B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND
(Lord Taylor of Gosforth)
MR JUSTICE HIDDEN
and
MRS JUSTICE EBSWORTH
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R E G I N A |
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SARA THORNTON |
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Computer Aided Transcription by
John Larking, Chancery House, Chancery Lane, London WC2
Telephone 0171-404 7464
(Official Shorthand Writers to the Court)
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MR MICHAEL MANSFIELD QC and MR EDWARD H FITZGERALD QC appeared on
behalf of THE APPELLANT
MR B ESCOTT COX QC and MR J GIBSON appeared on behalf of THE CROWN
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Wednesday 13 December 1995
THE LORD CHIEF JUSTICE: Sara Thornton appeals against her conviction of murdering her husband Malcolm Thornton. The case has been referred to the Court by the Secretary of State pursuant to Section 17 of the Criminal Appeal Act 1968. The appellant was convicted on 23 February 1990 at Birmingham Crown Court after a nine-day trial. There was an appeal which was dismissed by a different constitution of this Court on 29 July 1991. Subsequently, representations were made to the Secretary of State on the appellant's behalf. They were based primarily upon further medical evidence and its impact on the defence of provocation, a defence which was not relied upon by the appellant at her trial although it was left to the jury by the judge.
In August 1993 the Secretary of State decided not to refer the case back to this Court. Further representations followed and on 12 May 1995 the present reference was made.
The appellant comes from a comfortable background but from childhood onwards her life was punctuated by problems and unhappy incidents. She was asked to leave her Boarding School. She twice had pregnancies which were terminated before meeting her first husband by whom she had her one child, Luisa. She went abroad with that husband but left him in Venezuela because of his drinking and there was a divorce. She made a number of attempts at suicide by cutting her wrists, by cutting her throat and by overdose of drugs. In March 1981 she was admitted to a hospital for a period under the Mental Health Act. She had a third abortion in 1983. It was common ground that this history was attributable to the fact that the appellant suffered and continues to suffer from a personality disorder, although after 1981 there appeared generally to be some improvement in her mental state.
She met the deceased, her second husband, in May 1987. Like her, he had been married before and he had a son Martin aged 18. The appellant and the deceased began living together in the Autumn of 1987 and were married in August 1988. Even before the marriage, it was clear that the deceased had a serious drink problem. He underwent treatment for alcoholism but his condition and behaviour deteriorated in 1989. As a result the marriage was stormy. There were angry arguments when the deceased was drunk and he used violence to the appellant. In her evidence she described a number of assaults. It is unnecessary to specify all the incidents prior to the final weekend but about 20 May the appellant left the house (which was in their joint names) after the deceased had punched her in the face and knocked her out. She reported that incident to the police and the deceased was charged with assault. The case was pending at the time of his death. After the appellant left, the deceased's son Martin came to stay at the house. On 26 May the appellant and her daughter returned.
Matters came to a head between Saturday 10 and Tuesday 13 June. On the Saturday, the appellant was attending a conference in Coventry in connection with her work. According to her, she learnt by telephone that the deceased had either assaulted Luisa or otherwise driven her from the home so that she was in night-clothes at a taxi rank. Mrs Thomas, a friend and fellow employee of the appellant, gave evidence that the appellant said after the phone call "I am going to kill him", adding that she was not prepared to lose everything. The appellant, in evidence, denied saying these things.
On 11 June she returned home accompanied by Mrs Thomas. The deceased had been drinking and there was an angry altercation. It continued after Mrs Thomas left. The deceased picked up a guitar and threatened to hit the appellant with it. She had a kitchen knife in her hand. According to Martin, she said "You touch my daughter, you bastard, and I'll kill you", pointing the knife at the deceased and holding it in both hands. Martin claimed he had to take the knife from her. The appellant's account was that she had the knife in the normal course of preparing lunch, that she made no threat to kill the deceased and was not disarmed by Martin. On the same day, when the deceased was in the bath, the appellant gave him Mogadon tablets. Martin saw her administer two, but she crushed four more and concealed them amongst pieces of chicken she fed to the deceased. She then telephoned the doctor saying he had taken an overdose and was suicidal which, as she admitted in evidence, was a deliberate lie. An ambulance and the police were called but the deceased refused to go to hospital. After they left there was an angry scene. The deceased threw a chair which broke the glass in the kitchen door. The police were called again.
Still later on that day, the appellant spoke to Mrs Thomas on the telephone. According to the latter, the appellant talked of divorce, said she was not prepared to give everything up for the deceased and that she would set about forging some cheques. In evidence the appellant denied that account of the conversation.
Next day, 12 June, according to the appellant, the deceased said he wanted her and her daughter out of the house. He then went drinking. On his return, he was sick in the kitchen, he later burnt a hole in the armchair and he spent the night on the couch.
Tuesday 13th brought the fatal dénouement. The deceased was again drunk. When he arrived home he noticed the appellant was not wearing her wedding ring. She said they did not have much of a marriage. He then threw his wedding ring into the garden. He abused the appellant telling her to get out and take Luisa. Clothes were thrown out of the window. Luisa left. The appellant spoke to Mrs Thomas on the telephone saying "I'm going to have to do what I said I'd do". The appellant said in evidence that meant merely that she going to leave. She wrote in lipstick on her bedroom mirror: "Bastard Thornton, I hate you". Later, she and Martin went out leaving the deceased dozing on the couch. Martin returned home first and went upstairs. The appellant got a taxi home. The taxi driver said she was arrogant and quarrelsome which she denies.
Her account in evidence of what happened after that was that she found the deceased still lying inert on the couch. She went upstairs, changed into her night-clothes and came down again to persuade the deceased to come to bed. He insulted her, calling her a whore and alleging she had been selling her body. He wanted her out of the house and threatened to kill her. She went to the kitchen to calm down. She decided to try again to persuade him to come to bed but looked for a truncheon retained from when he had been a policeman so as to protect herself if he became violent. Not finding the truncheon, she picked up a large kitchen knife. She returned to the deceased who again threatened to kill her and called her a whore. She stood beside him, lifted the knife and then brought it down slowly. A post mortem examination showed the single stab had entered just below the ribs and penetrated deeply through to the back of the ribcage. In evidence the appellant said she did not stab the deceased deliberately. She denied she did it because she was provoked or because she was mentally upset. Asked in cross-examination if it was an accident, she repeatedly said yes.
Martin, who was upstairs when the appellant came home, had heard no quarrel or raised voices. What he did hear was the rattling of cutlery in the drawer, followed by a scream from his father. He went downstairs. The appellant said in a cold matter-of-fact tone: "I've killed your father". She 'phoned for an ambulance and said "I've just killed my husband. I've stuck a six-inch carving knife in his belly on the left-hand side". The ambulance and police came. To a police officer the appellant said: "I've stabbed him with this carving knife". Asked "Have you tried to kill him?" she said: "I wanted to kill him". When the emergency service were making efforts to save him the appellant said: "I don't know why you are bothering, let him die". Martin heard her say "Let the bastard die". The police officer asked "Do you understand what you are saying?" She replied: "Yes, I know exactly what I am saying. I sharpened up the knife so I could kill him. Do you know what he has done to me in the past?" Asked "When did you sharpen the bread-knife?" she replied: "After I went to see him in there. I said are you coming to bed love and he told me to fuck off out and fuck some blokes to get some money, so I just walked into the kitchen, got the knife, sharpened it up and stuck it in his belly".
Question: "Did he beat you up tonight?"
Answer: "No".
Question: "Did he threaten to?"
Answer: "He would have".
Later, the appellant said to the police: "I nearly did it on Sunday you know". Whilst the police were at the house, the appellant behaved in a surprising, Mr Mansfield says bizarre, manner. She began to use the floor-mop, she talked about the washing, a meal, and wanting to tune the guitar. She wanted to take photographs of her husband and telephone the taxi for her handbag and cigarettes. She pinched a police officer's bottom, telling him he had "a lovely bum".
In her interviews with the police she said repeatedly she only intended to frighten her husband.
At her trial the appellant did not seek a verdict of not guilty but relied upon diminished responsibility to found a verdict of manslaughter. Three psychiatrists were called: Dr Bullard and Professor Brandon for the defence and Dr Brockman for the Crown. All of them agreed that the appellant's personality disorder could be regarded as an abnormality of mind. The issue between them was as to whether that abnormality substantially impaired the appellant's mental responsibility.
The defence did not rely on provocation. Criticism of that decision was strongly argued as a ground of appeal at the first appeal hearing but the Court rejected it. Before us, that criticism was more muted but still figured in the argument. Like the trial judge and the Court which dismissed the first appeal, we can well understand why those defending the appellant did not contend she was provoked, having regard both to the remarks she made in the immediate aftermath and to her evidence at trial. On the evidence presented to the jury, whether for the prosecution or by the appellant, we do not consider that the decision to concentrate the defence on diminished responsibility can be faulted.
Nevertheless, there is no doubt that the appellant had been subjected over a period to violence and abuse by her alcoholic husband and, on her evidence, abuse and threats were levelled at her shortly before the stabbing. In those circumstances the trial judge considered he had a duty to leave provocation as an issue for the jury's consideration. He was clearly right to do so. (See Hopper 11 Cr App R 136; Bullard 1957 AC 635 and most recently Rossiter 95 Cr App R 326).
The duty to leave provocation to the jury even when the defence has not relied on it and even when in some cases they may regard it as an embarrassment or distraction, creates problems for the judge. In the present case the judge's direction was as follows:
"I come now to the question of loss of control and provocation. It is my duty to mention this to you, members of the jury, (because) you will notice that (counsel for the defence) did not address you on the basis of provocation and it will I think be obvious to you why in a moment, when you have heard what I have to say to you about it. Members of the jury, the word provocation in ordinary language is used pretty freely and not always very appropriately."
The judge then gave an example of colloquial use of the word "provocative". He continued:
"You are not being asked to consider 'did he lead her a miserable life?' whether you think he did or not on the evidence. Nor are you asking yourself 'does she deserve sympathy?' because that is not the issue in the case. For the purposes of the charge of murder, provocation consists of some act or series of acts done or words spoken or a continuation of words and acts which causes in the particular defendant a sudden and temporary loss of self-control and which would have caused a reasonable, sober person to lose her self-control and to behave as the defendant behaved. So there are two questions. The first question is whether the provocative conduct, such as it was, if there was any, caused the defendant to lose her self-control. There has to be a sudden loss of self-control. The defendant herself asserts that there was no sudden loss of self-control. Members of the jury, that no doubt is why (counsel for the defence) did not address you and invite you to consider provocation. But, even if that were the case, there would still be the second part.
The second question is whether the provocative act would have caused a reasonable, sober person to lose her self-control and behave as the defendant behaved and on this, of course, you would take into account the whole picture, the whole story, everything that was said, possibly anything that was done, if there was anything done, on this night, according to the effect it would have on a reasonable, sober woman in the position in which the defendant believed herself to be and, of course, a reasonable, sober woman, like a reasonable, sober man, is expected to have ordinary powers of self-control, normal powers expected of a person of the sex and age of the particular defendant and sharing her characteristics as you have been able to discover them.
Members of the jury, so far as this aspect is concerned, even if Mrs Thornton had lost her self-control, you would still have to ask whether a reasonable women in her position would have done what she did and, if you think (and this is for you to say) that she went out and found a knife and went back into the room and as a result of something said to her, stabbed her husband as he lay defenceless on that settee, deep into his stomach, it may be very difficult to come to the conclusion that that was, and I use the shorthand, a reasonable reaction. There are.... many unhappy, indeed miserable, husbands and wives. It is a fact of life. It has to be faced, members of the jury. But on the whole it is hardly reasonable, you may think, to stab them fatally when there are other alternatives available, like walking out or going upstairs."
The judge then correctly told the jury that the burden was on the prosecution to prove that the appellant was not provoked or acting under provocation.
A number of criticisms of that passage were made on the first appeal. Principally it was submitted the trial judge was wrong to direct the jury that, for the defence to succeed, the provocative words or conduct have to have caused in the defendant "a sudden and temporary loss of self-control". That concept was said to be too rigid. In rejecting the submission this Court traced the concept from a dictum of Tindal CJ in Hayward [1833] 6 C & P 157 through the well known direction of Devlin J approved by this Court in Duffy [1949] 1 All ER 932 up to the present day (see Thornton 96 Cr App R 112 at pages 117-119).
In Ahluwalia 96 Cr App R 133 at pages 137-139, there was again a challenge to a summing-up which was in accordance with the Duffy direction. It was argued that a woman subjected over a period to verbal and physical abuse may kill her abuser because of a "slow burn" reaction to the cumulative maltreatment rather than because of a sudden and temporary loss of self-control and the concept of provocation should accommodate such a case. In rejecting that argument, this Court said:
"The phrase 'sudden and temporary loss of self-control' encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase. It serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind. Counsel suggested that the phrase might lead the jury to think provocation could not arise for consideration unless the defendant's act followed immediately upon the acts or words which constituted the alleged provocation. .....
Nevertheless, it is open to the judge, when deciding whether there is any evidence of provocation to be left to the jury and open to the jury when considering such evidence, to take account of the interval between the provocative conduct and the reaction of the defendant to it. Time for reflection may show that after the provocative conduct made its impact on the mind of the defendant, he or she kept or regained self-control. The passage of time following the provocation may also show that the subsequent attack was planned or based on motives, such as revenge or punishment, inconsistent with the loss of self-control and therefore the defence of provocation. In some cases, such an interval may wholly undermine the defence of provocation; that, however, depends entirely on the facts of the individual case and is not a principle of law. ........
We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of a delayed reaction in such cases, provided that there was at the time of the killing a 'sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it would be that the prosecution would negative provocation. ......
Counsel's argument in support of this ground of appeal amounted in reality to an invitation to this Court to change the law. We are bound by the previous decisions of this Court to which reference has been made, unless we were convinced that they were wholly wrong. Where a particular principle of law has been reaffirmed so many times and applied so generally over such a long period, it must be a matter for Parliament to consider any change. There are important considerations of public policy which would be involved should provocation be redefined so as possibly to blur the distinction between sudden loss of self-control and deliberate retribution".
In the present appeal the established principle of law has quite rightly not been challenged again. However, since reliance is placed upon the appellant's suffering from a "battered woman syndrome", we think it right to reaffirm the principle. A defendant, even if suffering from that syndrome, cannot succeed in relying on provocation unless the jury consider she suffered or may have suffered a sudden and temporary loss of self-control at the time of the killing.
That is not to say that a battered woman syndrome has no relevance to the defence of provocation. The severity of such a syndrome and the extent to which it may have affected a particular defendant will no doubt vary and is for the jury to consider. But it may be relevant in two ways. First, it may form an important background to whatever triggered the actus reus. A jury may more readily find there was a sudden loss of control triggered by even a minor incident if the defendant has endured abuse over a period, on the "last straw" basis. Secondly, depending on the medical evidence, the syndrome may have affected the defendant's personality so as to constitute a significant characteristic relevant (as we shall indicate) to the second question the jury has to consider in regard to provocation.
As to the background relevance, the trial judge told the jury in the present case to "take into account the whole picture, the whole story" and he reviewed the evidence of abuse both verbal and physical which the appellant had endured from the deceased over the whole period of their brief marriage. Criticism that the judge had confined the jury to considering what occurred on the fatal night was rejected by this Court as were all other criticisms of the summing up made on the first appeal.
What then is new on this appeal? Mr Mansfield sought leave to adduce further medical evidence. No objection was made by Mr Escott-Cox for the Crown and he agreed to the further evidence being put before the Court in written form. It consisted of further statements from Dr Bullard and Professor Brandon who gave evidence at the trial, a statement from Dr Glatt which was available at the first appeal but not put in the forefront of the appellant's case and reports from Dr McKeith and Dr Gudjonsson made more than two years after the trial. Clearly some of that evidence would have been available at the trial but we agreed to admit it all pursuant to Section 23(1) of the Criminal Appeal Act 1968.
In view of the conclusion we have reached it is unnecessary and undesirable to lengthen this judgment by quoting from these statements and reports. Their effect is to raise for consideration in relation to the defence of provocation two characteristics which it is suggested the appellant possessed at the relevant time. The first is her personality disorder. The second is the effect of the deceased's abuse over a period upon her mental make-up. It is submitted that these characteristics bear upon her reaction to the stress of events at the time of the killing. Mr Mansfield argues that had the further evidence been led at the trial, the jury would have had to be directed to consider whether a reasonable woman with these two characteristics might have lost her self-control and done as the appellant did. As it was, the judge, when defining a "reasonable woman" in the passage we have quoted, referred only to a person "sharing her characteristics as you have been able to discover them". He did not explain what characteristics they might find proved and relevant.
Two points should be made in regard to this omission. First, although at the trial there was medical evidence that the appellant's personality disorder was relevant to the defence of diminished responsibility (which is why it was led) there was none to suggest the disorder was a characteristic relevant to provocation. Indeed Beldam LJ, giving judgment on the first appeal, said (at page 120):
"We cannot help feeling that, if after the very detailed study which they had made of the case, (the psychiatrists) had held the opinion that her mental disorder made it more likely that in the case of verbal insult she would have given way to impulsive tendencies or aggression, they would have said so, and would have stressed this characteristic as significant in her loss of self-control; but, as with her legal advisers, her medical consultants were also constrained by the account which she herself gave of the events leading up to the fatal stabbing."
The absence of such evidence may well have been due to the state at that time of medical knowledge which we are told has since then progressed considerably. The further medical evidence does raise the appellant's personality disorder for consideration as a relevant characteristic. It also raises the element of "battered woman syndrome" as a further relevant characteristic.
Secondly, what characteristics of a defendant should be attributed by the jury to the notional reasonable person and how far the judge should go in assisting the jury to identify such characteristics, are issues which have been clarified in a number of decisions subsequent to this appellant's trial and indeed to her first appeal. The cases of Ahluwalia(supra), Humphreys (CA Judgment 7 July 1995) and Morhall [1995] 3 WLR 330 make clear that mental as well as physical characteristics should be taken into account. Moreover, there is authority, especially from the judgment of the House of Lords in Morhall at page 338F that a Judge should give the jury directions as to what, on the evidence, is capable of amounting to a relevant characteristic. We consider that if the trial Judge had had the assistance of those authorities and of the further evidence we have before us, he should and would have given the jury directions as to the two characteristics now relied upon. We conclude that the fresh evidence and the clarification of the law to which we have referred cast doubt upon the basis of the jury's verdict in this case. We cannot therefore be sure that the verdict is safe and satisfactory.
However, the evidence and arguments which have persuaded us to that view relate principally to the second of the two questions the jury had to consider regarding provocation, i.e. whether the hypothetical reasonable woman possessing the appellant's characteristics would have reacted to the provocative conduct so as to do what the appellant did. The crucial first question was whether in fact the appellant herself was caused suddenly to lose her self-control by that conduct.
Mr Escott-Cox submits the prosecution had a powerful case negativing loss of self-control whether on the evidence of the prosecution witnesses, or on what the appellant said in the aftermath of the killing or on what she said in evidence. Mr Mansfield sought to discount what the appellant said as being unreliable because the two characteristics we have identified caused her to be mentally in a dissociated state. He went so far as to submit that the appellant's observations and answers should not have been admitted in evidence. We have not been persuaded by any of the medical evidence that what she said should have been excluded. Mr Escott-Cox submits that if we quash this conviction, as we have concluded we must, there should be a retrial.
We are conscious and have taken full account of the matters urged by Mr Mansfield who opposes a retrial. He stressed the ordeal it would be for the appellant who has already served a substantial period of imprisonment and has been on bail for six months. He further suggests the press coverage would make a fair retrial impracticable. However, we are firmly of the view that the question whether the appellant did lose or may have lost her self-control at the time of this killing is essentially a matter for a jury to decide. It is not for us. Despite the points made by Mr Mansfield, we consider the public interest requires that issue to be determined. We are confident that a fresh jury will be able fairly to try the case solely on the evidence they hear. Accordingly, we quash the conviction. We order a retrial. The appellant must be arraigned on a fresh indictment within two months. The retrial will take place at Birmingham. Legal Aid will be granted on the same terms as for the previous trial. We shall extend bail pending the retrial on the same terms. We order that the retrial be held as soon in the New Year as possible.
