R v Thomas Michael Nutt

The applicant renews his application for leave to appeal against his conviction by a jury, on 10 August 2022, at the Crown Court at Bradford, for the murder of his wife, an offence for which he was later sentenced to imprisonment for life with a minimum term of 21 years, less 289 days spent on remand. Having entered a plea of guilty to (unlawful act) manslaughter on his arraignment in April 2022, the sole issue at trial was whether he had intended to kill, or to cause really serious harm to, the deceased.

The applicant and his wife married on 27 October 2021. A reception followed at a public house. Separate CCTV footage later obtained by the police showed the couple (1) arriving at the reception at 3.03 pm and leaving at 10.20 pm, and (2) arriving home at 10.26 pm.

On the evening of 28 October 2021, the applicant travelled by car to the Skegness area, towing a caravan. He returned home at approximately 5.30 pm on 30 October 2021. At 12.22 pm on 31 October 2021, the applicant telephoned the Police to report that his wife was missing. He said that she had left home at around 9.30 that morning, to meet her daughter at a local shop, but had not arrived. That afternoon, at 1.20 pm, a police officer attended the applicant's home address to take a report, and, at 4.38 pm, the Police received an anonymous telephone call reporting that a body had been found in a suitcase in a field in Lightcliffe. The field was located very close to the applicant's home address. The body was that of his wife. At 5.13 pm, the applicant presented himself at Halifax Police Station. He was arrested on suspicion of murder and cautioned, in response to which he made the following significant comment:

In the course of the police interviews which followed, the applicant variously described the wedding and his arrival home with his wife. He went on to give detailed accounts of their journeys to and from Skegness and of his activities on their return. He asserted that his wife had "flipped", for no reason, and had demanded a divorce, threatening falsely to claim, and not for the first time, that he had raped her. He said that his wife had suffered from ‘Bipolar’ and that she had attacked him around his neck. He had struck her, once, to the face, with an open palm; to her nose and, possibly, her eye area. This had made her more aggressive and she had screamed, so he had been obliged to grab her around the neck (demonstrating a choke hold), he believed for a short time, and had begged her to stop screaming. The applicant said that he had not meant to kill his wife and that he had just wanted to shut her up. He said that, after what had felt like a few seconds, her body had gone limp and she had fallen to the floor. That, he said, had happened at the back door in the kitchen on the Saturday, 30 October, 30 to 40 minutes after they had arrived home. He had checked for a pulse and, in its absence, had put his wife’s body in the kitchen storage area. Detailed accounts were given of his activities thereafter.

Following the post-mortem on 1 November 2021, the Home Office pathologist concluded that the deceased had suffered blunt force trauma to her face, sustaining injuries compatible with more than one blow, which could have been caused by a punch, or by her head having struck an unyielding surface. In the pathologist's opinion, certain neck injuries had been caused by application of forceful pressure to the neck; "... the account provided by [the applicant] of using a choke hold around [the deceased's] neck readily accommodates the postmortem findings". Nothing in the pathologist's report assisted with determination of the time of death.

The particulars of the offence set out in the indictment alleged that the deceased had been killed between 27 and 31 October 2021. At trial, the Crown's case was that she had been killed at around midnight on 28 October. Reliance was placed upon the neighbour's evidence of 'banging' sounds, when the applicant and his wife had arrived home on 27 October; CCTV footage which had not shown the deceased having left their home thereafter; and ANPR images, said to indicate that the front passenger seat of the applicant's car had been empty during his journeys to and from Skegness. It was said that the diffuse and substantial injuries sustained by the deceased pointed to a sustained attack, consistent with, at least, an intent to cause her really serious harm. The applicant did not give evidence at trial, nor was any other witness called on his behalf.

A little over two hours after the jury had retired to consider its verdict, the court received a note in the following terms:

The applicant seeks leave to appeal on the grounds that, in response to the jury's question, the judge ought to have given a full intoxication direction (see below); he had fallen into error when stating, during his exchanges with counsel, that there had been no evidence of intoxication at the time of the killing; the effect of the material misdirection which he had given had been to instruct the jury to ignore the issue of intoxication, whereas it ought to have been instructed that it was for it to assess, in light of all the evidence, whether or not it was sure that the applicant had intended either to kill or to cause really serious harm; and to have rendered the applicant's conviction for murder unsafe.

The particular evidence of intoxication on the evening of 27 October on which reliance is placed derives from: (1) the police interviews, in the course of which the applicant had stated that, following the wedding, he and his wife had been "pissed" and that he had been unable to drive until he had had time to sober up having had a few shots of Pernod and Black; (2) the evidence of a neighbour, to the effect that, ordinarily, the applicant rarely drank alcohol; and (3) the evidence, adduced by way of agreed fact, of the taxi driver who had driven the applicant and his wife home from the reception, that "he could smell alcohol from them and thought they seemed to be talking gibberish, as people do when they have a drink”.

The Crown's position, as set out in the Respondent's Notice, is that a judge is only required to provide a direction in relation to a matter upon which the jury could reasonably come to a particular conclusion: Alexander Von Starck v The Queen [2000] 1 WLR 1270. At no point had the applicant advanced a defence to the effect that he had been incapable of forming the necessary specific intent required for murder, whether by reason of intoxication or at all. From a point immediately prior to his arrest on 31 October 2021, when he had presented himself at the police station, he had given a coherent and detailed explanation of his actions, including in the course of a number of interviews under caution. At no stage had he made any reference to any incapacity to "think straight", whether born of intoxication or otherwise. His acceptance that he was guilty of manslaughter had been based upon the explanation of events which he had given and had not involved any suggestion that he had been incapable of forming the intent required for murder. He had not given evidence at trial, such that the only account which the jury had received had been that given to the Police, on arrest and in the course of subsequent lengthy interviews. Thus, there had been no evidential foundation for a finding by the jury that lack of intent caused by intoxication was a live issue for consideration. The judge had considered, with care, whether a full direction would be appropriate and the submissions advanced in that connection. His ruling had suitably adapted section 9 of the Crown Court Compendium, Part 1 to reflect the circumstances of the particular case. All CCTV footage of the night of the wedding and the early hours of the following day had shown the applicant walking and behaving normally. The judge had answered the jury's question in a satisfactory way, having regard to the evidence as a whole. For reasons detailed in the Respondent's Notice, the case against the applicant had been strong and had included bad character evidence relating to his earlier use of serious violence against both his wife and a previous cohabitee. No complaint had been made about any other part of the legal directions or rulings which the judge had given, or as to the fairness of his summing-up. At no stage had the Defence sought an intoxication direction until the jury question had been raised. In all the circumstances, the applicant's conviction had been safe.

Following the refusal of leave to appeal by the Single Judge, the applicant raised certain criticisms of the conduct of his defence by his legal representatives. He also took the opportunity to advance a substantive position regarding the events the subject of his trial; the CCTV evidence; and his own health and that of his wife, and to indicate his desire to vacate his plea of guilty to manslaughter. Following his waiver of privilege, the renewal hearing was adjourned to enable the court to consider that material and any response to it. In responding to the documents which the applicant had submitted, his former legal representatives rejected all criticism made of their conduct, and, in certain respects, its factual premise, providing cogent and coherent explanations for the position adopted, together with supporting documentation in the form of attendance notes of their discussions with the applicant and a memorandum which he had signed recording the advice which he had been given. They noted that some of the substantive assertions now made had either been before the court or had not been communicated/apparent at or before trial. The applicant's correspondence and reply advanced matters no further, for current purposes. We are quite satisfied that none of the matters raised by the applicant himself, following the decision of the single judge, constitutes or supports a properly arguable basis for his appeal against conviction.

We turn to consider the perfected grounds of appeal, arising from the judge's approach to the jury's question. In Aidid v The Queen [2021] EWCA Crim 581, this court addressed the circumstances in which a direction on intoxication ought to be given; the essential elements of such a direction; and the consequences of a failure to give such a direction when one is judged to have been necessary. At [87] and [88], it held:

As is clear from the above dicta, the nature of the accused's defence is not itself determinative of the need for a direction on the effect of intoxication and the judge in this case did not treat it as such. In our judgement, consistent with the approach set out in Aidid, the judge rightly focused on whether there was evidence of drunkenness which might give rise to an issue as to whether specific intention could be formed by the accused, were the jury to conclude that the deceased had been killed on 27/28 October, permissibly concluding that there was not. In so doing, he viewed, realistically, whether a potential issue had arisen as regards intent so as to require that both limbs of the intoxication direction be given. As the Crown submits, irrespective of his alcohol consumption on 27 October, the applicant had given, repeatedly, a detailed account of the events leading to his wife's death. He had not, at that time or since, suggested that his mental capacity or recollection had been materially impaired. On his own case, there had been no suggestion that, at the time at which he had killed his wife, he had been consuming alcohol. There was also the CCTV evidence of, and that relating to the applicant's behaviour on, 27/28 October, to which the judge alluded when answering the jury's question. In short, viewing the evidence in this case realistically and holistically, the threshold test, as explained in Aidid, had not been met. We consider it to be of significance that, in advance of the jury's question, notwithstanding the evidence on which the applicant relies for his renewed application, neither the Crown nor the Defence had sought a direction on intoxication having regard to the prospect that the jury would conclude that the deceased had been killed on 27/28 October.

But even if we are wrong about the need, in this case, for a full intoxication direction, we have firmly in mind the further dicta of the then Vice-President in Aidid [94], that:

The case against the applicant undoubtedly was powerful. No criticism has been made of any other aspect of the judge's conduct of the trial, directions of law or summing-up. In all the circumstances, it is not properly arguable that the applicant's conviction is unsafe.

We refuse leave to appeal.