B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
MR. JUSTICE BOREHAM
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MR. JUSTICE McCOWAN
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R E G I N A
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PATRICK GERALD O'GRADY
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(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd.,
Pemberton House, East Harding Street, London, EC4A 3AS. Telephone Number: 01-583 7635. Shorthand Writers to the Court.)
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MR. J. WADSWORTH, Q.C. and MR. P. SPINK appeared on behalf of the Appellant.
MR. M. WORSLEY, Q.C. and MR.M.NELLIGAN appeared on behalf of the Crown.
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HTML VERSION OF JUDGMENT
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THE LORD CHIEF JUSTICE: On 19th September 1986 at the Central Criminal Court this appellant having been charged with murder was convicted by the Jury of manslaughter and was sentenced to seven years' imprisonment.
He now appeals against conviction and sentence by leave of the single Judge, Mr. Justice McCullough.
The appellant was addicted to drinking large quantities of alcohol, as were the friends and acquaintances with whom he consorted, one of whom was McCloskey, the deceased man.
On Thursday 26th September 1985, the appellant, McCloskey and another man called Brennan spent the day drinking. The appellant had drunk huge quantities of cider (some 8 flagons), and he and Brennan and McCloskey repaired to the appellant's flat.
Early on Friday morning Brennan woke up to see that the appellant was covered in blood. "We" - meaning McCloskey and himself - "had a fight", said the appellant, "and I felt him and he was cold." The appellant went to the police station saying he wished to report a murder. He was medically examined. He had a number of cuts and bruises to the head, hands and legs which were consistent with (a) fighting and (b) grasping broken glass.
A post mortem on McCloskey revealed extensive serious wounds to the face - no less than 20 in number - of varying degrees of severity, as well as injuries to the hands and a fractured rib. The wounds to the hands were probably defence injuries. There was severe bruising to the head, brain, neck and chest. There was a fracture of the spine at the level of the fifth cervical vertebra (probably caused by the head being forced backwards). There was a fractured rib. The blows to the body had been delivered by both sharp and blunt objects. He had bled to death from the wounds inflicted on and around the face.
There was no doubt but that both the appellant and McCloskey were very drunk at the material time. The only evidence of what had led to the injuries of necessity came from the appellant himself. He and McCloskey were friends - there was no animosity between them. After their drinking bout the two fell asleep.
The material part of the appellant's account was as follows: "I was awakened by a bang on the head and I jumped up and put my hand to my head and the blood was running down. I am not sure if it was one bang I got or more. I saw Eddie [McCloskey] standing up ..... he had a piece of glass in one hand ..... I made for him to stop him hitting me again. I picked up a piece of glass and I hit him. We were both standing up facing each other ..... We struggled ..... He was getting the better of me, trying to knock me over. I hit him to stop him hitting me again."
He went on to describe how the two of them had fought; how he thought that Eddie was getting the better of him, how he thought he had only hit Eddie a few times; how the fight eventually subsided. He described how he had then cooked a chop for Eddie who did not seem to want it. The appellant then sat down and fell asleep.
His evidence continued as follows: "Then I woke up and found that Eddie had gone from where he had been. I was scared at that. I was scared he would get out of the flat and go and get men [to help him]. I jumped up with the intention of leaving the place. I went to the toilet on the way to the front door and found Eddie kneeling by the toilet, his hands over the bowl. I called him and he gave no answer. I took hold of him and found he was cold. I moved him on to the floor and I thought to myself: 'He is dead'. "
The appellant described how he reported Eddie's condition to some friends and then went to Peckham Police Station. He said, "I did not want to kill him. I wanted him alive, not dead. I had no enmity to him. If I had not hit him I would be dead myself."
The Judge gave an impeccable direction on the ingredients of murder and upon the way in which intoxication may affect proof of intent to kill or to do serious bodily harm. Likewise impeccable was his direction on provocation, including the correct observation that, when considering whether a reasonable man would have been caused to lose his self-control, questions of drink are irrelevant.
Finally he gave the classic direction on self-defence. He made no mention of the possibility that the appellant might by reason of intoxication have been mistaken as to the threat posed to him by McCloskey's action. This was no doubt because no one had taken the point.
Counsel for the prosecution towards the close of the Judge's directions saw fit to invite the Judge to remedy what he plainly regarded as this lacuna in the charge to the Jury. Counsel for the appellant wisely held his peace. The Judge then gave this further direction: "It might be a view that you might take -- I know not -- that this defendant thought he was under attack from the other man mistakenly and made a mistake in thinking that he was under attack because of the drink that was in him. If he made such a mistake in drink he would nevertheless be entitled to defend himself even though he mistakenly believed that he was under attack. He would be entitled in those circumstances to defend himself. But if in taking defensive measures, then he went beyond what is reasonable either because of his mind being affected by drink or for any other reason, then the defence of self-defence would not avail him because, as I told you earlier [ on, you are entitled to defend yourself if it is necessary to do so, but the defensive measures that you take must be reasonable ones and not go beyond what is reasonable."
The grounds of appeal advanced by Mr. Wadsworth are as follows: (1) Whilst the Judge was correct to refer to mistake induced by drink in connection with self-defence, he was wrong to limit the reference to mistake as to the existence of an attack; he should have included the possibility of mistake as to the severity of an attack which was the most likely possibility on the facts. (2) By leaving the matter to the Jury as he did, the Judge in effect divorced the reasonableness of the appellant's reaction from the appellant's state of mind at the time. (3) The Judge failed when giving his further direction to the Jury to remind them that a defendant is never required to Judge to a nicety the amount of force which is necessary and that they should give great weight to the view formed by the appellant at the time, even though that view might have been affected by alcohol.
As to the first two grounds, these require an examination of the law as to intoxication in relation to mistake. Counsel have referred us to a number of authorities. It is not necessary for us to refer to all of these. In three of them the Jury were invited to take the defendant's drunkenness into account when deciding whether he genuinely apprehended an assault upon himself: Gamlen (1858) 1 F. & F. 90; Marshall (1830) 1 Lewin C.C. 76; and Wardrope (1960) Crim. L. R. 770. However the reports of these cases leave a great deal to be desired and as far as we can discover there is no case directly in point which is binding upon us.
As the learned single Judge pointed out helpfully in his observations for the benefit of the Court: "Given that a man who mistakenly believes he is under attack is entitled to use reasonable force to defend himself, it would seem to follow that, if he is under attack and mistakenly believes the attack to be more serious than it is, he is entitled to use reasonable force to defend himself against an attack of the severity he believed it to have. If one allows a mistaken belief induced by drink to bring this principle into operation, an act of gross negligence (viewed objectively) may become lawful even though it results in the death of the innocent victim. The drunken man would be guilty of neither murder nor manslaughter."
How should the Jury be invited to approach the problem? One starts with the decision of this Court in R. v. Gladstone Williams (1984) 78 Cr. App. R. 276, namely that where the defendant might have been labouring under a mistake as to the facts he must be Judged according to that mistaken view, whether the mistake was reasonable or not. It is then for the Jury to decide whether the defendant's reaction to the threat (real or imaginary) was a reasonable one. The Court was not in that case considering what the situation might be where the mistake was due to voluntary intoxication by alcohol or some other drug.
We have come to the conclusion that where the Jury are satisfied that the defendant was mistaken in his belief that any force or the force which he in fact used was necessary to defend himself and are further satisfied that the mistake was caused by voluntarily induced intoxication, the defence must fail. We do not consider that any distinction should be drawn on this aspect of the matter between offences involving what is called specific intent, such as murder, and offences of so called basic intent, such as manslaughter. Quite apart from the problem of directing a Jury in a case such as the present where manslaughter is an alternative verdict to murder, the question of mistake can and ought to be considered separately from the question of intent. A sober man who mistakenly believes he is in danger of immediate death at the hands of an attacker is entitled to be acquitted of both murder and manslaughter if his reaction in killing his supposed assailant was a reasonable one. What his intent may have been seems to us to be irrelevant to the problem of self-defence or no. Secondly, we respectfully adopt the reasoning of Mr. Justice McCullough already set out.
This brings us to the question of public order. There are two competing interests. On the one hand the interest of the defendant who has only acted according to what he believed to be necessary to protect himself, and on the other hand that of the public in general and the victim in particular who, probably through no fault of his own, has been injured or perhaps killed because of the defendant's drunken mistake. Reason recoils from the conclusion that in such circumstances a defendant is entitled to leave the Court without a stain on his character.
We find support for that view in the decision of the House of Lords in Director of Public Prosecutions v. Majewski (1977) AC 443, and in particular in the speeches of Lord Simon of Glaisdale and Lord Edmund Davies. We cite a passage from the speech of the former at page 476 as follows:
"(1) One of the prime purposes of the criminal law, with its penal sanctions, is the protection from certain proscribed conduct of persons who are pursuing their lawful lives. Unprovoked violence has, from time immemorial, been a significant part of such proscribed conduct. To accede to the argument on behalf of the appellant would leave the citizen legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences.
"(2) Though the problem of violent conduct by intoxicated persons is not new to society, it has been rendered more acute and menacing by the more widespread use of hallucinatory drugs. For example, in R. v. Lipman (1970) 1 Q.B. 152, the accused committed his act or mortal violence under the hallucination (induced by drugs) that he was wrestling with serpents. He was convicted of manslaughter. But, on the logic of the appellant's argument, he was innocent of any crime."
Lord Edmund Davies at page 492 says this: "The criticism by the academics of the law presently administered in this country is of a twofold nature; (1) it is illogical and therefore inconsistent with legal principle to treat a person who of his own volition has taken drink or drugs any differently from a man suffering from some bodily or mental disorder of the kind earlier mentioned or whose beverage had, without his connivance, been 'laced' with intoxicants; (2) it is unethical to convict a man of a crime requiring a guilty state of mind when ex hypothesi, he lacked it."
Lord Edmund Davies then demonstrated the fallacy of those criticisms.
Finally we draw attention to the decision of this Court in Lipman itself. The defence in that case was put on the grounds that the defendant, because of the hallucinatory drug which he had taken, had not formed the necessary intent to found a conviction for murder, thus resulting in his conviction for manslaughter. If the appellant's contentions here are correct, Lipman could successfully have escaped conviction altogether by raising the issue that he believed he was defending himself legitimately from an attack by serpents. It is significant that no one seems to have considered that possibility.
The third and final ground of appeal has in effect already disappeared, because if the Judge's additional direction was unnecessary, so was any repetition of the passage from the speech of Lord Morris of Borth-y-Gest in Palmer (1971) AC 814, at page 832, namely:
"If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."
Indeed those words are scarcely apt to describe the actions of a man labouring under the effect of a drunken mistake. They accordingly add some marginal support to the views which we have expressed.
We have therefore come to the conclusion that a defendant is not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which has been induced by voluntary intoxication.
As already indicated, the Judge's addendum to his summing up, which he made at the suggestion of prosecuting counsel, was unnecessary and erred in favour of the appellant.
The appeal against conviction is accordingly dismissed.
So far as sentence is concerned, Mr. Wadsworth submits that the term of seven years was too long. He cited the case of McNamara 6 Cr. App. R. (S) 356. We do not derive great assistance from that decision. It is all too clear in the instant case from the photographs and autopsy report that this was a sustained and savage attack, found by the Jury to have been unjustified even upon the Judge's over-favourable direction. This experienced Judge had the advantage of hearing the evidence and getting the flavour of the case.
We do not think the sentence of seven years was excessive.
The appeal against sentence is likewise dismissed.
