R v Mitchell
| Jurisdiction | Northern Ireland |
| Judge | Lord Kerr,Lord Clarke,Lord Hughes,Lord Toulson,Lord Hodge |
| Judgment Date | 19 October 2016 |
| Neutral Citation | [2016] UKSC 55 |
| Court | Supreme Court |
| Date | 19 October 2016 |
[2016] UKSC 55
Lord Kerr
Lord Clarke
Lord Hughes
Lord Toulson
Lord Hodge
Appellant
Liam McCollum QC David Russell (Instructed by Public Prosecution Service)
Respondent
Frank O'Donoghue QC Sean Devine (Instructed by KRW Law LLP)
(with whom Lord Clarke, Lord Hughes, Lord ToulsonandLord Hodgeagree)
On 20 October 2010, following a trial before a judge and jury at Belfast Crown Court, Angeline Mitchell was convicted of the murder on 11 May 2009 of Anthony Robin. Ms Mitchell and Mr Robin had been partners and had lived together for about three years. They had separated some time before May 2009 but they continued occasionally to meet and spend time together. On 10 May 2009 they met at a Belfast hotel at about 3pm. They had something to eat and they drank alcohol there during the remainder of the afternoon and into the evening. They then went to Mr Robin's flat in Fitzroy Avenue, Belfast, where they continued to drink alcohol.
A friend of Mr Robin, Michael McGeown, and Mr McGeown's girlfriend, Jacqueline Cushnan, were also staying at the flat. All four watched a film on television together and then played some music. At about 12.15am on 11 May 2009. Mr Robin received a telephone call from the home of a former partner, Rosena Oliver. She and Mr Robin were the parents of two sons, Anthony junior and Thomas. The sons lived with their mother. After receiving the telephone call, Mr Robin went to Ms Oliver's home. Ms Mitchell accompanied him. While they were there, Anthony junior was arrested by police officers. Apparently, this was because of a dispute that he had had with his mother. It was then decided that Mr Robin and Ms Mitchell should return to the flat at Fitzroy Avenue and that they should bring the younger son, Thomas, with them.
On their return to the flat, Mr Robin and Ms Mitchell discussed Anthony junior's arrest with Mr McGeown and Ms Cushnan for a short time. After that Mr McGeown and Ms Cushnan went to bed. Ms Mitchell continued to talk to Mr Robin about his son's arrest and repeatedly told him that he should go to the police station to which Anthony junior had been taken. He told her to mind her own business. Exchanges between them became more heated. There is a dispute as to what happened next but it is accepted that, at some stage, Ms Mitchell obtained a knife. It is also accepted that she stabbed Mr Robin. He sustained five knife wounds, one of which caused his death. This was a wound to the left side of the chest which was approximately 20 centimetres deep.
Other wounds suffered by Mr Robin were to the left side of the scalp, to the right parietal area of the scalp and to the upper thoracic region of the back. Mr Robin's son, Thomas, claimed to have witnessed the attack on his father. He said that he saw Ms Mitchell "going with a knife" at Mr Robin and that he was crying out as she did so. Thomas said that his father turned away from Ms Mitchell and she continued to attack him.
When questioned by police at the scene of the killing, Ms Mitchell claimed that there had been a fight between Mr Robin and "a Swedish girl" who had just left the flat. After speaking to others present, however, police officers arrested Ms Mitchell on suspicion of the attempted murder of Mr Robin. She was cautioned. In response she said that she had tried to help Mr Robin and now she was "getting the blame".
During her trial, the story about the Swedish girl was not repeated. Ms Mitchell did not dispute that she had stabbed Mr Robin but said that she had acted in self-defence. She also claimed that she had been provoked and that she did not have the intention to kill or cause really serious harm to Mr Robin.
Before the trial began, the prosecution had intimated an intention to apply to the judge for permission to lead evidence of Ms Mitchell's previous bad character. This was said to be for the purpose of showing that she had a propensity to use knives in order to threaten and attack others. None of the episodes to which the proposed evidence related had resulted in a conviction. In relation to two of the incidents, it was agreed between the prosecution and the defence that statements settled between them should be read to the jury. The first of these involved an incident in 2003. The agreed statement contained the following sentence, "During the course of a dispute about mobile telephones, Angeline Mitchell chased Andrew McAuley and James People with two knives and tried to stab them". The second agreed statement related to an incident in December 2007 and was in these terms:
"On 7 December 2007 a dispute arose between Donna Clarke and Angeline Mitchell whilst both were present at flat two, 78 Fitzroy Avenue. During that dispute Angeline Mitchell produced a knife and was disarmed. Angeline Mitchell then obtained two knives and during a struggle stabbed Lorraine Gallagher in the left calf and the left thigh. She also stabbed Donna Clarke in the right leg."
As well as allowing the agreed statements to be read to the jury, the trial judge permitted the prosecution to adduce evidence of five other incidents involving Ms Mitchell. Two of these related to attempts to attack Michael McGeown with a knife. Two concerned the concealment of knives to prevent possible use of them by her. Evidence was also given about a conversation between Ms Mitchell and Mr McGeown in which she was alleged to have told him that she was going to stab Mr Robin and that before she did so, she would stab Mr McGeown because she knew that he would try to intervene and go to Mr Robin's aid.
Despite having authorised her legal advisers to agree that the statements be read to the jury, in the course of giving evidence, Ms Mitchell did not accept that events had occurred in the way described in the statements. The judge dealt with this part of her evidence in the following passage from his charge to the jury:
"Now, when the accused was in the witness box she appeared to renege on [the statements] and didn't agree that these things had happened or had happened in that way, or that she had stabbed these people. And she refused to accept any fault on her part in connection with these …"
On the question of how the jury should treat the bad character evidence, it is agreed that the judge did not direct them on whether they required to be satisfied of the truth of the evidence. Nor did he indicate to the jury that they had to be satisfied that the bad character evidence had established the particular propensity on the part of Ms Mitchell which the prosecution had alleged. It appears that counsel who appeared for the prosecution and the defence at the trial did not invite the judge to give any particular form of direction on these topics. Perhaps understandably, therefore, his charge contained no reference to these matters. This is what he said to the jury about the evidence:
that [evidence] may or may not help you. Take it into account or leave it out of account as you consider appropriate. But do not make an assumption because a person behaves that way that that means that she's guilty of murder and had the necessary intent just because of those events."
Some three years and three months after her trial, Ms Mitchell applied for leave to appeal against her conviction. An extension of time within which to appeal was granted on 6 March 2014 and subsequently Maguire J gave Ms Mitchell permission to appeal on one ground only viz that the trial judge had failed to direct the jury properly on "the purpose of the bad character evidence or the standard of proof to which the jury had to be satisfied before any member of the jury could take the bad character evidence into account in any way". She was refused leave to appeal on other grounds. Ms Mitchell renewed her application for leave to appeal on those grounds but that application was refused by the Court of Appeal in Northern Ireland (Girvan, Coghlin and Gillen LJJ) on 30 April 2015. The grounds on which leave to appeal was refused have not featured in the appeal before this court and nothing need be said about them.
The Court of Appeal allowed Ms Mitchell's appeal on the single ground on which she had been given leave to appeal and quashed her conviction. Subsequently they ordered that she should face a retrial. This took place in April 2016. Ms Mitchell pleaded not guilty to murder on the ground of diminished responsibility and pleaded guilty to manslaughter. She was acquitted of murder and sentenced to ten years' imprisonment for the manslaughter of Mr Robin.
Gillen LJ, who delivered the judgment of the Court of Appeal, said, at para 50 of his judgment, that the correct legal position had been stated by the authors of the 2015 edition of Archbold, Criminal Pleading Procedure and Practice at para 13–68:
"Where non-conviction evidence is being relied on to establish propensity and the evidence is disputed, the jury must be directed not to rely on it unless they are sure of its truth: R v Lafayette [2009] Crim LR 809 and R v Campbell [2009] Crim LR 822, CA."
This passage does not distinguish between two distinct but potentially overlapping issues: the need, on the one hand, to establish to the requisite criminal standard the facts said to provide evidence of propensity and, on the other, the existence of such a propensity. Should the jury be directed that they have to be satisfied beyond reasonable doubt of the veracity and accuracy of the individual facts which, it is claimed, provide evidence of misconduct on the part of the defendant? Alternatively, is the real issue not this: what requires to be proved is that the defendant did have a propensity? Or must both issues be addressed?
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