Martin, R. v

LORD JUSTICE DAVIS:

In the result and after a relatively short retirement, the jury unanimously convicted of murder. Thereafter, the Appellant was sentenced to life imprisonment with a minimum term of 27 years less time spent on remand. The Appellant was, on the same occasion, sentenced to a term of 12 years' imprisonment for a section 18 offence committed before the incident of the killing itself and a further concurrent sentence for possession of a knife on that occasion. Those latter sentences were expressed to be concurrent to the life sentence imposed by the judge.

By leave of the single judge, the Appellant also seeks to challenge the sentence imposed on him.

Various grounds of appeal against conviction were advanced. The sole ground now pursued so far as conviction is concerned, with the leave of the single judge, is by reference to the fact that loss of control was not left to the jury for their consideration.

The Appellant had been convicted on 29 September 2016 after a trial at the Crown Court at Preston before Her Honour Judge Badley and a jury. The background facts leading up to the Appellant's appearance in court at this trial can be put in this way.

There was no dispute but that on 21 March 2016 the Appellant killed the victim, a man called Kyle Hand, who was aged 28 at the time. The Appellant himself is now aged 27. The victim, Kyle Hand, sustained a number of stab wounds from which he died. The Appellant and Kyle Hand had been close friends for many years. It was said that they in effect regarded themselves almost as brothers.

In summary, on 21 March 2016 they had been drinking. An argument developed which led to blows being exchanged, Kyle Hand himself having with him at the time a small hammer. In the result, the Appellant stabbed the victim a number of times. The Appellant thereafter fled the scene. In due course he handed himself in at a police station, where he was arrested on suspicion of murder. When interviewed on 23 March, he gave a prepared statement in which he said that he had been acting in self defence.

The prosecution case at trial was that the Appellant had murdered the victim and had been the aggressor in what was said to be a sustained knife attack. Overall, the victim had sustained some 11 stab wounds, some of which were indicative of defensive injuries. He had also sustained wounds to his back and the back of his legs, indicative of his having tried to escape.

The particular elements of the prosecution case were these. There was evidence from those present at the address in question where they had spent the afternoon and evening drinking. There was evidence of witnesses to the attack. That, amongst other things, included the evidence of Ms Wilkinson who had said that she had seen a black man (and the Appellant is black) chasing a white man (and Kyle Hand was white). Further, there was evidence of a neighbour, Mr Muftah, who had said that he had seen a black man kneeling on the chest of a white man outside the house and moving his arm back and forth with a knife in his hand thereafter. The prosecution also relied on the fact that the Appellant had initially fled the scene.

The postmortem findings showed the injuries we have summarised above. There were in particular two significant injuries to the neck area which were described as having been inflicted with moderate force which had resulted in the severance of the carotid artery and other injury to the neck and also an injury described as having been inflicted with severe force in relation to a stab wound to the chest.

Further, bad character evidence was adduced, in particular relating to the Appellant's very recent conviction for an offence of section 18 wounding with intent. Dealing briefly with that previous conviction, that related to an offence said to have been committed in the presence of the victim, Kyle Hand, in October 2015. In that incident, a taxi driver, a Mr David, had been struck in the face by the Appellant using a knife. Mr David had collected the Appellant and Mr Hand. It appears that some kind of grievance was held against Mr David. Mr David had recognised the Appellant and had tried to get away. However, he having sought to pacify the Appellant, the Appellant had struck Mr David with a blade in the region of his eye.

In the result, Mr Hand was not himself charged in respect of that incident. The Appellant was on bail at the time of the subsequent killing in respect of that previous incident. Bail had included a condition that there be no contact with Mr Hand, although it appears that there was no adherence to that condition.

Reverting to the events of 21 March 2016, the position was this. Ms Paton, whose house it was, said that the Appellant and the victim had arrived with a bottle of whiskey. The Appellant was said to be jovial and had clearly been drinking but was not said to be obviously intoxicated. At all events, they continued drinking into the evening. It appears that Mr Hand also had some cocaine. He was to become a little bit argumentative, as it was said. It may be added that Mr Hand was a large man, apparently weighing over 18 stone, although the Appellant himself is by no means a small man either.

Ms Paton was to say that she saw a hammer which had been pulled out by Mr Hand from his waistband. We have not ourselves seen the hammer or a photograph of it; but we were told that it was what was described as a window hammer, having a relatively small stem and then a conventional hammer head, without any claws.

It seems there had been a minor disagreement between the Appellant and the victim about an incident in which the victim, it was said, had snatched somebody else's mobile telephone. There was evidence to the effect that Mr Hand then had begun to tease Ms Paton's son and was told by the Appellant to stop. At all events, the mood gradually deteriorated. Ms Paton was to say that a big argument subsequently started. She remembered that Mr Hand had thrown water into her son's face and made him cry. It seems on her evidence that Mr Hand and the Appellant had gone out to buy more drink and on their return she had not wanted them to come back in. Thereafter, an argument again broke out between the Appellant and Mr Hand. She had heard them arguing in her garden and then in the porch of her home. Things became increasingly heated and she heard them shouting at one another, although she could not recall exactly what was said. It seems that at one stage a chair was thrown, by whom it was not entirely clear, although at one stage she stated the view that she thought it had been the Appellant. At all events, she had felt a blow to the back of her head and lost consciousness. She said that she had not at that time seen either of them with a weapon, although she heard shouting when she regained consciousness.

Also to give evidence for the prosecution was a Ms Richardson. She had had a relationship with the Appellant. She had been in the kitchen whilst others were drinking in the lounge. She heard bickering and then shouting. She went to the lounge and saw her mother, Ms Paton, between the two men. They were pushing and shoving and took no heed of pleas for them to stop.

She also saw a chair strike her mother on the head but did not see who threw it. She said that the fight continued and she had been terrified. She said that she did not see either of the men with a weapon or anyone bleeding. She could not say who had thrown the first punch as her attention was on her mother. She then saw the two men running round a car. She said that she thought that the victim was chasing the Appellant. She said that she did not see a weapon and she did not see any more of the incident.

Kyle McEwan was also there that afternoon. He knew both the victim and the Appellant. He described how they had begun to bicker and this progressed to an increasingly loud argument. He left the kitchen, where he had been, to see the Appellant and the victim facing one another and pushing and shoving. The victim, that is to say Kyle Hand, had a silver hammer in his hand. Mr McEwan tried to separate them. He said that the Appellant was trying to take the hammer away from Kyle Hand. He also said that he had seen blood coming from the Appellant's head, although he did not see what had caused the bleeding. He said he then went to help Ms Paton and did not see what happened thereafter. When he heard Ms Richardson screaming, he saw the Appellant outside with his hands on his head and asking that someone try to help the victim, who was trying to sit up with blood coming from his throat. The Appellant then walked away. He was to say that the Appellant appeared to be in a state of shock and asking for help.

Julie Wilkinson, who lived nearby, said that she heard shouting during the evening in question. She said that she saw two men from her window, a white man being chased by a mixed race man. The white man pushed over a wheelie bin. Shortly thereafter, she heard a scream. She said that she had a good view of the events. She was in no doubt that it was the white man who was being chased by the mixed race man.

Another neighbour, Mr Muftah, said that he heard two men arguing, this being at around 9 o'clock, and looked out of the window. He heard one saying, "No, no, no", as if saying not to do something. He looked out and saw a white man lying on his back and a black man on top of his chest. The white man seemed to be trying to protect himself. The white man put his arms up around his upper chest and the black man, whose back was towards Mr Muftah, seemed to be trying to do something. Mr Muftah said that the right arm of the black man was moving backwards and forwards. As he turned, Mr Muftah saw blood and a kitchen knife which he described as being about 30 centimetres long. He saw blood close to the chest or neck of the white man. On his return to the window, the white man was being assisted and the black man had gone.

He was cross-examined, in particular by reference to his previous witness statement, but said that he was sure that he saw the black man with his knee on the chest of the white man. He confirmed the account he had given in his evidence-in-chief.

Evidence was also called from two young men who said that a man had approached them asking for a lift. He had appeared to be bloodstained and hurt. The two young men were to describe this man, the Appellant, as appearing to be hurt and seeming angry.

Read evidence from a friend of the Appellant and victim indicated that the Appellant had appeared at her doorstep later than evening saying that he had stabbed the victim but he had not intended to do so. He had a cut on his head and was sobbing.

There was further evidence to the effect that the Appellant was observed to have a large lump on his forehead and two lumps on the back of his head: which would be consistent with blows to the head from the hammer.

There was also other medical evidence relating to the wounds suffered by the victim. The doctor was to say that he had been stabbed multiple times and had sustained other minor injuries also, such as bruises and grazing. There were more minor stab wounds inflicted to face, hands and back, as well as to thighs. Two of the wounds were major. There was a gaping wound to the neck inflicted with moderate force which had penetrated to a depth of 14 centimetres and which had cut through the carotid artery. The latter injury described by the doctor to the chest had cracked a rib and cut the right lung and would have required to have been inflicted with severe force. The victim had died as a result of multiple stab wounds.

The Appellant gave evidence on his own behalf. He described his relationship with Kyle Hand. He described the events of that afternoon and evening and the argument that built up. He said that Kyle Hand had tried to grab him and when he had gone to hit him, he grabbed the chair but fell into the hall. He said that he had not intended to hit Ms Paton and, if he had done so, that had been an accident. He was to say that as he tried to get up, the victim then struck him on the head with the hammer. He then grabbed a knife from near the shoe rack, which he knew to be there, and tried to get away. He did not believe that he had stabbed the victim at that point. He just wanted to get away. He said that the victim had been trying to get the knife from him. In the result, it was the victim who was chasing him and who struck him again with the hammer.

His evidence was to the effect that he, the Appellant, had panicked and was scared and had tried to defend himself and must have stabbed the victim. He accepted that he was responsible for the stab wounds. He said that he had shouted for someone to call an ambulance. When cross-examined, amongst other things, he was asked why he had stabbed the victim in the back and the legs. His answer was that he had not been thinking. He maintained that he had not stood over the victim with the knife.

There were thus a number of conflicting strands on the evidence which it was for the jury to resolve. As we have said, the sole issues raised by the defence explicitly at trial and as left to the jury were issues of self defence and intent.

We turn to the question of loss of control now sought to be raised.

It is right to point out that the matter of loss of control had been raised by the judge herself during the course of the trial, on 26 September 2016 towards the close of the prosecution case. There was discussion with counsel in the absence of the jury. Amongst other things, leading counsel then appearing for the Appellant indicated that the defence was self defence. He then said this:

The judge then debated the matter further with leading counsel, referring him to two recent and relevant authorities on the issue. The judge described the approach of leading counsel on this as "rather diffident". The discussion on that occasion ended in these terms:

On the morning of the following day, 27 September 2016, the matter was then again debated between counsel and the judge, in the absence of the jury, before the defendant gave evidence. Amongst other things, the judge indicated, referring to some of the authorities, that if there was to be a suggestion of loss of self control, although it was not a defence which had been raised, then the judge would require skeleton arguments from both counsel at the conclusion of the evidence.

There was further debate and leading counsel for the Appellant then said this:

The Appellant then gave his evidence during the course of the day. There was then yet further discussion between counsel and the judge in the absence of the jury. The judge started that discussion by saying this:

There was further debate, the judge indicating that she had drafted out two possible routes to verdict. The judge then went on to refer to the lack of evidence relating to whether or not there was a loss of control or any qualifying trigger and also matters such as the reasonable response. Leading counsel, after participating in this debate, then said:

Thus it was expressly agreed all round that the issue of loss of control had not been raised on the evidence. There then was discussion between counsel and the judge about other legal aspects needing to be addressed before the summing-up. The judge then proceeded to sum up to the jury: the summing-up, in the circumstances, making no reference to any issue of loss of control.

That being the background, it is nevertheless said by Mr Lavery appearing on behalf of the Appellant today (and Mr Lavery had himself been junior counsel for the Appellant at the trial) that this was a wrong approach. Mr Lavery politely but firmly submitted that his leader had been wrong to accept that loss of control had not been raised as an issue on the evidence. It was Mr Lavery's submission that it had been raised as an issue on the evidence and thus should have been left to the jury.

The relevant provisions relating to the defence of loss of control are contained in sections 54 to 56 of the Coroners and Justice Act 2009:

Subsequent decisions of constitutions of this court with regard to those statutory provisions make clear that the statutory provisions are, so far as possible, to be applied without judicial exegesis or gloss: see, for example, R v Gurpinar [2015] EWCA Crim 178.

At all events, the following general propositions, amongst others, can be extracted from the authorities:

Turning to the present case, it is the fact that the judge gave no reasoned ruling as such. That perhaps is, in the circumstances, unsurprising given that she had clearly carefully considered the point, that she had raised it on several occasions with counsel, drawing their attention to relevant authorities, and that counsel ultimately had all agreed with the trial judge that the defence did not arise in the light of the evidence. Nevertheless, we agree with Mr Lavery on behalf of the Appellant that that is not of itself a bar to a successful appeal if, in truth, the issue had arisen on the evidence and so should have been left to the jury.

All that said, we are in no doubt that, on the evidence, an issue as to loss of control had not been raised at any stage. We take the view that the concession of leading counsel then appearing for the Appellant was correct. In saying that, we do, of course, bear in mind that there sometimes may be tactical considerations in play here. If self defence is accepted, then it is a complete defence to a count of murder and also to manslaughter. If, however, a defence of loss of control is accepted, whilst a defendant will be acquitted of murder he will nevertheless be convicted of and sentenced for manslaughter. We, of course, bear those points in mind: although it is fair to say that the transcript would indicate that tactical considerations were not at all at the forefront of leading counsel's mind. Rather, he was openly and fairly seeking to do his best to assist as to whether or not loss of control had arisen: and he had taken the view that it had not on the evidence.

At all events, whatever the position of leading counsel for the Appellant at the time, we conclude that the judge was right to take the view as she did that the issue had not arisen, she assessing the matter pursuant to sections 54(5) and (6) of the 2009 Act.

We can, of course, accept that where a defence case in a murder trial is run on the footing of self defence that does not preclude, on appropriate facts, the availability also of a defence of loss of control. But equally an issue of self defence by no means necessarily carries with it an issue of loss of control. As stated by a constitution of this court in the case of R v Skilton [2014] EWCA Crim 154, there is a clear distinction between the defence of self defence on the one hand and the partial defence of loss of control on the other hand. It was rather pointedly stated in that case that judges should not "clutter up" a jury's deliberations by inviting them to consider issues which, in truth, did not arise on the evidence. An example of a case where, on its facts, the defence was held properly to be confined to one of self defence and where it was adjudged that there was no sufficient evidence adduced to raise in addition an issue of loss of control can be found in the case of R v Charles [2013] EWCA Crim 1205. That case is also an illustration of the proposition that the fact that there may, on the evidence, be a qualifying trigger does not necessarily indicate that a loss of control had thereby been caused.

The starting point under the statutory provisions is to consider whether there was any evidence of loss of self control. If there was not, then consideration of whether there was a "qualifying trigger" as defined falls away. In addition, the requirements of section 54(1)(c) are a further precondition to the availability of the defence. Moreover, section 54(5) is explicit that it is only if sufficient evidence is adduced to raise the issue that the jury must assume that it is satisfied unless disproved by the prosecution. The assessment of whether there is such sufficient evidence is then addressed by the provisions of section 54(6).

It is, we consider, sufficient for us to say, as we have, that in agreement with the trial judge, we conclude that no sufficient evidence had been adduced on the prosecution case. There was no evidence arising from the prosecution case to show of loss of control. Rather, the evidence was all to the effect that there was an aggressive confrontation with the Appellant retaliating or responding to what was going on. As stated in the case of R v Dawes, even serious anger will not often cross the threshold into loss of control. But it still remained to be considered whether the issue then raised itself in the light of the defence evidence. But nowhere did the Appellant give evidence to the effect that he had lost control. His evidence was that he was the one who had first been hit by the victim with the hammer. He was the one who had been chased and he was fearful of the hammer and panicked. He was to say, as recorded in the summing-up, that he was:

He also referred again to panicking. Thereafter, he absented himself from the scene. But a panicky or scared response to aggressive conduct of another person is not of itself necessarily indicative of the existence of an issue of loss of control (although highly relevant to the defence of self-defence). Overall, the evidence simply did not raise such an issue on the facts of this particular case.

We therefore conclude that we see no fault in the judge's evaluation of the position.

We have to say that we also have considerable doubts, to say the least, whether, in any event, it could be said that a person with a normal degree of tolerance and self restraint in the circumstances of the Appellant might have reacted in this or a similar way for the purposes of section 54(1)(c), even leaving aside any disputes about whether or not a qualifying trigger was present. But we need express no concluded view on that, there being an absence of evidence to indicate that the Appellant may have suffered a loss of control.

With all respect, various stages of Mr Lavery's argument seemed to be coming close to saying that where self defence is raised in a murder case then that may of itself also give rise to a defence of loss of control. That most certainly is not the law and indeed is wholly contrary to the designedly limited nature of the defence as conferred by the 2009 Act. At all events, where it is in any murder trial sought to be said that there is not only a defence of self defence arising but also a defence of loss of control arising, then most certainly a "rigorous evaluation" of the evidence is always required before the issue can be left to the jury.

In the result, we take the view that the judge's approach was correct. We dismiss the appeal against conviction.

We then turn to the issue of sentence. As we have said, the judge imposed a minimum term of 27 years less time spent on remand.

The first question which the judge had to consider was the question of the starting point pursuant to the provisions of schedule 21 of the Criminal Justice Act 2003 as amended. The judge took the view that the starting point for the purposes of the statute was one of 25 years, a knife having been taken to the scene (viz. the street outside the house). It was accepted before us, and rightly so, that that was indeed the correct statutory starting point. Whilst it is not the case that the Appellant had come to the house equipped with the knife, he had picked up the knife in the porch. It was the case, however, that thereafter he took the knife out of the house and then stabbed Mr Hand in the street. That, as the authorities show, make the applicability of a starting point of 25 years appropriate.

The judge reviewed the facts very fully and carefully. Amongst other things, she made the following findings:

The judge further reviewed the evidence and the nature of the injuries concerned. The judge indicated that she bore in mind the fact that the Appellant himself had been struck with the hammer by Kyle Hand and she also said (this not in any way in itself , given the facts, displacing her previous conclusion on loss of control):

The judge also recorded the numerous aggravating features that were present. This was a sustained attack. It was a killing in a public place. The Appellant was under the influence of alcohol. He was on bail at the time. Further, he had a significant antecedent history of violence, including most particularly the very recent section 18 offending.

The judge also, however, in addressing the mitigation concluded, importantly, that the intention was to do grievous bodily harm as an act of revenge rather than there being a premeditated intention to kill.

The judge then said this:

Mr Lavery on behalf of the Appellant argues that the minimum term of 27 years less time on remand was excessive. He accepts that the starting point was indeed, pursuant to the statute, 25 years. But he submits that that simply should not have been the ending point. He stresses that whilst strictly it is right that the knife had been taken to the scene, it had only been picked up in the heat of the moment by the Appellant in the house itself where the violence first had started. The court drew the attention of counsel in this regard to the case of R v Dillon [2015] 1 Cr App R (S) 62, which contains a very helpful review of the relevant authorities in this particular area. It indicates that, even where a starting point of 25 years is appropriate, it may be capable of being reduced very significantly in circumstances broadly corresponding to the present.

That said, we do have to bear in mind the various aggravating factors that were present. In our view, if the murder were to be taken on its own, one might have expected a sentence by way of minimum term in the order of 20 to 21 years.

But in addition, the judge was justified in seeking to add to the minimum term a further period of imprisonment reflecting the very serious, and separate, section 18 offence for which the Appellant was also being sentenced. If that were not done, in effect he would in practical terms receive no custodial punishment for that offence, which inevitably had to be expressed as a concurrent sentence.

Weighing all the considerations and having regard to the circumstances of this offending and of this offender and considering totality, we do conclude that a minimum term of 27 years less time on remand was too long. We quash it and we substitute a minimum term of 24 years less time spent on remand, giving, we apprehend, a total minimum term of 23 years and 178 days. The concurrent sentences on the other two matters will continue to stand.

Overall, therefore, the appeal against conviction is dismissed. The appeal against sentence is allowed to the extent we have indicated.