England and Wales Court of Appeal (Criminal Division) Decisions

Jenkins & Ors, R v [2002] EWCA Crim 749 (14th February, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th February 2002

Lord Justice PILL:

1. David Jenkins, Alicia Jenkins, Terry Jenkins and Russell Brown make renewed applications for leave to appeal against conviction for murder. Their applications have been refused by the single judge. Gibbs J stated:

“Re David Jenkins

On any view you inflicted the fatal wounds with a knife and caused the victim’s death. The case against you on the murder charge was a powerful one. Your grounds of appeal do not raise an arguable case either that the Judge misdirected the jury or that any of his rulings fell outside the reasonable exercise of his discretion. The conviction is not arguably unsafe.

Re Alicia Jenkins

There was strong evidence from which the jury was entitled to conclude that you helped your son David by driving him to find the victim in order to carry out a revenge attack when armed with a knife. Under those circumstances they were entitled to convict you of murder. None of the ten grounds advanced on your behalf raise any arguable case that your conviction was unsafe; several of the grounds seem to lack any substance at all.

Re Terry Jenkins

You were present when your brother carried out the fatal stabbing and were very close to him. There was ample evidence that you went to the scene as part of a plan for a revenge attack on the victim after what he had done to you. Neither of the grounds put forward on your behalf make your conviction arguably unsafe.

Re Russell Brown

I have taken into account your counsel’s well argued grounds: but there was evidence for the jury when considering the verdict in your case

1. that you knew that David Jenkins had a knife

2. that you chose to join with him in a trip to take revenge on the victim

3. that you were close enough to the victim to get blood on your clothes

None of the grounds put forward disclose any arguable irregularity or misdirection nor any feature which makes the verdict arguably unsafe.”

2. The central facts are set out in the judgment dismissing the appeals of Mark Arnell-Smith and Victor Rey-Blasco and the judgments should be read together. The account needs now to be supplemented by a few references, the first being to that of the evidence of the defendant Rey-Blasco. In his summing-up, the judge referred to the evidence of Rey-Blasco as to what happened at the scene of the killing. We did not mention it when considering his appeal which was based on the state of the evidence at the close of the prosecution case:

“Victor Rey-Blasco describes David Jenkins and Terry Jenkins leaning over and punching in a downward direction. They both deny it. Rey-Blasco is cross-examination said he might have been mistaken but that was his evidence that that is what he saw. If he is right, it is of course, potentially damaging.”

Secondly, Charlotte Cheeseman was an eye-witness and stated that she saw one of those who approached Mitchell Davis make several lunging movements towards him. Thirdly, there are references to the evidence of two fishermen as to events after the killing and to a conversation between Alicia Jenkins and police officers. These are made in the course of this judgment.

3. We deal with the applications in the order in which counsel addressed us. For David Jenkins, Mr Pardoe (and Mr Davis for Terry Jenkins) first submits that the judge should not have admitted in evidence the post-mortem photographs. They created a climate of prejudice and one of the jurors broke into tears on seeing them. They were unnecessary for the resolution of the issues in the case. Dr Chapman did not need to refer to them to describe the injuries. They could be misleading in that Davis was clothed when they were inflicted and the injuries would not have been visible to him. A body map would have provided sufficient illustration of the use of force involved.
4. In our judgment, the judge was entitled in his discretion to take the course he did. It is not arguable that the verdict is unsafe because the jury saw the photographs.
5. It is submitted that there should have been a separate count of manslaughter on the indictment. The single count focused attention on murder. We see no merit in this submission, the jury having been properly directed as to the courses open to them.
6. Mr Pardoe submits that, having regard to the speeches in the House of Lords in Morgan James Smith [2001] 1 Cr App R 31, the summing-up on the issue of provocation was defective. A less hidebound and more relaxed approach is now required when setting out the second element in the test and there is no need to refer to the reasonable man. In his direction, the judge referred to the reasonable man on four occasions. Insufficient emphasis was placed on the fact that David Jenkins was the eldest male in a fiercely loyal family and that it was not unreasonable in the circumstances for him to lose his self-control.
7. In Smith, Lord Hoffmann, at paragraph 91, stated:

“In my opinion, therefore, judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics. They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation. First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control. For better or for worse, section 3 left this part of the law untouched. Secondly, the fact that something caused him to lose self control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition.”

8. Lord Hoffmann, at paragraph, 93 stated:

“My Lords, I do not wish to lay down any prescriptive formula for the way in which the matter is explained to the jury. I am sure that if judges are freed from the necessity of invoking the formula of the reasonable man equipped with an array of unreasonable ‘eligible characteristics’, they will be able to explain the principles in simple terms. Provided that the judge makes it clear that the question is in the end one for the jury and that he is not seeking to ‘impose a fetter on the right and duty of the jury which the Act accords to them’, the guidance which he gives must be a matter for his judgment on the facts of the case.”

9. Lord Clyde, at paragraph, 108 stated:

“It seems to me that the standard of reasonableness in this context should refer to a person exercising the ordinary power of self-control over his passions which someone in his position is able to exercise and is expected by society to exercise. By position I mean to include all the characteristics which the particular individual possesses and which may in the circumstances bear on his power of control other than those influences which have been self-induced. Society should require that he exercise a reasonable control over himself, but the limits within which control is reasonably to be demanded must take account of characteristics peculiar to him which reduce the extent to which he is capable of controlling himself. Such characteristics as an exceptional pugnacity or excitability will not suffice. Such tendencies require to be controlled. Section 3 requires that the accused should have made reasonable efforts to control himself within the limits of what he is reasonably able to do. This is not to destroy the idea or the reasonable man nor to reincarnate him; it is simply to clothe him with a reasonable degree of reality. But as the statute prescribes, the matter comes to be one of the circumstances of the case and the good sense of the jury. Although the statute expressly refers to a reasonable man it does not follow that in directing a jury on provocation a judge must in every case use that particular expression. The substance of the section may well be conveyed without necessarily importing the concept of a reasonable man.”

10. A particular formula is not now required but, in most cases, a summing-up is not made defective if the expression “reasonable man” (which appears in section 3 of the Statute) is used. Its use is not proscribed in Smith.
11. The judge gave a detailed direction in the course of which he set out fully and fairly the potentially provocative conduct, that which occurred earlier and that which was claimed to have occurred at the scene of the killing. The judge referred to the fact that David Jenkins’s younger brother had been beaten-up and twice in the course of the direction referred to the fact that David Jenkins is the brother of Terry, a particular feature to be borne in mind. There were no other unusual features or characteristics.
12. The speeches in Smith were of course delivered after the judge’s summing-up in this case. We have regard to those speeches and in particular to Lord Hoffmann’s statement that “The jury must think that the circumstances were such as to make the loss of self control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter”. In our judgment, upon the facts of this case, the judge did fairly convey to the jury the statutory test, as now explained. At the end of his direction, the judge put it in this way:

“May the provocative events such as you find they to be taken in combination before the infliction of the fatal injuries have been such as to cause a reasonable 19 year old, having the degree of self-control to be expected of an ordinary sober young man, bearing in mind he is the brother of Terry Jenkins, may any provocation have caused the reasonable young man in his circumstances with his characteristics to have acted as he did? You decide what he did.”

13. It is not arguable that the verdict is unsafe by reason of a defect in the direction on provocation.
14. Mr Pardoe also raised a point on the “Steps to Verdict” document to which we will refer.
15. On behalf of Alicia Jenkins, Mr Massih QC submits that there was no case for her to answer. The judge failed properly to consider whether Alicia Jenkins might have agreed to drive her vehicle for purposes other than planned unlawful violence. Further, the evidence of the two fishermen that they had heard a vehicle pull up at Boyers Lake, Feltham, shortly after the time of the murder should have been excluded. Mr Hamilton and Mr Annear saw and heard a car they believed to be a Mini. It stopped for about 30 seconds near the lake. A young man ran from the vehicle towards the lake and returned to the vehicle which was driven off. Following a voir dire in which their experience of Minis was considered, they were permitted to give evidence as to the type of vehicle they had observed and heard. It is submitted that the fishermen should not have been allowed to express an opinion as to the make and model of the car. In any event, helping dispose of a weapon did not permit an inference that Alicia Jenkins must have known of the weapon before the killing. It is also submitted that the judge should have excluded from evidence a conversation which took place between her and police officers. The conversation took place when Alicia Jenkins was driving the vehicle which had been seen at the scene of the killing at a point about a mile from the scene of the killing and 50 minutes later. At that time, she was accompanied only by her daughter.
16. It is submitted that the officers must have had reasonable grounds to believe that an offence had been committed by the appellants and should have cautioned her before putting questions. An Armed Response Vehicle had been put on alert following the killing and information about the vehicle at the scene, which was a rare model, had been passed to the police officers.
17. In our judgment, none of the points raised is arguable. There was ample evidence to permit the case to go to the jury. Further, the fishermen’s evidence and that of the conversation 50 minutes after the killing were admissible, as the judge found. Witnesses cannot be prevented from giving evidence on matters of which they have relevant knowledge based on their experience. One of the fishermen, Mr Annear, had a long standing interest in motor vehicles and was able to identify many older cars by engine sound and exhaust note. As to the conversation with police officers, the judge was entitled to find that it could not be assumed, having regard to the lapse of time, that those present in the vehicle 50 minutes later were those present at the scene of the killing. Indeed, there had been substantial change in occupancy. The two questions which were put before caution, “Where have you been in the van?” and “Have you been to Vernon Road?” were properly put.
18. In our judgment the judge also gave a proper and sufficient direction on the question of inferences and when they may be drawn.
19. The judge prepared, in consultation with counsel, a seven-page document, which was given the title “Steps to Verdicts”. We regard it as a helpful and even-handed document prepared for the purpose of assisting the jury in their deliberations. No objection was taken to it at the time, though Mr Pardoe states that it was not in the form advocated on behalf of David Jenkins. It is now submitted by Mr Massih that the document, even elaborated orally as it was, contained a deficient direction as to the liability of secondary parties to murder. The judge set out a seven-stage test to be satisfied before the jury could convict a secondary party. The first step was that “David Jenkins is guilty of murder”. Complaint is made about the second step which provides that “there was a joint enterprise to use unlawful violence against a boy or boys thought to be responsible for prior assault on Terry Jenkins”. It is submitted that the words are too broad in scope. Mr Massih submits that they offend against the statement of Carswell J in R v Gamble [1989] NI 268, cited with approval by Lord Hutton in R v Powell and Davies [1998] 1 Cr App R 261 at 285. Carswell J stated:

“It may further be said that [a secondary party] must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder an the ground that it was outside the common design. To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend”

20. It must be borne in mind that stage 6 was also included in the Steps to Verdict:

“At the time of such participation [in the joint enterprise] the defendant realised that David Jenkins might, as a real possibility, use the knife to injure such a boy intending to kill or to cause serious bodily harm.”

Having taken the jury through the seven stages, the judge concluded (p 55):

“The essence is the participation of a defendant in unlawful planned violence knowing that another participant on his or her side had the knife and might use it with the necessary intention but nonetheless went along and participated.”

21. Before expressing our conclusion on that point, we refer to the submission of Mr Aylett on behalf of Brown. He accepts that there was evidence that Brown was within two feet of the killing. The judge stated:

“The question is why. Is it proved he was there as an act of participation intending to assist his friend David Jenkins and with that intention in fact give encouragement and support to David Jenkins in the agreed planned violence?”

Mr Aylett submits that the judge should have followed that question with an alternative question such as: “Is it possible that, notwithstanding his proximity, he was not involved in that way?”

22. Mr Aylett further submits that the judge should have dealt in more detail with the step between knowing David Jenkins had the knife and foreseeing that “It might well be used with the necessary intention, not necessarily to kill but to cause really serious bodily injury (”. The judge described that as a “short step in those circumstances”. This was to deal with it too cursorily, submits Mr Aylett. The summing-up concentrated too much on David Jenkins and the issues raised in his defence, to the detriment of Brown.
23. It was conceded on behalf of Brown that all the other defendants, including him, must have known that David Jenkins was in possession of a knife. It will be clear that we too reached that conclusion. Brown was present and blood was found on the back of his jacket and his shoes.
24. On behalf of Terry Jenkins, Mr Davis also takes the point that the post-mortem photographs ought not to have been admitted. He supports the submissions on behalf of other applicants as to the directions in the summing-up as to participation.
25. We do not consider any of these points to be arguable. The “Steps to Verdict” document and the oral explanation of the seven stages to participation were clear and accurate. There was no risk of the mischief identified in Gamble being present. The direction was adequate and the evidence sufficiently summarised, including that affecting Brown. In the circumstances the judge was entitled to made the reference to the step being a short one. We see no merit in the submission that misleading remarks were made. The directions were appropriate to the circumstances. Nothing in the summing-up conflicts with the speech of Sir Robin Cooke in Chan Wing-Siu v R [1985] AC 168 given the circumstances. The judge’s mastery of the facts and evidence were of a high order. It was also appropriate for the judge merely to repeat his earlier summing-up on participation when asked a question by the jury, who did not subsequently request further clarification.
26. The seven stages set out in “Steps to Verdict” were not explored in detail on behalf of the appellants Arnell-Smith and Rey-Blasco. There was no need that they should be, having regard to the issue in their appeals.
27. A point taken on behalf of Brown on paper, but not developed orally, was that the judge failed to direct the jury adequately upon Brown’s interview by the police. Alone of the defendants, he was consistent at interview and in his evidence. The judge did contrast the interview of Brown with that of the other defendants and we see no merit in this ground. The judge also referred to Brown’s co-operation with the police.
28. Other points raised in the written grounds were not pursued. We agree with the conclusions of the single judge. The convictions are not arguably unsafe. For the reasons given, each of the applications for leave to appeal is refused.