England and Wales Court of Appeal (Criminal Division) Decisions

Case No: 03/6049/D4

Neutral Citation Number: [2005] EWCA Crim 149

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2

Date: Friday, 21 January 2005

BEFORE:

MR JUSTICE BEATSON

MR JUSTICE WAKERLEY

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R E G I N A

-v-

MARVIN GITTINS

JERMAINE ANDREW ELLISON

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MR GUY KEARL QC appeared on behalf of the Applicant Gittins.

MR CHRISTOPHER BATTY appeared on behalf of the Appellant Ellison.

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JUDGMENT (As Approved by the Court)

MR JUSTICE BEATSON :

1.       On 9th October, in the Crown Court at Leeds before His Honour Judge Charlesworth and a jury, by a majority verdict in each case, Marvin Gittins, now aged 29, was convicted of murder and Jermaine Ellison, now aged 31, was convicted of manslaughter, having been charged with murder. Gittins was sentenced to life imprisonment and Ellison to eight years’ imprisonment. Gittins renews his application for leave to appeal against his conviction and for legal assistance, following refusal by the single judge. Ellison appeals against sentence by leave of the single judge.

2.       For reasons which we will give, we grant Gittins’ application for leave to appeal against conviction. In view of our decision giving Gittins leave, we are adjourning consideration of Ellison’s appeal against sentence so that it can come before the full court together with Gittins’ appeal. Mr Batty on behalf of Mr Gittins submitted that we should consider it today because Mr Ellison is anxious to know his position. But Mr Batty realistically accepted that there were good reasons for us to adjourn his case.

3.       We would not, by a decision in the case of Ellison, wish to tie, as (depending on the outcome) we might do, the full court in its consideration of Gittins’ case should his appeal succeed. Moreover, it would not necessarily be in Ellison’s interests, in that eventuality, for us to have dealt with his appeal now.

4.       We can deal with the facts briefly. The deceased, Matthew Onyett, died in the early hours of 7th February 2003 in the city centre in Leeds.

5.       Gittins and Ellison, who knew the deceased, encountered him at a bar in Leeds shortly before midnight, when he became aggressive. There was an altercation and the deceased was ejected from the premises. The evidence was that at that stage it was the deceased who was the aggressor. Outside, he challenged one of them to a fight, which was declined. Gittins and Ellison left the area but returned. While they were away, they had armed themselves. Gittins was carrying a knife and Ellison a club. They went looking for the deceased. There was a further altercation after midnight in which the deceased received four stab wounds. There is no dispute that all four were inflicted by Gittins. Onyett had no pulse when the paramedics arrived and was declared dead on arrival at Leeds General Infirmary.

6.       The Crown alleged that it was a deliberate, preplanned attack. Gittins’ defence was that there was no intention to attack the deceased. Gittins was no longer looking for Onyett at the time the two men came across him. The first stab was inflicted in self-defence because the deceased had attacked Gittins with a knife. The other stabbing injuries were inflicted in defence of Ellison, who was being attacked by the deceased with a knife. Ellison’s defence was that, although he was looking for the deceased, he had no intention to attack him and he played no part in the killing.

7.       At the conclusion of the case, before the speeches and the summing-up, Mr Kearl asked that the judge leave the issue of provocation to the jury, notwithstanding that self-defence was pleaded and notwithstanding the fact that it was not raised by Gittins as a defence. Mr Kearl submitted that this followed from section 3 of the Homicide Act 1957 and decisions of this court. It followed from those decisions that where there was evidence capable of amounting to provocation that, whatever the trial judge thought of the defence, it should be left to the jury.

8.       Before the judge Mr Kearl had submitted a document headed “Issue of provocation”. In this he listed the evidence of provocation in this case on which a jury could conclude that a reasonable person would have been provoked to lose his self-control. This was: the deceased’s violent conduct in the bar, which included physical assault and threatening and brandishing a knife; the threats issued by the deceased in the bar, which included threats of future violence, insults to the defendant and grotesque insults concerning the defendant’s mother, and the setting off a firework as he left the bar. He also submitted that the evidence included the deceased’s brandishing a knife as he walked up the lane towards the defendant, shouting and gesturing to the defendant, in particular “bringing it on”, encouraging the fight in the lane, using the knife, pushing Ellison to the car, pinning Ellison against the car and attempting to stab him.

9.       The judge expressed considerable surprise that, notwithstanding Gittins’ defence of self-defence, Mr Kearl wished provocation to be left to the jury. He said:

10.   The position is that, unless on the evidence there is only a speculative possibility of an accused having acted as a result of provoking conduct (see R v Acott [1997] 2 Cr App R (S) 94 ), the matter should be left. Where the defence is self-defence it has also been said (see Archbold paragraph 19-53) that where the evidence is minimal or fanciful provocation need not be left.

11.   Mr Kearl relies on the matters put to the learned judge as to whether there was evidence of provoking conduct. He also submits there was in this case evidence of a loss of self-control brought on by the provoking conduct that went beyond the fanciful. He points to the following areas of evidence dealt with in the summing-up. On page 21 the judge stated that the witness Richardson said that he saw Onyett rugby tackle Gittins into a parked car - Gittins was hitting him on the back as he saw it. The judge stated the witness Campagna (page 42, paragraph 81) said that Gittins was in an agitated state when he approached Onyett and said “Come on then, do it now, fucking come on”. In his interview Gittins had said that he approached the deceased and that when the deceased pulled his knife out Gittins said, “I don’t know what came over me, I just ran straight towards him. I ran at him to try and grab the knife off him. I was not even thinking. I suppose I felt really vulnerable because I was out in the street. I felt fear, I felt scared, I felt intimidated.” In his evidence to the jury Gittins stated that he had panicked when he had thought Onyett was stabbing Ellison and stabbed Onyett in his back at the top. He said, I don’t know how many times. I just wanted to get Onyett off Ellison.”

12.   We are persuaded by Mr Kearl that the above descriptions by the witnesses and the applicant arguably provide evidence of provoking conduct and a resulting loss of self-control that goes beyond the fanciful or the speculative possibility.

13.   We observe that the question whether provocation should be left to the jury is one which can cause significant difficulty in trials. The reaction of the experienced judge in the present case to the suggestion shows that the suggestion causes difficulty. We consider that it is appropriate for the full court to have an opportunity to consider this matter. We therefore grant this application.

14.   You wanted to say something about a representation order?

15.   MR KEARL: My Lord, yes. In respect of the remainder of the appeal, the appeal before the full court, I would invite your Lordship to grant him legal assistance in order that he might be represented.

16.   MR JUSTICE WAKERLEY: Leading counsel only?

17.   MR KEARL: My Lord, yes.

18.   MR JUSTICE BEATSON: Yes, we grant you that.

19.   MR KEARL: I am grateful.

20.   MR JUSTICE BEATSON: So Ellison’s appeal is adjourned. Both appeal are to come on together. We are grateful to both of you.