R v Martin (Anthony Edward)
| Jurisdiction | England & Wales |
| Judgment Date | 30 October 2001 |
| Neutral Citation | [2001] EWCA Crim 2245 |
| Docket Number | No. 2000/02560/S1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 30 October 2001 |
[2001] EWCA Crim 2245
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Wright and
Mr Justice Grigson
No. 2000/02560/S1
MR M WOLKIND QC and MR M EDMONDS appeared on behalf of THE APPELLANT
MISS R HORWOOD-SMART QC and MR I JAMES appeared on behalf of THE CROWN
Tuesday 30 October 2001
On 19 April 2000, Mr Anthony Edward Martin stood his trial in the Crown Court at Norwich before Mr Justice Owen and a jury on an indictment containing a count of murder of Freddie Barras (count 1), a count of attempted murder of Brendan Fearon (count 2) and an alternative to count 2 of wounding with intent (count 3). There was also a count of possessing a firearm with intent to endanger life (count 4). Finally, there was a count of possession of a firearm without a certificate (count 5) which was the only count to which Mr Martin pleaded guilty.
The jury convicted Mr Martin by a majority of 10 to 2 of murder and wounding with intent. He was acquitted of attempted murder and of possession of the shotgun with intent to endanger life. He was sentenced to life imprisonment for murder, ten years' imprisonment concurrent for wounding with intent and 12 months' imprisonment concurrent in respect of his possession of the shotgun without a certificate.
At the time the offences were committed, Mr Martin was being burgled by the two people whom he shot. Because he was being burgled at the time there was considerable public sympathy for Mr Martin and media interest in his case. There were also suggestions that the law was in need of change.
THE LAW RELATING TO SELF-DEFENCE
There was no dispute that Mr Martin had shot the two men. Mr Martin's defence to the principal offences with which he was charged was that he was acting in self-defence. When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence. A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. (See Beckford v R [1988] 1 AC 130).
In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time, when he was defending himself. It does not matter if the defendant was mistaken in his belief as long as his belief was genuine.
Accordingly, the jury could only convict Mr Martin if either they did not believe his evidence that he was acting in self-defence or they thought that Mr Martin had used an unreasonable amount of force. These were issues which were ideally suited to a decision of a jury.
As to the first issue, what Mr Martin believed, the jury heard his evidence and they could only reject that evidence if they were satisfied it was untrue. As to the second issue, as to what is a reasonable amount of force, obviously opinions can differ. It cannot be left to a defendant to decide what force it is reasonable to use because this would mean that even if a defendant used disproportionate force but he believed he was acting reasonably he would not be guilty of any offence. It is for this reason that it was for the jury, as the representative of the public, to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr Martin believed himself to be in. It is only if the jury are sure that the amount of force which was used was unreasonable that they are entitled to find a defendant guilty if he was acting in self-defence.
These features of the defence of self-defence are critical to the outcome of this appeal. They are difficult to criticise and mean that Mr Martin is faced with the fact that the jury must have decided that when he shot the two men, he was either not acting in self-defence or, if he was, he used excessive force.
What has been the subject of debate is whether a defendant to a murder charge should be convicted of murder if he was acting in self-defence but used excessive force in self-defence. It is suggested that such a defendant should be regarded as being guilty of manslaughter and not murder. He would not then have to be sentenced to life imprisonment but usually instead to a determinate sentence the length of which would be decided upon by the judge, having regard to the circumstances of the offence. If it is thought that this should not be the law then the change would have to be made by Parliament. It was not even suggested on this appeal that it would be open to this court by judicial decision to bring about such a change. However, even in the case of a life sentence for murder the circumstances of the offence are taken into account. The Home Secretary, having considered the recommendations of the trial judge and the Lord Chief Justice of the day, fixes the tariff period, that is the period which has to elapse before a defendant can be recommended for parole by the Parole Board.
THE BACKGROUND TO THE CHARGES
Mr Martin is 55 years of age. He is of previous good character and at the material time lived at Bleak House, which is an isolated farm near the village of Enneth Hungate in Norfolk. The farm has been in Mr Martin's family for several generations, and he himself has lived there alone for about 20 years. Nevertheless, the farm and the surrounding buildings are in an extremely dilapidated condition. The farmhouse, which is almost hidden by overgrown vegetation, gives the distinct impression, on the ground floor at least, of being derelict or, perhaps, a building site.
On the night of 20 August 1999, Brendan Fearon and Freddie Barras were driven by a third man from Newark to the vicinity of Bleak House which they subsequently entered by breaking a window on the ground floor. Both men were wearing gloves and carrying a torch and holdall bags. Although Fearon denied this, the circumstances gave rise to at least a very strong inference that they were intent on burglary.
The appellant claimed that he was asleep on the first floor and was disturbed by the noise. At some point he armed himself with a 12-bore Winchester pump-action shotgun which was capable of holding up to five cartridges, and loaded the gun. He asserted that he went down the stairs towards where he had seen a light. At some point, without giving any warning, he discharged the gun not less than three times; Barras was shot in the back and in his legs and Fearon was also shot in both legs. Although both managed to get out of another window, Barras collapsed and died a short distance from the house; Fearon managed to make his way to neighbouring premises and was subsequently arrested and taken to hospital. Barras's body was found the following day by a neighbour who went to round up the appellant's dogs.
The prosecution challenged Mr Martin's account; their case upon the first four counts was that Mr Martin, having been disturbed by the approach of the burglars, had lain in wait for them and shot at them at short range with the intention either of killing or seriously injuring them.
Mr Martin's case was that because of past experience he believed his house to be vulnerable to burglary and that the events of the night in question put him in genuine fear for his personal safety so that the discharge of the gun was in lawful self defence.
Grounds of appeal were lodged with this court by leading and junior counsel who represented Mr Martin at trial. Altogether ten grounds of appeal were put forward but the single judge refused leave on all save one (ground C) to which we shall return. Since the lodging of the original grounds of appeal Mr Martin has transferred his instructions to a fresh team of leading and junior counsel and solicitors. They now renew upon his behalf applications for leave to appeal against conviction on new and different grounds settled by the new team, together with applications for leave to call fresh evidence from five expert witnesses. We give leave to appeal on the first four fresh grounds and on the question of sentence.
During the 20 years that Mr Martin had lived at Bleak House, the house and the associated farm buildings had been broken into on several occasions and property stolen. It was apparent from his own evidence that Mr Martin was dissatisfied with police efforts to track down the culprits and with the general level of protection provided by the police to property in the area generally. In 1994 he had caught a man apparently stealing apples from his orchard and as the culprit drove away Mr Martin fired at the rear of his vehicle. As a result his shotgun certificate was revoked. At some time between then and the incident of 20 August 1999 the appellant came into possession of the Winchester repeater which he said had been left with him as an unsolicited gift by an anonymous donor. He had no licence for it.
On a number of occasions at meetings of the local Farm Watch and in discussions with neighbours and the local policeman Mr Martin was said to have made his dissatisfaction with the police very plain. He was heard to express the view repeatedly that self-help was the better way of dealing with criminals. He is said to have used such remarks as "you know the best way to stop them — shoot the bastards"; that if a particular team of burglars returned he would "blow their heads off"; and he was also said to have suggested that he would recommend putting such criminals in a field and using a machine gun on them.
Brendan Fearon was...
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