Barrington Moses, R v

THE VICE PRESIDENT: On 6th March 1997 in the Crown Court at Gloucester before Harrison J, the appellant was convicted of murder and sentenced to life imprisonment. The matter comes before us today on a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 and the reference is based upon what the Commission identified at the date that it made the reference as a possible misdirection by the judge as to provocation in relation to the facts of the case at that time.

To understand the matter it is necessary to say something, albeit very shortly, about the facts of the case. The appellant had been involved in a relationship with the deceased for some months in 1995 and she had ended the relationship on Boxing Day 1995. However, he attempted to resume that relationship and during the early months of 1996 there were meetings between them.

On Sunday 24th March 1996 the police received an emergency call from a phone box in which the appellant said that he had killed his ex-girlfriend. He said that he had snapped after she told that someone else was better (meaning better sexually) than he was and had drowned her in the bath. When police officers attended the deceased's flat they found her lying on the floor with a dressing gown over her, her hair was wet. It was apparent there had been an attempt at strangulation. Semen was present in her body which suggested intercourse either shortly before or possibly after death.

In his interview with the police the appellant gave an account of having had consensual intercourse with her, after which he asked her whether another friend of hers was a better lover than he was and she said yes. His account was that the next he knew she was in the bath with her eyes wide open, and dead.

Shortly before trial the appellant changed that account to an account in which he accepted that he had in fact had intercourse with her after her death.

Be that as it may, the issue before the jury at trial was essentially based upon medical evidence directed to the question of whether or not at the time of committing the killing the appellant was suffering from diminished responsibility so as to justify a verdict of manslaughter. By reason of the nature of the evidence given by the appellant and his account to the police both immediately after the incident and in interview, it was clearly necessary for the judge to give a direction on provocation. In that direction, he asked the jury to consider, first, whether the appellant had in fact lost his self-control, and then said:

The Criminal Cases Review Commission accepted in its reference to this court that that direction was entirely in accordance with the case law on section 3 of the Homicide Act 1957 at that time following the judgments of the House of Lords in DPP v Camplin [1978] AC 705 and R v Morhall [1996] AC 90. However, at the time that the Criminal Cases Review Commission made its reference, the decision of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146 suggested that this was an inadequate direction. The jury were entitled to consider in relation to the second question the characteristics of the particular defendant. The Commission concluded not only on the evidence that had been available at the trial of the appellant but also by reason of material that had been obtained since trial that there were two aspects of the appellant's personality which could have been relevant to a direction in accordance with the House of Lords' judgment in Smith, namely that he was suffering from clinical depression at the time and that he had an over-controlled personality. The Commission accordingly considered that had the jury been asked the second question on the basis that it was entitled to take into account those two aspects of the appellant's condition, the jury may not have concluded, as it undoubtedly did, that the prosecution had disproved provocation in the present case. That is particularly in the context of the appellant suggesting that he was particularly sensitive about his masculinity and therefore any answer by the victim in relation to the relative sexual prowess of the appellant and any other lover might have been a matter which was again of relevance in determining whether the prosecution had disproved provocation in his case.

Unhappily for the appellant, since the reference by the Commission events have overtaken this appeal. First of all, in HM for Jersey v Holley the Privy Council determined that the law as it had been understood at the time that the judge in the present case gave the direction was correct and that the decision of the House of Lords in Smith should no longer be held to represent correct law. This court has subsequently considered in the case of James and Karimi [2006] 1 All.ER 759 the apparent conflict between the decision of the Privy Council and the decision of the House of Lords and concluded that the courts should follow the decision in the Privy Council as representing the authoritative statement of the law in relation to provocation.

Accordingly, the present position is that the direction given by Harrison J in the present case was not only in accordance with the law at the time that it was given, but is now clearly, on the authority of Holley, a correct direction in the light of the law as stated in that case.

Miss Worrell, in a determined and imaginative effort to circumvent the difficulty that it seems to us is presented by that statement of the position, has sought to argue that by virtue of the provisions of articles 5 and/or 6 and/or 7 of the European Convention on Human Rights it could be said that the way in which the law was differently determined by the courts between the time of Harrison J's direction and now, indicates that there is such uncertainty about the position that effectively to apply the law as stated in Holley is an unstable basis upon which to determine what the law now is and accordingly does not comply with the requirements of certainty in article 7 and in particular, if it is to be applied on the basis that Holley now represents the appropriate test, is effectively a retrospective change in the law which falls foul again of article 7.

If we return to the way in which we indicated that the matter has in fact developed, we hope that it is self-evident that those arguments cannot succeed. The direction given by Harrison J, as we have said, was entirely in accordance with the law as understood at that time. It is entirely in accordance with the law as stated in Holley and as affirmed in James and Karimi. The only question, in our judgment, which can arise is whether on any appeal from James and Karimi based upon the questions certified in that case as to the correct approach to the conflict between the Privy Council decision and the House of Lords' decision the answer is ultimately answered by re-asserting the decision of the House of Lords in Smith. In that case, of course, the question which was referred to this court by the Criminal Cases Review Commission will become live again. But on the authorities as they stand there is no alternative, in our view, but to dismiss this appeal.

So far as the consequential application which Miss Worrell makes that we should certify a question or questions for the House of Lords is concerned, it seems to us that as we have indicated the ultimate answer to this reference depends upon whether or not the House of Lords is prepared to re-visit the matter once again and in order to cover that possibility it seems to us that the right thing is to certify the same questions as were certified in James and Karimi but to refuse leave to appeal.

MISS WORRELL: Would your Lordships be prepared to certify any question based on article 7(1)?

THE VICE PRESIDENT: No. That was a brave attempt but I do not think there is any substance in it at all, Miss Worrell.

MISS WORRELL: May I say this, that in relation to this appellant the fact that you have certified the same questions is of tremendous assistance to him.

THE VICE PRESIDENT: At least it means it keeps alive the issue so if in fact the House of Lords does re-visit this yet again then he will not be disadvantaged. That is the point.

MISS WORRELL: My Lord, I think I need to ask for a representation order for the House of Lords?

THE VICE PRESIDENT: That is absolutely right and you can have a representation order for the moment limited to any petition that you may wish to make for leave to appeal and then, if granted, for the appeal. That should be for leading and junior counsel and solicitor.

MISS WORRELL: I am very grateful, my Lord.