R v Morhall
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 26 July 1993 |
| Neutral Citation | [1993] EWCA Crim J0726-5 |
| Judgment citation (vLex) | [1993] EWCA Crim J0726-6 |
| Docket Number | No. 92/1122/W3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 July 1993 |
[1993] EWCA Crim J0726-5
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Owen and Mr Justice Blofeld
No. 92/1122/W3
MR DANIEL WORSLEY appeared on behalf of THE APPELLANT
MR DOMINIC PARKINS QC, MR SIMON SPENCE and MR D BARRETT appeared on behalf of THE CROWN
Monday 26 July 1993
THE LORD CHIEF JUSTICEOn 30 January 1992, in the Crown Court at Chelmsford, this appellant was convicted of murder and was sentenced to life imprisonment. He now appeals against conviction by leave of the single judge.
It was conceded that on 8 June 1991, the appellant killed Stephen Denton with a Commando dagger. There was no suggestion that the killing was accidental. It was common ground that the appellant was addicted to glue-sniffing.
During the day time on 7 June 1991, the deceased and one Donnellan had been taking the appellant to task over his glue-sniffing. At about 5.00 p.m. they were at his flat during an argument between the deceased and his girlfriend, also over his glue-sniffing of which she disapproved. She left. Later, the deceased and Donnellan went out a couple of times. The appellant was sniffing glue when they left and when they returned. By 10.00 p.m., when they came back with some cider and beer, the appellant was 'high'. He was unsteady and his speech was affected. The deceased resumed nagging him about his glue-sniffing. At about 2.00 a.m., the deceased went out and brought in some food. Whilst the other two ate, the appellant carried on glue-sniffing. The deceased chided him again and then head-butted him. The appellant picked up a hammer and hit the deceased on the head. A fight ensued. It was broken up by Donnellan who got the appellant to go to his bedroom. However, the deceased would not stop. He said, "I am not having that, I am going to do him." He went to the appellant's bedroom and Donnellan heard crashing and banging. When he went in, the appellant was holding the Commando dagger and the deceased said, "The bastard has stabbed me." Donnellan wrestled with the appellant. Meanwhile, the deceased had gone down to the next landing where he fell to the floor. He had been fatally stabbed.
The post-mortem examination showed that the deceased had been stabbed seven times. Three of the stab wounds were each capable of causing death. Samples showed that the deceased had a blood alcohol figure of 158 milligrams per 100 millilitres and the appellant's blood contained toluene from his glue-sniffing.
The appellant did not give evidence. However, no fewer than five defences were put to the jury on his behalf. First, self-defence; second, absence of any intent due to intoxication by glue-sniffing; third, absence of the necessary intent for murder; fourth, provocation; and finally, diminished responsibility. Medical evidence was called on both sides in regard to the deceased's injuries and the manner in which they were inflicted. There was also medical evidence on both sides on the issue of diminished responsibility, Dr Kennedy on behalf of the defence and Dr Zaidi, in rebuttal, on behalf of the Crown.
The sole ground of appeal concerns the learned judge's direction to the jury on provocation. At page 6 to 6A, he gave the classic direction concisely, but in referring to 'the reasonable man' he did not advert to any special characteristics of the appellant which the jury might think would affect the gravity of the provocation to him. However, during a break in the summing-up, counsel for the appellant invited the learned judge to refer to the appellant's addiction to glue-sniffing as a characteristic which the jury should have in mind. In response to that request, the learned judge said at page 35 of the summing-up:
"So far as the addiction to glue is concerned, the matter that Mr Henderson wished to raise, and which is why I sent …. you out, so we could discuss this in your absence, was this. Going to provocation, he invites me to say to you that the addiction —as opposed to the short-term consequences of that addiction —but the addiction is something you should take into account, not least because it was the very topic on which, as he contends and for you to decide, provocative words were uttered."
Section 3 of the Homicide Act 1957, provides as follows:
"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did, shall be left to be determined by the jury; and in determining that question the jury shall take into account everything, both done and said according to the effect which, in their opinion, it would have on a reasonable man."
In Director of Public Prosecutions v Camplin 67 Cr App R 14, Lord Diplock, at page 20, defined the 'reasonable man:
"It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today."
A little later he said:
"now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed. To taunt a person because of his race, his physical infirmities or some shameful incident in his past, may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person to whom they are addressed."
Finally, Lord Diplock said:
"In my opinion a proper direction to a jury on the question left to their exclusive determination by section 3 of the Homicide Act 1957 would be on the following lines. The judge should state what the question is, using the terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him…."
Thus, Lord Diplock indicated that for the purposes of the objective test in provocation the only relevant feature of the hypothetical reasonable man is his self-control. Both Lord Morris and Lord Simon of Glaisdale expressed the same view. At page 24, Lord Morris said:
"In my view it would now be unreal to tell a jury that the notional 'reasonable man' is someone without the characteristics of the accused: it would be to intrude into their province."
At page 27, Lord Simon said:
"But it is one thing to invoke the reasonable man for the standard of self-control which the law requires; it is quite another to substitute some hypothetical being from whom all mental and physical attributes (except perhaps sex) have been abstracted."
At pages 28 and 29, Lord Simon went on as follows:
"But if the jury cannot take into account the characteristic which particularly points the insult, I cannot see that they are taking 'into account everything… according to the effect … it would have on a reasonable man.' In my judgment the reference to a 'reasonable man' at the end of the section means 'a man of ordinary self-control'. If this is so the meaning satisfies what I have ventured to suggest as the reason for importing into this branch of the law the concept of the reasonable man —namely, to avoid the injustice of a man being entitled to rely on his exceptional excitability (whether idiosyncratic or by cultural environment or ethnic origin) or pugnacity or ill-temper or his drunkenness. (I do not purport to be exhaustive in this enumeration.) …..
I think that the standard of self-control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person (hence his invocation in section 3); but that, in determining whether a person of reasonable self-control would lose it in the circumstances, the entire factual situation which includes the characteristics of the accused, must be considered."
We would make two comments on that passage. First, the word 'everything' in section 3 relates specifically to 'everything both done and said' so that it would not appear to refer, as Lord Simon implies, to any characteristic of the defendant. Secondly, in the bracketed sentence quoted above, Lord Simon left open the possibility that there may be other features or characteristics of the defendant beyond those he specified upon which it might be unjust to allow him to rely.
This brings us to the crucial question in this case. What characteristics, if any, would it be inappropriate for the jury to take into account? In Camplin, their Lordships gave examples of a number of characteristics which should be considered if the provocation related to them. They included age, sex, race, colour, ethnic origin, physical deformity or infirmity, impotence, some shameful incident in the past, an abscess on the cheek...
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