England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM:
THE HON. MR. JUSTICE JOWITT AND JURY
IN THE CROWN COURT AT SHEFFIELD

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th March 2003

Lord Justice Auld :

1. On 19^th April 2000, following a second trial before Jowitt J. and a jury in the Crown Court at Sheffield, the appellant was convicted of murder and sentenced to life imprisonment.
2. In an earlier trial before Holland J. and a jury on the same charge and on a charge arising out of the same facts of possessing a firearm with intent to endanger life, the jury could not agree on the charge of murder, but found him guilty of the firearm charge. The appellant had pleaded guilty to a third charge in the indictment of possessing a prohibited weapon, again arising out of the same facts. Jowitt J. sentenced him to 12 and 9 years imprisonment for those offences respectively, the sentences to be served concurrently.
3. The appellant, with the leave of the Full Court, appeals against the conviction of murder on two grounds, the Full Court having refused him leave to appeal on many other grounds on which he had sought to rely.
4. The brief facts giving rise to the prosecution for murder were as follows.
5. The appellant was a practising doctor and former soldier. He had had a relationship with a nurse, Victoria Fletcher, with whom he had worked in a hospital. There came a time when their relationship broke down, causing the appellant much distress. Shortly afterwards, on the evening of 7^th May 1998, the appellant cleaned and assembled a Kalashnikov AK 47 assault rifle at his home, a weapon that he had had for many years. He fed 21 rounds of ammunition into its magazine and attached the magazine to the rifle. He then put the rifle, along with an axe, a sheath knife and a baseball bat, into the boot of his car and drove to a public house to look for Miss Fletcher. She was not there. Having asked there as to her whereabouts, he drove to another public house where he found her with a new boyfriend. After a heated exchange he pushed her out into the street, and there followed a scuffle between the appellant and the boyfriend.
6. Miss Fletcher, her boyfriend and others with them moved off to the public house where the appellant had first sought her that evening. He followed them there. While he was outside Miss Fletcher went out to talk to him by his car. There was a further exchange of words and she then turned and began to walk away from him. As she did so, the appellant took the rifle from the boot of his car and fired a burst of several rounds at her, which felled her. She got up and attempted to stagger away from him. He moved forward behind her and fired another burst at her, which brought her to the ground again. He hit her in all with ten bullets, causing wounds from which she died shortly afterwards. He then drove off, taking the rifle with him. Later that evening he telephoned his former wife and told her that he had shot Miss Fletcher. At some stage he made a note in a notebook, subsequently recovered by the police, that he had shot her in "[a] moment of rage". He also told a doctor, in response to the doctor's comment that he had been lucky not to have hit others, that he had aimed at the middle of the target.
7. At both trials the prosecution case was that the appellant shot Miss Fletcher as she tried to flee – more particularly, that after felling her with the first burst of fire, he shot her again after she had got up and continued to move away from him. The appellant did not dispute that he shot her. His main defence at trial was that he was guilty of manslaughter, not murder, because, at the time of the killing, he had been suffering from diminished responsibility. He also advanced two other defences, neither of them in the circumstances with much force or much chance of success. They were that he had not intended to kill her or endanger her life, or even to hurt her, alternatively that if he had had any of those intents, he was guilty of manslaughter, not murder, by reason of her provocation. As to the rifle, he had admitted in the course of his examination in chief at the first trial, and again at the second trial, that he had brought it back from the Gulf many years before and had kept it with the intention of killing anyone who did him harm in the way that he had suffered in a serious stabbing attack on him in 1981.
8. The issue of diminished responsibility took up most of the trial before Jowitt J. and was the subject of a great deal of evidence. The defence case was that the appellant, at the time he killed Miss Fletcher, was suffering from an abnormality of mind contributed to by clinical depression and post-traumatic stress disorder arising from military service and exposure to neurotoxins in the Gulf War. Thus, the prime issues for the jury were the appellant's mental state and, to a less extent, his intent at the time of the killing.
9. The only two issues for determination in this appeal arise out of directions of Jowitt J. to the jury about the appellant's conviction in the earlier trial of possessing the rifle with intent to endanger life. The Judge had canvassed with counsel at the start of the trial whether the jury should be informed of the conviction. He took the view that, as that charge had laid the offence on the same day as of the alleged murder, it was relevant to the issue of the appellant's intent on the latter charge and that the jury should be told about it. He added that, given the first jury's verdict, though the appellant could not maintain that he did not have the rifle in his possession at some time on that day with intent to endanger life, it would be open to him to maintain that he had no such intent at the time he killed Miss Fletcher.
10. In the Judge's discussion with counsel and in his ruling on this point, neither he nor they mentioned section 74 (3) of PACE, which enables previous convictions to be put in evidence in proof of guilt, nor section 78 of PACE as to the fairness of the evidence. However, it is likely that this experienced Judge had both in mind. At all events, Sir Timothy Cassel, QC, who appeared for the appellant at both trials and on this appeal, did not resist his ruling. Pursuant to it, Mr. Robert Smith, QC, counsel for the prosecution at both trials, who appears for the Crown on this appeal, informed the jury of the conviction in his opening address. Thereafter, little or no reference was made to it in the trial until the Judge mentioned it in his summing-up.
11. In his summing-up the Judge gave the jury the following directions:

"Dr. Shanks was convicted in the first trial of having that gun in his possession, on the day of the killing, with the intention at some stage during the day of endangering life; that is to say with the intention of putting someone other than himself at risk of death. Dr. Shanks denies that he ever had that intention on that day, and certainly [that] he had no intention to kill, endanger, or hurt, Vicky.

"The Jury's verdict – that is the first Jury's verdict – does not of itself tell you whose life Dr. Shanks intended to endanger, or whether it was the life of one particular person. However, despite his denial, it is not open to him before you to challenge that verdict of the jury in the first trial. It is binding upon him, members of the jury, and it is binding upon you. Now, whether or not it assists you on the question of Dr. Shanks' intent is for you to say, but it is part of the material that you are entitled to consider in deciding whether you are sure that when Dr. Shanks fired his gun he intended, either to kill her, or cause her serious bodily harm

May I make this clear, though, in view of something that Mr. Cassel said to you this morning. The conviction was not on the basis that Dr. Shanks brought the gun back intending to use it to kill anyone who attacked him. He was convicted, as I have said, of possessing the gun with intent on the 7^th of May of endangering life." [the Court's emphases]

12. Sir Timothy has submitted that those directions were defective in two respects: first, that they amounted to a misdirection of the effect of the conviction at the first trial of possessing the rifle with intent to endanger life; and second, that they wrongly indicated that that conviction bound this jury.

Ground 1 – suggested misdirection as to the effect of the firearm conviction on the appellant's credibility

13. As to the first of those complaints, Sir Timothy submitted that the Judge should not have mentioned the firearms conviction to the jury. He maintained that it had no relevance to the issues of diminished responsibility or of provocation and was only marginally relevant, if at all, to the issue of intent, the weakest of the three defences as he acknowledged. And, he said, such relevance as it had on that issue was of so little probative effect that the Judge should have excluded it in the proper exercise of his discretion under section 74(3) and/or as unfair under section 78.
14. However, as Sir Timothy developed his argument, it became plain that his real concern was not about the effect of the admission of the first jury's conviction into evidence, which he had not resisted when the Judge first raised the matter at the beginning of the trial, and which is not the subject of appeal. Nor was it about the effect of the Judge's direction on the issue of intent, on which, as we have noted, Sir Timothy acknowledged that the defence had been weak. His complaint was that the Judge's direction had had an unfairly prejudicial effect on the appellant's credibility on the issue of diminished responsibility and, to a lesser extent on that of provocation. He said that the Judge wrongly told the jury that that the earlier conviction had not been on the basis that the appellant had brought the gun back from the Gulf intending to use it to kill anyone who attacked him. Sir Timothy suggested that the firearm conviction at the first trial had indeed been on that basis.
15. In so submitting, Sir Timothy relied on the fact that Holland J. had directed the first jury that, in view of the appellant's account in that trial of why he had brought the rifle back from the Gulf and had retained it, the appellant had effectively admitted guilt of the firearm offence. As a result, Sir Timothy submitted that the only possible effect of Jowitt J's direction that the first conviction had not been on the basis of such an admission of a continuing intent to endanger life in the event of a further similar attack was to undermine the appellant's credibility as to his mental state on the defences of diminished responsibility and provocation.
16. We deal first with Sir Timothy's "scene-setting" complaints as to the Judge's admission into evidence of the previous conviction and as to his mention of it in his summing-up to the jury. Section 74(3) provides, so far as material:

"(3) In any proceedings where evidence is admissible of the fact that the accused has committed an offence, in so far as that evidence is relevant to any matter in issue in the proceedings for a reason other than a tendency to show in the accused a disposition to commit the kind of offence with which he is charged, if the accused is proved to have been convicted of the offence … he shall be taken to have committed that offence unless the contrary is proved.

17. For obvious reasons, section 74(3) is not so familiar a provision as section 78. But when the prosecution resorts to it, and/or a judge considers whether such evidence should be put before a jury, he should consider under section 78 the fairness to the defence of admitting it into evidence. Section 74(3) is one of a pair of provisions in the section providing for the admissibility in similar circumstances of a previous conviction. Section 74(1) and (2) provide for the admissibility of evidence of a conviction of a person other than the accused where it is relevant to an issue in the proceedings, and provides that, if such evidence is admitted, that person shall be taken to have committed the offence unless the contrary is proved. Section 74(3) provides in similar terms for the admission of evidence of an accused's previous conviction.
18. Most of the jurisprudence on section 74 concerns the admission into evidence of convictions of persons other than the accused under section 74(1) and (2), which was a legal innovation intended to provide in the main for charges of conspiracy and other jointly committed offences where not all the conspirators or alleged accomplices, whether charged as such or otherwise, were before the same jury. Section 74(3), on the other hand, was not, as a concept, such a newcomer to our system. The common law and individual statutes had already made provision for it, the former, for example in rules enabling the admission of proof of previous convictions where relevant to an issue in the trial under the similar fact evidence rule in Makin v. Att-Gen of New South Wales [1894] AC 57, PC and Thompson v.R [1918] AC 221, HL. And it is to section 74(3), rather than to section 74(1) and (2), to which the saving provisions in section 74(4) for pre-existing law are mainly directed. Section 74 provides:

(4) Nothing in this section shall prejudice –

(a) the admissibility in evidence of any conviction which would be admissible apart from this section; or

(b) the operation of any enactment whereby a conviction or a finding of fact in any proceedings is for the purposes of any other proceedings made conclusive evidence of any fact "

19. As Potter LJ observed, giving the judgment of the Court in R v. Harris (19^th April 2000 - unreported), at para. 21, the purpose of section 74(3) was "not to define or enlarge the circumstances in which evidence is admissible of the fact that an accused has committed an offence, but simply to assist in the mode of proof of that fact (which it does in section 75):

"21. … This is made doubly clear by the words which make clear that the conviction may not be adduced simply for the purposes of proving or inferring disposition. We also consider that the requirement that the evidence should be relevant 'to any matter in issue' is one which falls to be read not as confined to an issue which is an essential ingredient of the offence charged, but as extending to less fundamental evidential issues arising in the course of the proceedings: cf. the decision of this court in R v. Robertson (1987) 85 Cr App R 304 in relation to the words 'any issue in those proceedings' as contained in s. 74(1) of PACE."

20. Sir Timothy submitted: first, that section 74 as a whole was a provision that should be sparingly used, as this Court said in relation to section 74(1) and (2) in R v. Roberston & Golder (1987) 85 Cr App R 304, CA, at 312; second, that a judge, before admitting such evidence, should make a properly informed consideration of the purpose for which it is to be put before the jury; and third, that there should be a careful direction to the jury as to that purpose and its limitations, citing R v. Kempster (1990) 90 Cr App R 14, CA, at 22; and R v. Hillier & Farrer (1993) 97 Cr App R 349, CA, at 355-6.
21. All of those strictures in the authorities cited by Sir Timothy clearly govern the admission into evidence of a previous conviction of someone other than the accused under section 74(1) and (2), and the second and third are logically equally applicable to the admission into evidence of an accused's previous conviction under section 74(3). Given the pre-existing law as to the latter, there may be some scope for debate as to the applicability of the first, that it should only be sparingly used. But the scope for differentiation between the two provisions in that respect must be so narrow as to be insignificant and - since the ultimate gatekeepers are the rules as to the admissibility of similar fact evidence in R v. Clarke [1995] 2 Cr App R 425, CA, at 433, and DPP v. P [1991] 2 AC 447, at 460, and as to fairness in section 78 – academic.
22. Now, as we have said, Sir Timothy's true complaint under this first ground of appeal was that Jowitt J. wrongly told the jury that the first jury's conviction of the appellant on the firearm charge had not been on the basis that the appellant had brought the rifle back from the Gulf with the intent to use it kill anyone who attacked him. He maintained that, in so directing the jury, the Judge was wrongly attributing to the appellant something he had not said at the first or the second trial. He pointed out, as was the case, that the appellant had said just that. He suggested that the Judge's observation was a mistake that unfairly undermined the appellant's credibility before the second jury because it may have persuaded them that the first jury had disbelieved some of his evidence, when he had effectively admitted the firearm offence – one of a continuing nature - in evidence at the first trial. He placed much emphasis on this complaint because the appellant's credibility was a central issue on his main defence of diminished responsibility and to a lesser extent on that of provocation.
23. As to the admissibility of the evidence of the conviction, Mr. Smith submitted, in reliance on section 74(3), that the evidence of the previous conviction was highly relevant to the issue of the appellant's intent at the material time, an issue which, though not in the forefront of the defence case, was nevertheless a significant part of it. Indeed, the clear thrust, as Mr. Smith put it, of the appellant's evidence was that he had no such intent on that day. He had called in support of that contention a consultant psychiatrist, Dr. Jones who had suggested that he may have been suffering from mindlessness or automatism at the time so as to deprive him of the capacity to form the requisite intent for the offence of murder. It followed, said Mr. Smith, that the facts of the conviction and that the appellant on the day of the killing had cleaned, assembled, loaded and taken the rifle in his car when he set out to find Miss Fletcher were both highly relevant to the prosecution contention that he had had the rifle at the time with intent to endanger life and to the appellant's case that he had had no specific intent to endanger Miss Fletcher' life. He added that, although the Judge in his initial ruling on the matter had not expressly referred to section 74(3) or, in the absence of any challenge by the defence, to section 78, the evidence was so obviously relevant and probative on the issue of intent raised by the defence, that his decision to admit it into evidence could not have been properly challenged.
24. As to Jowitt J's. reference to the conviction in his summing-up, Mr. Smith submitted that the Judge dealt with the matter fairly, correctly identifying the precise charge of which the first jury had convicted the appellant and its relevance to the issue of the appellant's intent when he set out to find Miss Fletcher on the day that he killed her. He also submitted that the prosecution's case and evidence as to intent at the material time were overwhelming, instancing: the appellant's careful and deliberate preparation of the rifle for use, his stowage of it in the boot of his car, his conduct and movements preceding his final fatal confrontation with Miss Fletcher, his deliberate and well-aimed shooting of her in two separate bursts of fire and his conduct afterwards.
25. We agree with Mr. Smith's contentions. As Jowitt J. said, when he canvassed the matter with counsel at the start of the trial, the firearm charge of which the first jury had found the appellant guilty was not of a continuing offence. It was confined to the day of the killing of Miss Fletcher, 7^th May 1998, and clearly to the circumstances of that day leading up to and connected with the appellant's use of the rifle to shoot her. And, as Jowitt J. pointed out at that early stage, what mattered in the context of the first jury's conviction of that offence and of the appellant's admission of the conviction was not what the appellant had admitted or intended to admit at the first trial. What mattered was the form of the charge, how the prosecution and Holland J. had put the case to the jury and the jury's verdict of guilty of the offence as charged. It is plain from Holland J's summing-up, of which the Court has a transcript that, although such an offence was capable of being charged as a continuing one, the prosecution and he focused, true to the confines of the charge in question, on the circumstances of 7^th May 1998 leading to the shooting of Miss Fletcher.
26. This is how Holland J. had dealt with the matter in his direction to the first jury, a direction that conformed with this Court's analysis in R v. Bentham & Ors [1973] QB 357, at 362-363, of the mischief at which that statutory offence is aimed. Having defined the offence to the jury, he said:

"The Prosecution say that is the offence that Dr. Shanks committed, as it is alleged, on the 7^th of May, and they say you can be sure and satisfied about that. There are two elements to it. The first is, they say you can be sure and satisfied that he had had in his possession on that day that AK 47 rifle with a loaded magazine attached to it. And they say you can be further sure and satisfied he had the intent to endanger life with it.

Now, as to that last concern, what this part of the law is aimed at has been said to be as follows, I quote, 'The mischief at which the Section is aimed must be that of a person possessing a firearm ready for use, if and when the occasion arises, in a manner which endangers life.' …

The Prosecution say, a very clear case. First, look at the AK 47. It is, they submit, effectively a machine for killing, that is people, it has no other function.

Second, on the 7^th May it was made ready for use; it was cleaned and, more importantly, the magazine with 21 rounds was attached to it. When it was in that state the only function it could conceivably have was to endanger life if and when the occasion arose. And finally they would point to certain things said by Dr. Shanks when he gave evidence to you which, they would submit, is consistent with effectively admitting the offence. ….."

27. Now, Jowitt J., in his direction to the second jury, did not misrepresent the effect of the first jury's conviction by emphasising in the passage that we have set out that it had not been on the basis of some general admission of the appellant to a continuing offence of possessing the rifle with intent to kill anyone who might attack him. The conviction was, as he made plain to the second jury, of possession of the gun on the day he killed Miss Fletcher with intent to endanger life, whatever may have been his mental state at the time when he shot her and regardless of whatever other explanation he had given for his long-standing possession of the weapon. Nothing that Jowitt J said went to undermine the appellant's account about the latter or could, on that account, have gone to his credibility on the issues of diminished responsibility or provocation. Accordingly, we dismiss the first ground of appeal.

Ground 2 – the direction that the jury were bound by the first jury's conviction of the firearm offence

28. Sir Timothy's second complaint was that the second jury were not bound by the first jury's conviction on the firearm offence as to the state of mind of the appellant at the time he killed Miss Fletcher and that the Judge should not have told them that they were. The first point to make about that submission is one that we have just made in relation to the first ground of appeal. Jowitt J. did not direct the jury that the effect of the first jury's verdict was that at the time of the killing of Miss Fletcher he must have possessed the rifle with intent to endanger life. True to the indication that he had given when first discussing the matter with counsel, he clearly distinguished between the effect of the first jury's verdict that, "at some stage during the day" of the killing he had had the rifle with intent to endanger life, and the issue for the jury on the charge of murder as to his intent when he shot her with it.
29. It follows, therefore, that to the extent that the Judge told the jury that they were bound by the first jury's conviction on the firearm offence, he correctly directed them of the effect of the first jury's verdict on the charge before them, namely that he had had the rifle at some time on the day of the killing of Miss Fletcher with intent to endanger someone's life, not necessarily hers. Sir Timothy's reliance on high authority, including the House of Lords' decision in R v. Humphrys [1977] AC 1, against importing notions of issue estoppel or res judicata into the criminal law to overcome that legal outcome, ignored the specific statutory exception to such notions introduced by section 74(3) of PACE, the provision on which Mr. Smith has relied.
30. It is true that, under that provision, the binding effect of a previous conviction properly admitted into evidence is not absolute, since section 74(3), in its concluding words, enables a defendant, if he can, to prove that he has not, despite the conviction, committed the offence. As Mr. Smith submitted, there is thus a statutory presumption of the correctness of a previous conviction unless a defendant proves to the contrary on a balance of probabilities, similar to that in the comparable provision in section 11 of the Civil Evidence Act 1968; see Hunter v. Chief Constable of the West Midlands [1982] AC 52, HL, per Lord Diplock at 544. As it happens, the Judge, in giving this part of the direction about the previous conviction, did not tell the jury that it was only binding on them if the appellant did not prove to the contrary But, as we have said, that is not what the appellant sought to do here, quite the contrary. At the first trial he had effectively admitted the offence of which he was convicted, and at the second trial he admitted that conviction, whatever the basis upon which he made that admission.
31. In the result, the fact that the Judge did not inform the jury of the qualifying provision of section 74(3) is academic on the issue of intent on the charge of murder. He had correctly directed them as to the relevance and limitations of the conviction as to proof of intent to kill her, and with obvious regard to the other and more central issues of diminished responsibility and provocation. The jury clearly found against the appellant on those issues, in respect of which there is no appeal, and, on the issue of intent, in respect of which the prosecution case and evidence were, as we have said, overwhelming. Accordingly, we also dismiss the second ground of appeal.
32. The appeal against conviction of murder is, therefore, dismissed.
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