B e f o r e :
LORD JUSTICE STOCKER
MR. JUSTICE PETER PAIN
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MR. JUSTICE GATEHOUSE
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R E G I N A
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STEPHEN CLIFFORD DOUGHTY
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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 0889. Shorthand Writers to the Court.)
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MR. J.A. PRICE Q.C, and MR. T. RIGBY appeared on behalf of the Appellant.
MR. R. KLEVAN Q.C, and MISS A. TAYLOR appeared on behalf of the Crown.
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HTML VERSION OF JUDGMENT
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LORD JUSTICE STOCKEE: On the 15th October 1985, in the Crown Court at Manchester in a trial conducted by Mr. Justice Caulfield before a jury, this appellant was convicted of murder and sentenced to life imprisonment. He now appeals against that conviction, this court having granted his application for leave to appeal.
The Crown's case expressed shortly was this, that on the 14th January 1985, the appellant's wife, Alison, gave birth to their first child, a little boy called Stephen Kathan Doughty. The birth was by Caesarean section. On returning home from hospital, five or six days after the birth, she followed the medical advice that she had been given by the doctor that she should remain in bed. The consequence was that the appellant, a young man aged 26, had to take upon himself the running of the house, looking after his wife and looking after the baby. He did that task, according to the evidence, conscientiously. A health visitor who called at the house on several occasions observed on each occasion that the baby looked well cared for though on one visit she did feel there may have been some tension in the house and thought the appellant was showing signs of fatigue.
Until the incident giving rise to the death of the baby there is no doubt that it had been well looked after and it was putting on the appropriate amount of weight for a baby of that age. Alison, the appellant's wife, said that he was loving and attentive to the baby.
On the 31st January 1985 Alison got up and found the baby was missing from his cot. The baby had been sleeping downstairs with the appellant so that he could look after it and his wife could have presumably a full night's sleep. She, of course, questioned the appellant who ultimately directed her to the kitchen and on the table of the kitchen was the dead body of the baby wrapped in a dustbin liner.
The cause of death was considered in some detail at the trial by a pathologist, Dr. Lawler. He found bruising to the chest and some damage to the lungs, and in particular extensive diffuse bruising to the scalp which gave the impression of being one large bruise. The skull was fractured and the membrane between the brain and the skull showed generalised haemorrhage. The cause of death in his opinion was intracranial haemorrhage and a fractured skull. He took the view that the injuries were consistent with the baby's head having been crushed for a minimum of 30 seconds whilst the head was resting on a firm flat surface, such as the floor, and that such squashing would have required considerable force, but was consistent with somebody kneeling upon the baby and thus applying the force to the head on the floor.
In the course of police interviews, to part of which we shall refer in greater detail hereafter, the appellant gave a number of explanations. At first he explained that he had fed the baby twice during the night (we observed that he kept a careful record of the feeds), he had changed its nappy and that the baby's continuous crying got on his nerves. He said he fell asleep and then woke up finding the baby lying underneath him. In other words, he gave an explanation of accident. When further questioned, he accepted that he must have inflicted the injuries, but denied responsibility for his actions. He gave explanations of blackout and asked to see a doctor. He did say that he could not really recall what had happened. There was psychiatric evidence to the effect that the trauma of these events might well perfectly genuinely have wiped out from his mind, at any rate from time to time, recollection of what the events had been. He admitted in temper squeezing the baby's chest. Then he admitted that he had covered the baby with cushions to silence the baby while he changed his nappy and had knelt on the cushions in order to stop the baby screaming.
He gave evidence to the effect that he was very happy at the birth of his son, that he had spent the time after his wife had returned from hospital caring and cooking for her, looking after the baby and generally cleaning the house. He gave an explanation that on the night in question he had fed the baby and twice changed his nappy. He could not recall whether he awoke for the next feed, but recalls the baby crying. He first of all covered the baby's face with his hand, then with a nappy, then with cushions and pressed them down in order to quieten the baby. He agreed he must have knelt on those cushions. He denied that he intended to hurt the baby. He said he fell asleep and awoke on the floor finding the baby beneath him and that in a state of shock he tried to conceal it in a bag which he put in the kitchen. It was clear from the way he gave evidence, and from the transcript, that he did appear confused and unclear in his recollection from time to time. He said that he did not remember killing the baby. He recalled putting his hand on its mouth and vaguely remembered part of what happened, but he did not intend to do harm. He said on that particular day he was very tired and knelt on the cushions to silence the baby.
As has already been observed, there were witnesses who gave evidence to the effect that the appellant was attentive and hard working for his wife and child after their return from hospital. As has already been observed, a psychiatrist testified that even without any attempt at lying people experiencing tragedy could genuinely fail to recall details.
At the close of the defence case, and in the absence of the jury, counsel for the appellant argued that there was evidence of provocation, that is to say, the crying and restlessness of the baby over at least a period of some hours prior to his death. We therefore think that we should shortly refer to some of the answers given during the course of interrogation by the police and to small parts of the appellant's own evidence as reflected in the summing-up. The learned judge fairly extensively dealt with the answers given to the police when the appellant was questioned. At page 25 letter F, he reminds them of this question and answer; "The defendant said, 'It's all my fault.' 'What is?' 'The baby dying.' 'What do you mean?' 'I shouldn't have been looking after it. I was too tired.'" Then the police intervened, saying, "'Hang on a minute. Are you saying you killed the baby?"' The answer was, '"Yes, but I didn't intend to.'" Then he was warned and cautioned and said, "'Well, I deserve to be punished for it. It's my fault, but I didn't mean the baby to die. I can't remember. When I woke up the baby was under me and he was dead. I cleaned his bum and changed him. I must have fallen asleep on top of him. I've not slept properly for ages.'" A little later on page 26, at letter D,"'All I remember is I gave the baby its first feed at 3.20. I think it was 3.20. I've got it written down at home. After that feed he kept crying with wind. I kept going to him to try and wind him. He just seemed to carry on crying. I kept going to him, then it got time for his second feed. I took him out of his cot and put him on the mat. I cleaned his bum and changed his nappy. He was getting on my nerves. I just put my hand over his mouth. It was stupid but I wanted him to stop crying.'" In a later passage recorded on page 29, at letter D of the summing-up, he was asked, "'The officers have told me you were very distressed.' 'Yes.' 'Quite openly you told them that at some stages you were annoyed.' 'I may have got a bit annoyed. I was getting aggravated, he was annoying me.'" A little later on, "'He was screaming a lot, I tried to stop him by putting my hand over his mouth. It made him worse. It's only commonsense when you think about it, it's bound to do."' On page 31 at letter D, he was asked, '"Did you say you had lost your rag?'" Answer, "I didn't say it like that, but I did lose my temper. I don't lose it easily." On page 33, at letter D, he was asked, '"You were fed up with looking after it because it wouldn't keep quiet."' Answer, "'That's what happened. It was building up during the week. I was tired but I was blacked out. You hit the nail on the head. I was just getting more and more tired. I've done it, I know I have. That's what happened.'"
On page 34, he was asked, '"Do you think you were in such a temper that you can't remember separate actions you did?" The answer was, "'Probably.'" At letter D, "'I can just remember putting them on him and then putting my weight on him. I think I was trying to wind him. I am not sure. I'd lost my temper." Then at letter F, "What did you do, kneel on him, sit on him, or what?'" The answer was, '"My hands I think, I pressed down on him with my hands and knelt on him as well.'" "'Why?'" '"Just to keep him quiet and stop him screaming.'" "'Did he go quiet?'" '"Slightly, but he still screamed. No matter how hard I tried he still seemed to scream harder.'" 'Then he described what he had done after that.
Then on page 36, he was asked, "'Do you think you are trying to forget part of it?'" He said, "'Maybe - maybe just in temper.'" At letter F, '"I wouldn't use so much pressure but being in such a bad temper, I just used more than I thought I was doing.'" On page 37, it was put to him, '"And each act getting progressively worse as you progressively lost your temper'" "'Yes.'" '"Finishing up with you putting one or two cushions over the baby's head and kneeling on it.'" '"Yes.'" '"You then tried to explain it away by saying that you had been lying over it, which was a lie.'" "'I was lying over the baby and that is not a lie. We've missed out what I want to say in my own defence, if my mind had been working normally, under normal circumstances, there is no way that I would have done that.'"
Then in his evidence before the jury, the appellant said, "I was very happy when Stephen was born. Once my wife was at home I was doing all the work because she had to take things easily. Certainly on the Saturday before the baby died, when the doctor told her to stay in bed apart from visiting the bathroom, I really had everything to do. I was looking after Alison as well. I was cooking for her; I was cleaning; I was dealing with the baby." Then on page 46, he said, "I remember covering his mouth with my hand. I remember covering his mouth with a terry napkin. I didn't want to disturb my wife when the baby was crying. I vaguely remember covering him over with cushions and putting my weight on the cushions. I didn't mean to hurt him. The weight I put on with my hands. I was trying to quieten him down. I may have put my knees on the cushions. I must have done; it is the only answer."
At the close of the evidence, counsel for the appellant made a submission to the judge that he ought to leave the issue of provocation to the jury. The learned judge gave a reasoned ruling to which reference must be made in some detail. He started his ruling by correctly stating succinctly the relevant law. He said:
"It is well-settled law that if on a charge of murder there is any evidence that the defendant was provoked, the court is bound to leave two questions to the jury to enable the jury to decide on the facts whether the Crown has disproved provocation. The two questions the jury has to answer are these:
Has the Crown disproved that the defendant was provoked into acting as he did? If the Crown has not disproved this subjective element then the second question has to be answered by the jury. The second question is:
Has the Crown disproved that a reasonable man would have acted in the same way as the defendant? This is the objective element.
If the Crown disproves either of these questions, the plea of provocation fails, and obviously if the Crown disproves both, the plea of provocation fails."
Then he turns to consider the alterations in the law made by section 3 of the Homicide Act 1957, to which we will later refer. At letter B, on page 4, he continued with his directions as follows, and we consider it appropriate to cite a considerable amount of the direction. The learned judge said: "This brief review of the law I make to emphasize that the only power vested in the Judge, once provocation is raised by the accused, is to rule whether there is any evidence at all of provocation. That is the only question on which the court can give a ruling.
"Mr. Price submits that there is evidence in this trial of provocation. Mr. Klevan for the Crown concedes that there is evidence of provocation on the subjective question.
"The deceased person at this trial is a baby boy aged 17 days, the son of the defendant. The operative provocation is the crying and restlessness of the baby over an imprecise period between 4.00 a.m. and 9.00 a.m., though not necessarily throughout that period. I must assume and do assume at this stage that this factual evidence will be accepted or may be accepted, by the jury.
"In my judgment the perfectly natural episodes or events of crying and restlessness by a 17 day old baby does not constitute evidence of provocation in relation to the first subjective question. Put another way, the crying and restlessness of a 17 day old baby cannot be utilised as being provocative to enable the defendant to raise the defence of provocation. Though provocation can be constituted by conduct or words which are not unlawful, provocation cannot be founded, in my judgment, on the perfectly natural episodes or events arising in the life of a 17 day old baby. It is notorious that every baby born cries, that every baby can at times be burdensome. It is notorious that a baby of 17 days is incapable of sustaining his own life, that he is defenceless and harmless. These notorious facts are common to every baby who is only days old.
"I think that the episodes or events in the life of the baby of 17 days old could not have been in the mind of Parliament when section 3 became the law. The words of section 3 - I quote: 'Whether by things done or words said or by both together' - are not, in my judgment, apposite to embrace the perfectly ordinary, certain, and natural episodes or events in the life of a 17 day old baby. Further, common law directions cannot be construed as including these natural and certain episodes that occur in the life of every baby of days old.
"Finally, I think civilised society dictates that the natural episodes occurring in the life of a baby only days old have to be endured and cannot be utilised as the foundation of subjective provocation to enable his killer to escape a conviction for murder." It is not necessary to read the remaining few lines of that direction.
Before turning to the arguments that have been put before this court, it seems to us appropriate to cite the precise terms of section 3 of the Homicide Act 1957 • It reads: "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."
Mr. Price submitted that on the proper construction of that section, the judge was bound to leave to the jury the question of provocation, particularly in the light of the admission made by Mr. Elevan for the Crown that there was a causal connection between the crying of the baby and the appellant's response. Mr. Price submitted that this was a classic case for leaving the issue to the jury and he referred us to the case of the D.P.P v. Camplin (1978) AC 705. The facts need not be recited. It was a case in which there was an appeal against the direction that a judge gave on the topic of provocation. Lord Diplock said this:
"My Lords, this section was intended to mitigate in some degree the harshness of the common law of provocation as it had been developed by recent decisions in this House. It recognises and retains the dual test: the provocation must not only have caused the accused to lose his self-control but must also be such as might cause a reasonable man to react to it as the accused did. Nevertheless it brings about two important changes in THE LAW. The first is: it abolishes all previous rules of law as to what can or cannot amount to provocation and in particular the rule of law that, save in the two exceptional cases I have mentioned, words unaccompanied by violence could not do so. Secondly it makes it clear that if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law: whether a reasonable man might have reacted to that provocation as the accused did."
Mr. Price also referred us to Professor Glanville Williams' Textbook on Criminal Law, Second Edition, at page 534. Professor Williams wrote this:
"The Homicide Act, in allowing insults as provocation, inevitably alters the position, because an insult uttered in private is neither a crime nor even a tort. Section 3 contains no restriction to unlawful acts, and the courts seem to be ready to allow any provocative conduct to be taken into consideration, even though that conduct was itself provoked by the defendant. Consequently, there is no longer any reason why the defence should not be available (if the jury uphold it) to the jilted lover who kills the object of his affections or her new lover, or the man who kills his irritating neighbour, or the parent who kills a constantly crying baby. Even the rule about lawful blows seems to survive only as a consideration that the jury can take into account when applying the test of reasonableness."
Mr. Klevan for the Crown reiterated before us that there was no doubt that there was a causal link between the crying and the response, but submitted that not everything should be allowed to be considered as evidence upon which provocation could be founded, and that such acts should be limited to cases where there is some element of wrongfulness, however slight and referred to the further examples considered by Professor Glanville Williams on the page to which reference has just been made. He submitted that the learned judge s direction was correct and that public policy required that the cries of a baby even if persistent should not found a plea of provocation.
With respect to the learned judge, we are unable to accept those arguments. We appreciate the reasons which the learned judge gave for reaching the conclusion that he did, but we are unable to construe section 3 in such a light. The first sentence of section 3 reads: "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked ..... to lose his self-control." There is no doubt, and it is not in dispute, that there was here evidence upon which the appellant was - I use the word loosely "provoked" to lose his self-control. Part of that evidence has been cited earlier in this judgment.
The reasoning which the learned judge gave, understandable though it was, involves, in our view, adding in to section 3 words which are not there, presumably by way of restriction. It is accepted by Mr. Klevan that there was evidence which linked causally the crying of the baby with the response of the appellant. Accordingly, in our view, it seems inevitable that that being so the section is mandatory and requires the learned Judge to leave the issue of the objective test to the jury.
Mr. Klevan also referred us to what might, in shorthand, be called the "floodgates proposition", that if the learned judge's direction was wrong it opens up the possibility that in any case in which there is a battered baby allegation and the baby dies, the argument based on provocation may be raised. We feel that even if that submission was right it could not be allowed to dissuade us from putting a construction on section 3 which, in our view, its wording plainly constrains. We also feel that reliance can be placed upon the common sense of juries upon whom the task of deciding the issue as imposed by section 3 and that that common sense will ensure that only in cases where the facts fully justified it would their verdict be likely to be that they would hold that a defendant's act in killing a crying child would be the response of a reasonable man within the section. [That matter is, in our view, imposed by Parliament upon the jury, not upon a judge, and the commonsense of juries can be relied upon not to bring in perverse verdicts where the facts do not justify the conclusion.
In our view, therefore, though fully understanding his reasons, we are of the view that the learned judge was wrong in not leaving the issue of provocation to the jury.
The second ground of appeal which is put forward by the appellant is that an error was made in the direction that the learned judge gave in response to a question raised by the jury during their retirement to consider their verdict. The question and the answer appear on page 51 of the transcript. The question posed by the jury is: "If the acts were committed in anger to stop the baby crying, does this constitute intent to do the baby serious harm or cause his death?" The learned judge directed the jury in these terms: "If the defendant did the unlawful acts to the baby intending to kill the baby or cause him grievous bodily harm, then even if those acts were done in anger to stop the baby crying the defendant would be guilty of murder." As a bare statement of law, that direction, in our view, is clearly impeccable. The complaint about it really is that it does not answer the question posed by the jury. The question posed by the jury, was: "If the acts were committed in anger, does this constitute intent to do the baby serious harm?" Of course, anger and intent are quite different matters. It is submitted by Mr. Price, for the appellant, that the learned judge should have refined the answer to the jury to point out that the question posed in fact hardly made sense and to have so replied to it as to reflect the answer to the problem which they seemed to b eposing. It is not of course for this court to speculate as to what was in the mind of the jury. But certainly the form of the question suggests that possibly they had in mind, in some form or another, the very issue of provocation. However, we do not feel it necessary to consider that ground of appeal in any greater detail or to give any ruling upon it since, in our view, the appeal succeeds on the first ground, that there was a misdirection in that the issue of provocation was not left to the jury.
Accordingly the conviction for murder and the sentence of life imprisonment will be quashed.
It is not contended that there can be any other verdict than manslaughter. We have considered very carefully therefore what the appropriate penalty should be. A number of matters have been urged before us, that the appellant is in some danger himself in prison, as is so often the case where small children are the victims. It is urged, and correctly urged, that the facts of this case involved a tragedy, the killing by a man of his tiny baby towards whom to the moment of the fatal acts he appeared to be affectionate. It was in the context of an affectionate and loving family situation and not in the context, as is so often the case, where babies are battered as a course of hostility against the baby. We take all those matters into consideration, but of course are bound to take the view that there was here, on the jury's verdict, an intent to cause at least grievous bodily harm and that the appellant's conduct has deprived a small child of his life. Tragic though the circumstances were, we consider that the appropriate sentence to be imposed for manslaughter is one of five years imprisonment.
Accordingly this appeal succeeds to the extent that we substitute a verdict of manslaughter for one of murder and a sentence of five years' imprisonment for the sentence which was mandatory under a verdict of murder.
MR. KLEVAN: My Lord, I ask for the respondent's costs out of central funds.
LORD JUSTICE STOCKER: Yes, certainly.
