was already 65 but it is something that we take into account because the impact of a life sentence on an older man must be greater.”
Moses LJ went on to observe the court was prepared to reduce the minimum term for a number of other reasons which had nothing to do with age and stressed:
“in doing so we are not in any way seeking to create a precedent or guidance in these difficult cases where an older man of intelligence commits so serious an offence. But this case has particular features….”
Those “particular features” do not apply to Symmons's case. Nevertheless, Mr Fitzgerald sought to rely upon what was, in our judgment, a fact specific decision.
He also relied upon Daniel John Archer 2007 EWCA Crim 536. Archer was sentenced to a minimum term of 30 years. Burton J giving the judgment of the court said this at para 31:
“ We are clear that the authorities to which we have been referred by the appellant and indeed a common sense construction of para 11 (g) (of Schedule 21 of the Criminal Justice Act 2003) must mean that one of the factors which will be taken into account in relation to a sentence as long as 30 years or less in terms of serious crimes is the possibility of light at the end of the tunnel…..”
The court decided to reduce Archer's minimum term to 25 years so that he would be eligible for parole aged about 78 as opposed to aged about 83 years. Although the minimum term set in that case was one of 30 years, Mr Fitzgerald sought to extrapolate from it the proposition that if, in reality, (based upon actuarial presumptions of life expectancy), an offender may die in prison, the court should reduce any minimum term to allow for “light at the end of the tunnel”.
The second principal ground of appeal relates to the mitigating and aggravating features of the case. Mr Fitzgerald argued there was here an abundance of mitigating features and an absence of aggravating features, other than the attempt to escape to France (texting his mistress on the way) with the deceased's body wrapped and stuffed in the boot of his car. Mr Fitzgerald reminded the court the attempt to conceal the body did not last long. When the appellant's daughter phoned him enquiring after her mother he came to his senses and gave himself up to the French authorities. He consented to extradition to England for trial.
As for the mitigating features Mr Fitzgerald argued it was important to note the judge found this was an impulsive and unplanned killing. If that is so, something must have happened after dinner which triggered the appellant's reaction. Mr Fitzgerald invited the court to accept it must have been, as the appellant claimed, that the deceased taunted him with his baldness, about his mother and about his impotence. He reminded the court there was independent evidence that she had mentioned his impotence in the past.
Accordingly, Mr Fitzgerald rather boldly submitted the trial judge was wrong to dismiss provocation as relevant to sentence. The difficulty with that argument, to our mind, is that the prosecution asserted confidently that there never was any taunting. Their confidence was based on the fact the appellant made no mention of being taunted when he spoke first to the French and the British police. The jury's verdict indicates they accepted the prosecution case to a large extent. There was also compelling evidence before the jury, including evidence from the appellant's own son and daughter that he is a “master of spin”, very controlling and not one to be crossed. There was, therefore, ample justification for the judge's description of his version of events as a “web of deceit”.
As the judge observed in his sentencing observations:
“I conclude that you killed your wife in an impulsive act when, uncharacteristically, she stood up to you. Nothing she said or did justified any violence on your part let alone the extreme and savage beating and strangling that you meted out to her”.
We reject, therefore, as being totally without foundation, the assertion that it was not open to the trial judge to make the findings of fact to which the appellant takes exception. It was.
Next Mr Fitzgerald had intended to rely upon both the fresh medical evidence and the effects of the appellant's “mental history”, to which he suggested the judge gave insufficient weight. Given the comprehensive rejection of Professor Eastman's opinion in the judgment dismissing the appeal against conviction, Mr Fitzgerald was...
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