Broady, R. v

MR JUSTICE OUSELEY: This is a renewed application for leave to appeal against sentence.

The applicant was convicted of manslaughter, which was treated as involuntary manslaughter, on 21st October 2008 and on 11th November 2008 His Honour Judge Gee at Manchester sentenced him to 7 years' imprisonment.

The applicant was 71 and it is principally on that basis allied to specific facts in the case upon which Mr Leslie QC who appears for him relies.

The deceased, a Mr Douglas, was 25 years old at the time of his death. He was a drug user. He also drank. On 25th February 2008, when he met his death, his father had twice provided him with money which he spent on drink for himself and a friend called Olsen.

At 7.00 pm the applicant was out walking when he met an acquaintance, Mr Forth, at the junction of Canal Street and Minshull Street in Manchester. They had been talking together for a while when Douglas approached them. They ignored Douglas, who in an aggressive manner said that it was rude of them to ignore him. They were unknown to him. Mr Forth thought that the tone adopted by Douglas was rather aggressive and he and the applicant moved away a short distance down the road. They both were aware of the aggression and threats from Mr Douglas, and the Crown accepted that the instigator of the violence was indeed Mr Douglas, who was present with his friend.

After they had moved away Douglas ran towards the applicant with his hands raised. Mr Forth thought that he was going to hit the applicant, as indeed did the applicant himself. The applicant was, however, carrying a knife. This was a knife which the judge concluded had an open blade. The applicant pulled it out of his coat pocket and struck downwards at Douglas' neck with it. He and Mr Forth then left the scene. The applicant disposed of the knife and although he told the police where he had disposed of it, it was never recovered. He then went home, packed a bag and left.

Attempts to save Douglas' life by the emergency services failed. Death was caused by the loss of blood from the wound to the right of the neck, which cut the right jugular vein and penetrated the lung to a depth to 6 to 8 centimetres.

The doctors's opinion was that the stabbing motion had been delivered with a significant over the arm downwards motion with moderate force. Douglas had consumed alcohol to about two-and-a-half times the legal limit for driving.

The applicant, aware then that police were looking for him, made arrangements to be interviewed in a neutral venue.

The applicant contended at trial that he had acted in self-defence but that defence was rejected. He was, however, acquitted of murder and was sentenced on the basis that this was an involuntary manslaughter in which he had lashed out, stabbed the victim, realising that doing so would expose the victim to a risk of at least some harm.

The applicant was treated as a man of previous good character. He had indeed in many respects a positive good character. He was aged 71 and was not frail or timid and was fit for his age. The judge accepted, albeit with reluctance, that the applicant carried a knife as a result of a street incident some 5 or 6 years before but, as we have said, did not accept that it was a closed knife such as a penknife which was removed from his pocket.

The judge in sentencing made it clear that he was making an allowance of some magnitude for the age of the applicant and had he been a younger man, the sentence would have been considerably higher.

Mr Leslie, on his behalf, in addition to drawing our attention to authorities which we have read, emphasises the age and good character of the applicant and emphasises as well that this was a man, with a friend, who was facing aggression from two men and they had already, on two occasions, sought to disengage themselves. However, the fact is that the applicant was indeed carrying an open knife for possible use if circumstances, in his view, warranted that. That was his deliberate choice. He used it, it was said, in self-defence but the jury rejected that defence. Therefore it must be treated as an excessive act undertaken by that man, notwithstanding his circumstances. The carrying of a knife without reasonable excuse is, as the judge said in his sentencing remarks, a crime committed far too often, even if concealed and carried from a misguided sense that its use in possible self-defence might arise. It takes but a moment of irritation or anger or misjudgment before the weapon is produced and used with unintended and fatal consequences. It may well be that the victim was a thoroughly threatening and aggressive nuisance but, in the circumstances, we do not consider that the sentence of 7 years' imprisonment can arguably be characterised as manifestly excessive. For those reasons this application is dismissed.