Cox v R.

At the conclusion of the hearing of this appeal on 8 April 2014 we informed the parties that the appeal would be dismissed for reasons to be given in a judgment that would be handed down. We now give that judgment.

On 16 May 2013 in the Crown Court at Bristol after a trial before His Honour Judge Ford QC, the Hon. Recorder of Bristol, and a jury, the appellant, now aged 49, was convicted of the murder of Ian Graham and sentenced to life imprisonment with a minimum term of 14 years imprisonment. She appeals against her conviction by leave of the single judge.

The sole issue before this court is whether the learned judge erred in admitting evidence of her bad character in the form of: a 1992 conviction (on a guilty plea) for inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861; a June 2002 conviction (on a guilty plea) for using threatening words or behaviour and possessing an offensive weapon contrary, respectively, to section 4 of the Public Order Act 1986 and section 1 of the Prevention of Crime Act 1953; and the circumstances under which the appellant was (by consent) bound over in 2010 for an alleged breach of the peace.

It is submitted by Mr Quinlan QC on behalf of the appellant that this evidence did not fall within gateway (d) of section 101(1) of the Criminal Justice Act 2003 and, in any event, should have been excluded pursuant to section 101(3) because its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The appellant and the deceased, Ian Graham, who was aged 51, were both heavy drinkers. They formed a relationship in the middle of 2012. It was difficult, stormy and complex. They drank heavily together, she stayed at the deceased’s bedsit flat occasionally, and they had sexual contact and exchanged text messages which were sometimes abusive and very unpleasant. Some of the texts were affectionate, but others were aggressive or what the judge described as “playing mind-games”.

On the evening of Monday 19 November and in the early hours of Tuesday 20 November 2012, the deceased, the appellant and Ian Hungerford, a friend of the deceased, had been eating, drinking and watching television in the deceased’s bedsit. In the early hours of the morning of Tuesday 20 November 2012 an ambulance crew attended the deceased’s bedsit in response to a telephone call by the appellant and Ian Hungerford to the emergency services. Police also attended. The deceased was found on a bed covered in blood. There was extensive blood staining on the bed and nearby walls and floor. The deceased was transferred to hospital by ambulance, and was pronounced dead at 5:27am. It was common ground that the appellant was responsible for the stabbing.

It is clear that considerable quantities of alcohol had been consumed by all three. The evidence of the pathologist was that the deceased’s blood alcohol level was almost four times the drink-driving limit. A urine sample taken from the appellant seven hours after the stabbing, at 11:40am on 20 November, was found to contain 191mgs of alcohol per 100mls of urine. The doctor said that a back calculation was not possible but it was likely that the level would have been higher at the time of the stabbing.

At the trial, the evidence of Mr Beaumont, a forensic scientist, based on the location of the arterial blood stains and other blood staining, was that the deceased had been stabbed in the bedroom area at the far side of the bedsit, furthest away from the entrance door. To get to it from the entrance door, one had to walk past a kitchen area and a living area with a bed base and a table. The trail of blood showed that the deceased walked from the bedroom area towards the living area and the bed base closer to the entrance door. There was heavy staining on the table and on the wall behind the table. The appellant’s clothing was examined and Mr Beaumont’s evidence was that her top was bloodstained in a manner that was, in his opinion, consistent with her having stabbed the deceased standing upright and close to him when blood was projected from his left side onto her clothing.

By the time the ambulance crew and the police arrived the appellant had left the bedsit. Ian Hungerford had told her to leave. One of the officers who went to search for her found her at the railway station with two plastic bags and a black drawstring bag. One of the officers who remained in the bedsit found a knife with blood on its blade on a work surface in the kitchen area.

The defence case was that the appellant had acted in lawful self-defence after the deceased attacked her, gripped her tightly round the neck and held her against a wall. She said that she somehow broke loose. She could have left the flat altogether at that stage. But instead she stopped at the kitchen area. She picked up a knife from the kitchen drawer and returned to the bedroom area holding it down by her right side with the blade downwards. By the time of trial it was her case that she had returned because she did not want to leave without her handbag which was in the bedroom area. She told the deceased to move out of the way. She was scared. He laughed and said “you’re not fucking having your bag” (summing up 28D – G). She tried to barge past him holding the knife by her side, but he slammed her against the wall and again took her by the neck. She thought he was also holding her arm. She stated that the grip around her neck was hard and her head kept going blank and she thought she was going to die. She tried to reach her bag but was unsuccessful and raised the knife and stabbed him. She thought she was being strangled to death and he would stop if she used the knife. She had no recollection of stabbing him for a second time. Her case was thus that, thinking she was going to be strangled to death, she used the knife in self-defence.

The prosecution case was that the appellant had acted in anger or was motivated by a desire for revenge and intended to kill or cause really serious bodily harm. Its case was that if, as the appellant maintained, she had been attacked in the bedroom area and held by the deceased round the neck but somehow got away, she went to the kitchen area, which was on the way to the entrance hall and door. But she then chose to take a knife from a kitchen drawer, and chose to go back to the bedroom area where she faced the deceased, raised the knife which she had been holding with the blade coming from the bottom of her fist, and stabbed him.

It is common ground that the trial judge accurately summarised the issues in this case at the beginning of his summing-up (4B – C) as “why did she get a knife?; why did she take the knife across the room?; and why did she use it?” Although it was not part of the defence case, the judge also left to the jury the partial defence of loss of control: summing-up, 47C – 48B.

The court heard evidence from the officers who attended, and from Ian Hungerford. His evidence was that at some stage he had gone to the bathroom to telephone his girlfriend and when he returned he saw the deceased in a crouched position, his neck pulsing with blood. The appellant was behind the deceased. Mr Hungerford said he had heard nothing of the incident and had not been aware of any argument between the deceased and the appellant that night. The pathologist’s evidence was that only moderate force would have been necessary to cause the injuries to the deceased.

Evidence was also given of bruising to the appellant’s cheek, her chin, the right side of her neck, her left elbow, and fingertip bruises to her left wrist. She attributed a bruise on her arm and that on her neck to the deceased, and told a crime scene investigator who examined her that the latter had been caused when he had picked her up by the throat and neck. The pathologist said that poor quality photographs of red mottled bruises were consistent with the appellant’s neck having been grabbed. The bruising to her arms could have been the result of being grabbed.

PC Manning, who found the appellant at the railway station, said that she talked constantly while being driven to the police station. He later wrote down the essence of what she had said, which included “is he dead? Yeah, I hope he dies of his injuries…I wanted to do him for murder, not fucking attempted murder…I wanted to murder the bloke…”, “…when I stuck that knife in that bloke, man, man loved every minute of it”, and “I hope he dies. Is he dead? ... I wanted to murder the bloke”: see summing-up 37 – 38. She, however, also asked why the officer was writing it down and stated that she had not meant what she said and that she hoped he didn’t die: see summing-up 39A. The jury was shown CCTV recordings of the appellant during the booking-in procedure at the police station and later while in the cells. When in the custody area, the appellant had said “He stalked me and tonight I just lost the plot. He started on me. He whacked me one and I pulled out and stabbed him …”. The jury also had a schedule setting out the text of the text messages the deceased and the appellant sent to each other between 31 October and the night of the fatal stabbing.

The appellant’s first interview was at 23:22 on 20 November. She did not answer questions in this, but gave her account by means of two prepared statements signed at 23:07 on 20 November and 13:23 on 21 November. In the first of these she described her relationship with the deceased and gave an account of the events of the night of 19 November and the early hours of 20 November which was broadly consistent with the account given in her defence statement, a document that was not placed before the jury. In summary, she accepted stabbing the deceased but asserted that she did so in self-defence. She stated that when she ran to the kitchen she “grabbed a knife from the drawer to defend myself as I was sure he was going to hurt me again. I believed he was going to come after me and strangle me again and I thought I might die. Within seconds he was in my face again. I am not sure precisely where this was”. In her second prepared statement the appellant asserted that the deceased had sexually assaulted her on two occasions, the second of which was just hours before the fatal incident. As a result, another doctor examined her on 21 November at 9:18pm. He noted a bruise on her right breast and one on her right upper thigh, but after a vaginal and anal examination, he found no injury to confirm or rebut her account of sexual assault.

The account the appellant gave at trial differed in a number of respects from that given in the prepared statements. In particular, she did not mention in the prepared statements that before she stabbed the deceased she had been trying to retrieve her bags which were close to the bedside drawers. She also did not say that the deceased had gripped her around the neck at the time that she stabbed him: see summing-up 18A – C. Her failure to mention these facts in her statements was the subject of a section 34 “adverse inference” direction by the judge.

The only other evidence called in support of the appellant concerned the deceased’s bad character. His criminal record was adduced by agreement. The full particulars behind his last conviction, for assault upon a former partner, DP, was proved by the defence reading as agreed evidence the relevant parts of DP’s witness statements and calling DP’s sister. DP’s evidence was of serious verbal abuse and physical violence to her over a period. It ended after the deceased attempted to force her to cut her wrists and she telephoned her sister who attended the flat and found DP on her hands and knees, her face black and blue with cuts to her neck and hands. She was taken to hospital.

The prosecution’s application to adduce evidence of the appellant’s bad character had two elements. One, pursuant to section 101(1)(g) was on the basis that the appellant had made an attack on the character of the deceased. It was agreed in principle subject to a ruling as to which convictions were to be admitted. The second element was the application pursuant to section 101(1)(d) of the 2003 Act to adduce evidence of the circumstances behind the two convictions and the binding-over to which we have referred.

The prosecution submitted that these incidents showed that three times in the past 21 years the appellant, when in dispute with another, had used, produced or sought a knife for an unlawful purpose. The prosecution submitted that this evidence had a real capacity to cast light on her account in relation to the fatal events and the issues at the heart of the case. As to the section 20 offence, the judge proceeded on the basis of the account of it given by the appellant in interview, which in these proceedings she accepted was truthful. Her account was that she had a heated argument with a friend at the friend’s house after they had been out drinking, and during the argument the friend attacked and punched her. She then returned home and shortly afterwards the friend banged repeatedly on her door. The appellant came to the door with a knife in her hand. She said she did not remember getting the knife, which had come from the kitchen, but that she had it to protect herself. When she answered the door, the friend grabbed her by the throat and pushed her back. She did not remember what then happened but the friend sustained a number of wounds which the appellant accepted she had inflicted. She accepted she used the knife repeatedly and caused the injuries, but that she had not meant to do it and that her mind had gone blank: see ruling, volume 1, page 5A – D.

The 2002 incident which led to the conviction for using threatening words and behaviour and possessing an offensive weapon occurred at a public house where the appellant was part of a group which was behaving in a disorderly way. When the landlord asked them to leave the appellant produced a kitchen knife and said “I’m going to stab you, you Paki”. The landlord restrained her using a bar stool to push her to the floor. After the police arrived, the appellant said “I’ll come back and kill you, you Paki bastard”. A witness said he saw the appellant with a knife in her hand. She was loud and aggressive and holding a knife at low level. The knife was not used in a threatening manner but was present. The appellant said she had taken a vegetable knife with her when she went out because she was scared but she was not sure of the cause of her fear. She remembered her first drink but thereafter her mind went blank and she asserted that she had no memory of what occurred.

The circumstances of the 2010 incident were that police were called to the scene of a dispute between the appellant and a neighbour of hers. The appellant told the police that the neighbour had shouted abuse at her and said he was going to stab her and slit her throat. The officer said that the appellant looked for a knife, saying “I’ll stab him, I will cut his throat, believe me”. In the opinion of the officer, the appellant was intoxicated. The officer found a vegetable knife in the appellant’s bed.

Mr Quinlan submitted that these three matters did not establish a relevant propensity within section 101(1)(d) and 103 of the Criminal Justice Act 2003. This was because neither individually nor cumulatively did the matters make it more likely that the appellant was guilty of murdering the deceased and that, if it did, its admission would have such an adverse effect on the fairness of the trial that the court, pursuant to section 101(3) ought not to admit it.

The judge’s ruling admitting the evidence was made after most of the prosecution evidence had been heard by the jury. Its material parts are:

“…The matters upon which the prosecution seeks to rely are relevant to important matters in issue between the defendant and the prosecution. The matters have the capacity to demonstrate that when in drink the defendant has a tendency to produce, or seek to produce, a knife for unlawful purposes when she is in dispute with others. The first conviction demonstrates the use of a kitchen knife when in drink and force used in excess of reasonable self-defence.

…One of the important matters in issue was whether the defendant was acting in lawful self-defence [when she stabbed Ian Graham with a kitchen knife] or whether she used grossly disproportionate in stabbing [him].

In the case of the second conviction the defendant, who had been drinking, in the course of a dispute with Mr Kabrow , produced a knife and threatened to stab him. The incident behind the binding-over demonstrates that on a third occasion when in drink and in dispute with another the defendant looked for a knife and expressed an intention to use it offensively to stab her neighbour.

All these matters have the capacity to assist with the relevant issue of whether, when the defendant collected the knife before the fatal stabbing, she had a defensive or offensive intent. Further the fact, if the jury so find, that the defendant has acted in these ways in the past is probative of the issue whether when she inflicted the fatal wound she had lost her self-control, a defence which the defence will submit should be left to the jury. The jury would be entitled to evaluate any claim of loss of control in the knowledge that the defendant had intentionally used or produced or attempted to produce knives during disputes on three previous occasions.

…

The fact that there are three previous incidents spread over a significant period persuades me that the passage of time does not render unfair the admission of the evidence of these incidents, nor does the fact that the first conviction is spent. Had the first matter stood on its own, I would have reached a different conclusion.”

As to excluding the evidence pursuant to section 101(3), the judge rejected the submission that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. He stated that he was confident that a correctly directed jury would use the bad character evidence legitimately in its consideration of the critical issues.

The judge considered whether there would be injustice because there would be significant satellite litigation diverting attention from the issues in the trial because there was no agreement as to what had happened in the second and third incidents, but concluded that there would not. In relation to the second incident, while there were some differences in the accounts of the publican and the witness, both agreed that the appellant produced a knife and was behaving aggressively. The particulars of the facts behind this conviction put before the jury were confined to agreed facts, and care was taken to exclude the references to “Paki”. In the case of the incident leading to the binding-over, the account of the police officer was not disputed.

The judge’s direction to the jury on the defendant’s bad character reflected his ruling. He stated (summing up 15D – G):

“You are entitled to have regard to the defendant’s bad character as revealed by her previous convictions when deciding whether her description of the attack upon her by Ian Graham is truthful. You know that she pleaded guilty to those matters. Whether and to what extent her bad character assists you in the process is for you to judge. There is a second way in which two of the defendant’s convictions: inflicting grievous bodily harm on 9 November 1992; and possession of an [offensive] weapon, threatening behaviour on 20 June 2001; and the circumstances behind her being bound over on 4 June 2012 may assist you. The defendant’s case is that Ian Graham was the aggressor and that she acted in self-defence. In deciding whether her account is or may be true, you are entitled to have regard to her past behaviour in relation to these three matters.”

After summarising the three incidents and the prosecution’s submission that they suggested that, when drinking and/or when angry, she had a propensity to use or threaten unlawful violence with knives which made it more likely that she was acting aggressively rather than defensively when she stabbed Ian Graham, the judge directed them (summing up 17C – D) first to consider whether the evidence established such a propensity. He continued “if you are sure that it does, then you may have regard to it when deciding whether the defendant attacked Ian Graham unlawfully and whether she was in control of her mental faculties when she did so.” He stated that the defence asked that they took into account the dates of the earlier matter, and the fact that in relation to the latter two incidents the appellant did not stab anyone with the knife, and that because she pleaded guilty to the first two matters and acknowledged that she should be bound over, no relevant propensity was established and, even if it was, they should pay no regard to it.

The judge made it clear that only if the jury were sure that the evidence a propensity might they have regard to it, and stated that whether it provided assistance to them, and if so its importance, was for them. He also directed them (summing up 17F) that the bad character evidence was only part of the evidence in the case. It alone could not prove guilt, and if the jury concluded that the appellant “when angry, has a propensity to use knives unlawfully and aggressively against or towards others, that did not of itself mean that she acted unlawfully in stabbing Ian Graham” and even if she did act unlawfully, such propensity did not establish that she intended to kill or cause really serious harm. He directed them that, in order to decide this, they must assess all the evidence concerning the events before, during and after the stabbing.

Although the appellant did not expressly rely on the partial defence of loss of control but on the defence of self defence, the judge left the issue of loss of self control for the consideration of the jury and directed them on it. He did so because of the evidence before the jury. When cross-examined by the prosecution on her statement that she had lost the plot (see [15] above), he put it to her that she had not lost her self control, but had deliberately turned back to the bedroom area. In re-examination she was asked whether she felt in control at the moment the deceased was holding her by the throat, and said “No. I was scared. I was panicking”. The judge considered that, in the light of these matters, he had to leave the issue to them. Mr Fitton QC stated that the judge thought that, in the light of the evidence, without a direction on loss of self-control, the jury might be confused.

There is no criticism of the judge’s direction on loss of control: see summing up 47C – G. He had earlier (summing up 12C-D) stated that the appellant “would have lost her self control if her ability to restrain herself was so overwhelmed by emotion that she was unable to control the impulse to stab Ian Graham with a knife”. He directed them as to the need for a qualifying trigger for the loss of self-control. He directed them (summing up 12H – 13B) that in this case there were two possible qualifying triggers, either of which would suffice. The first was that her loss of self control was attributable to her fear of serious violence from Ian Graham. The second was that her loss of self control “was attributable to a thing said or done and/or said which (a) constituted circumstances of an extremely grave character; and (b) caused [her] to have a justifiable sense of being seriously wronged”. He then set out the circumstances which, if established in evidence, were of potential relevance in considering whether one or more qualifying triggers were present. The circumstances were Ian Graham’s attacking the appellant and gripping her tightly around the neck, his actions or words, including his sexually assaulting her, making unflattering comments and comparisons, and refusing to let her have access to her bag.

Mr Quinlan’s first submission was that the judge erred in concluding that the circumstances of the two convictions and the incident leading to the binding-over were capable of establishing a tendency on the part of the appellant, a propensity, to produce or seek to produce a knife for unlawful purposes. Secondly, he submitted that, if they were capable of establishing a propensity, the propensity was not relevant, and in any event did not assist on the appellant’s state of mind at the time she picked the knife up or when she used it, which were the crucial issues in this case. He also submitted that the evidence ought not to have been admitted because of its effect on the fairness of the proceedings. He did not suggest that, if the evidence was properly admissible, the judge’s bad character direction (at summing up 15A -17G) was open to criticism.

In relation to the 1992 conviction, Mr Quinlan relied, in particular, on two matters. First, it pre-dated the fatal incident by 20 years and was a spent conviction. Secondly, it could not be probative of an offensive intent in the present case because it was accepted that in 1992 the appellant was attacked and used the knife in that context, namely to defend herself.

Mr Quinlan submitted the 2002 incident was also an old incident, ten years before the fatal incident. Moreover, the appellant did not use the knife to inflict injury and there was no evidence that she attempted to do so. There was therefore no question as to whether, on that occasion, the knife was deployed or used in excess of reasonable self-defence.

As far as the 2010 binding-over is concerned, Mr Quinlan submitted that the appellant never had a knife in her possession. It therefore followed that there was no unlawful use of a knife and there was no question of it being used in excess of reasonable self-defence.

At the heart of Mr Quinlan’s submissions is the fact that it was not in issue at the appellant’s trial that she used the knife. He maintained that the earlier convictions and the binding-over therefore do not assist on the question of whether she acted with offensive intent when she picked up the knife from the kitchen, nor are they probative of her intent. He also submitted they are not capable of rebutting a defence of loss of control because the circumstances of the incidents leading to the convictions showed behaviour by a person who had lost control.

On the effect of admitting the evidence on the fairness of the proceedings, Mr Quinlan argued there was a particular adverse effect on fairness in respect of the matter that was twenty years old, where the appellant had admitted that the use of the knife was in excessive self-defence. He also submitted that these matters did not assist the prosecution on the issue of the appellant’s loss of control because her evidence was that she “lost her temper” on those occasions and the fact that she did does not undermine any claim of loss of control in this case.

The appellant’s convictions were clearly admissible under section 101(1)(g) in view of her extensive attack on the character of the deceased. But they were also admitted as evidence capable of demonstrating that she has a tendency to produce or to seek to produce a knife for unlawful purposes when she is in dispute with others and the direction on bad character dealt with this aspect of the evidence. Mr Quinlan submitted that, because there is no dispute that the appellant picked up and used the knife, the relevance of the three incidents is as to her intent, and that, because there is no dispute that she picked up the knife, they do not assist on the question of whether she acted with offensive intent.

We reject Mr Quinlan’s submission that these convictions are not relevant to an important matter in issue between the appellant and the prosecution. We consider that he has formulated the issue too narrowly. Bearing in mind what happened in the bedsit on the fatal night, we consider that the important matters in issue between the defence and the prosecution included whether the appellant lost her temper in the course of a row, whether she acted in retaliation for a wrong done to her, and the reason she got a knife, took it across the room, and used it. We consider that the three previous incidents were highly relevant to the jury when considering the appellant’s account of why, having got away from the deceased, she turned to go back to him with the knife rather than leaving the bedsit.

The first of the incidents, although some twenty years ago, involved her, when in drink, picking up a kitchen knife before she opened the door and then using it with force beyond what was reasonable self-defence. The second incident also involved the production of a knife when in drink and threats to stab the publican. She did not have an opportunity to use the knife because the publican used a bar stool to push her to the floor. The evidence of this incident is capable of demonstrating an intention on her part to use a knife aggressively. The third incident, although not involving the use of a knife because she was stopped by the police, is capable of being evidence showing an intent to find and use a knife aggressively against her neighbour.

The three incidents involving the use of a knife or the desired use of a knife cumulatively amount to evidence from which it was open to the jury to conclude, as the judge directed (summing up 17F), that the appellant, “when angry has a propensity to use knives unlawfully and aggressively against or towards others”. They show she was quick to take up a knife when angered or threatened. The evidence was thus relevant to what it is common ground are the three issues in this case, which (see [10] above) were identified by the judge.

Mr Fitton stated that, in the context of the case where the appellant did not seek to advance the “loss of plot” explanation, the loss of control direction read oddly. The judge’s decision to leave loss of control to the jury cannot be criticised. Whether or not Mr Fitton’s observation that, in the context of the facts and the appellant’s case, the direction read oddly is correct, we accept his submission that it mattered little.

We also reject the submission that this evidence should have been excluded pursuant to section 101(3). The condition for the duty of the court not to admit evidence under section 101(1)(d) in sub-section (3) is that it appear to the court that the admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In this case, in the course of making his decision, the judge considered and evaluated the relevant factors, including the age of the first incident, and whether there was a danger of the jury being diverted from the issues in the trial. He was fully entitled to come to the conclusion that he did. And on any view it cannot be said that he exercised his discretion under section 101(3) in a manner that was outside the range open to a reasonable decision-maker .

On the facts of this case, it is, moreover, possible to say more than this. The evidence of the three incidents here is not such as would divert the attention of the court into satellite issues because the essential factual matters in those incidents were, for the reasons given by the judge, not in dispute. Secondly, although the third incident, which led to the acceptance of a caution, was clearly far less serious than the first two incidents, it cannot sensibly be suggested that the incidents overall are trivial. Moreover, in the light of all the other evidence in the case which we have summarised and refer to again below, it cannot be suggested, and was not suggested, that the evidence about the three incidents was being deployed to bolster an otherwise weak case (see Hanson [2005] EWCA Crim 824 at [4]).

There was, in any event, powerful evidence against the appellant which means that, in our view, the verdict of the jury is entirely safe. We refer in particular to the significant remarks made by the appellant as to her state of mind to the police officer when he arrested and in the police station: see the summary at [13] above. Her account in her prepared statement that when she grabbed the knife she was sure the deceased was going to come after her again and within seconds he was “in her face” differed from her account at trial, where she said she took the knife over to the bedroom area to “scare” the deceased, but had not showed it to him: see [10] above. In her statements she said she wanted to leave the flat and go home, but did not mention making any attempt to reach her handbag before the first occasion that she maintained the deceased grabbed her neck: see [16] – [17] above.

It was for these reasons that we considered that the judge had not erred in his approach to the admissibility and admission of the three convictions and their circumstances, and that the appeal against conviction failed.