Rashford, R v

LORD JUSTICE DYSON: On 22nd July 2004 the appellant was convicted by a majority of 10 to 2 of the murder of Alex Doyle. Speeches and evidence occupied four days of court time. The jury considered their verdict over a period of two days. He was sentenced to custody for life with a minimum recommended term of fifteen-and-a-half years.

The appellant was born on 21st July 1985. He appeals against conviction on ground 1 by the leave of the single judge and renews his application for leave to appeal against conviction on grounds 3 and 4 following refusal by the single judge. He also renews his application for leave to appeal against sentence following refusal of leave by the single judge.

The first ground of appeal concerns the direction given by the trial judge in relation to self-defence. It was not in dispute that the deceased died at about 11.30pm on 13th February 2004 in Wilmslow. He died as a result of a wound from a knife which penetrated his heart. Nor was it disputed that it was the appellant who stabbed the deceased. His principal defence was accident, but alternatively self-defence.

It was the prosecution case that the appellant went to Wilmslow from Wythenshawe carrying the knife because he wanted to teach the deceased a lesson. It was a revenge attack arising out of an earlier trivial argument. The defence case was that he went to Wilmslow in order, using his term, to "chill" - that is to say to have a pleasant evening with his friends. He took the knife with him solely for protection from other people, not the deceased, with whom he had had some kind of problem.

The evidence of what occurred as given at the trial can be summarised as follows. The appellant, the deceased and the majority of the younger civilian prosecution witnesses were friends. Parties at 46 Linfield Estate, North Wilmslow were held every Friday night and were frequented by most of the younger prosecution witnesses. During the late afternoon of 13th February 2004 the appellant, the deceased, Thomas Skarratt, Carlton Harris and Luke Conway met at 5 Tarvin Way, Handforth which is a short distance from Wilmslow. They drank and there was some horseplay. In the course of this an argument developed between Luke Conway, the appellant and the deceased. The deceased and the appellant fell out with one another. Certain witnesses described them as 'squaring up to each other', but there was no physical violence and, as we have said, it was generally agreed that the incident was trivial. Whilst at 5 Tarvin Way the knife which caused the fatal wound to the deceased was produced by the appellant. He maintained that he had taken it out of his pocket because it was uncomfortable when he sat down. He placed it on the table next to him. Other witnesses said that he had been showing it to people at the house, although the appellant denied that.

The young men then took a bus which was to take them from Handforth to Wilmslow and thereafter they were to go to No 46. The appellant got off the bus at Lacey Green. He intended to meet the others later on. The appellant told the jury that he carried the knife for protection. It was his case that he had been threatened by youths from Wythenshawe and Stretford and had been subjected to violence by them. To some extent this explanation was supported by the evidence of Zoe Greenwell, Bobak Mojdeh and Danny McGowan. Danny McGowan lived with his grandmother at No 46.

The appellant took the knife with him from 5 Tarvin Way and he had it in his possession when he went on to No 46. Before going to No 46 he spent some time in Wilmslow. With him were two friends. The prosecution case was that the appellant had recruited these two young men as backup for a planned trip to No 46 where he would exact his revenge upon the deceased. The appellant maintained that he had only met them by chance after he had got off the bus and gone home before going on to Wilmslow. He had suggested they accompany him to the party to be held at No 46.

Whilst in Wilmslow the appellant was seen by Thomas Skarratt. Mr Skarratt said that the appellant told him that he was going to Danny's (that is to say No 46) to find Alex (the deceased). Mr Skarratt believed that this would lead to trouble with the deceased. He telephoned those at No 46 to warn them of the appellant's intentions as he perceived them to be. It was the appellant's case that he had said nothing to justify a telephone call in these terms.

When Mr Skarratt's telephone call had been received by those at No 46 they thought that there was going to be trouble between the appellant and the deceased. Luke Conway, who was one of those present, said that Alex Doyle had said: "If he wants a fight I'll batter him anyway" - referring to the appellant. Luke Conway left No 46 before anybody else - this would have been at about 11.20 pm. He met the appellant, who was with the two other young men, some eighty yards away from No 46. He said to the appellant: "Leave it out, don't bother, there's no point in fighting" and that the appellant had said: "I'm not taking no shit from nobody." Shortly after this, all of those who were in the house ran out into the street towards the point where Luke Conway, the appellant and the two other young men were standing. There were approximately ten people in all.

Mr Carlton Harris gave evidence to the effect that he remembered Mr Skarratt arriving at about 11pm that night. His remarks had prompted everybody to go outside where they saw the appellant who was shouting aggressively. The group from the house walked towards them. An argument ensued between the deceased and the appellant which developed into a fight. They were pushing each other and others got involved. The appellant produced the knife that he had seen earlier and began swinging it. He heard him tell the deceased something like: "I'm going to chiv you" - 'chiv' apparently means stab. He then swung the knife from side to side towards the deceased's abdomen. The latter managed to push him away and they began to wrestle. The appellant made another move with his knife, apparently making contact with the left side of his chest. Mr Harris was about two or three feet away from the deceased. The deceased staggered about five or ten feet and then fell to the ground.

Mr Skarratt told the jury that the appellant and the deceased were standing a few feet away from him, apparently preparing to fight. They went for each other and he heard a shout, apparently from Carlton Harris, of: "What the fuck's the knife for?" The deceased then went backwards and he next saw him on the ground.

Mr Phillip Cross said that when he went out of No 46 he saw the appellant who seemed angry and drunk. He and the deceased began shouting at each other. He heard the word "dickhead" used and a scuffle ensued. A girl, Zoe Greenwall, tried to intervene and he saw blood on her hand. The appellant then hit the deceased two or three times in the chest with soft punches. He then saw a knife in his hand protruding outwards which he was moving across his body. He was about seven feet away from him. The appellant and the deceased both stepped back and he, Mr Cross, snatched the knife. He said that both the appellant and the deceased had been aggressive. The group from the house had far outnumbered the appellant's group. He had not heard him warn them to stay away or to say that he had come to "chill". He thought that he had seen three stabs to the chest, not slashes but forward motions.

Zoe Greenwall had also been at the party. She saw the appellant and the two other young men. He was arguing with Carlton Harris, denying any intention to fight and stating that he was coming "to chill". He appeared angry. She raised her hand to calm him down and received a cut on her left middle finger. She said that the appellant did not look as if he was in fact coming to chill.

Tracey Bell gave evidence that after her brother had gone to No 46 she had heard noises outside her house. She recognised the appellant's voice shouting "Come on lads". She leaned out of an upstairs window and saw him and two others. A group of people came out of No 46 and ran towards them. The appellant and the deceased began arguing and she telephoned the police. She went outside and saw the deceased swing and the appellant lunged at him. The latter shouted: "He didn't think I'd fucking do it." She said that her top windows had been open and she had recognised the appellant's voice.

There was expert evidence from Dr Alison Armour, the pathologist called for the Crown, who performed a post mortem examination of the deceased on 14th February. She described a clean, neat wound, 9 centimetres long to the chest at an angle of 45 degrees upwards as the weapon had entered the body. It had resulted from an in/out blow consistent with a deliberate thrust. At least moderate force must have been used. It was a stab wound inconsistent with a semi-circular mechanism of causing the injury. Slashes of the deceased's clothing were consistent with a slashing type injury but it was not the kind of thing that caused the wound.

Dr Burns was the pathologist called on behalf of the defence. He said that a deliberate thrust was not the only explanation for the wound. It was impossible to say whether the wounding had been deliberate or whether the deceased had walked or turned onto the knife. He agreed that his findings were consistent with a deliberate stabbing and that it was highly unlikely that the fatal wound could have been produced by the appellant waving his knife. A moving knife and a moving body were in his view capable of producing a wound with the scenario that he found in the wound.

The judge gave comprehensive directions to the jury on the subject of self-defence. He said this:

It is said that the effect of these parts of the summing-up was that if the jury concluded that the appellant was there for revenge that would necessarily negate an assertion that he honestly believed that it was necessary to use the knife in order to defend himself. Mr Marks submits that this does not necessarily follow. The appellant may have gone back to the house where the party was taking place intent upon revenge and upon a confrontation with the deceased but without contemplating violence of the magnitude that occurred or the use of the knife. He could have gone for revenge intending no more than a physical confrontation without the use of weapons, but resorted to the use of the knife only on the spur of the moment when he unexpectedly found himself outnumbered by a hostile and threatening crowd, as he described. As Mr Marks puts it, if that were the case the appellant could in the heat of the moment have honestly believed that it was necessary to use the knife to defend himself, although some sort of revenge was his motive for going there in the first place. Accordingly, he submits that the jury should have been directed in terms that even if they rejected the appellant's account as to why he had gone there and they concluded that the motive was revenge, self-defence would nevertheless still avail him if they concluded that he had or may have produced the knife in the circumstances described by him.

We would agree that the mere fact that a defendant goes somewhere in order to exact revenge from the victim does not of itself rule out the possibility that in any violence that ensues self-defence is necessarily not available as a defence. It must depend on the circumstances. It is common ground that a person only acts in self-defence if in all the circumstances he honestly believes that it is necessary for him to defend himself and if the amount of force that he uses is reasonable. This is reflected in the specimen direction in volume 1 of the Judicial Studies Board Bench Book at paragraph 48. The direction adds in parenthesis:

Mr Chambers submits that the summing-up was accurate and disclosed no error. He submits that the judge correctly observed that, if the jury concluded that the appellant was the aggressor throughout, it could not follow that he honestly believed it was necessary to defend himself. Thus in paragraph 12 of the summing-up the judge observed that if the jury were to conclude that he went to No 46 for violent revenge, then it could not be the case that he honestly believed it was necessary to use force to defend himself. Again, in paragraph 15 the judge recited the prosecution case that the appellant did not simply use unreasonable force, he was not even defending himself. Mr Chambers submits that in paragraph 14 the judge directed the jury on self-defence as it applied to the appellant's account of the confrontation that he said he faced from the deceased outside No 46. It was not qualified in any way and the direction was equally applicable to the appellant's full case that he had not gone there as the aggressor as it was also to an alternative conclusion that, although he had been the initial aggressor, he then acted in self-defence in response to the violent and threatening behaviour of the deceased. Thus, the possibility of a jury concluding that the appellant had initiated the violence but then merely defended himself against retaliation by the deceased was dealt with by the judge giving the jury a direction containing both limbs of self-defence in paragraph 14 and by previously (in paragraph 13) making it clear that it was a matter for them whether they thought that the appellant did honestly believe or may honestly have believed that it was necessary to use force to defend himself.

We cannot accept Mr Chambers' submissions. The judge did not direct the jury that, if they concluded that the appellant was the aggressor throughout (emphasis added), it could not follow that he honestly believed it was necessary to defend himself. The important word "throughout" is missing from the summing-up. We regard this as a crucial omission. The natural meaning of the third sentence of paragraph 12 is that it is directed to the appellant's motivation at the outset of the incident, that is to say as he approached No 46. We note the words "the defendant was there for revenge because then of course he has gone to the incident, it's not that the violence has come to him." The jury could not have been in any doubt that this is what the words meant because the judge made it clear that he was here summarising the prosecution case on the self-defence issue. The prosecution case quite simply was that the appellant had gone to No 46 with the intention from the very outset of teaching the deceased a lesson. It was no part of the prosecution case that he had gone there for an innocent reason and that he became the aggressor only at the time of the confrontation. In our judgment at paragraph 12 the judge clearly directed the jury that, if they accepted the prosecution case that the appellant had gone to No 46 for revenge, then self-defence was not available. The point was reinforced at paragraph 15 where the judge repeated the prosecution case that self-defence was not available because they contended that the appellant was the aggressor and was out for trouble. These words must have been understood as directed at the appellant's state of mind at the outset and not later when he was confronted with the deceased.

We agree with Mr Chambers that paragraphs 11 to 15 of the summing-up must be read as a whole. Mr Chambers relies in particular on paragraph 14 where the judge summarised the defence case on self-defence and, it is true, focused on the time of the confrontation itself. It seems to us, however, that at best from the prosecution's point of view this passage is somewhat inconsistent with paragraphs 12 and 15. In paragraphs 12 and 15 the judge was telling the jury that if the appellant was the aggressor at the outset self-defence was not available. In paragraph 14 he seems to have been saying that the two limbs of (a) honest belief in the need for force and (b) reasonable force were to be judged at the time when the force was actually used. To put it no higher, the jury will have been confused by the juxtaposition of paragraphs 12 and 15 on the one hand and paragraph 14 on the other. For all these reasons we conclude that the summing-up on self-defence was defective.

The next question is whether this defect renders the conviction unsafe. The appellant's principal defence to the charge of murder was lack of intent, that is to say accident. It was no part of his case that he stabbed the deceased deliberately, honestly believing that it was necessary for him to use the knife in this way in order to defend himself and that taking the circumstances and the danger as he honestly believed them to be the amount of force that he used was reasonable.

In view of the fact that the jury convicted him of murder rather than manslaughter, we consider that the misdirection in relation to self-defence did not render this conviction unsafe. We say nothing about what the position might have been if he had been convicted of manslaughter. As we have said, the appellant did not state in evidence that he deliberately stabbed the deceased but acted in the honest belief that he had to do so in self-defence. His evidence on this point was summarised by the judge at paragraphs 175 and 176:

It is unnecessary to go back to paragraphs 175 and 176 of the summing-up, but as Mr Chambers points out in his skeleton argument there are other points to be made. First, the appellant's case at its highest was that the deceased was merely throwing punches and was scuffling. The deceased had no weapon and was not even making contact with his punches. He was not even shouting threats to kill. Although there were a number of other people to the rear of the deceased and the appellant contended that he and his two Wythenshawe friends were outnumbered, it was not contended by him that these others were using violence or had any weapons or were threatening violence or threatening to kill. The appellant sustained no injuries.

In our judgment these are powerful points and in combination make it for practical purposes impossible for a case of self-defence to murder to have succeeded. For all these reasons we are satisfied that the misdirection in relation to self-defence does not render this conviction unsafe.

There remain the two grounds of appeal on which leave to appeal was refused by the single judge.

Ground 3 concerns remarks made by the judge in relation to manslaughter. At paragraph 18 of his summing-up the judge directed the jury as to the circumstances in which they could return a verdict of not guilty to murder but guilty to manslaughter. No complaint is made about that. At paragraph 21 the judge said:

We agree that the judge was ill-advised to say "don't go for the soft option of manslaughter" but we do not consider that this will have been construed by the jury as a discouragement to them to give serious consideration to manslaughter as an alternative to murder. They will have construed the judge's remarks as reinforcing his direction that they should consider murder first and not go straight to manslaughter as a soft or compromise option. Read as a whole, paragraph 22 is clearly saying that the jury should consider murder first, and only if they are not sure about murder to consider manslaughter, and if not sure about manslaughter then acquit. We are unpersuaded that this somewhat unfortunate remark by the judge would have deflected the jury from their task which in all other respects had been properly and adequately explained to them by the judge.

Ground 4 relates to the way in which the judge summed up the evidence given by Tracey Bell, to which we have earlier referred. Mr Marks submits that if, as Tracey Bell said, the appellant had said: "He did not think I'd fucking do it", then that was a compelling piece of evidence for the prosecution since it carried with it the almost inevitable implication that the stabbing had been deliberate. Tracey Bell claimed to have heard this from the gate of her house at a distance of approximately 30 metres. The undisputed evidence was that approximately 10 other eyewitnesses were closer to the incident than she was and not one of those witnesses claimed to have heard the appellant say this or anything like it. Mr Marks submits that it was unfair for the judge simply to recite this part of Tracey Bell's evidence without saying that the jury should approach her evidence with caution having regard to the fact that she was the only witness who gave evidence of the alleged remark.

The judge gave the standard direction to the jury that his summary of the facts would inevitably not cover every piece of evidence that was given and that if he appeared to emphasise matters which the jury thought should not be emphasised then they should ignore what he said. Mr Marks submits that the standard direction was insufficient in relation to this important evidence of Tracey Bell.

In our judgment there was no requirement for a special direction in this case in relation to the evidence of Tracey Bell. No doubt Mr Marks had made the very points that he submits the judge should have emphasised in the summing-up when he made his final speech to the jury. Some judges might have reminded the jury when they dealt with the evidence of Tracey Bell that no other witness had given evidence to the same effect. In our judgment the failure by this judge to do so comes nowhere near to being a material omission such as to cast doubt on the safety of this conviction.

Accordingly, we would refuse leave to appeal in relation to grounds 3 and 4 and the appeal against conviction is dismissed.

We now turn to the question of sentence. Mr Marks renews the application for leave to appeal against sentence and we give leave at the outset. It is not necessary to rehearse the facts again, save to say that this is a shocking case in which as a result of behaviour of a totally intolerable nature by this appellant a life has been needlessly lost and nothing that we say in what follows detracts from that appalling fact.

The judge in passing sentence said this:

Mr Marks rightly accepts that the correct starting point for the complicated sentencing exercise that the judge had to carry out was 15 years. That is clear from paragraph 6 of schedule 21 to the Criminal Justice Act 2003. Mr Marks submits that the judge was wrong to identify as one of the aggravating factors the appellant's record of previous convictions. Those convictions are as follows. In March 2003 for public order offences he received a community punishment order for a total of 140 hours. In June 2003 for assault occasioning actual bodily harm, common assault and breach of the order imposed in March, that order was quashed and replaced by a two month sentence in a young offender institution and a further community punishment order was imposed. In January 2004 for yet further public order offences a conditional discharge of 12 months was passed. Then there followed the present appalling offence which was committed in February 2004. It can be seen therefore that within a period of significantly less than 12 months he had been sentenced on four occasions for various offences, all of them involving violence and disorder. All, we are told by Mr Marks, under the influence of drink. There is no doubt of course that the three earlier offences were of a completely different order from the offence of murder.

The question arises as to whether those three previous convictions fell to be taken into account having regard to the terms of section 143(2) of the Criminal Justice Act 2003. With some hesitation we think that the judge was entitled to consider those earlier offences as an aggravating factor, but in the light of the fact that they were so much less serious than the offence of murder, it is our view that they did not significantly aggravate the offence of murder. It is our view that it would be appropriate to increase the starting figure of 15 years by six months to reflect the previous convictions.

The principal mitigating factor relied upon by Mr Marks and which was accepted rightly by the judge as a mitigating factor was the appellant's age. At the time of the offence he was 18 years and six-and-a-half months of age. If he had committed the offence six-and-a-half months earlier then the starting point for the sentencing exercise would have been 12 years and not 15 years. We bear in mind what was said by this court in Jones and others [2005] EWCA Crim. 3115 at paragraph 29, in a judgment of the court given by the Lord Chief Justice. He said:

Mr Marks further submits that there was an additional mitigating factor which the judge clearly did not take into account. The judge, as we have indicated, said in terms that he was treating the appellant as having intended to cause serious bodily harm rather than to kill. That is specified as a mitigating factor that may be relevant to the offence of murder in paragraph 11(a) of schedule 21. It seems to us that, having rightly proceeded on that basis, the judge was obliged to treat it as a mitigating factor. In our judgment a further reduction of 12 months should have been made to reflect this significant mitigating factor. We heard argument as to the extent to which this was an offence involving premeditation within the meaning of paragraph 10(a) and paragraph 11(b) of schedule 21. Mr Marks did not pursue a submission that the offence was not one involving premeditation in that sense. The question of what premeditation means in that context is one on which we would wish to hear full argument. Mr Marks, as we understood it, was content to advance his submissions in relation to mitigation on this part of the case on the basis that the case fell within paragraph 11(a) of schedule 21 rather than 11(b).

It follows that in our judgment the correct sentence at which the judge should have arrived, having started at 15 years, was one of twelve-and-a-half years. From this of course falls to be deducted the six months that he had already spent in custody on remand, so that the final figure is one of 12 years.

It may well be that to the members of the family of the deceased this does not seem a very long time for a person to serve who caused the death of a loved member of the family in such appalling circumstances. We have endeavoured to explain how we have arrived at the figure of 12 years going through the steps which we are required to go through by statute. The upshot is, therefore, that the appeal against sentence will be allowed to the extent that we have indicated and a period of 12 years will be substituted for that imposed by the judge below.