THE LORD CHIEF JUSTICE: On 25th March 1988, at the Central Criminal Court, this appellant was convicted of murder by a majority of ten to two and was ordered to be detained during Her Majesty's pleasure. In July 1988 leave to appeal was refused by the single judge. In August 1991 an extension of time in which to renew the application was granted by another judge, since it appeared that the failure to renew in time was due to the fault of the solicitors then acting for the appellant. On 29th November 1991, the renewed application was considered by the full court solely on the papers and on the original grounds. It was refused. Subsequently it appeared that the appellant had wished to be represented by counsel, but the court had not been so informed. Accordingly, the application was re-listed before us and we have granted leave. That short recital explains why the case comes to be finally determined only now.
The facts are as follows. On or about 1st December 1986, when the appellant was 17 years old, he caused the death of William Choi by stabbing him. The only issue for the jury was whether this was murder or, as the defence claimed, manslaughter by reason of provocation.
The appellant, his girl friend Sabrina and the deceased together with a youth named Edmund Wong had all been students at Dover College. In the second half of November 1986 Wong, the deceased and Sabrina spent the night at a flat in Balham of which the deceased had the use. Sabrina and the deceased occupied separate beds.
Wong went to sleep in the lounge but was awoken by Sabrina screaming. He went into the bedroom. The deceased was leaving and Sabrina was angry with him. She later complained that the deceased had, in her words, "had a go". Wong asked the deceased why he had done it and received the response "I don't know".
The deceased apparently returned to Dover College and the appellant came to join Sabrina at the flat. She was very distressed and had cut her wrists, although not seriously. She was persuaded a day or two later to attend the casualty department at Balham hospital, accompanied by the appellant. She there made a complaint of rape but, apart from the minor cuts to her wrists, no injury was observed.
The appellant later admitted his reaction to Sabrina's complaint of rape was to wish and intend to beat up the deceased as a punishment. He took her to his parents' home in Kent for a couple of days, but they went back to the deceased's flat in Balham. The appellant took a sheath knife with him.
On 1st December the deceased travelled to London for a University interview. He was last seen after the interview leaving a train at Baker Street. His failure to return to Dover College and disappearance resulted in police inquiries. Eventually the flat was examined. Blood stains found there were of the same group as that of the deceased.
The appellant was seen on 15th December. He made a lucid and explicit denial of involvement in any offence. He was arrested on 30th December, still denying involvement. Suddenly, on 1st January, he called an officer to his cell where, in the presence of his solicitor, he admitted that the deceased's body was buried in a field behind his parents' house in Kent and that he was responsible for the killing. A search was made and the body was found.
The appellant went on to explain what had happened. He said the deceased came to the flat when he and Sabrina were there. There was a discussion between himself and the deceased about the rape. The deceased said Sabrina had "wanted it" but was scared to admit it to the appellant. This enraged the appellant, who pulled out the sheath knife and stabbed the deceased. When the body was examined it was found to have five substantial wounds apart from defence wounds and a cut throat. In his admissions to the police the appellant described how and in what part of the deceased's body he had inflicted each of the wounds. He went on to say that Sabrina was woken by the attack. She had assisted him in disposing of the body by acquiring a trunk, putting the body in the trunk and getting it delivered from Balham, via another flat, finally to Kent.
In evidence the appellant said that Sabrina was very frightened and would not go into the bedroom of the flat. He did not explain why they had returned and stayed there rather than somewhere else. He denied that they lay in wait for the deceased. He had taken the knife only so that Sabrina would feel more comfortable. When Choi came to the flat (according to the appellant his return was unexpected) he told the appellant that Sabrina had "enjoyed it", adding that she probably never had a real man before. It was that which made the appellant angry, more angry than he had ever been. He did not feel he was in control of himself. He could not remember what happened after that. He picked up the knife and just went for the deceased.
He said he had lied to the police at first because he wanted to be sure that Sabrina was out of the country before he confessed. She had nothing to do with the killing. She in fact left England on 13th December. He had continued to lie after that because his parents had had a bad year and he did not want to be arrested before Christmas.
The appellant, who had no convictions of any sort, called three character witnesses, all masters from Dover College; and some character evidence was elicited in cross-examination of Wong. We do not have the advantage of a transcript of their evidence, although we have been provided with a note taken by Mr. Aneley, junior counsel for the Crown. While this does not wholly substantiate the assertion made by counsel on the appellant's behalf that the witnesses said that he was not someone who was cold and calculating, they certainly painted a picture of a young man who was not by nature aggressive, was well-liked by boys and staff, and was evidently besotted with Sabrina.
Three grounds of appeal, each on a point of law, have been argued before us very persuasively by Sir Jonah Walker-Smith. Those grounds were not raised before either the single judge or the full court when they considered the case. It is convenient to consider these new grounds in a different order from that in which they are presented in the grounds of appeal.
1. Character
The first ground is that the learned judge's direction as to the effect of the appellant's good character was, in the circumstances of the case, inadequate.
What the judge said (transcript 6F) was this:
"Finally, as a matter of law, there is this: you have heard the evidence that this young man is of good character, that is to say, that no offence has previously been recorded against him. You take that into account in his favour, you take it into account in this way: that it is something to put in the scales when you are considering how far you can believe his evidence. Obviously, a person who has not committed an offence is a person more worthy of belief than someone who has, but it goes no further than that; it is something that you bear in mind."
The judge did not, here or elsewhere in the summing-up, remind the jury of the evidence of the character witnesses to whom we have referred. His omission to do so is the first of two criticisms made under this head. The second is his failure to direct the jury that good character went also to the issue of propensity to commit the offence alleged.
It is now firmly established that, in cases where the defendant raises the issue of his good character and has given evidence, it is ordinarily incumbent on the judge to deal with the matter in his summing-up in a direction which should be fair and balanced, stressing its relevance primarily to a defendant's credibility (see R. v. Berrada (1990) 91 Cr. App. R. 131). In the same case it was stated that it would have been proper, but was not obligatory, to invite the jury to consider good character on the issue of whether the defendant had done what he was alleged to have done -- was he someone who would be likely to behave in the manner alleged?
Sir Jonah accepts that though Berrada and many other authorities on this issue were decided after this trial in 1988, there was then a discretion to be exercised by the judge in deciding whether to direct the jury that good character was relevant to the issue of propensity. He submits, however, that the present was a case in which there was only one way in which that discretion could properly have been exercised, and that the judge's failure to direct the jury on this second limb was a material non-direction (or, if one has regard to the words "but it goes no further than that", a material misdirection). This was compounded, he argues, by the failure to mention the character witnesses.
We accept that there may be (and might in 1988 have been) cases in which failure by the judge to give a direction about the relevance of good character to propensity could be said to be a wrong exercise of discretion. We do not consider that the present was such a case. The appellant accepted that he had been guilty of a violent killing, and the only issue was whether he had planned it or acted under provocation. While, even in those circumstances, it might have been preferable for the judge to direct the jury on both limbs, we consider that it was open to him to decide in his discretion -- as he must be taken to have done -- not to do so. The present case can be contrasted, for example, with a case where an employee of good character who has long been in a position of trust without taking the opportunity to be dishonest, is charged with defrauding his employers. In such a case it would, we think, be difficult to justify as a proper exercise of discretion a decision not to give a direction on the second limb. The present case, however, is one where the possible relevance of good character to propensity was much more tenuous.
As to the failure to remind the jury of the witnesses, we accept that the criticism is justified in the sense that it would have been appropriate for the judge to mention them. It is pointed out, however, that (Wong apart) they were the last witnesses the jury had heard and they can hardly have been unmindful of their evidence. We would not, in the circumstances, categorise the omission as a material non-direction.
2. Provocation
It is contended that the learned judge's direction as to the meaning of provocation was wrong.
What he said (transcript 4G) was this:
"For there to be provocation, there have to be two elements present. The first element is that the defendant lost his self-control, and the second one is that the provocation which caused him to do so was enough to make a reasonable man do as the defendant did. Provocation is quite a wide term for these purposes. It can be by things done, or things said, or both. So in assessing whether there is provocation, you look at all the circumstances. As to the first question, whether the defendant lost his self-control, what you have to look at is whether there was a complete loss of control. The law obviously does not excuse someone who may kill someone because he has lost his temper. All of us lose our tempers, I suspect, quite frequently. It is not dealing with that sort of loss of control at all. It is dealing with a complete loss of control, to the extent where you really do not know what you are doing. In one leading case it has been described as the defendant 'no longer being master of his mind!. It might be slightly better put that his mind is no longer master of his body, because he has so far lost control, he really does not know what he is doing. In ordinary language, we talk of 'seeing red', or 'going berserk'. It is that sort of loss of control that we are talking about. Simply anger, to which we are all subject fairly frequently, is not enough for this purpose.
"So you have to look to see, when you are looking at provocation, in the first place whether there has been this complete loss of control by the defendant."
The learned judge completed his direction, in terms about which no complaint is or could be made, by referring to the second element of the defence -- the effect that the alleged provocation would have had on a reasonable man --and by explaining about the onus of proof.
This ground of appeal is formulated thus:
"The learned trial judge's direction on loss of self-control in provocation was erroneous in two respects:
(i) "In that it added to the statutory reference to the loss of self-control the old common law addendum that the loss of self-control had to be so complete as to render the defendant 'no longer master of his mind'.
(ii) "In that it amplified the old common law definition of 'no longer being master of his mind' by defining this as 'going berserk' and so far losing control as to really 'not know what he is doing'."
In his careful advice on appeal, and before us, Sir Jonah developed an interesting argument in support of subparagraph (i), which advanced the proposition that section 3 of the Homicide Act 1957 contains a comprehensive redefinition of the elements of provocation, and that the "classic direction" formulated by Devlin J. in R. v. Duffy [1949] 1 All E.R. 932 (on which Pain J. relied in the passage we have cited) no longer defines the meaning of the term. Devlin J.'s words, amended in the conventional manner to take account of the changes introduced by section 3, were:
"Provocation is some act, or series of acts done [or words spoken] 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 for the moment not master of his mind."
However, Sir Jonah was unable to refer us to any authority which supported his contention; he was, on the contrary, confronted by the difficulty that in two recent cases in this court it was authoritatively rejected. We refer to R. v. Thornton [1992] 1 All E. R. 306 and R. v. Ahluwalia (31st July 1992). In both this very argument was advanced,. In the latter case this court described the argument as misconceived and continued:
"Section 3 of the Homicide Act 1957 did not provide a general or fresh definition of provocation which remains a common law not a statutory defence."
In Thornton the judgment of this court contains the passage:
"The words 'sudden and temporary loss of self-control' have ever since [Duffy] been regarded as appropriate to convey to a jury the legal concept of provocation first expressed by Tindal C.J. in R. v. Hayward (1833) 6 C. & P. 157 and 159 in mitigation of the rigour of the law for acts committed -- 'while smarting under a provocation so recent and so strong, that the prisoner might not be considered at the moment the master of his own understanding...'."
In the circumstances we find it unnecessary to say anything more about the first of the two arguments under this head, which we reject.
The second argument proceeds on the assumption that a direction in accordance with the formulation in Duffy is appropriate. The contention for the appellant is that, in seeking to explain or expand Devlin J.'s formulation the learned judge has given the jury an erroneous direction as to the meaning of provocation.
Expressed in its simplest form, the argument can be put in this way:
(1) Provocation is a special defence to murder, available even though all the ingredients of that offence have been proved to the jury's satisfaction.
(2) Those ingredients include that, when he did the act which resulted in death, the defendant intended death or really serious injury. If he did not have that intent, the verdict will (usually) be not guilty of murder but guilty of manslaughter.
(3) While it is possible to envisage cases where provocative conduct causes a loss of control so complete as to negative also murderous intent, it has never been suggested that only such complete loss of control suffices for the purposes of the Duffy test. Devlin J,'s words, "rendering the accused so subject to passion as to make him for the moment not master of his mind", envisage a man acting purposefully, not as an automaton. It is not essential that he should not know what he is doing: all that is required is that he should not be able to control what he is doing.
(4) Accordingly, a direction which conveys to the jury that the defence involves that the defendant must have lost his self-control so that he did not know what he was doing is a misdirection.
(5) That is the effect of the learned judge's direction in this case. The jury may have been left with the impression that if the prosecution had satisfied them that Choi's words and actions had not resulted in the defendant's being unaware of what he was doing, they should reject the defence of provocation.
In the critical passage in his summing-up the learned judge was plainly seeking to convey to the jury that loss of self-control meant something more than mere loss of temper. If he thought, in order to illuminate this distinction, that a more homely or readily understandable paraphrase of Devlin J.'s words was required, it would have been perfectly proper to emphasise that the test was not "loss of temper" but "a sudden and temporary loss of self control which resulted in the defendant's being unable to restrain himself from doing what he did". Unfortunately, however, the learned judge went further than this. Three times he spoke of "complete loss of control": and (which is it seems to us the more telling criticism) he twice qualified the phrase, first with the words "to the extent where you really do not know what you are doing"; and (immediately after introducing the Duffy formulation) with the words: "It might be slightly better put that his mind is no longer master of his body, because he has so far lost control, he really does not know what he is doing".
It is, of course, necessary to look at this passage in the summing-up as a whole, and to consider it in the context of the facts of the case and the nature of the issues before the jury. We were invited to say that, so viewed, there was no material misdirection, since the overall message the jury would have received was that provocation involved more than mere loss of temper but less than automatism. It could be argued that the jury would have understood the phrase "not know what he is doing" as referring not to complete lack of awareness but as involving a failure by the appellant to appreciate the full import, in terms of legal or moral responsibility or consequences, of his actions. We are, accordingly, invited to say that there was not here a material misdirection; or alternatively, that there are grounds for applying the proviso to section 2(1) of the Criminal Appeal Act 1968 on the grounds that no miscarriage of justice has actually occurred.
As to the first of these submissions, we consider that the criticisms of this part of the learned judge's summing-up are justified; and we cannot confidently conclude, even looking at the crucial passage as a whole and in context, that the jury would have understood it as embodying a correct direction as to the requirements of the defence of provocation. So far as the proviso is concerned, it will be convenient to postpone any observations on that until we have dealt with the third ground of appeal.
3. The significance of lies by the Appellant
The third ground asserts that the learned judge's direction as to the effect of lies told by the appellant was inadequate. It might, we think, more appropriately have asserted (which is the fact) that the learned judge did not direct the jury as to how they should, as a matter of law, regard lies admittedly told by the appellant.
What the judge did say about lies appears from the following passages (at 14G and 15E) of his summing-up:
"He has admitted that for a number of reasons, he was a liar; he told lies, and in one respect plainly, he was a very confident liar.
"There has also been reference made to his subsequent conduct and you will need to consider that to see whether that throws some light on the two possible alternatives of a deliberate killing or a sudden outburst of passion. I am not going to go through all that evidence, because Mr. Crespi went through it very thoroughly this morning and I see no reason to repeat it, but does it support the prosecution case which you have to consider, that this was a case of a very cruel man who was a skilled liar and who was trying to cover up his deed and get away with it. The excuse he gives for lying in the first place was that he wanted to cover up for Sabrina; he said she had nothing to do with it and he wanted her to be out of the country before he confessed to everything. Well, fair enough, you may think, if he was besotted with her, that may well be right that he would want to protect her, but she had left, I think it was on 13th December. He then still maintained this denial of having any responsibility for the matter. When he is asked about that, the defence he puts forward is that he was now acting for the benefit of his family; there had been trouble between his parents, they had had a bad year and he did not want them to finish up that Christmas with their son being arrested for murder or manslaughter.
"You have to assess that. Was he being frank when he put that forward as the reason, or is there a very much simpler reason, that he had got away with it so far and he had a very natural concern to get away with it in the future? If he thought lying was going to help him, he was quite prepared to lie in order to assist him to get away with it. That is a matter you have to consider, because it may throw light on the problem as to whether this was, in fact, a sudden outburst of passion or a deliberate killing."
In these passages the learned judge was, it seems to us, inviting the jury to consider whether the appellant's admitted lies prior to 1st January (and, indeed, his conduct between the killing and that date) were potentially probative of murder. He linked the concept of the appellant's being a skilled liar trying to cover up his deed and get away with it to the resolution of the crucial issue in the case -- was it a planned revenge killing or a spontaneous one provoked by the words and actions of the victim? The judge also introduced the possible untruthfulness of the two explanations put forward by the appellant for his actions and lies -- the desire to protect Sabrina and spare his parents until after Christmas -- in this context. Accordingly, the jury were being invited to consider as potentially probative of the Crown's case of murder and as justifying the rejection of the appellant's account of provocation the facts that (i) he had tried to conceal his crime; (ii) he had lied about his involvement; and (iii) he had lied about his reasons for trying to cover up, and lying about, his involvement.
This approach appears to us to overlook the vital and incontestable fact that a man who has killed by reason of loss of self-control, and therefore faces arrest, trial and possible lengthy imprisonment, may have almost as strong reasons for attempting to conceal his deed and lie about his involvement as a man who has killed deliberately. Counsel for the appellant submitted that, in the circumstances of this case, the jury should have received a careful direction as to how, as a matter of law, they should regard his conduct after the killing and the lies he admittedly told, and that that direction should have been along the following lines -- he has had recourse to the (current) specimen direction published by the Judicial Studies Board:
"The defendant has admitted that he lied to the police. You must consider why he lied. The mere fact that the defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example: to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence, or out of panic or confusion. If you think that there is, or may be, some innocent explanation for his lies, then you should take no notice of them but if you are sure that he did not lie for some such or other innocent reason, then his lies can support the prosecution case."
Such suggested directions need, of course, to be modified to fit the particular case. In the context of a case such as the present, where the issue was murder or manslaughter rather than guilty or not guilty, the phrases "some innocent explanation" and "some such or other innocent reason" are not particularly apt. The point is that the jury should be alerted to the fact that, before they can treat lies as tending towards the proof of guilt of the offence charged, they must be sure that there is not some possible explanation for the lies which destroys their potentially probative effect. Applying that concept to the present case, could the jury be sure that attempts to conceal the killing and lies were inconsistent with the appellant's case that he had killed as a result of provocation, and pointed to murder.
It seems to us that counsel for the appellant is correct when he submits that one has only to pose the question in that way to appreciate that in this case the jury would have concluded that they could not treat the lies as probative of murder rather than manslaughter.
It is a little surprising that most of the decided cases on lies, and most of the learning in standard text books, are directed to the significance of lies as potential corroboration -- see in particular R. v. Lucas [1981] Q.B. 720. In principle, however, the need for a warning along the lines indicated is the same in all cases where the jury are invited to regard, or there is a danger that they may regard lies told by the defendant, or evasive or discreditable conduct by him, as probative of his guilt of the offence in question. It will be recalled that analogous warning is required in relation to alibi evidence which the jury may conclude is false. Sir Jonah referred us to the decision of the Privy Council in R. v. Broadhurst [1964] A.C.441. At page 457 one finds the following passage in the judgment delivered by Lord Devlin:
"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."
Lord Devlin was there, it seems, referring to lies in evidence (though it is clear from the report that the defendant had from the beginning made the assertion in question). There is, however, no reason to think that his observations are not equally applicable to lies out of court.
In the result we conclude that the learned judge's omission to give such a direction coupled with his indication that the jury might regard the appellant's conduct after the killing in trying to conceal what he had done and his lies as probative of murder rather than manslaughter amounted to a material misdirection.
Mr. Carey Q.C. for the Crown invited us to apply the proviso, urging that the Crown's case of murder was a strong one. So it was. However, as will be clear from what we have said when dealing with the third ground of appeal, the issue of lies — much relied on, it seems, by the Crown and considerably emphasised by the judge — went to the core of the defence, and it is in our judgment impossible to feel confident that a jury, properly directed, would inevitably have convicted of murder. Whether, had the appeal depended solely on the second ground, we should have felt able to apply the proviso is, in the circumstances, something which it is unnecessary to determine.
In the result the appeal must be allowed, the conviction for murder quashed, and a conviction for manslaughter substituted.
(The court heard submissions on sentence)
THE LORD CHIEF JUSTICE: We have already recited the circumstances of this offence and the nature of the provocation relied upon by the defendant.
Sir Jonah urges three points on us in respect of sentence: first of all, that the appellant was only 17 years of age at the time of the offence; secondly, the nature of the provocation which involved that the party with whom he had been having not merely a sexual but also, Sir Jonah points out, a loving relationship, had intercourse willingly and with enjoyment with the deceased who cast aspersions on this appellant's status as a lover; and thirdly, that the appellant has for some years now been undergoing the sentence of imprisonment which has been in his mind up till now an indeterminate one.
We have borne all those matters in mind. We consider that the proper sentence here is one of seven years' imprisonment. That is the sentence we shall substitute for the life sentence imposed on the conviction which we have quashed.
