Keane & Anor, R. v

1. THE VICE PRESIDENT: We have heard these two appeals against conviction together because they both raise questions which relate to the summing-up of cases where self-defence is in issue and one particular aspect of the law of self-defence is raised by the arguments in both cases.

2. When considering the papers in the second of the appeals, McGrath, the single judge, David Clarke J, helpfully drew attention to the possibility, no more, that section 76 of the Criminal Justice and Immigration Act 2008 might in some quarters be thought to have introduced complications into this area of the law. It may help therefore if we begin with some general observations. We make it clear, however, that they are geared to the type of case which we have had to consider today. They are not intended to provide a comprehensive survey of the whole of the law of self-defence any more than the summing-up in any individual case should be intended to do so.

3. The purpose of a summing-up, as this court has said on countless occasions, is to tell the jury what the law is which relates to facts which they may find and it is to steer clear of anything that does not relate to facts which they may find.

4. The law of self-defence is not complicated. It represents a universally recognised commonsense concept. In our experience juries do not find that commonsense concept at all difficult to understand. The only potential difficulty for a judge is that he needs to remember the potential possibility of what lawyers would call a subjective element at an early stage of the exercise, whilst the critical question of the reasonableness of the response is, in lawyer's expressions, an objective one. In using those lawyer's terms we do not for a moment suggest that it is helpful to use them in a summing-up.

5. It is however very long established law that there are usually two and sometimes three stages into any enquiry into self-defence. There may be more, but these are the basic building blocks of a large proportion of the cases in which it is raised:

1. If there is a dispute about what happened to cause the defendant to use the violence that he did, and there usually is such a dispute, then the jury must decide it, attending of course to the onus and standard of proof.

2. If the defendant claims that he thought that something was happening which the jury may find was not happening, then the second question which arises is what did the defendant genuinely believe was happening to cause him to use the violence that he did? That question does not arise in every case. If it does arise then whether his belief was reasonable or not, providing it is genuinely held, he is to be judged on the facts as he believed them to be unless his erroneous belief is the result of voluntarily taken drink or drugs, in which event it is to be disregarded.

3. Once it has thus been decided on what factual basis the defendant's actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate (which means the same thing)? Was it reasonable (or proportionate) in all the circumstances? Unlike the earlier stages which may involve the belief of the defendant being the governing factor, the reasonableness of his response on the assumed basis of fact is a test solely for the jury and not for him. In resolving it the jury must usually take into consideration what are often referred to as the "agony of the moment" factors. That means that the jury must be reminded when it arises, as it very often does, that there is in a confrontation no opportunity for the kind of hindsight or debate which can take place months afterwards in court. The defendant must act on the instant at any rate in a large number of cases. If he does so, and does no more than seems honestly and instinctively to be necessary, that is itself strong evidence that it was reasonable. It is strong evidence, not conclusive evidence. Whilst the jury's attention must be directed to these factors if they arise, the jury must also be made to understand that the decision of what is a reasonable response is not made by the defendant, it is made by the jury. We should perhaps add that "in all the circumstances" means what it says. There can be no exhaustive catalogue of the events, human reactions and other circumstances which may affect the reasonableness or proportionality of what the defendant did. That is explicitly recognised by section 76(8).

6. The single judge invited the court to consider whether the statutory formulation of the law in section 76 might have contributed to any degree of confusion and debate which ensued before the judge in the second of our cases. We do not think in fact that section 76 contributed significantly to the debate in question, nor to such degree of confusion as there was. For the avoidance of doubt, it is perhaps helpful to say of section 76 three things: (a) it does not alter the law as it has been for many years; (b) it does not exhaustively state the law of self-defence but it does state the basic principles; (c) it does not require any summing-up to rehearse the whole of its contents just because they are now contained in statute. The fundamental rule of summing-up remains the same. The jury must be told the law which applies to the facts which it might find; it is not to be troubled by a disquisition on the parts of the law which do not affect the case.

7. With that rather general introduction, we turn to the cases before us.

Keane

8. The particular aspect of self-defence which is said to arise in this case is the extent to which self-defence may be available to a defendant who was himself the original aggressor and particularly if it is suggested that he has deliberately provoked violence from his antagonist.

9. In this case the defendant was convicted by the jury of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. After a night in several public houses, the defendant was being given a lift home by three people whom he had met in one of the pubs. The driver of the car was the man who eventually sustained the grievous bodily harm. The other two people in the car were two young ladies who had been with the driver in the public house. While the car was stopped for petrol at a filling station and the driver was out of it, an argument broke out between the defendant and one of the girls, they still, initially at least, being in the car. The details do not matter. It arose because she was smoking, which was unwise in a petrol station, and she refused to accept that she ought not to be. He, on the other hand (the defendant), was aggressive and rude to her. He called her, among other things, a "stupid bitch" and a "chav" and the argument continued outside the car. Whilst the driver was in the kiosk paying the bill, there was a physical altercation between the defendant and this girl. There was some pushing and shoving and she went to the ground as a result. That came to an end. Her friend led her away from the defendant, who by now was standing at some distance from the car.

10. The eventually injured driver had no recollection of events himself because of the head injuries that he sustained. The evidence was that he came out of the kiosk having paid the bill and, either because he had seen something of what had happened or because he was told something of what had happened, he went over to where the defendant was. The two of them spoke to one another. In the course of that encounter the defendant punched the driver hard in the face. The driver went straight down and he struck the back of his head heavily on the concrete or tarmac ground. That caused him serious head injuries to the extent that he had no recollection at all of events.

11. At the trial there were two versions of how that had come about. The girl who had had the row with the defendant said this:

"The driver was very calm and approached the defendant. The defendant was very angry and wound up. The driver told him to calm down, but he wouldn't. The driver said again, 'Calm down, get in the car, I'll take you home. You just need to calm down'."

The next thing she knew was that the defendant had punched him. It had not been provoked that she had seen and it knocked him straight to the ground. Pause there. If that is what had happened, and it was a full account, there was no question of self-defence.

12. The defendant's account was that the driver came up to him and asked what was going on. He asked whether the defendant had put his hands on the girl and the defendant said that he had. The defendant pushed the driver away, not out of any aggression towards him but merely because he was demonstrating what he had done in relation to the girl. The defendant's account was that both men were calm and simply talking about what was going on. At that stage, said the defendant, the driver turned away and said: "Just don't do it again." And, said the defendant, he had said (that is to say the defendant had said), "It's over and done with, what are you going to do about it?" Said the defendant, the driver had made it clear by turning away that the conversation was over until he said: "Why, what are you going to do about it?" when the driver's back was turned. Said the defendant, although the driver's back was turned he thought the driver aggressive. The driver turned back, put his arm out and, said the defendant, he punched him straight to the face. On that account counsel contended that the jury ought to find that he was acting in self-defence.

13. There was a closed circuit television camera on the forecourt which captured the exchange, albeit in time lapse, between the two men. It demonstrated that the driver came up to the defendant with both hands in his pockets, demonstrated that there was a conversation between the two and a push for whatever reason by the defendant on the driver. It showed the driver turning away from the defendant and then turning back, and then more or less simultaneously it showed movement of the right hand of the driver and the heavy blow direct to the face from the defendant. Throughout it demonstrates that the left hand of the driver remained in his pocket.

14. We make it clear that it is not for this court to attempt to substitute itself for the jury in assessing whether the CCTV showed any kind of aggression from the driver before the vital blow from the defendant. The question which matters to this court is whether the Recorder's direction in law was faulty. We would like to say that we are extremely grateful to counsel on both sides for very clear, focused and concise submissions, even though one of them came into the case extremely recently.

15. On behalf of the defendant, Mr Hinton's complaint is that the Recorder did not tell the jury that if the defendant's account was correct he was entitled to rely on self-defence. Says Mr Hinton, of course self-defence was available if the defendant had no wish to hit the driver and only did so in response to an attack upon him, and that was dealt with by the summing-up. But secondly, says Mr Hinton, even if the defendant deliberately provoked the driver by saying, "What are you going to do about it?", in order to justify hitting him, still, says Mr Hinton, the defendant is entitled to rely on self-defence. The reason for that, says Mr Hinton, is that whatever provocation in a non-technical sense the defendant may have offered, if the driver was swinging a blow at him that was itself unlawful. From that it follows, as night follows day says Mr Hinton, that the defendant was entitled to use proportionate force to defend himself. A single blow was proportionate. The unforeseen serious injury from falling on the back of the head does not affect the proportionality of the single blow.

16. We deal with those various concisely made submissions as follows. First, if self-defence was available to the defendant a single punch would no doubt be a proportionate or reasonable response to a threat or more by the complainant to deliver a single punch.

17. Second, it is certainly true that it is not the law that the fact that a defendant either started the fight or entered it willingly is always and inevitably a bar to self-defence arising. The law is as stated by Lord Hope, then the Lord Justice General, in the Scottish case of Burns 1995 SLT 1090 at 1093H. The Lord Justice General said this:

"... it is now clear that the propositions in Hume and Macdonald that the accused must not have started the trouble, or provoked the quarrel, are stated too broadly. It is not accurate to say that a person who kills someone in a quarrel which he himself started, by provoking it or entering into it willingly, cannot plead self defence if his victim then retaliates. The question whether the plea of self defence is available depends, in a case of that kind, on whether the retaliation is such that the accused is entitled then to defend himself. That depends upon whether the violence offered by the victim was so out of proportion to the accused's own actings as to give rise to the reasonable apprehension that he was in an immediate danger from which he had no other means of escape, and whether the violence which he then used was no more than was necessary to preserve his own life or protect himself from serious injury."

The Lord Justice General was dealing with a homicide case in which the issue was risk to life or limb, but of course the principle applies equally to lesser levels of violence. The key post of that formulation of the law is the proposition that self-defence may arise in the case of an original aggressor but only where the violence offered by the victim was so out of proportion to what the original aggressor did that in effect the roles were reversed. That statement of the law has been approved in this court in at least two cases and it may be more. They are Balogun [1999] EWCA Crim. 2120 and Rashford [2005] EWCA Crim. 3377, albeit that in neither case was the conviction unsafe despite the absence of such a direction.

18. As to its practical application, we would commend attention to the recent decision of this court in Harvey [2009] EWCA Crim. 469, which judgment we shall append to the present judgment. We venture to suggest that practitioners will gain a good deal of help from Moses LJ's treatment in Harvey of the proper approach to cases when self-defence arises. In that case the court considered a direction given by the judge inviting the jury to consider whether "the tables had been turned". It seems to us that that kind of homely expression, like "the roles being reversed", can quite well encapsulate the question which may arise if an original aggressor claims the ability to rely on self-defence. We would commend it as suitable for a great many cases, subject only to this reminder. Lord Hope's formulation of the rule makes it clear that it is not enough to bring self-defence into issue that a defendant who started the fight is at some point during the fight for the time being getting the worst of it, merely because the victim is defending himself reasonably. In that event there has been no disproportionate act by the victim of the kind that Lord Hope is contemplating. The victim has not been turned into the aggressor. The tables have not been turned in that particular sense. The roles have not been reversed.

19. Thirdly, however, in the present case the central proposition advanced on behalf of this defendant contains a fundamental flaw. It may well be true that if D provokes V to hit him, and succeeds so that V gives way to the invitation, V is acting unlawfully when he does so. It does not however follow that D thereby becomes entitled to rely on self-defence. There are many situations where two people are fighting and both are acting unlawfully, by which we mean other than in self-defence. It is true of every voluntary fight, challenge laid down and accepted. It is true of most fights in which one person deliberately incites and the other cheerfully responds with an unlawful use of force. We need to say as clearly as we may that it is not the law that if a defendant sets out to provoke another to punch him and succeeds, the defendant is then entitled to punch the other person. What that would do would be to legalise the common coin of the bully who confronts his victim with taunts which are deliberately designed to provide an excuse to hit him. The reason why it is not the law is that underlying the law of self-defence is the commonsense morality that what is not unlawful is force which is reasonably necessary. The force used by the bully in the situation postulated is not reasonably necessary. On the contrary, it has been engineered entirely unreasonably by the defendant. Exactly the same point emerges clearly from Lord Hope's formulation in Burns . In the situation postulated there has been no disproportionate reaction from the victim which removes from the defendant the quality of the aggressor and reverses the roles. Of course it might be different if the defendant set out to provoke a punch and the victim unexpectedly and disproportionately attacked him with a knife. That is not the case that we are considering.

20. In the present case, the Recorder elected to adopt the not uncommon practice of rehearsing a direction on self-defence which was couched in entirely general terms and in this case very largely borrowed from the specimen provided at the time for judges by the Judicial Studies Board. There is of course nothing wrong with that, providing two things happen. The first is that the jury is not troubled with aspects of the general law which do not arise on the facts of the case and on the issues raised by the evidence, and the second is that the jury is, where necessary, given some help about the way the law works when applied to the competing versions of the facts which they have to consider. Both those two rules are fundamental to the business of summing-up. Summings-up, as has often been said, are not written for law students; they are written for jurors.

21. The Recorder in the present case identified the essentials of self-defence, namely that it is a complete defence when it is available, and he reminded the jury that it was for the Crown to disprove it rather than for the defendant to establish it. He then said this:

"... you must first ask whether the defendant honestly believed that it was necessary to use force to defend himself at all. This would not be the case if he was the aggressor or if he knew that he did not need to resort to violence or if he successfully and deliberately provoked a fight."

He then went on to deal with the questions of honest belief, proportionality of response, drink and failure to retreat. There is nothing wrong with that direction, as it seems to us, except perhaps that so far as we can see neither proportionality nor failure to retreat arose. No one suggested that if the defendant was acting in self-defence a single punch would be disproportionate and it would have been helpful to tell the jury that that was not a problem. We doubt that it was at all likely that any jury would say, if the driver suddenly swung a blow at the defendant, that the defendant's instinctive reaction to punch him would fail to be proportionate because he ought to have retreated. But none of that affects the validity of the proposition that the Recorder carefully inserted into his direction that self-defence would not be available if the defendant had successfully and deliberately provoked a fight. For the reasons which we have endeavoured to explain, the submission which Mr Hinton makes that that was wrong is itself erroneous.

22. We do have to say that it would have been an enormous help in this case if at some point, whether at the outset or at the end, the jury had been told how the law of self-defence worked in the two competing versions of events. That is to say, if they accepted the version of events given by the girl who had been knocked to the ground self-defence was out of the question. Secondly, if they accepted as possible, or could not exclude, the version given by the defendant, what they needed to ask themselves was whether or not he was deliberately provoking the driver to strike a blow. If he was then since nobody suggests that the driver did anything disproportionate in the sense used by Lord Hope, the tables were not turned, the roles were not reversed, and once again self-defence was not available for the reasons which we have explained. If on the other hand the words "What are you going to do about it?" when the driver had his back turned and the exchange between them was over carried some entirely innocent meaning and not that the defendant was provoking the driver to hit him, then self-defence was available. That would have been more help, we think, to the jury.

23. However, as we have attempted to demonstrate, the complaint that the Recorder wrongly refused to tell the jury that self-defence applied even if the defendant had deliberately provoked the driver is a false submission. The Recorder's direction that self-defence was not available if the defendant was the aggressor or successfully provoked a fight sufficiently on the facts of this case identified the issue for the jury. It follows that the summing-up did not contain the flaw for which Mr Hinton persuasively contends and the fact that it could have been made clearer for the jury does not in any sense render the conviction unsafe. Accordingly, the appeal of Keane must be dismissed.

McGrath

24. The defendant in McGrath was a young woman of 18 who some time around or not long before 2.30 in the morning, after a night out, stabbed her boyfriend. The two of them were alone at the time, downstairs in the house where she lived with her parents. They had been out for the evening. The evening had begun as a celebration of her A level results. Both had had a significant amount to drink. Their respective blood alcohol levels were around 120 over 100 for the defendant and a little higher for the boyfriend. At least as they went home together in the taxi there appeared to the driver to be no sign of dissension between them, on the contrary he described them as apparently "as happy as Larry". But something clearly occurred between them in the period of something under an hour after they got home at about 1.30 because at 2.30 the defendant herself made a 999 call saying that she had stabbed him with a steak knife. It was on any view, as the judge recognised at the commencement of his summing-up, a very sad case in which she undoubtedly much regretted whatever it was that had happened. We should, we think, say that we entirely understand the enormous and complicated emotions which will necessarily be raised in all concerned who are close to either her or the deceased. We need to make it clear that the appeal process does not involve re-investigating the facts. Our jurisdiction is limited to resolving the question whether any error of law was made in the course of the trial and in this case what is for consideration is the direction of law which was given to the jury.

25. Nobody else was present when whatever happened occurred. There were people upstairs in the house, her parents, and there was a separate flat downstairs occupied by a relative. The relative was able to say that he had seen or heard them apparently returning separately from a garage from which a pizza had been collected and he had heard sounds of people walking about above his head and the kind of noise that might have been either something knocked from a table or someone falling over. But he could not say, and nor could any other independent witness, what had happened in the few minutes between their return from the garage and the 999 call and those minutes seem to have been no more than about 15 or 20 at most.

26. The defendant at her trial elected to give no evidence. Instead she relied on what she had said to the police. That was accordingly evidence in the case and, contrary to the submission at one stage made to the judge, it was therefore some evidence of what had happened. What she had said was not a wholly self-serving statement. It contained the admission that she had held the knife which killed the deceased and that it had all occurred in the course of a struggle between them, and she gave an explanation. The explanation was not of course supported on oath and thus the jury never heard it tested. That will no doubt have meant that it carried significantly less weight than it would have done if it had been given on oath and if it had survived testing.

27. What she said in summary was this. In her 999 call she said: "He tried to hit me. He spat on me. I didn't know what to do." When the police arrived within a very few minutes she was pacing up and down outside. She was very distressed. She said that he had pushed her to the floor and spat on her three times. She added: "It has happened to me before with another man and I didn't know what to do." In interview she said that the previous incident to which she was there referring had been some several years previously when she was 14 or perhaps 15, when somebody had pushed her against a radiator when she called him a very rude name.

28. In a little more detail to the police who came to the house, she said that she had been in the kitchen, and she went on: "I took a knife from the drawer. He bit my thumb. I don't know what I was stabbing at." Of course those who state events like that do not necessarily do it in chronological order. When she was arrested she said that he had pushed her to the floor twice and started biting her. She just wanted to get away from him, she said, and she added that she loved him.

29. In her interview her account was broadly similar. They had got back, they had gone to the garage for a pizza, they had gone back together to the kitchen/living quarters and there had then been a sudden change of mood for which she had no explanation at all, there had not been a row. Something had happened, she said, but she did not know what it was; his mood had changed completely. He pushed her to the sofa, pushed her to the floor twice, spat on her when she was there and had been using some other woman's name. She then got up. He came towards her again. She put out her hand. He took her thumb in his mouth and bit it. By now she was in the kitchen. Close to her was a drawer and with her right thumb still clenched in his mouth, she said, she had contrived to reach across her body with her left hand to the drawer on her right hand side, opened it and taken out the knife. She said she had held it towards him. She had not deliberately put it into him and he had in some manner or other impaled himself upon it. She initially said: "My initial thought was to pull out a knife and scare him away." A little later in her interview she appeared to put it differently. She appeared to say that the drawer had swung open of its own accord, although she then accepted that it had not and that she had opened it. She appeared to say that she had not intended to pick up anything in particular but had just grabbed what she could, but she later made it clear she had indeed selected a knife. But her case was, according to the interview, that she had been under attack, her thumb was clenched in his teeth and she had reached for the knife to, as it were, ward him off. It had gone in without deliberate act on her part.

30. On that account self-defence was clearly raised for decision by the jury. The process of trial largely consisted of contesting that account. The Crown said that the jury could confidently reject it as manifestly untrue. The defence said that it could well be true and probably was. That was the real issue at the trial. Each side had arguments for their contention. The Crown pointed to the absence of the disturbance of any furniture, to the suggested implausibility of managing to reach a knife in the particular situation that she was describing (reaching across herself in the way she suggested), they pointed to the apparent changes in her account, they pointed to cuts on the palm of the hand of the deceased, quite apart from the stab wound to his upper left chest, to the angle of the stab wound, and to the fact that a bracelet that he wore on his left wrist close to the cuts on his hand had become severed. For their part the defence pointed to the clear evidence of the injury to the defendant's thumb, which was attributable to bite by the deceased. They pointed to some spots of saliva on her clothes - although they were not necessarily typical of spitting they were consistent with it. They pointed to the sounds heard by the man downstairs, some sort of bumps.

31. If the defendant was acting in legitimate self-defence she was not guilty of any offence. It was for the Crown to prove that she was not, rather than for her to prove that she was. If on the other hand the Crown did prove that she was not acting in self-defence then it followed that this must be either murder or manslaughter and which it was depended on what her intent had been and whether the legal concept of provocation applicable to murder charges applied to reduce the case to manslaughter.

32. In due course the jury acquitted of murder and convicted of manslaughter. There is and can be no complaint whatever about the judge's directions as to the differences between murder and manslaughter, intent and provocation. Nor can there be any complaint about much of what he said about self-defence. It is however suggested that some of his self-defence directions were erroneous.

33. He gave the jury a complete written copy of the whole of his directions of law. There had been some discussion of these directions prior to the summing-up. After some little time in retirement, the jury returned with a question. Its question was as follows:

"May we have further guidance on whether taking the knife in self-defence was proportionate to the threat as she perceived it?"

That question generated substantial further submissions. The further submissions were not only or even mainly on what the answer to the question ought to be. If we may say so the answer to the question was very short and very simple. It is: "That is precisely the question on self-defence which you are here to decide, members of the jury. You are the judges of whether it was reasonable to respond as she did or not." We cannot avoid saying that it is rather an unsatisfactory state of affairs to have substantial further directions made about the original contents of the directions of law to the jury some considerable time after it has retired. Submissions about the directions simply must be made before they are provided to the jury. If necessary time simply has to be found to make them. We have looked at the timetable of the case, and we are unable to see any ground for any complaint being laid at the door of the judge. But whatever the reason for it, if in the end the directions may have led to the jury convicting on a false basis then of course the conviction may be unsafe and if it is unsafe it must be set aside.

34. Mr Rees QC raises for our analysis four different submissions as to the suggested errors in these directions of law. First, he contends that the judge failed to tell the jury that an initial aggressor may sometimes be permitted to rely upon self-defence. He, like counsel in the earlier case of Keane, refers us to the decisions of this court in Rashford and Balogun and he accepts, as we understand it, the proposition of law which is extracted from the formulation of Lord Hope in the case of Burns . It is correct that the judge told the jury that if the defendant was the aggressor self-defence was not available. He did not advert to any possibility that this was a case in which the roles had been reversed or the tables turned in the sense which we have already described in dealing with the case of Keane. Says Mr Rees, the jury might have thought that what had happened was that the defendant had initially abused, shouted at and/or attacked in some manner the deceased, but he might then have overreacted and disproportionately reacted by counter-attacking her in such a way as to give rise to the kind of turning of the tables or role reversal which we have described. The short answer to that in this case is that there was simply no evidential basis for it, nor had anybody ever suggested it. If such a scenario had ever been raised for the consideration of the jury, then the judge might have had to deal with it by reminding them of the appropriate law. But it was not and he did not need to and he would have been wrong if he had. It is wholly speculative to suggest that the jury might have taken the kind of view for which Mr Rees now for the first time contends. The summing-up correctly reflected the case as it had been argued and as it had been presented to the jury. There may of course be cases where the evidence gives rise to a real possibility which neither side has chosen to address, and provocation in the present case was one such, but the present suggested scenario was not even there.

35. The second submission relates to the judge's use of the expression that the jury needed to consider whether when she armed herself with the knife or took it from the drawer she was acting in reasonable self-defence. Says Mr Rees, it was not the taking of the knife from the drawer which was the relevant moment to consider, it was the use of the knife subsequently when it entered the body of the deceased. This submission is really at the heart of the argument presented today on behalf of the appellant.

36. We are entirely satisfied that as this case was presented and on the evidence which there was, it is abundantly clear that the acid question was whether introducing the knife into whatever struggle or dispute there was, was a reasonable response to whatever the deceased might have done. That is certainly how the case was argued but it was also realistic on the facts. Of course if, after taking the knife into her hand, the defendant had suggested that she had consciously done anything further because of something additional that occurred, it might be necessary to examine that later stage of events. But she did not. Her case was that she withdrew the knife from the drawer and immediately held in front of her between the two of them at a time when they were locked together in a struggle with her thumb wedged in his mouth. That was her assertion. Her assertion was that she did nothing further with the knife but he somehow managed to impale himself upon it. In other words, on the facts of this case the taking of the knife and the holding it were the same thing. They were not separated by any conscious act of the defendant and it was entirely proper to focus the attention of the jury on the question which was undoubtedly the vital question. The cause of the death was the knife, however it occurred. If the knife had been introduced unlawfully into the struggle by the defendant then that meant that she was guilty at least of manslaughter. If, on the other hand, introducing the knife into the struggle was a reasonable or, if you like, proportionate act of self-defence then she was not. It was in the end as simple as that.

37. The third ground of appeal relates to the judge's introduction into his summing-up of the possibility of mistaken belief. The judge began his treatment of self-defence by posing the question for the jury whether the defendant genuinely believed that it was necessary to take the knife from the drawer to defend herself. That led him to explain to them the law as it is now set out in section 76(3) of the Act in relation to mistaken belief in circumstances. That in turn led him to give an accurate direction of the way in which mistake may be relied upon by a defendant provided it was not attributed to voluntary intoxication. The problem with that approach in this case was that the issue of the defendant mistakenly thinking that something was happening or present, but which has not, simply did not arise. She was not saying that she thought she was under attack; she was saying that she was. We accept that the introduction into the summing-up of the possibility of mistaken belief and with it the qualification relating to drink-induced mistaken belief, was an unnecessary complication which should not have been present.

38. Mr Rees' submission is that from that unnecessary addition to the summing-up there flowed real risk of unfair conviction by the jury. He says that that arose in this way. Once the judge was embarked on the topic of mistake he also needed to deal with intoxication or drink and to give a direction that the jury should ignore a mistake occasioned by drink. That, says Mr Rees, may have been taken by the jury as removing self-defence altogether if the jury thought that any error on the part of the defendant was attributable to drink. We have thought quite hard about that but on the facts of this case we are satisfied that it is not a danger. The judge plainly confronted the jury with the question of whether the taking of the knife was a reasonable or proportionate response. He did it in two places in the summing-up, but in particular at page 9:

"If you are sure that the force she used was unreasonable then she cannot have been acting in lawful self-defence, but if you think that the force used was or may have been reasonable you should acquit her."

Moreover, the jury's question plainly demonstrates that it was focussing on the right question, that is to say whether the introduction of the knife was a reasonable or proportionate response to whatever it was that might be happening. Whilst the introduction of mistake was, we are satisfied, an error on the part of the judge, with all respect to him, we do not take the view that it was in any way damaging to the defendant. Indeed, if anything, it must rather have assisted her cause. Mr Rees is correct when he says that at some points the judge telescoped the question of what was happening and/or what the defendant thought was happening with the question of the reasonableness of her response. But he did not do so, we are satisfied, in any way which occasioned risk of unfairness to the defendant. Indeed, at at least one point the judge's direction was distinctly favourable to the defendant because he told the jury that if they concluded that she may have done no more than hold the knife out in front of her in an attempt to warn off the man, and that he moved or may have moved onto the knife, then he apprehended that they would conclude that the actions were proportionate and she should be acquitted. That was by no means a necessary direction, but it was certainly not unfavourable to the defendant.

39. We should perhaps just interpose this. We are conscious that the very helpful discussion in the current March 2010 Edition of the Judicial Studies Board Bench Book relating to self-defence does begin with the question whether the defendant honestly believed that he needed to defend himself. We agree that that question will often be a convenient starting point, particularly if mistake is likely to be in issue. It will be convenient because it helps focus the jury from the beginning on the rule that the defendant is to be judged on the facts as he believed them to be. But this bench book, like any other, is not prescriptive; indeed this one is punctilious in reminding practitioners of the absolute need to tailor a direction to the facts of the case and the issues to which it gives rise. We do query whether that starting point should be treated as universal. In particular there are a large number of cases in which no question of mistake arises. This was one. The defendant in such cases says that the complainant attacked him, the complainant says that it was the other way around. The issue is whether the defendant's account can be excluded as untrue. No one suggests that if the defendant may be telling the truth he was not in fact under attack. In those kinds of cases there is no need at all to direct the jury about mistaken belief, nor about the effect of drink on mistaken belief, and in those cases to ask the jury if the defendant believed he was under attack might divert them from the real question which is, are we sure that he was not under attack in fact? That said, we are satisfied that this court's opportunity to review the summing-up with the benefit of hindsight is not the same thing as saying that in the present case any unfairness has arisen to the defendant. We are satisfied that it has not.

40. The remaining ground of appeal relates to the judge's treatment of the defendant's interviews. The judge referred to the existence of the interviews. He reminded the jury that they had had them read out and that they had copies which they could take with them and study. It was the fact that they had not only had them read out over a substantial period (because there are 200 pages or so) but also that counsel for the defence had had the opportunity to address the jury on their contents for no less than five hours.

41. It may well be that in a case in which the defendant has given evidence a brief reminder to the jury that they have the interviews will, unless some particular point arises on them, be sufficient. But this defendant had not given evidence. This defendant's account was contained in what she had said to the police when they got to the house and in what she had said in interview. This is not anything like as clear a case as the one to which we have been referred of Akhtar (unreported) 98/5071/W2, in which the judge failed not only to refer to any of the points made in cross-examination of the Crown's witnesses but also failed to tell the jury anything at all about the defendant's quite detailed explanations contained in his interviews for various pieces of specific and detailed evidence advanced against him. But we are quite satisfied that where a defendant does not give evidence but has advanced an explanation for events in interviews with the police, the jury really must be reminded, in whatever summary fashion, of what it was that she had said. It need only be a brief summary. It may even be a reference to particular pages where the jury can see it, if it is readily identifiable.

42. Accordingly, that was a deficiency in this summing-up and the question which arises for us is whether we entertain any fear that the jury can have been in any doubt at all about what it was of which the defendant's case consisted. The inevitable answer to that is that it could not possibly have been in the remotest doubt. This was not a case of detailed confession and avoidance to particular pieces of evidence. It was not a case in which the facts established from Crown witnesses in her favour were not rehearsed because they were. Her case was in the end extremely simple. The deceased had, for no apparent reason, suddenly attacked her, knocked her down twice and spat on her, was coming at her again, when she put out her hand to fend him off he bit her thumb and whilst her thumb was still in his mouth she reached for a knife, put it between them and he impaled himself on it. On the particular facts of this case the jury cannot have failed to be well aware of that.

43. The judge on a number of occasions reminded the jury of her assertion that she had picked up the knife in self-defence and that she had only held it out, in other words that he had impaled himself upon it. In the course of his review of the Crown evidence he reminded them of the evidence of the presence of saliva on her clothes, of the evidence of the bite to her thumb and of what the man downstairs had said about bumps from the upstairs premises. The whole of the directions on law and particularly those on self-defence, which we have had to examine carefully, were correctly based upon this being her case - that she had done what she had done because he had attacked her, knocked her down and spat on her. It was in the end an extremely simple and straightforward assertion and the jury cannot conceivably have been in any doubt about what it was. If we feared that it had been, the conviction would be unsafe, but it is quite plain that it could not.

44. In those circumstances, despite Mr Rees' very detailed submissions, we are satisfied that this conviction is safe. The jury made its decision and must be trusted to have made it conscientiously, indeed it is apparent that it did. For those reasons, sad as the case undoubtedly is, the appeal against conviction has to be dismissed.

(There then followed an appeal against sentence in McGrath)

45. THE VICE PRESIDENT: We have said enough about the facts of this case. They do not need rehearsing again. Mr Rees' submissions on those facts is that a sentence of five years for a young woman of previously impeccable character who was engaged in a struggle in which she herself received a substantial injury to her thumb was too much. This was a trial, not a plea of guilty. There was no admission of responsibility in law. It is a gravely sad case for all concerned, but it involved the introduction of a knife into a domestic dispute with fatal consequences. We are, we regret, unable to say that a sentence of five years in those circumstances was manifestly excessive and the appeal against sentence must be dismissed accordingly.