R v Smith (Morgan James)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE POTTS,THE VICE PRESIDENT |
| Judgment Date | 29 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0710-7 |
| Docket Number | No: 9706952/Y4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 July 1998 |
[1998] EWCA Crim J0710-7
The Vice President
(Lord Justice Rose)
Mr Justice Potts
and
Mr Justice Douglas Brown
No: 9706952/Y4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR MR P THORNTON QC appeared on behalf of the Appellant
MR J KELSEY-FRY appeared on behalf of the Crown
Friday 10th July 1997
On 16th November 1996, during the course of an argument at the appellant's flat, the appellant (now 38 years old) stabbed his old friend James McCullagh a number of times with a kitchen knife. One wound penetrated the right thoracic region, another cut deep to the bone of the left little finger, and a third caused a 12 centimetre cut from the left ear to the cheek. The fatal wound, however, was one which penetrated the left chest, lung and heart to a depth of 12 centimetres. This wound would have required light to moderate force. The stabbing was witnessed by another friend, Alan Wadkin.
On 19th September 1997 at the Central Criminal Court (His Honour Judge Coombe and a jury) the appellant was convicted of murder by a majority of 10 to 2 and sentenced to life imprisonment.
He now appeals against conviction by leave of the Single Judge.
The appellant admitted the killing and manslaughter of his friend. He denied murder on the basis of:
(a) Provocation.
(b) Lack of intent, and
(c) Diminished responsibility.
This appeal raises the following issues:
(1) Provocation: whether the trial judge was right to rule and direct the jury that the characteristics of the appellant of mental impairment were relevant only to the gravity of the provocation, but not to the reasonable man's loss of self-control.
(2) A Lack of Intent: whether the trial judge misdirected the jury in omitting a "foreseeability" or "virtual certainty" direction.
(3) Diminished Responsibility: whether the trial judge misdirected the jury by disparaging the appellant's defence.
(4) Conviction Unsafe: whether in all the circumstances the appellant's conviction for murder is unsafe.
The evidence of Alan Wadkin was relevant to each of these issues. He said that on the evening of 16th November he went to the appellant's flat unannounced. The deceased was there, sitting in an armchair. The deceased and the appellant each had a can of cider. Wadkin thought that the deceased and the appellant appeared sober. (Analysis of the deceased's blood subsequently revealed a blood/alcohol of 356 milligrams/ 100 millilitres). After about half-an-hour the appellant became angry with the deceased during a discussion about missing tools. The appellant accused the deceased of stealing his tools and selling them to buy drink. The deceased denied this. The appellant said that the deceased was lying. The appellant and the deceased shouted at each other. References were made to fishing tackle and driving. The argument grew increasingly more heated. Wadkin left the room to go to the toilet. On his return the appellant stabbed the deceased as he sat in his chair. Wadkin said that the appellant subsequently washed the knife.
The appellant gave evidence. He said that his tools had been kept in four bags. He valued them at £4,000. All had gone. In November 1996 he had no wish to see the deceased socially. He was unhappy when the deceased arrived at his flat. Previously, when he and the deceased had lived together in the same flat, the deceased had asked to use the appellant's fishing tackle, but had sold it — probably to buy drink. The deceased claimed that it had been stolen. There had been an incident when the deceased persuaded the appellant to drive a car to assist the deceased's girlfriend. The appellant, a disqualified driver, had been drinking, was stopped by the police and subsequently convicted. The deceased did not contribute to his fine.
On the evening of 16th November he had intended to watch a film on television. He used a kitchen knife to peel an apple. The knife was on the table beside him when the deceased arrived drunk. The appellant had no recollection of Wadkin arriving. The appellant said that he asked the deceased about his tools and the deceased refused to answer. The appellant agreed that he shouted and swore at the deceased. He accepted that he took up the knife from the table. He said that he did not intend to kill the deceased or cause him serious harm. He wanted his tools back. The deceased was in the chair and ended up on the floor. He put the plate and mug in the kitchen and returned the knife to its normal place without washing it. He had been angry and lost his temper. He did not remember the acts of stabbing.
Dr Meacher examined the appellant at the police station about one-and-a-half hours after the killing. He found him to be coherent and fit for interview. The appellant had taken drink, but as a hardened drinker he would not have suffered the same effects as an average individual. The appellant said that at the time of the stabbing he was sober and that whatever he did was not affected by drink.
Evidence was given by four psychiatrists. Dr Campbell and Dr Hamilton for the appellant. Dr Bowden and Dr Ghandi for the Crown. This evidence was primarily adduced in relation to the issue of diminished responsibility. It was also capable of being relevant to the issue of provocation. The doctors disagreed. In summary, Dr Campbell was in no doubt that the appellant was suffering from depression at the time of the killing which materially affected his responsibility. Dr Bowden did not find the appellant to be medically depressed and was of the opinion that there was no question of impaired responsibility. Dr Ghandi originally agreed with Dr Bowden, but then agreed that there were some signs of mental illness - but not severe enough to impair responsibility. Dr Hamilton thought that the appellant's responsibility was impaired. He had seen the appellant within 12 days of the offence.
Of particular relevance to provocation was Dr Hamilton's opinion that at the time of the killing the appellant was suffering from depressive illness which would have the affect of:
"…having perhaps reduced his threshold or been a significant contributory factor in reducing his threshold for erupting with violence."
and Dr Campbell's opinion that at the material time the appellant was clinically depressed and that this:
"Injured his ability substantially to control his action… He was likely to have been rather more disinhibited than otherwise would be the case. In a state of heightened tension and irritability, he probably would have been more prone to injure his victim and less troubled by the likely consequences."
We deal first with the judge's ruling and direction as to provocation. The factual matters before the jury relating particularly to this issue were in summary these. At the time of the killing the appellant had a grievance against the deceased about the loss of his tools. These tools were of considerable value to him and were an important part of his life. The appellant believed that the deceased had stolen them to sell them and buy drink. There was evidence from a number of witnesses to this grievance. The appellant had broached the subject of the stolen tools with the deceased before, but because of the deceased's "lying" denials he had kept away from his old friend. The deceased had many years before stolen the appellant's fishing tackle for the same purpose. For years the deceased had denied the theft, but later admitted it to the appellant. On the evening of the killing, the deceased had come to the appellant's flat uninvited and denied stealing the tools again. The appellant said to the police in interview:
"I just couldn't take it no more."
At the close of the evidence and before speeches the judge heard submissions as to the appropriate directions to be given to the jury in the light of the psychiatric evidence summarised above.
The defence argued that there was evidence that the appellant had suffered a severe depressive episode of substantial duration. This with its consequence of disinhibition as described by Drs Campbell and Hamilton was a characteristic with which the reasonable man should be imbued for the purposes of section 3 of the Homicide Act 1957, as explained in Director of Public Prosecutions v Camplin (1978) AC 705.
The prosecution contended that whilst a severe depressive episode of substantial duration was capable of being a characteristic of which the reasonable man was to be imbued, the consequence of that depressive episode was only relevant to the gravity of the provocation. It was not relevant to the reasonable man's loss of self-control.
The judge accepted the prosecution's submission and directed the jury accordingly. He accurately directed the jury as to the provisions of section 3 of the Homicide Act 1957 and passages in the speech of Lord Diplock in Camplin. But when he came to direct the jury on the objective as opposed the subjective requirement for provocation he said:
"Assume for the fact that he may have done — because we are still talking about the area where the prosecution have to prove their case… assuming for a moment that on the evidence he may have been in a depressive state, well then that is a characteristic you must take into account.
The fact that it might have disinhibited him is neither here nor there for these purposes, we are not yet dealing with diminished responsibility."
(Transcript summing-up 18G–19C)
and:
"If you take the view that a reasonable man with that sort of depressive illness, if he had it… may have responded in the same way as the Defendant by stabbing,...
To continue reading
Request your trial
-
R v James (Leslie); R v Karimi (Jamal)
...Attorney General for Jersey v Holley [2005] UKPC 23; [2005] 2 AC 580 has effectively overruled the decision of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146? 2 Karimi was convicted of murder in the Central Criminal Court, following a retrial, after a reference by the Criminal ......
-
Young v Catholic Care (Diocese of Leeds) and another
...manslaughter as to how many of the personal characteristics of the accused are to be attributed to the provoked reasonable man: see R v Smith(Morgan) [2001] 1 AC 146, and AG for Jersey v Holley [2005] 2 AC 84 In relation to sections 14(2) and (3) the reasonable man does not share traits of......
- R v Smith (Morgan James)
-
Abou-Rahmah and another v Abacha and Others
... ... R v James [2006] EWCA Crim 14 ; [ 2006 ] QB 588 ; [ 2006 ] 2 WLR 887 ; [ 2006 ] 1 All ER 9 , CA ... R v Smith (Morgan) [ 2001 ] 1 AC 146 ; [ 2000 ] 3 WLR 654 ; [ 2000 ] 4 All ER 289 , HL(E) ... ...
-
Cases
...ex pMcPheeandGallagher(1998) 162 JP 63596R vShergillandothers[1999] 2 All ER485442R v Simmonds (1999] 2 Cr App R 18 559R v Smith (1998) 4 All ER 387 113R vStainesJJ, ex pDPP(1999) I Cr App R(5) 156 177R vStratfordJJ, ex p Imbert (1999) TheTImes,25February282R vStratfordYC,ex p S(1998) 162 J......
-
Cases
...ex pMcPheeandGallagher(1998) 162 JP 63596R vShergillandothers[1999] 2 All ER485442R v Simmonds (1999] 2 Cr App R 18 559R v Smith (1998) 4 All ER 387 113R vStainesJJ, ex pDPP(1999) I Cr App R(5) 156 177R vStratfordJJ, ex p Imbert (1999) TheTImes,25February282R vStratfordYC,ex p S(1998) 162 J......
-
Cases
...2 WLR 1100446 R v Scunthorpe JJ, ex pMcPheeandGa//agher(1998) 162 JP 635 96R v Shergi/l and others(1999) 2 All ER485 442R v Smith [1998] 4All ER 387 113R vStainesJJ, ex pDPP[1999] 1 Cr App R(S) 156 177 .R v Stratford JJ, ex p Imbert (1999) TheTimes,25February282R v StratfordYC,ex p S(1998) ......
-
Cases
...2 WLR 1100446 R v Scunthorpe JJ, ex pMcPheeandGa//agher(1998) 162 JP 635 96R v Shergi/l and others(1999) 2 All ER485 442R v Smith [1998] 4All ER 387 113R vStainesJJ, ex pDPP[1999] 1 Cr App R(S) 156 177 .R v Stratford JJ, ex p Imbert (1999) TheTimes,25February282R v StratfordYC,ex p S(1998) ......