England and Wales Court of Appeal (Criminal Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st February 2003

Lord Justice Kennedy:

1. On 30^th January 2002 in the Crown Court at St Albans, following a trial for murder, the appellant was convicted of manslaughter and sentenced to 8 years imprisonment. His co-accused Nicholas Glean was acquitted. Randall now appeals against conviction by leave of the single judge.

Facts

2. Michael Barber, aged 55, was found unconscious and bleeding from head injuries shortly before midnight on 8^th May 2001 on a path in Rickmansworth, near a pumping station. He had sustained nine separate blunt instrument blows. He was treated in hospital but never regained consciousness, and on 12^th May 2001 he died from the cumulative effect of his injuries.
3. At the material time Randall and Glean had been staying at the house of Susan Rowe, Randall's aunt, some 50 metres from where Barber was found. Barber had called at Susan Rowe's address that night in an intoxicated state. There was a struggle to eject him from the premises and he staggered away. The prosecution alleged that either acting jointly or independently, one after the other, Randall and Glean had deliberately caused one or more of the nine injuries. Thus it was submitted that they, or at least one of them, was guilty of murder. Randall admitted physical contact between himself and Barber at the house and near the pumping station, but claimed that he did not cause any injury which caused or contributed to death, and was acting in self-defence. Glean denied any physical contact except at the house, and denied going out of the house at all. Provocation was also raised as an issue on behalf of both defendants.
4. The deceased had an extensive record, including robbery, use of violence, and possession of firearms. He had known Susan Rowe for 10 years. She said that he was normally drunk when she saw him. He had introduced Susan Rowe to Glean and Glean had used her home as a "safe house". Glean had a formidable record, including significant offences of violence, and at the time of the offence he was on the run having committed an armed robbery. Randall did not know Barber but knew about him. According to Randall Glean had trashed Barber's flat and caused animosity between them. Furthermore, on 12^th April, about a month before the killing, Barber was said to have taken a gun to Susan Rowe's house.
5. There was evidence that on the day of the killing Barber had been drinking for a significant part of the day. At about 10.30 pm he was taken by taxi from a public house to Susan Rowe's address. The taxi driver waited to be paid but Barber was aggressive and did not pay. The taxi driver saw him go to the door of the house where male and female voices were heard to argue. He then saw a man arrive, and there was a fight. Barber was spread eagled on the floor and kicked by the man who had arrived.
6. Susan Rowe said that Glean had been in her house that evening. At about 10.45 pm Barber knocked at the door. She did not want him inside, because she feared trouble, but Glean told her to let him in. In fact she told him to go, but he did not. When Randall arrived Barber fell through the door. Randall asked him to leave, and took Barber's arm. Barber fell and there was a scuffle. Glean got between them. Barber agreed to leave and walked off. Susan Rowe was concerned about him, and Randall agreed to go after him to see if he was alright. Then Glean said he would go too, and followed Randall out. Before Glean left he went to the back of the house and held his coat together as if hiding something. Susan Rowe told a police officer that a hammer was missing. Barber had been drunk when he arrived at her door. Previously he had accused her of being present when his flat was trashed. Randall had taken hold of Barber and showed him the path because he would not go, and then a scuffle started but it was not violent and she did not see any punches thrown. She said there were no kicks. Randall had played the part of the Good Samaritan. When he returned to the house he told her that Barber was alright.
7. At about 10.50 pm Emma Davies saw something to her right on the other side of the road – a dual carriageway. She saw two kicks delivered to a prone male as she approached the lights. She saw one more kick, then the kicker walked away across the road and jumped over railings.
8. The workman who found Barber just before midnight said he was making a snoring noise, had a pulse and his head was towards some steps, not in the position seen by Miss Davies. Earlier in the evening Barber had been seen wearing a watch and in possession of a wad of money. There was no sign of either.
9. Susan Rowe said that Randall returned to the house first. Glean followed a few moments later, and said "he's alright, he across the road". One of them said he was lying on the pavement sprawled like a drunk. Glean said he was alright, someone would find him. After Randall had gone to bed Glean said his jumper needed washing and she soaked it. That was not accepted by Glean. She said that he also put his head in his hands, indicated that he had argued with Randall, and that Barber would not be bothering her ever again. That too was denied by Glean. Susan Rowe said that Glean told her to say that Barber had arrived with another man who had threatened her. He later told her that it did not concern her or Eddie. When the police made enquiries she told them that there had been no one except herself and her son in the house between 10 pm and midnight. Glean had threatened her that if she said anything to the police he would blow her head away. That was denied by Glean.
10. Examinations at the scene of the assault revealed 8 marks made by one foot which had stepped in blood. The expert, Mr Lamb, considered that the wearer's lower clothing would have been blood stained. Susan Rowe's front door had on it spots of blood which appeared to have come from Barber. Glean's jacket had 30 tiny spots of blood on the lower left sleeve indicative of impact into wet blood. That impact could have occurred if the wearer had intervened between two others. No blood was found on Glean's trainers.
11. The pathologist, Dr Djurovik identified three really serious injuries or blows to the right side of Barber's head and face, and four to the left side. There were no defensive injuries. It was put to her that the three depressed skull fracture injuries were caused by a hammer, but she said not. The injuries were consistent with kicks from footwear. She could not exclude the possibility of a hammer causing some of the other injuries, but her over all view was that kicks were the cause, with considerable force and whilst the deceased was lying down.
12. A second pathologist, Dr Rouse, could not exclude a hammer, but preferred another type of blunt instrument as the cause of injury. He envisaged one or two punches which caused the deceased to fall backwards, and then him being kicked on the ground. Randall's description of a kick with the sole of a boot landing hard on the right cheekbone was put to him. He thought that if it had happened that way it was very unlikely that no marks would have been left.
13. The Surgical Registrar who treated the deceased in hospital to relieve the blood pressure inside his skull saw multiple depressed open wounds and bruising on the head which was suggestive of an assault with a hammer, but agreed with Dr Djurovik that the skull fractures seen at post mortem examination and consistent with hammer use were old.
14. Karen Parr had a child by Glean. She said that he telephoned her several times on 9^th May and said he had killed Barber. He "did him" with a hammer. It was put to her that her relationship with Glean had gone down hill, and she had been dishonest about receiving the proceeds of a robbery, and that what Glean had actually said was that Barber had been given a hammering.
15. Elaine McGrath had been Randall's girl friend. She said that he telephoned her on 9^th May sounding upset and nervous and said that he thought he had killed someone. He had got into an argument at his aunt's house, chased the victim down the road, and left him in a pool of blood. He had kicked the bloke in the head. He called her again 15 minutes later, and said it was not true. In a further telephone call two days later Randall said he got rid of his clothes in a skip. Subsequently he wrote to her requesting her not to say anything which would harm him. She added in cross-examination that Randall admitted standing on Barber's head as well as hitting him. She had told the police that she had never known Randall to be violent, but that was not true. She said their relationship had been volatile and he flipped and became aggressive when in drink. She did agree that she might have said that it was worth a couple of grand for not causing any trouble, but she had not been paid any money. Whilst released on bail Randall had taken his boots from where he had placed them in a skip, and put them into a passing dust cart.
16. When first interviewed by the police Randall said he had got home, found a man in the doorway, told him to go, and manhandled him. There was a scuffle and he fell in the doorway. The man was given 10 seconds to leave and he did so. Randall went out to check that he was not hanging around. He had told Susan Rowe to say he had not been there at all. He had drunk six pints. He wore trainers (that was later admitted to be a lie). He had been trying to hit the man at the house a little bit, and Glean pulled them apart. He had followed Barber outside, concerned that he might return and put a brick through the window, but did not see him. He used just enough force to defend himself.
17. In a second interview Randall said that he did not go outside with Glean, and did not remember seeing him outside. Glean's suggestion that he had admitted stamping on Barber was a lie. He still insisted that he wore trainers.
18. In a third interview Randall told the police that he was wearing black boots with buckles. He had been led to believe by Glean that Barber was a dangerous man. He had chased him across the road knocked him down and hit him. He just wanted to be rid of him, and it was not his intention to hit a defenceless bloke. He had seen Glean cross the road. He had wanted to make sure that Barber was on his way.
19. In a fourth interview Randall said that he was a bit drunk at his aunt's house. He fought to defend himself, and to defend his aunt and to get Barber to surrender. Glean had pulled him off. He chased Barber, caught up with him and hit him with the left hand to the jaw. Barber landed on his bottom, but seemed to be getting up again so Randall kicked him in the side of the head with his heel. It was enough force to put him over. It was not the same side as he had punched. He was sure he only hit Barber once. He wanted to get away in a hurry. He got rid of his boots.
20. At the trial the jury was made aware that the appellant had convictions for driving under the influence of alcohol, and disorderly behaviour. Susan Rowe denied that he was violent, unruly or aggressive. A police inspector who had known him for 20 years described him as very steady and family orientated. He worked hard and had not been seen to act violently or aggressively. But the inspector was not aware that he had admitted kicking someone in the face, and had solicited a false alibi. Another friend of Randall of several years standing had never seen him aggressive in drink. In 1999 Randall had written to his girl friend that he was a Jekyll and Hyde character needing to be brought under control. He explained that it was a grovelling letter, and he did not mean that he lost self control. He also denied that he was out of control at the time of the assault. Randall said that he had not met Barber before that evening, but he had been warned of Barber's reputation. He estimated that he had drunk 4 to 5 pints. When he got to his aunts there was a row going on. His aunt wanted the man to leave. Randall asked him to go politely several times, but was ignored, then treated dismissively and rudely. His aunt was frightened so Randall panicked, and grabbed the man by the shoulder to move him. The man wriggled and struggled and Randall thought the man was going to hit him, so he hit the man in the mouth and both fell to the floor. The man carried on struggling, then Glean said that will do. The man was told he had 10 seconds to get out. He had not given the impression of being drunk.
21. Randall said that he was a bit shaken after the man left. He was concerned because he learned who the man was, and thought he might return to cause problems. Four or five minutes later he went out to check, and saw Barber. He decided to chase him off. Barber walked away, and then turned to confront him. He asked what was Randall's game and spat in his face. As Randall went to wipe it away Barber lunged at him, so Randall hit out with the left hook to check Barber. It knocked Barber to the ground. He did not look happy and was getting up. Randall thought he was reaching for something, so he kicked Barber in the face to keep him down. He did not kick or strike Barber again. He left him lying in a different position to that found by the police. He denied kicking Barber in the stomach. He had not seen any blood, but did not hang about. He jumped through the railings and spotted Glean. Randall said that he had not caused the multiple injuries. Glean followed him about a minute or two later empty handed. Randall felt he was justified in doing what he had done at the time. He disposed of his boots because of the police presence, and feared he would be in deep water. He did not accept that he was aggressive when in drink. He said he was more pleasant. He denied Elaine McGrath's allegation that he injured her. If he had done so she would have gone to the police. He did not tell the police about the spitting or that he thought that the deceased was going for a weapon, because it gave him a motive. He had thought that he had reason to kick the deceased because he felt threatened. Kicking did go against his principles. It was a push kick rather than with the toe, and it was not hard enough to cause the injuries that were caused. He denied attacking Barber in a violent and drunken rage and said that he had not invented seeing Glean in the vicinity.
22. Glean's formidable record was outlined to the jury, including one offence of aggravated burglary and a recent offence of robbery in which the team were armed with knives. He said that he remained inside Susan Rowe's house at all times. He had intervened to separate the appellant and the deceased fighting at the house. He only went outside as far as the garden path, and never went to the dual carriageway. He did not participate in an attack on Barber. When Barber arrived at the house he was drunk. Randall came home and Susan Rowe asked him to get Barber out of the house. Barber had said not to give him any trouble. Randall pushed Barber with the flat of his foot then punched and kneed him. They were in a headlock facing each other. Barber was bleeding from the mouth at the time. Glean broke them up. Randall counted down and Barber left from a position of being on all fours. Glean said he went off to the toilet and when he returned Randall had gone. He went out to the gate to look. Then, after a short interval he saw Randall coming from the dual carriageway direction partly waking, partly running. He was angry and said to Susan Rowe that now she could not say no one cared for her. Barber was over the road all sprawled out. When Rowe wiped blood off Randall's cheek he said it was all in a day's work. Randall said "I've really fucking hurt him. I've stamped on his head and everything." There was "loads of blood". Glean said that he did not go out for fear of getting involved, and because he was wanted for the robbery. As the night wore on Randall got more and more frightened and panicky. Randall's jumper was taken off for Rowe to wash. His clothing was taken away by Rowe next day in a plastic bag. Glean said that he had not made any admission to Karen Parr but he had said that Barber had taken a hammering. That was because of what Randall had said. Under cross-examination he gave details of his own offending. He said that he had not left the house with a hammer, and it was not true that he and Barber were on bad terms.

Grounds of Appeal

23. On behalf of the appellant Randall, Mr Marshall Andrews QC pursues two grounds of appeal against conviction namely –

"(1) That the judge failed properly to direct the jury as to the relevance of Glean's bad character.

(2) That the judge failed properly to direct the jury as to the legal basis on which a verdict of manslaughter could be reached, and in particular failed to deal properly with the question of intent."

Relevance of Glean's bad character.

24. This was, as Mr Marshall Andrews submits, a cutthroat defence. The case on behalf of Randall was that he had not inflicted the fatal injuries. They had been inflicted by Glean. There were no eye witnesses who identified either man as the assailant, and on behalf of Randall, Mr Marshall Andrews sought to support Randall's case by adducing and dwelling on Glean's record of serious offending, including in particular offences of dishonesty and violence, in contrast to the criminal record of Randall which contained only relatively minor matters, and no offences of violence. Put bluntly Mr Marshall Andrews was submitting that in the light of Glean's record it was more likely that Glean rather than Randall had inflicted the fatal blows. That line of defence was, he submits, perfectly permissible in the light of Lowery v R [1974] AC 85, and in any event no objection was raised in relation to it. Yet the judge directed the jury to have regard to the bad character of Glean only in relation to the truthfulness of the evidence he gave in the witness box, thus undermining and limiting the defence which Mr Marshall Andrews on behalf of Randall had sought to advance. What the judge said was –

"So the issue I want you to grasp now is this, that you have heard about those previous convictions because they may assist you when you come to judge the truthfulness of this defendant, Nicholas Glean's evidence, when he gave evidence before you in this court earlier this week. It is important that you remember that it would be utterly wrong for you automatically to assume that either he is guilty of murder or he has not been telling you the truth just because he has those previous convictions, grave though they are and grave though it is, the matter which he has admitted to you, though he has not yet been convicted in a court about it. So those convictions are not relevant to the likelihood of his having committed this offence of murder, nor are they evidence that he did commit this offence of murder. Their relevance is to allow you to assess whether you believe what he had told you on oath. You do not have to allow those convictions to affect your judgment. It is for you to decide the extent to which, if at all, those previous convictions and what he has told you about his character help you as you reach your true verdict according to the evidence in this case."

It is the sentence "so those convictions are not relevant to the likelihood of his having committed this offence of murder" of which Mr Marshall Andrews really complains, and he submits that the judicial error was compounded because, evidence having been understandably and properly adduced by those acting for Glean and the prosecution as to the occasions when Randall had been violent or admitted violence in the past (for example in relation to his former girlfriend Elaine McGrath), when that evidence was reviewed in the summing up there was no suggestion that it should not be treated as evidence of propensity on the part of Randall. Mr Marshall Andrews submits that in directing the jury as he did the judge lost sight of the fact that a defendant such as Randall has a right to deploy his case as he chooses in relation to any matter properly regarded as relevant, and he used the evidence of Glean's violence on other occasions to meet those positive aspects of Glean's case which directly or indirectly inculpated Randall, and which included assertions by and on behalf of Glean that –

(1) whatever he might have done at any other time, at the time of the attack on Barber he had every reason not to get involved because he was already wanted by the police for an aggravated burglary:

(2) He had good relations with Barber, who had initially given him shelter after his most recent crime. [It was the case for Randall that all was far from well between Glean and Barber].

(3) Randall, when he returned to the home of Susan Rowe after the assault, had boasted of having stamped on Barber's head.

25. As Mr Marshall Andrews put it, by the end of the evidence Glean was in truth the main prosecution witness against Randall, and vice versa. Furthermore there was evidence from Glean in cross-examination to show that when he considered it necessary he was prepared to attempt witness intimidation.
26. For the Crown Mr Escott Cox QC submitted to us that propensity is never probative, and that even if that be not right, the dishonest and violent offending which under cross examination Glean was constrained to admit was wholly different from the violence suffered by Barber. Glean was a violent burglar or robber, who operated as part of an armed team, and may have exhibited a propensity to violence in the course of theft, but he had no history of inflicting gratuitous violence in the street on his own, so the judge was right to direct the jury as he did.
27. Both counsel invited us to consider the relevant authorities in relation to this area of the law, beginning with Miller [1952] 36 Cr App R 169, then Lowery (supra), Neale [1977] 65 Cr App R 304 and Bracewell [1978] 68 Cr App R 44. We have also looked at the more recent decisions of this court in Murray the Times 24^th June 1994 and Thompson and others [1995] 2 Cr App R 589. In Lowery the Privy Council at 102 approved what had been said in the Court of Criminal Appeal in Victoria, namely –

"It is … established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged; .. it is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person."

So the evidence of a psychologist who had examined both defendants in that case was admitted. As Mr Escott Cox points out, his evidence was not related to crime or criminal tendencies, but to personality traits relevant to the question as to which account of the killing was the more probable.

Murray was charged with reckless driving and raised the defence of necessity or duress of circumstances because of the driving of another driver. This court ruled that evidence of the convictions of the other driver should have been admitted even though he did not give evidence because they were relevant. Knowledge of his character might well have coloured the jury's deliberations and bolstered the credibility of Murray's account.

Similarly, as is pointed out by the editors of Archbold, Criminal Pleading Evidence and Practice, 2003 Edition, at 8-244, where the defence to a charge of murder is self-defence it is often elicited that the deceased had convictions for violence, and the relevance of that evidence is that it goes to disposition. Similarly in Lee [1976] 62 Cr App R 33 it was said that a defendant charged with burglary of a house should have been allowed to introduce into evidence the bad character of others, not called as witnesses, who had access to the house.

28. In Thompson Evans LJ at 593 summarised the effect of the authorities, and we gratefully adopt the summary –

"(1) It is a fundamental principle that it is not normally relevant to enquire into a defendant's previous character or to ask questions which tend to show that he has previously committed some criminal offence. This is 'not relevant because the fact that he has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion' (per Devlin J in Miller).

(2) A defendant is always entitled to call evidence of his own good character or other evidence 'in disproof of his own guilt' of the offence charged against him: Lowery and compare Vye [1993] 97 Cr App R 134 at 136. The test is whether the evidence is relevant or not to the question of guilt. The evidence was relevant 'if it tended to show that the version of the facts put forward by one co-accused was more probable than that put forward by the other' (per Lord Morris in Lowery).

(3) When there is more than one defendant, the test of relevance must be strictly applied 'for if irrelevant and therefore inadmissible evidence is admitted, the other accused is likely to be seriously prejudiced, and grave injustice may result' (Bracewell).

(4) A leading example of the strict application of the test of relevance is Neale."

29. So the critical test is relevance, and Mr Marshall Andrews submits that the material in relation to Glean which he wanted the jury to consider was relevant to the issue of who, as between Randall and Glean was temperamentally more likely to have used very serious violence on Barber. Had Randall been tried alone the same material would, Mr Marshall Andrews submits, have been adduced, and no one would regard it as irrelevant but if the judge was right it should then be excluded because the credibility of Glean would not be in issue.

In Phipson on Evidence 15^th Edition (2000) it is pointed out at paragraph 17-74 that in none of the cases decided since Neale is any allowance made for the prejudice to the accused in the position of Glean which may accompany the probative advantage for the co-accused. Indeed that prejudice, if it arises, has been specifically, for example in Thompson, held to be irrelevant. In paragraph 17-75 the editors of Phipson submit that the decision of the House of Lords in DPP v P [1991] 2 AC 447 "knocks the last nail in the coffin of the argument that it is impermissible to employ the disposition mode of reasoning. It therefore follows that the statement in Lowery (which we have set out above), a statement later endorsed by the Court of Appeal in Bracewell, should now be treated as stating English law correctly." We agree, and accordingly in the particular circumstances of this case, where there was a cut throat defence, the antecedent history of Glean was relevant not only in relation to the truthfulness of Glean's evidence but also because the imbalance between that history and the antecedent history of Randall, in the words of Lord Morris, "tended to show that the version put forward by one co-accused was more probable than that put forward by the other." In most cases the situation will be governed by the fundamental principle to which Evans LJ referred in Thompson, but this was an unusual case in which the judge should not have directed the jury as he did in relation to the relevance of the previous offending of Glean, and the violence to which he had been a party. If, as we have held, what was said by the judge was a misdirection, it was clearly a misdirection of considerable significance to Randall's case because of the way in which his case had been presented, and that is why on 11^th February 2003 we allowed this appeal and ordered that there be a re-trial.

Ground 2: The manslaughter direction.

30. As to Mr Marshall Andrews' second ground of appeal it is clear that when directing the jury as to the law at the start of his summing up the judge omitted any reference to the alternative offence of which Randall was in the end convicted. The judge went straight from dealing with self-defence to provocation. But at the end of his summing up he gave a full and comprehensive exposition of the law in relation to which the jury had the benefit of a flow chart, and, as Mr Marshall Andrews frankly accepts, it is clear from the verdict that the jury understood the full direction which they received. Accordingly we found no substance in the second ground of appeal.