England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		26 October 2005

Wednesday, 26 October 2005

THE LORD CHIEF JUSTICE:

1. On 11 November 2003, in the Crown Court at Sheffield, the appellant was convicted of murder and sentenced to life imprisonment. He appeals against conviction with the leave of the full court. The appeal raises an important point of law as to the effect of voluntary intoxication on the defence of self-defence.

The Facts

2. Mr Richard Pashley was battered to death with a sledgehammer in the appellant's flat in Sheffield in the early hours of Sunday 22 June 2003. In the course of the previous evening the appellant consumed a large quantity of alcohol. At his trial he contended that he had no recollection of Mr Pashley's death and denied being responsible for it. He now accepts that he killed Mr Pashley. For the purposes of this appeal the material facts can be summaries as follows.
3. Mr Pashley was 49 years of age. He suffered from manic depression and to control the disinhibition which he felt when in manic mood he had been prescribed Lithium. He regularly failed to take this drug and had probably failed to do so on the evening before his death. On that evening he had consumed sufficient alcohol to raise the level in his blood to twice the legal limit for driving. Earlier in the evening he had been behaving in a strange fashion, falsely representing that he had been an officer in the SAS and striking martial art poses. He had exhibit a hatred of homosexuals.
4. On the evening of 21 June the appellant consumed on his evidence over 20 pints of beer. In the course of the evening he embraced another man in a manner which led the latter to think that he was making a homosexual advance. He is not, in fact, a homosexual.
5. The appellant and Mr Pashley did not know one another, but met in the early hours of 22 June in a nightclub in Sheffield. From there they drove together in the appellant's car to his flat. At 11.30 on the morning of the 22nd the appellant made an emergency call saying that he had been out all night and had returned to find an unknown man dead in his flat. Near Mr Pashley's body was a sledgehammer. He had sustained multiple injuries to the head, chest and abdomen from at least seven blows struck with an extreme degree of force with this weapon, four to the body and three to the head. A single blow to the head would have rendered Mr Pashley unconscious. Under his body was found a stick, some five feet in length, which belonged to the appellant and which he had fashioned to resemble a samurai sword. An overhead lamp shade had been dislodged, and this could have resulted from a blow from the stick. Although the appellant said that he had no recollection of Mr Pashley's death, he said to the jury, "I have a vague recollection of being involved in an altercation and a vague recollection of the stick involved. I think I was hit with that stick. I believe Mr Pashley hit me with it. I must have believed that I was under attack".
6. Mr Alan Newman QC wished to found upon the facts that we have just summarised to suggest to the jury that, if the appellant killed Mr Pashley, he might have acted in self-defence. Mr Pashley might have attacked him with the stick, perhaps under the erroneous impression that the appellant was a homosexual, and that the appellant might have used the sledgehammer to defend himself. For this defence to succeed, however, the jury would have to be persuaded that the use made by the appellant of the sledgehammer was or might have been a reasonable reaction to the suggested assault by Mr Pashley. Mr Newman wished to argue that the appellant's drunken state might have led him to believe, mistakenly, that Mr Pashley was an SAS soldier attacking him with a sword. In the absence of the jury he sought a ruling from the judge that the reasonableness of the appellant's reaction fell to be judged according to the facts as he believed them to be, even if that belief was mistaken and the mistake was caused by the drink that he had consumed. He said to Holland J that he intended to indicate to the jury:

"unless your Lordship rules that I cannot do so, that in considering the situation they are entitled to take into account the fact that my client has drunk large quantities of alcohol which may have given him a wholly warped perception of reality."

7. After hearing argument from prosecuting counsel, Holland J ruled that it was not open to the appellant to rely, when seeking to established self-defence, on a mistake induced by drunkenness. This was established by the decision of this court in R v O'Grady [1987] 1 QB 995, (1987) 85 Cr App R 315. It followed that Mr Newman could not properly invite the jury to have regard to the effect of the appellant's perception of events of the drink that he had consumed.
8. When summing up on the specific intent that the jury would have to find if they were to convict of murder, the judge directed them that if they were sure that the appellant had killed Mr Pashley, but thought that he might have been so drunk that he was incapable of forming any intent, they should acquit him of murder but convict him of manslaughter. When he came to deal with the defence of self- defence he made no mention of the effect on the appellant's perception of events of the drink that he had consumed. He referred to the appellant's belief that Mr Pashley had hit him with the stick. In that context he asked them to consider two questions: (1) "Are you sure and satisfied that when Jonathan Hatton killed Richard Pashley he did not honestly believe that it was then necessary to use force to defend himself?" (2) "if .... he may have believed that, taking the circumstances as he believed them to be, are you sure and satisfied that the amount of force that he then used was unreasonable?"
9. Before us Mr Newman has submitted that the judge's ruling and his subsequent direction to the jury were both defective. The judge should have ruled that if the appellant might have mistaken the nature of the attack because of his drunkenness, he was entitled in law to defend himself in a manner that was reasonable having regard to his drunken perception of the danger to which he was exposed. The judge should have directed the jury accordingly.
10. Mr Newman accepts that this submission is inconsistent with the judgment of this court in O'Grady. He submits, however, that the observations in that case were wrong in principle and were obiter dicta, so that we need not and should not follow them. We turn at once to that case.
11. The appellant had killed a friend in a fight in circumstances where they were both very drunk. In giving the judgment of the court, Lord Lane CJ gave the following summary of the material parts of the summing-up by the trial judge:

"The judge gave an impeccable direction on the ingredients of murder and upon the way in which intoxication may affect proof of intent to kill or to do serious bodily harm. Likewise impeccable was his direction on provocation, including the correct observation that, when considering whether a reasonable man would have been caused to lose his self-control, questions of drink are irrelevant.

Finally he gave the classic direction on self-defence. He made no mention of the possibility that the appellant might be reason of intoxication have been mistaken as to the threat posed to him by McCloskey's action. This was no doubt because no one had taken the point.

Counsel for the prosecution towards the close of the judge's directions saw fit to invite the judge to remedy what he plainly regarded as this lacuna in the charge to the jury. Counsel for the appellant wisely held his peace. The judge then gave this further direction:

'It might be a view that you might take -- I know not -- that this defendant thought he was under attack from the other man mistakenly and made a mistake in thinking that he was under attack because of the drink that was in him. If he made such a mistake in drink he would nevertheless be entitled to defend himself even though he mistakenly believed that he was under attack. He would be entitled in those circumstances to defend himself. But if in taking defensive measures, then he went beyond what is reasonable either because of his mind being affected by drink or for any other reason, then the defence of self- defence would not avail because, as I told you earlier on, you are entitled to defend yourself if it is necessary to do so, but the defensive measures that you take must be reasonable ones and not go beyond what is reasonable.'

...."

12. The jury found the appellant not guilty of murder but guilty of manslaughter. He appealed on the ground that the judge's direction in relation to self-defence had been deficient, but for which he might have been found not guilty of any offence. He contended that the judge erred in not directing the jury that when deciding whether the defendant might have acted reasonably in self-defence, they should judge what was reasonable in the light of any mistake as to the severity of the attack that he was under that his drunkenness might have induced.
13. Lord Lane went on to quote the following observation made by McCullough J, the single judge, when giving leave to appeal:

"Given that a man who mistakenly believes he is under attack is entitled to use reasonable force to defend himself, it would seem to follow that, if he is under attack and mistakenly believes the attack to be more serious than it is, he is entitled to used reasonable force to defend himself against an attack of the severity he believed it to have. If one allows a mistaken belief induced by drink to bring this principle into operation, an act of gross negligence (viewed objectively) may become lawful even though it results in the death of the innocent victim. The drunken man would be guilty of neither murder nor manslaughter."

Lord Lane then stated the conclusion of the court in the following passage:

"How should the jury be invited to approach the problem? One starts with the decision of this Court in Williams (Gladstone) (1984) 78 Cr App R 276, namely that where the defendant might have been labouring under a mistake as to the facts he must be judged according to that mistaken view, whether the mistake was reasonable or not. It is then for the jury to decide whether the defendant's reaction to the threat (real or imaginary) was a reasonable one. The Court was not in that case considering what the situation might be where the mistake was due to voluntary intoxication by alcohol or some other drug.

We have come to the conclusion that where the jury are satisfied that the defendant was mistaken in his belief that any force or the force which he in fact used was necessary to defend himself and are further satisfied that the mistake was caused by voluntarily induced intoxication, the defence must fail. We do not consider that any distinction should be drawn on this aspect of the matter between offences involving what is called specific intent, such as murder, and the offences of so-called basic intent, such as manslaughter. Quite apart from the problem of directing a jury in a case such as the present where manslaughter is an alternative verdict to murder, the question of mistake can and ought to be considered separately from the question of intent. A sober man who mistakenly believes he is in danger of immediate death at the hands of an attacker is entitled to be acquitted of both murder and manslaughter if his reaction in killing his supposed assailant was a reasonable one. What his intent may have been seems to us to be irrelevant to the problem of self-defence or no. Secondly, we respectfully adopt the reasoning of McCullough J already set out.

This brings us to the question of public order. There are two competing interests. On the one hand the interest of the defendant who has only acted according to what he believed to be necessary to protect himself, and on the other hand that of the public in general and the victim in particular who, probably through no fault of his own, has been injured or perhaps killed because of the defendant's drunken mistake. Reason recoils from the conclusion that in such circumstances a defendant is entitled to leave the Court without a stain on his character."

14. After citation of passages from DPP v Majewski [1997] AC 443, (1976) 62 Cr App R 262, which he considered supported the court's conclusion, Lord Lane summarised the result by observing that the relevant passage from the summing-up erred in favour of the appellant.
15. O'Grady was followed in R v O'Connor [1991] Crim LR 135, an appeal against conviction for murder. The appellant complained that the judge had failed to mention the effect of drink on the defence of self-defence. This court ruled that when a defendant because of self- induced intoxication formed the mistaken belief that it was necessary to use force to defend himself, a plea of self-defence failed. The court held that O'Grady was binding on this point, noting that it had been subject to academic criticism to which we shall refer. The appeal was, however, allowed and the conviction for murder replaced by a conviction for manslaughter on the ground that the judge failed to direct the jury that self-induced drunkenness could have the effect of preventing the defendant from forming the specific intent that is an element of the crime of murder.
16. In a commentary to O'Grady, after the report in the Criminal Law Review, Professor John Smith commented that the decision proceeded on the basis that self-defence was a complete defence to a charge of homicide which was unfounded. A defendant who relied on a reasonable reaction to a drunken mistake to establish a defence to murder could not rely on the drunken mistake as a defence to manslaughter: see the decision of the House of Lords in Majewski. Professor Smith commended the recommendation of the Criminal Law Revision Committee (Fourteenth Report, Cmnd 7844 para 2777) that the evidence of voluntary intoxication adduced in relation to a defence should be treated in the same way as evidence of voluntary intoxication adduced to negative the mental element in a crime of specific intent.
17. Professor Smith commented that the decision in O'Grady was obiter because the appellant had been convicted only of manslaughter. Professor Smith returned to this theme in a commentary in the Criminal Law Review in O'Connor. He argued that this court was wrong to regard O'Grady as binding authority because O'Grady was convicted only of manslaughter, so anything said about the law of murder on appeal must have been unnecessary to the decision and obiter. Perhaps nor surprisingly, the same argument was advanced in the tenth edition of Smith and Hogan's Criminal Law at page 247, and is repeated in the current edition. Mr Newman adopted that argument. Mr Kelson QC for the Crown contended that this court in O'Connor had been right to regard O'Grady as binding authority.
18. We have used the term "obiter dicta" because it is a recognised legal term of art that is not readily reproduced by an English phrase. The term describes judicial statements which are peripheral to the reason for the decision, the ratio decidendi. Halsbury's Laws, 4th Ed, dealing at paragraph 1237 with "Judicial Decisions as Authorities" accurately states "The enunciation of the reason or principle upon which a question before the court has been decided is alone binding as precedent". In considering whether the relevant statements of Lord Lane in O'Grady were obiter it is necessary to consider what was in issue and what was the reason or principle applied by the court in resolving that issue.
19. It is helpful to start by considering the development of the law in relation to self-defence up to the time of the decision in O'Grady. It has long been a defence to a charge of any crime of violence that the defendant was acting reasonably to defend himself against attack. Originally the test of whether the defendant's conduct was a reasonable reaction to the attack fell to be judged objectively. The test was whether what was done by the defendant was reasonably necessary to defend himself against the attack that he was facing. In Palmer v R [1971] AC 814, in delivering the advice of the Privy Council, Lord Morris opened the door to a degree of subjectivity. He said at page 832:

"If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonably defensive action had been taken."

20. The next material step in the development of the law was the decision of this case in R v Gladstone Williams. The appellant had been convicted of assault occasioning actual bodily harm by punching a man in the face. His defence was that he had honestly, albeit erroneously, believed that the man he had punched was assaulting a youth and that he had done no more than necessary to defend that youth. The judge had directed the jury that he could only rely on this defence if there were reasonable grounds for his belief. The court held that the defence would lie provided that the belief was honestly held, whether there were reasonable grounds for it or not. Giving the judgment of the court, Lord Lane CJ held at page 281:

"The reasonableness or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognise that the victim was not consenting or that a crime was not being committed and so on. In other words the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant's actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury come to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring it, he is entitled to rely upon it."

21. This passage was approved by the Privy Council in Beckford v R in an appeal against conviction for murder. Giving the opinion of the Board, Lord Griffiths said at page 431:

"It is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful, that self- defence, if raised as an issue in a criminal trial, must be disproved by the prosecution. If the prosecution fail to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime, namely that the violence used by the accused was unlawful.

If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully."

22. We observe that neither in Gladstone Williams nor in Beckford did the judgments consider the possibility that action taken by a defendant acting under a mistake resulting from negligence may attract liability for a crime of which the mental element is not intent but recklessness.
23. With this background we come to O'Grady. At issue in that case was whether the trial judge had correctly directed the jury in relation to self-defence on a charge of murder. As Professor Smith has pointed out, that question was approached on the express premise that where self-defence provides a defence to a charge of murder, it will equally provide a defence to an alternative charge of manslaughter. The reasoning of the court drew no distinction between murder and manslaughter. Having given judgment the court certified that its decision raised a point of law of general public importance, namely: "Is a defendant who raises the issue of self-defence entitled to be judged upon the basis that he mistakenly believed it to be the situation when that mistaken belief was brought about by self-induced intoxication by alcohol or other drugs?" That was the issues that this court addressed. It was a general issue, not restricted to the offence of manslaughter. To that issue the court gave the answer "No". We do not believe that upon a proper application of the law of precedence we can treat the general principle that was the reason for this court's decision as being mere obiter dicta so far as the law murder is concerned. We are obliged to follow O'Grady and to reject Mr Newman's contention that the judge should have directed the jury to consider whether the appellant's drunkenness might have led him to make a mistake as to the severity of any attack to which he may have been subjected by Mr Pashley.
24. We would add this. Had we felt it open to us to differ from the ruling on the point made by this court in O'Grady, our observations would themselves have been obiter. This is because we can see no basis upon which the judge could have directed the jury to consider that the appellant might have been labouring under the kind of drunken mistake suggested by Mr Newman, namely that he was being attacked by an SAS officer with a sword. This scenario was pure conjecture on the part of Mr Newman. The only relevant evidence was the appellant's vague recollection of being hit by Mr Pashley with the stick. In these circumstances the judge expressed doubt as to whether there was a defence of self-defence to be left to the jury, and we can understood that doubt. In the event he left to the jury the question of whether they were sure that the appellant used unreasonable force having regard to the circumstances as he believed them to be. Having regard to the wounds inflicted on Mr Pashley's head and body by blows from the sledgehammer wielded by the appellant, the response of the jury to this question can occasion no surprise.
25. The decision in O'Grady has been the subject of criticism not only by academic writers but by the Law Commission. In his commentary on O'Connor Professor Smith observed: "It is not too late for the court of Appeal to repent and establish a sound basis of the law."
26. Mr Kelson advanced some powerful arguments, essentially of pragmatism, in support of the law as it stands. But whether or not the law is soundly based must be decided elsewhere. For the reasons that we have given this appeal is dismissed.
27. MISS BRICKMAN: My Lord, I would invite you to certify the following question:

"Whether voluntary intoxication can be taken into account when considering a defence of self- defence to a crime of specific intent?"

I have a copy of that question.

28. THE LORD CHIEF JUSTICE: The court in O'Grady certified a similar question. If we amend it in slightly different form to read: "Is a defendant who raises the issue of self-defence to a charge of murder entitled to be judged upon the basis that he mistakenly believed to be the situation when that mistaken belief was brought about by self- induced intoxication by alcohol or drugs?", would that be a more satisfactory enunciation of the principle?
29. MISS BRICKMAN: My Lord, it would.
30. THE LORD CHIEF JUSTICE: Yes, we are prepared to certify that that is a point of general public importance.
31. MISS BRICKMAN: My Lord, might I ask for leave to appeal to the House of Lords on this important question?
32. THE LORD CHIEF JUSTICE: We are not persuaded that the facts of this case are a suitable vehicle for raising this question. Their Lordships may take a different view, but we shall leave it to them to determine that. We shall refuse leave.
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