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Cite as: [2000] EWCA Crim 33

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McKNIGHT, R v. [2000] EWCA Crim 33 (19th April, 2000)

Case No: 99/03888/Y5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
(HIS HONOUR JUDGE LOCKETT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 19th April 2000

B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE HIDDEN
and
MR JUSTICE ASTILL
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	REGINA
	- and -
	SONIA McKNIGHT

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

E Elliott Esq (instructed for the Appellant)
T V Holroyde Esq, QC & Mr Gary Smith (instructed for the Respondent)

- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE HENRY:
1. This is the judgment of the Court. On the 16th February 1998 in the Crown Court at Preston before His Honour Judge Lockett, the appellant was convicted of murder by a majority of 11:1 and sentenced to life imprisonment. She was represented at trial by leading counsel and solicitors. It seems that she did not request (and did not get) any written advice on appeal against conviction. Eleven months after her conviction she first instructed the solicitors who now act on her behalf, who in their turn instructed Mr Eric Elliott of counsel, who settled grounds of appeal on her behalf. The Registrar granted an extension of time for appealing of 462 days. The Single Judge (Mr Justice Curtis) gave leave on the following ground:
"The learned judge failed to direct the jury properly about the relevance of drink to the issue of intent. It was an agreed fact that at the time of the killing the appellant had a blood alcohol reading of approximately 300mg of alcohol per 100ml of blood".
2. The appellant, Sonia McKnight, had lived with the victim, Sharon Rogerson McCoy known as Cher for some 4½ years. They were lovers. Both were very heavy drinkers, and their relationship, doubtless as a result of the alcohol, was turbulent. The police had been called to their home on a number of occasions, and each had a conviction for an assault occasioning actual bodily harm on the other.
3. The events took place on the evening of Sunday 23rd March 1997 between 6.20pm and 7.30pm. A neighbour, Mrs Exley, heard raised voices from the women's flat. She looked through the open french windows and saw two figures locked in some sort of physical struggle. She could not see directly what was going on, but it lasted some five or six minutes. She said about half an hour to 40 minutes later the police arrived, shortly before 7.00pm.
4. Before the police arrived, at about quarter to 7, another neighbour, Miss Robinson, saw the appellant hanging out of her window shouting hysterically. She said to Miss Robinson: "Come and help me", and "I've stabbed her". Miss Robinson asked to be "buzzed in". The appellant came down the stairs to let her in. She had no shoes on. The appellant grabbed her arm and took her upstairs. There they found they were locked out. The appellant banged on the door shouting: "Cher, open the door". She left marks of the victim's blood on the door, and Miss Robinson noticed she had splashes of blood on her T-shirt and trousers. The appellant tried to shin up the drain pipe outside and tried to climb up from a lower window without success. Miss Robinson went to another neighbour's flat and called the police.
5. All this time, though the appellant appeared to calm down from time to time, she would become very agitated, screaming, crying and hysterical. Miss Robinson could smell drink on her, and said it was clearly affecting her. Another neighbour said that when the police arrived, she was shouting so loudly for them to open the door that the police had to warn her to be quiet. She said to Mr Burrow, the neighbour who phoned the police:
"She tried to stab me or knife me, and I did it back."
As she was being taken away, she said: "I haven't killed her". Another neighbour, Ivan Hardy, said that when she was locked out of her flat she had said:
"I've had an argument with her. She's gone for me with the knife, and I've taken the knife off her. We've been arguing, but I didn't mean to harm anybody. I tried to protect myself."
6. The police gained entry to the flat and at 7.30pm Mr Palmer, the paramedic on the ambulance, found the dead body of a woman in the living room of the flat. The flat was tidy: there was no sign of a struggle. At post-mortem the victim was found to have two stab wounds. The first was to the left side of the chest, ¾ inch in length and was a downward and forward stab wound approximately 4 inches deep, which would have required a moderate degree of force and was not necessarily fatal. The fatal second wound was just below the adam's apple, and was ¾ inch in length; the knife had entered in a downward and backward movement and the jugular vein and sub-clavian artery had been severed, which would result in heavy bleeding into the chest cavity. The depth of that wound was a little longer than four inches. The pathologist said that the wound could have been inflicted from the front or from behind, with the victim bending down slightly, or sitting down or on the floor. He also found a wound on the left middle finger, which he categorised as a defensive wound. He said that with the wound to the neck the victim would have lost consciousness in anything up to five minutes, and might have survived for 20 to 30 minutes, but it could have been less. He gave as his opinion that he did not see how either of those wounds could be caused by falling onto the knife. Additionally he found an abrasion at the corner of the right eye, an abrasion on the chin, two bruises or abrasions on the back of the neck, a bruise across the back of the right hand, and bruising to the arm and forearm. He also found other bruises which were more than 48 hours old. There was an indication of some alcoholic liver disease consistent with a regular and heavy drinker. A blood sample taken from the victim was analysed and was found to contain 325mg of alcohol per 100ml of blood.
7. When the police arrived at the flat, they found a blood-stained black-handled kitchen knife with a blade approximately 4 inches long, on the floor. Tidily away in a drawer, with an ice-cream scoop on top of it, was a bread knife. The defendant was agitated and distraught. She was showing signs of having taken alcohol. The police evidence on this was as follows. PC McFall said she appeared to have been drinking and that her speech was slurred, and she was upset. The Custody Officer, Sergeant Stevenson said she smelled of drink, but was fit to be detained and interviewed. PC Bridget Bowes, assigned to look after her at the police station, said she had been drinking, but didn't consider her drunk. She was upset and distraught. The interviewing officer, Detective Sergeant Byrne, said that at her first interview, just after midnight, she was composed and coherent, understood everything, and was fit for interview. The police surgeon noted alcohol on her breath, but found her fit to be detained. He said that if he had known her blood alcohol level, he might have examined her more closely. She was saying: "I haven't killed her. She isn't dead", and: "She can't be dead. She was alive when I left the flat", "It wasn't my fault, she had a knife". The police constable who was assigned to look after her at the police station, Bridget Bowes, recorded that the defendant had said:
"We had a fight. We fought and fought and fought. Tonight she hit me and then I hit her back. That was it. I love her. I didn't kill her. ..."
8. She was interviewed three times. The first interview was just after midnight. Her solicitor was present. She denied harming the victim. The victim had a bread knife, and was waving it about, threatening the appellant. Each hit the other. The appellant left the flat. She didn't know where all the blood was from. The second interview was at 1550 on the 24th. She said she was definitely not drunk the previous day. They were arguing. The victim took up a carving knife(later she said it was the bread knife) and threatened her. Before that the victim had "swiped" her. She was taking the chance of being sliced by the knife, so she ran out of the flat. The bloodstains might have been from her nosebleed. She didn't see any blood on the victim. She denied stabbing her. Her third interview was half an hour later. She stated she wished to tell them what actually happened. Cher did get the bread knife out. The appellant picked up the kitchen knife to protect herself and "... held the knife to her ... I didn't realise it but it musta went in ... in her neck .... It was just self defence.".
9. There were a number of agreed facts. They dealt with the alcohol levels at the time of the interviews. Her blood alcohol was analysed. At 10.30pm on the evening in question it was found to contain 245mg of alcohol per 100ml of blood. That level would suggest that she would have had a reading of approximately 300mg per 100ml at the time of the killing. Paragraph 8 of the agreed facts read:
"The annexed scale, which shows the likely effects of various levels of alcohol consumption, is illustrative only. The effect of alcohol upon an individual varies. When an individual is habituated to alcohol, as was Sonia McKnight, the effect will be reduced to some degree."
10. At the flat, the Fingerprint Officer recovered fourteen empty lager cans. Two had the appellant's fingerprints, seven had the victims, four of them had both and one had no identifiable fingerprints. There was also an empty bottle of Thunderbird, with the appellant's fingerprints on it.
11. In the defence case, the appellant gave evidence and accepted that she held the knife which caused the wounds, but contended that she did not deliberately cause them. She described her partner as being loving and caring, but a heavy drinker, who when drunk would become annoyed and agitated and be violent to the appellant. On the Friday before Sunday 23rd March they had been drinking and an argument had started. The victim squeezed the appellant's throat so she could not breathe and the appellant dragged her hands off. On the Saturday the appellant (unusually for a weekend) did not drink because she felt unwell. Cher drank and there was an argument when she accused the appellant of having an affair with another woman. The appellant put her to bed. The following day, Sunday, Cher was apologetic. They bought some more drink, but Cher drank more than the appellant.
12. An argument started. Cher punched the appellant on the right side of the face. The appellant hit her back with the side of her fist. Cher grabbed the appellant's hair and dragged her into the living room and then dragged her by the throat. She was pinning the appellant down. Cher said: "I'm going to fucking kill you". The appellant got her off and Cher got the bread-knife from the drawer in the kitchen. The appellant rushed into the kitchen and grabbed the nearest thing, the black-handled knife. She did not come out because she felt threatened, the living-room door was shut and Cher was coming towards her with the knife in her left hand saying she was going to kill her. The appellant tried to calm her down, and she waved her knife about to try and scare her off. As Cher dodged about and lunged forward the knife went into her neck. The appellant did not intend the knife to go in as far as it did. Cher started bleeding and the appellant picked up the bread knife where Cher had dropped it and put it back into the kitchen drawer while still holding her knife. The appellant put her knife down and then noticed that Cher was holding her hand to her neck. The appellant wanted to get help but the victim did not want to be left. Then the appellant got locked out. She agreed that she had told Jill Robinson that she had stabbed Cher and she said that she was feeling the effects of the drink, that she was "... drunk, but not legless". She agreed that she had given a variety of accounts. She said:
"I still don't want to believe that Cher is dead or that I am guilty of murder. I did stab her twice. I was acting in self-defence and the entry of the knife into her body was accidental."
She called a witness, Jean Hudson, who said she had seen violence between the appellant and Cher. She said sometimes it seemed to be six of one and half-a-dozen of the other. But she also said that the appellant always seemed to have come off worse.
13. That was the evidence. So far as Mr Holroyde QC for the Crown could remember, there was no prior discussion with the judge as to the contents of his summing-up.
14. As will have been seen from the above, the Crown's case was that here there was the deliberate stabbing of an unarmed and defenceless woman. The defence was that the wounds to the deceased were caused in lawful self-defence, and without any intention either to kill or cause grievous bodily harm. She also said that the entry of the knife into her body was accidental. The judge also left provocation to the jury, though the defence did not request this.
15. Returning to the single ground of appeal, the judge summed up the evidence relating to drink and, in dealing with the ingredients of murder, told the jury that the prosecution must prove that the defendant intended either to kill or to cause grievous bodily harm. But he did not expand on that to give them any help as to how to deal with intoxication. Mr Holroyde, for the Crown, cannot recall for certain whether there was any discussion as to whether the Sheehan and Moore direction (see below) should be given.
16. It is, of course, a general rule that where there is evidence from which a jury could reasonably infer that a defence might be relied on by the defendant, the judge should leave it to the jury. Indeed, the judge may be obliged to do so even against the wishes of the defence (see Conway 88 Cr App R 159).
17. At the same time, while alcohol plays a large part in many, if not most, crimes of violence, the standard Sheehan and Moore ([1960] 60 Cr App R 308) direction is not given in every such case, not even perhaps the majority of such cases. This is because a drunken intent is still an intent. And, as is the case with many specific directions, to give them when they are unnecessary may be confusing.
18. The first and crucial issue is whether that direction should have been given here. We take the applicable specific direction from the Judicial Studies Board Specimen Directions, namely the direction on voluntary intoxication in offences requiring specific intent when the crime is murder, as appropriately adapted:
"You must not convict unless you are sure that the defendant, when he did the act, intended to kill or cause grievous bodily harm. In deciding whether he intended to kill or cause grievous bodily harm you must take into account the evidence that he was drunk. If you think that, because he was so drunk, he did not intend or may not have intended to kill or cause grievous bodily harm, then you must acquit him. But if you are sure that, despite his drunken-ness, he intended to kill or cause grievous bodily harm then this part of the case is proved against him. A drunken intent is still an intent."
19. In considering this issue we were referred to Sheehan and Moore (above), Pordage (below), Bennett [1995] Crim LR 877, Sooklal (below) and Groark [1999] Crim LR 669.
20. That issue will not arise in every case. For instance, the issue did not arise in either Sheehan and Moore, or in the case of Pordage [1975] Crim LR 486, because in each of those cases there was a clear misdirection given, and it was possible to substitute a verdict of manslaughter in Sheehan and Moore, and possible to apply the proviso in Pordage. As a result we were referred to only one authority (Sooklal, below) which deals with the question raised by this issue, namely the distinction between where there is a drunken intent to kill or cause grievous bodily harm and where, because of the effects of alcohol voluntarily taken, there is no such intent.
21. But before we consider Sooklal, we have two comments on Sheehan and Moore. First, had the direction been both necessary and given here, the direction to acquit would be to acquit of murder. Second, the direction, if given, would on the facts of this case (ie subject to self-defence and accident) have been accompanied by a direction to convict on manslaughter. If self-defence and accident failed, and if there was an acquittal of murder because of no intent, this would be a classic "unlawful act" manslaughter, the unlawful act being the assault in threatening the victim with this knife, or brandishing it dangerously close to her. It will be noted that in Sheehan and Moore, the Court substituted a conviction of unlawful act manslaughter under Section 3 of the Criminal Appeal Act, 1968.
22. The issue as to whether a Sheehan and Moore direction should be given did arise in the Privy Council case of Sooklal & Others -v- The State of Trinidad and Tobago [1999] 1 WLR 2011. There, the second defendant, Mansingh, was indicted for murder. He admitted having cut the victim's throat with a cutlass. His defence was that he lacked the intention necessary for murder, namely the intent to kill or cause grievous bodily harm. His counsel, Mr Sidney Kentridge QC, had invited the jury to convict his client of manslaughter. As will be seen from the Sheehan and Moore specimen direction, if the Crown cannot prove the necessary intent because of the effects of alcohol, then the accused is entitled to an acquittal. Lord Hope, giving the speech of the Board, explained Mr Kentridge's position:
"Mr Kentridge for Mansingh said that the sole issue in his appeal was whether he was entitled to a direction that, if he lacked the specific intent for murder because he was drunk, he should be found guilty of manslaughter ... Mr Kentridge submitted that so long as there was some evidence that the defendant was drunk at the time when the offence was committed, the judge must leave it to the jury to consider whether he was guilty of manslaughter .... Mr Kentridge accepted that in this case, by directing an acquittal rather than a reduction of murder to manslaughter, the trial judge had given the defendant a more favourable direction than that to which he was entitled. But he said that, far from helping him, this had been to his prejudice. The test was that which had been explained in Reg -v- Maxwell [1990] 1 WLR 401 at 408:
`What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct.'
There was an obvious danger that this is what had happened in this case."
23. That relatively elaborate structure depended on the basic question:
"...whether there was a sufficient basis in the evidence for the argument that he lacked the specific intent for murder because he was intoxicated." (ibid at 2017A)
24. The test laid down by Lord Hope is as follows:
"Whenever reduction of a charge of murder on the ground of self-induced intoxication is in issue, the ultimate question is whether the defendant formed the mens rea for the crime charged: Smith & Hogan, Criminal Law, 8th ed. (1996), p 225. What is required is specific evidence that the defendant was so intoxicated that he lacked the specific intent which is essential for murder: that is the intent to kill or to inflict grievous bodily harm upon the victim: Reg -v- Doherty (1887) 16 Cox CC 306, 308 per Stephen J: Director of Public Prosecutions -v- Beard [1920] AC 479, 499 per Lord Birkenhead LC and Reg -v- Majewski [1977] AC 443, 498-499 per Lord Russell of Killowen.
This test is not satisfied by evidence that the defendant had consumed so much alcohol that he was intoxicated. Nor is it satisfied by evidence that he could not remember what he was doing because the was drunk. The essence of the defence is that the defendant did not have the guilty intent because his mind was so affected by drink that he did not know what he was doing at the time when he did the act with which he was charged. The intoxication must have been of such a degree that it prevented him from foreseeing or knowing what he would have foreseen or known had he been sober. This was made clear by Lord Denning in Bratty -v- Attorney-General for Northern Ireland [1963] AC 386, 410 in a passage which was quoted by Widgery LJ in Reg -v- Lipman [1970] 1 AB 152, 156:
`If the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary, see Beard's case.'
In Attorney-General for Northern Ireland -v- Gallagher [1963] AC 349, 381, Lord Denning gave some helpful examples of the applications of this principle:
"If a man is charged with an offence in which specific intention is essential (as in murder, though not in manslaughter), then evidence of drunkenness which renders him incapable of forming that intention is an answer: see Beard's case [1920] AC 479, 501, 504. This degree of drunkenness is reached when the man is rendered so stupid by drink that he does not know what he is doing (see Reg -v- Moore (1852) 3 C & K 319), as where, at a christening, a drunken nurse put the baby behind a large fire, taking it for a log of wood (Gentleman's Magazine (1748), p 570); and where a drunken man thought his friend (lying in his bed) was a theatrical dummy placed there and stabbed him to death (The Times, 13 January 1951). In each of those cases, it would not be murder. But it would be manslaughter.'"
25. The test was whether drunkenness had rendered her incapable of forming an intention to kill or cause grievous bodily harm. The emphasis is on whether she knew what she was doing. Lord Denning's examples are of cases where it is clear that the direction should have been given, as the accused in those examples clearly did not know what they were doing.
26. Against that test, we turn to examine in greater detail the evidence of intoxication. We have dealt with how her neighbours saw her at the time of and immediately after Cher's death in paragraphs 3 - 5. The police's perception is summarised at paragraphs 7 and 8. The forensic and circumstantial evidence as to the drink she had taken may be found at paragraphs 9 and 10. Her defence is set out at paragraphs 11, 12 and 14.
27. We now go into further detail as to the evidence of intoxication, starting with the evidence that the appellant herself gave. In her evidence in chief she dealt with the general history of heavy drinking by both her and the deceased throughout their relationship. It basically was binge drinking at weekends, and it was getting progressively worse. The 14 empty lager tins and empty bottle of Thunderbird in the flat when the police searched would be fairly typical for a day's consumption for both of them. On the Friday before Sunday 23rd, both of them had been drinking, though the appellant had been drinking less than usual, as she was to say. She said she was not tipsy or drunk or anything like that. But Cher was drunk and there were some "fists" from both of them, culminating in Cher grabbing the appellant's throat. On the Saturday there were arguments, but no violence or fighting. Unusually on the Saturday, the appellant in answer to her counsel said that she didn't drink at all, because she did not feel well that day. Cher was drinking as usual. There were arguments on that day, but no fights. On the Sunday they were drinking. The appellant had gone to buy 16 tall cans of lager. Fourteen of those were found empty as was the bottle of Thunderbird wine. There was no evidence as to when it had been emptied: the lager had been bought that day. She described in great detail from the witness box the course of the struggle. When she was asked as to locking herself out, she said that she wasn't thinking right. She had said on a number of occasions that she wasn't drunk and clarified this by saying that she was not "leglessly drunk" at the time of the struggle. Counsel asked her how she was in the middle of the evening between nine and ten o'clock, after the death of Cher. There she said: "Well I still had the effect [ of the alcohol], obviously". She denied that she intended to injure Cher. She said she was holding the knife out, and Cher walked or moved onto it. The first interview started at midnight. Her solicitor was present and it was tape recorded. No representations were made that she was unfit for interview. DS Byrne, who conducted the interview, thought her fit, and her answers composed and coherent.
28. At trial she was cross-examined:
"Q. Dealing now with the time when the stab wounds were inflicted. You're not saying, are you, that you were too drunk to know what you were doing?
A. No.
Q. Because, on the contrary you've given us a careful account of the thoughts you say you had in your mind at that time?
A. Yes.
Q. And just looking at the position generally around that time you were a heavy drinker?
A. Yes.
Q. But on this particular day, as it happened, you had had less to drink that normal?
A. Because I was ill the previous day.
Q. Right. And so in terms of the effects of alcohol you were better off that day than most days?
A. Well, yes.
Q. And you're not saying, are you, that Miss McCoy's conduct got you so annoyed that you completely lost your self-control and stabbed her in temper?
A. No.
Q. On the contrary, you are saying to the jury that you were in control of your emotions throughout?
A. Basically yes."
29. She was cross-examined as to her second interview, as to the Sunday:
"Q. Sergeant Byrne says:
`Q. Yes, by tea-time how many cans had you had?
A. It wasn't many because as I say I didn't really feel well.
Q. Were you drunk?
A. Oh no, definitely not.'
and that's right, isn't it, you weren't drunk?
A. No.
Q. No you weren't drunk or no it's not right?
A. I wasn't leglessly drunk."
Her description is roughly to the same effect as the evidence of her neighbours and the police who saw her.
30. At the opening of her cross-examination she gave these answers:
"Q. And you don't want to believe that you are guilty of murder, do you?
A. No.
Q. But you accept this much at any rate, you did in fact stab her twice?
A. Yeah.
Q. And when I use the word stab you accept that it was the movement of your arm that put the knife into her body?
A. Yeah."
However, she made clear by the next two questions and answers that she was still saying that though she was not holding the knife still, Cher did still walk or move onto it. She could not remember inflicting the wound to the chest, but could remember doing the one to the neck.
31. Nowhere in any of her evidence does the appellant claim either that she was incapable through alcohol of forming the intention to kill or to commit grievous bodily harm or that she did not know what she was doing. She simply states that she did not have the specific intention. She clearly, on her account, knew what she was doing throughout, and purported to give a full account of it. There is absolutely nothing to suggest that her perceptions were such that she could not appreciate what she was doing. Nor was her memory impaired, and she went into her physical actions in some detail. She clearly knew what was happening from beginning to end.
32. As we have already said, by the time the Notice of Appeal was finally served, no-one could remember whether the question of intoxication was raised with the trial judge. It seems to us likely that, whether it was or not, that he took his own decision that this was not a proper case for a Sheehan and Moore direction. We base that on the fact that he faithfully summed up the evidence on intoxication, but did not give that familiar direction which he must have been aware of.
33. But if we were wrong in that view, in our judgment there was no sufficient evidence before the jury which would have entitled them to conclude that the defendant might not have formed the intention to kill or cause grievous bodily harm because she was so drunk. As the Privy Council found in Sooklal:
"This case is far removed from those where a verdict of murder must be reduced to one of manslaughter because the defendant did not know what he doing due to intoxication by alcohol."
34. Accordingly, in our judgment it would have been wrong to leave this matter to the jury.
35. Mr Elliott, in a subsidiary argument submits that Section 8 of the Criminal Justice Act, 1967 obliged the court to give the direction in all circumstances. That is not what this section says. It reads:
"8 A court or jury in determining whether a person has committed an offence
a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable result of those actions; but
b) shall decide whether he did intend or foresee that result by reference to all the evidence drawing such inferences from the evidence as appears proper in the circumstances."
36. As the editors of Archbold point out:
"All that this section did was to enact what many had thought to be the law before the decision of the House of Lords in DPP -v- Smith [1961] AC 290, namely that there was no presumption of law that a man intended or foresaw the natural consequences of his act. It has nothing to do with substantive law ..."
Here the evidence at its highest did not justify the conclusion that the appellant might not have been able to form the necessary intention because of drink.
37. In our judgment, it follows from Sooklal that there must be a proper factual basis before the Sheehan and Moore direction is given. It certainly is not every case of drunkenness that would require it. There is no such factual basis here. It would be prudent in all cases involving drunkenness for the trial judge to discuss the issue with counsel at the close of evidence, or perhaps earlier in some cases.
38. For the above reasons, we dismiss this appeal.