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Cite as: [2002] EWCA Crim 2

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Garvey, R v [2002] EWCA Crim 2 (30th January, 2002)

		Neutral Citation Number: [2002] EWCA Crim 2
		Case No: 2000/06650/X1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

30th January 2002

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE HOLMAN
and
MR JUSTICE GRIGSON
____________________

REGINA

- and -

Errol Garvey

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Miss A Weekes QC (instructed for the Appellant)
R Horwell Esq (instructed for the Respondent)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Henry:

This is the judgment of the Court. In October 2000 the appellant was tried for murder, and on 12th October 2000 was convicted of the lesser offence of manslaughter; he was sentenced to nine years’ imprisonment. He appealed against conviction and sentence by leave of the Single Judge, and on 23rd October 2001 both appeals were dismissed. Because of lack of time, full reasons for judgment were reserved and these are now set out below.

Only the barest outline of the facts is necessary. The appellant was married to and lived with the deceased’s sister, and had informally sub-let his council flat to relatives of the deceased. At the time in question it was occupied by a number of young men. There was a dispute between the appellant and the deceased as to the continued occupancy of that flat by those relatives, and as to their conduct there imperilling the appellant’s tenancy.

This dispute led to the appellant arming himself with two large kitchen knives and going to the flat at a time when the deceased was expected there. The reason he gave for carrying the two knives was that he expected to be outnumbered. He arrived before the deceased, was very angry and upset with him. He was threatening to kill someone and to “... fuck him [the deceased] up”. There was ample material for the jury to conclude both that he was angry, and that that anger was directed at the deceased.

The deceased arrived at the scene, also carrying a knife. When the two men met, there was a confrontation between them during which both men were injured, the deceased fatally so. The Crown called three eye-witnesses (Forbes, Wright and Roach) whose evidence, if accepted - as it clearly was - was that on the deceased’s arrival the appellant immediately went over to him and attacked him with a knife. But the deceased was also carrying a knife, and in the course of the knife fight himself inflicted “defence” injuries on the appellant. It would seem that the fatal blow was the first blow struck. The prosecution case was that the appellant set out to attack the deceased, immediately attacked him with a knife and deliberately stabbed him. Scientific and eye-witness evidence were relied on. The emphasis of the defence case was that the appellant had stabbed the deceased accidentally whilst acting in self defence. The defendant gave evidence himself. He called forensic evidence, but no other. The defence could point to the defensive injuries sustained by the appellant, to show that there had been a knife fight. But the difficulties in their way were the fact that the defendant went armed with two knives, was aggressive and threatening, especially towards the deceased, and the defence explanation for the mechanism of the fatal wound (the deceased falling on one of the defendant’s knives) lacked credibility. And the three eye-witnesses identified the appellant as the attacker.

At the conclusion of the evidence the judge indicated that in his view there were two possible routes to manslaughter in these circumstances: first, manslaughter through provocation (due to the alleged words and actions of the deceased to the appellant); and second, “no intent” or “unlawful act” manslaughter, based on the appellant’s disputed evidence that he did not intend injury and his account of the mechanism for the fatal wound, the defence of accident.

In the course of the appeal hearing, it was suggested that manslaughter by provocation should not have been left to the jury, but first, that was the case run, and second, that once the judge had decided there was a case on provocation, there was no choice. Provocation had to be left to the jury. The judge clearly formed the view that there was evidence on which the jury could found provocation under section 3 of the Homicide Act, 1957. The defence had to be summed up; accordingly both routes to manslaughter had to be summed up. There was no request or requirement that the verdicts should distinguish between one form of manslaughter by knife and another (see Attorney-General’s Reference No 3 of 96, R -v- Latham [1997] Cr App R (S) 10, and the sentence appeal below).

We turn to the principal point of appeal. It features, unusually, the response agreed between judge and counsel, given by the judge to a question from the jury after they had retired.

The background to this point is that in our view, the real and most important issue in this case was whether the Crown could show that the appellant was not acting in necessary and reasonable self-defence. We believe that view to be common ground.

In a commendable attempt to help the jury, the judge provided them with a written structure or critical path to guide the jury through the various permutations open to them in a document called Steps to Verdict. In his oral summing-up, he indicated that it was only a guide for them to have before them as he went through the summing-up proper. The document read:

“1. Are we sure the defendant deliberately stabbed Dennis Roach? If unsure, not guilty. If sure:

2. Are we sure that this caused the death of Dennis Roach? If unsure, not guilty. If sure:

3. Are we sure that when the defendant deliberately stabbed Dennis Roach he was not acting in reasonable and necessary self-defence? If unsure, not guilty. If sure:

4. Are we sure that when the defendant deliberately stabbed Dennis Roach he intended either to kill him or cause him really serious bodily harm? If unsure, not guilty of murder, go to 6. If sure go to 5:

5. Are we sure that when the defendant deliberately stabbed Dennis Roach he was not acting under provocation?

May the conduct of Dennis Roach, that is things said or done by him have caused the defendant suddenly and temporarily to lose his self-control?

May that conduct have been such as to cause a reasonable and sober person of the defendant’s age and sex to do as he did?

If sure that the defendant was not acting under provocation - guilty of murder. If unsure, Guilty of Manslaughter.

6. Alternative route to manslaughter.

Are we sure that the defendant’s act was one that all reasonable and sober people would inevitably realize was bound to subject Dennis Roach to the risk of physical harm, albeit not serious harm?

If sure, Guilty of Manslaughter, if unsure not guilty.”

The possible verdicts were then listed.

“1) Guilty of Murder

2) Not Guilty of Murder, but Guilty of Manslaughter

3) Not Guilty.”

The jury retired at 12.05pm on Wednesday 11th October. Not long thereafter they sent out a note which read:

“1) Can we have more detail on the judge’s summary of manslaughter, specifically who the aggressor is, ‘self defence’ and ‘reasonable force’?

2) Is knowing who the aggressor is relevant? (for manslaughter)”

As will be seen, the concept of “the aggressor” had not been used in the Steps to Verdict. But in the summing-up, the judge dealt with the concept of the aggressor as part of “... the central core of [the appellant’s] defence” ie the absolute defence of necessary and reasonable self-defence, a defence to both murder and manslaughter.

Obviously, it is much easier for the court to answer a factual question from the jury as to the evidence, than a legal question, where the question often may not be sufficiently informed or well-enough formulated as to be comprehensible. Further, there is no way of knowing whether the question reflects an idiosyncratic concern of a lone juror, or is the agreed question of the whole jury. It follows that there were many imponderables confronting the judge and counsel as to the response to the note. But there was unanimity between judge and counsel as to what the thrust of the response should be: all were agreed that the emphasis should be on the “central core” of the defence, namely that unless the Crown had satisfied the jury that the defendant was not acting in necessary and reasonable self-defence, they must acquit of both murder and manslaughter. The judge both started and ended his further direction to them with that direction, and in between he repeated the entirety of his direction on self-defence (as to which no criticism is made).

Miss Weekes QC initially approved that direction. Accordingly, that version was read to the jury at 3.06pm that day. The jury retired, and soon after sent a second note requesting a transcript of the judge’s response to their first request. The judge agreed to have such a transcript prepared.

At around this time, Miss Weekes felt uneasy about one point, involving an amendment to the response originally agreed. This amendment was discussed with the judge and Crown counsel, it was agreed between the three, and incorporated into the document recording the amended summing-up for the next day. The response, in both its original and amended forms, made it abundantly clear that self-defence was an absolute defence.

The defence, in their Perfected Grounds of Appeal rely on two points. We will take them in chronological and numerical order by dealing with Ground 1 first. This ground asserts that the jury:

“... misunderstood, or may have misunderstood, or may have wrongly applied the learned judge’s directions on manslaughter”

We look at the facts surrounding the summing-up.

The jury heard seven days of evidence, and heard the summing-up over the eighth and ninth days of the trial, retiring to consider their verdict at 12.05pm on Wednesday 11th. They were given the Steps to Verdict document (see paragraph 9) at the beginning of the summing-up on 11th October.

At some time before 2.58pm on that day the jury sent out a written note to the judge - this is the document referred to in paragraph 11 above. The judge’s response to that document was to repeat that passage of his summing-up dealing with self-defence. The judge had agreed with both counsel to take that course, and the jury were so informed. The direction on self-defence (which was closely based on the Judicial Studies Board Specimen Direction of August 2000) was given to the jury once more. Having given it, the judge added:

“Members of the jury, having read your question out, that is my answer to your question. I hope it has completely answered your question. As you know, if you have any other note you wish to put to me, if it has not completed answered your question, you can formulate it and I will read it.”

The jury then, at 3.25pm asked for a typed copy of the judge’s recent direction in writing, and the judge said they could have that the following day. When the court met counsel in chambers before and after having risen for the day, Miss Weekes indicated doubts as to whether the agreed formula that the three had arrived at was in fact correct. Mr Horwell, for the Crown, indicated that he believed a relatively simple amendment would meet her concerns. His amendment was agreed between counsel and the judge, and, with Miss Weekes approval, was given to jury at 10.30am on Thursday 12th October. The amendment added the words underlined to the summing-up of self-defence, when defining the aggressor:

“... one who goes to the scene armed with a knife with the deliberate intent of using it unlawfully - by that I mean without any threat to him or irrespective of any threat to him, does not act in lawful self-defence.”

To which the answer is, of course, he does not act in lawful self-defence, as Mr Horwell pointed out. The second ground of appeal criticises the direction as being inadequate, but it is in no sense a misdirection. It states the obvious, but does the defence no harm.

The jury retired again at 10.44am and deliberated for one hour and 48 minutes before sending a note as to the division of opinion in its ranks. Accordingly, the majority direction was given at roughly 12.30pm. They then retired for a further three hours and twelve minutes before, at 3.45pm returning a verdict of not guilty of murder but guilty of manslaughter by a majority of 10:2.

Those then are the essential facts. We return to the first ground of appeal. The judge and counsel were right in our judgment to agree that what had to be made clear was that self-defence was an absolute defence - see 102D:

“... you must be sure that the defendant was not acting in necessary and reasonable self-defence before you convict either of murder or manslaughter. If you are not sure of that it is your duty to acquit both of murder and of manslaughter.”

No further note relating to the summing-up was sent to the jury.

We accept that the questions as drafted by the jury were obscure and imprecise, but we are not persuaded that the response to that note, sent out early in their retirement, manifested confusion itself, when, as has been shown, at all times the absolute nature of the defence of necessary and reasonable self-defence leading to acquittals on both murder and manslaughter was emphasised. The jury requested and got that part of the summing-up relevant to their question in writing. The jury were asked in terms to re-open the question with the judge should the judge’s repeat of his direction on “self-defence” be not what the jury requested. It is impossible to infer from an ill-draft note delivered early in the retirement process that the jury were or remained confused.

This appeal is put as judicial misdirection leading to jury confusion. As is laid down in R -v- Fielding [1938] 26 Cr App R 211:

“If misdirection is complained of, the full particulars must be given.”

Here the appellant has given no such particulars. So we are not told what different direction should have been given. As to manslaughter provoked by the deceased, the direction is set out in the summing-up from 10E to 12G, and Steps 1-4 and 5. It follows closely the Judicial Studies Board Specimen Direction (August 2000 Edition). No complaint is made of that direction. As to “no intent” or “unlawful act” manslaughter, this direction is as summarised in Archbold 2000 at paragraphs 19-99 and 19-105, as summed up at 13A - D and Steps 1-4 and 6. Again, we see nothing wrong with that direction. Nor do we find anything wrong with the central direction on self-defence. There is nothing here to imperil the validity of this conviction.

We turn finally to the question of sentence. This is a bad case of manslaughter where a knife is used to cause serious injury, an offence too prevalent these days. A review of the cases to be found in Attorney-General’s Reference No 3 of 96 (above). The appellant left home with two knives, clearly looking for a fight. He was in a rage, he lay in wait for the deceased, and used his knife to fatal effect at once in an attack over trivial differences between the two men. This was a bad offence of its kind and the sentence cannot in any way be considered manifestly excessive.

For those reasons, these appeals will be dismissed.