BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ellis v R [2003] EWCA Crim 3556 (08 December 2003) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2003/3556.html Cite as: [2003] EWCA Crim 3556 |
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE SILBER
and
MR JUSTICE LEVESON
____________________
RUTH ELLIS |
Appellant |
|
- and - |
|
|
R |
Respondent |
____________________
Mr M Mansfield QC and Ms A Shamash instructed for the Appellant
Hearing dates: 16th and 17th September 2003
____________________
Crown Copyright ©
Facts
"I then took a gun which I had hidden and put in my handbag. This gun was given to me about three years ago in a Club by a man whose name I do not remember. It was security for money but I accepted it as a curiosity. I did not know it was loaded when it was given to me but I knew next morning when I looked at it. When I put the gun in my bag I intended to find David and shoot him.I took a taxi to Tanza Road and as I arrived, David's car drove away from Findlater's address. I dismissed the taxi and walked back down the road to the nearest pub where I saw David's car outside. I waited outside until he came out with a friend I know as Clive, David went to his car to open it. I was a little way away from him. He turned and saw me and then turned way from me and I took the gun from my bag and I shot him. He turned round and ran a few steps round the car. I thought I had missed him so I fired again. He was still running and I fired a third shot. I don't remember firing any more but I must have done."
"I do not really know, quite seriously, I was very upset."
Ruling
"My learned friend has asked me to assist him by putting my case to your lordship as it stands at this moment and, of course, I am quite happy to do that. It is contained in the one question that I put to the accused woman, that if she, when she fired that revolver at close range into the body of David Blakely, intended to kill him, and did do, that is murder, save for one thing, and that is the law relating to insanity. But she is sane, and in those circumstances it is for my learned friend to suggest anyway, in which, those facts and if that law is right, she can be other than guilty of murder."
"The submission I make at the moment to your lordship – and I hope thereafter I will make to the jury – is, first of all, the basic question, so far as provocation is concerned, whether on a particular set of facts the jury can take the view that the understanding of the accused person was unsettled so that the ordinary control of the act which in most people in a normal state inhibits violent conduct, inhibits any anti-social behaviour, is completely displaced, so that for the time being the ordinary controls are gone, and nothing but an impulsive desire to do something such as killing occupies the mind for that time. My Lord, that is a loose, but I hope an accurate, description of the ambit of provocation."
"I feel constrained to rule that there is no sufficient material, even on a view of the evidence most favourable to the accused, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self control, to the degree and method and continuance of violence which produces the death, and consequently it is my duty as a judge, as a matter of law, to direct the jury that the evidence in this case does not support a verdict of manslaughter on the ground of provocation."
"The House of Lords, which, as you know, is the highest appellate tribunal of this land, has decided that, when the question arises whether what would otherwise be murder may be reduced to manslaughter on the ground of provocation, if there is no sufficient material, even on a view of the evidence most favourable to accused, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through the transport of passion and loss of self control, to the degree and method and continuance of violence which the produces the death, it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter.I have felt constrained, members of the jury, to rule in this case that there is no sufficient material, even on a view of the evidence most favourable to the prisoner, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through a transport of passion and loss of self control, to the degree and method and continuance of violence which produces the death, in this case, and consequently it is my duty, as a matter of law, to direct you, and I do direct you, that the evidence in this case does not support a verdict of manslaughter on the ground of provocation. It is not, therefore, open to you to bring in a verdict of manslaughter on the ground of provocation."
The submissions in support of the appeal
"Have you got this passage as part of your headnote: 'Consequently, where the provocation inspires an actual intention to kill…or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognised, viz, the actual finding of a spouse in the act of adultery'?"
"That seems to me to be one of the main difficulties in your case."
"But as the Court of Criminal Appeal set out in their judgment what they conceived to be the English law relating to manslaughter their Lordships feel bound to observe that in one respect the court were in error. They said in reference to English law, "if it is established or clear from the evidence that through provocation of howsoever grievous a kind may have been offered, nevertheless, if it could be shown that the accused caused the death with an intention to kill, the offence is one of murder not manslaughter. This is one of the fundamental differences between our law and that of England." A little further down in the judgment they said "in the case of murder, there must be an intention to kill, in the case of manslaughter, no such intention can exist." With all respect to the court, that is not the law of England."
"It is plain that Viscount Simon must have meant the word "actual" to have a limiting effect and that he had in mind some particular category of intention. He cannot have meant that any sort of intention to kill or cause grievous bodily harm was generally incompatible with manslaughter because that would eliminate provocation as a line of defence…"
"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion, it would have on a reasonable man."
"(1) We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide Act 1957.(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood.
(3) The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
(4) We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time."
The Crown's Response
i. Did provocation arise at all in this case where there was not suggested to have been any act in the two days before the shooting that could be seen as an act of provocation as recognised by the law at that time?
ii. Even if there were an act or a series of acts that might have raised the possibility of a defence of provocation, was there any evidence that could have led a jury to conclude that Mrs Ellis had suffered a "sudden and temporary loss of self-control"?
"But so long as words unaccompanied by violence could not in law amount to provocation the relevant proportionality between provocation and retaliation was primarily one of degrees of violence. Words spoken to the accused before the violence started were not normally to be included in the proportion sum. But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed."
Our Conclusions
"Male possessiveness and jealousy should not today be an acceptable reason for loss of self control leading to homicide, whether inflicted upon the woman herself or her new lover. In Australia the judge was able to give effect this policy by withdrawing (the) issue from the jury. But Section 3 prevents an English judge from doing so. So, it is suggested a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element is the best way to ensure that people like Stingel cannot rely upon the defence."
"Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."