England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday, 1st December 2006

1. LORD JUSTICE PILL: On 26th June 1972, in the Central Criminal Court before Swanwick J and a jury, Raymond Samuel Serrano was convicted of murder and on the same day was sentenced to life imprisonment. On 10th March 1973 the single judge, Chapman J, refused leave to appeal against conviction. The Full Court refused the renewed application for leave to appeal.
2. Serrano now appeals against conviction upon a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 on the following basis:

"The trial judge failed to direct the jury on provocation when he was obliged to do so. The defence of provocation was therefore never considered by the jury. As a result of this, there is a real possibility that Mr Serrano's conviction for murder is unsafe."

This was not a ground which had been advanced by the appellant himself. He put forward a number of other grounds, but the Commission has declined to make a reference on those other grounds.

3. The appellant had been released on licence but is back in custody, his licence having been withdrawn following a further, though dissimilar, offence.
4. In February 1972 the appellant, then aged 38, lived in Harlesden. He had been a boxer as a schoolboy and while in the merchant navy and the army. On the evening of 4th February 1972 he went out drinking with a friend. At the public house they met the deceased, Ida Buchanan, who joined them for a drink. He left the public house with her alone. Both of them of had had a lot to drink. They went to the driveway of a house where some sexual acts took place. The appellant assaulted Mrs Buchanan, causing serious injuries. These included at least two fractures to the jaw. She died from inhaling blood from a puncture wound to the mouth. The time of death was estimated at 2.00 a.m.. The appellant left her in the driveway, probably still alive, and arrived home between 2.00 and 3.00 a.m.. The next morning he told his partner that he had got into a bit of trouble. He went to Liverpool. He was treated at the Royal Infirmary for a swollen right hand. On his return home on 7th February he was arrested.
5. The body had been recovered at 1.00 p.m. on the 5th February with a cardboard box covering the upper part. The prosecution case was that the appellant subjected the deceased to a series of blows, including kicks, intending seriously to injure her. The defence case was that the appellant had hit the deceased when she had demanded money from him, threatened to create a scene and had punched him. He had misjudged the severity of his blows by way of reaction. As the judge put it when summarising the defence case:

"He said it was punches only. How far drink might have led him to punch without thinking much harder than he intended."

He had not intended to cause her serious harm.

6. The issue before the jury was that of the intention of the appellant. The issue was whether he had intended to cause death or at least really serious injury to the deceased.
7. We refer to the medical evidence. It will be necessary to refer verbatim to extracts from the summing-up dealing with the evidence of the events on 4th/5th February 1972. Dr Rufus Compton, the pathologist who conducted the post-mortem, said that there were scratches on the external genitals and anal bruising which in his opinion had been caused by a violent forced sexual assault. There had been considerable persistence in forcing entry to the anus against the will of the deceased. It could have been by the use of either a finger or an erect penis and occurred shortly before death. Dr Compton found parallel marks down the right side of the face and a parallel cut to the right ear which the witness considered could have been caused by a kick. The fatal injury was to the right lower jaw; there was bruising and also cuts under the chin. These were characteristic, in the doctor's opinion, of a shoe kick when the victim was lying on her back. The same blow could have caused fractures to the jaw in two places and dislodged all the right upper incisor teeth. A group of injuries indicated one or more upward blows of considerable force. Other facial cuts were observed which were more likely to have been caused by a shod foot than by a fist. If so, it would be a different kick from that which had caused the other injuries. Deep bruising above the right ear was characteristic of another forceful kick, making a total of at least three.
8. Dr Compton also referred to abrasions on the front of both knees and the right hip. These could have been caused by the deceased crawling or being dragged along the ground. On both wrists were bruises and abrasions which suggested a violent grabbing and pulling or dragging shortly before death, as did other bruising which was found. Two black eyes could have resulted from blows to the head.
9. In cross-examination Dr Compton accepted that it was conceivable, but unlikely, that the injuries he had attributed to kicks had been caused by violent blows with the fist.
10. A scientific expert, Lillian Morse, said that where injuries of this nature are inflicted by a kick you do not always find blood on the shoes and it is possible that had there been any blood marks they could have been removed by a combination of the weather and ordinary cleaning. The shoes were made of polished leather.
11. At interview the appellant initially denied assaulting the deceased, but later he gave an account which in some respects was inconsistent with the account given at trial. The judge made comment about that in his summing-up.
12. The appellant's evidence was that he had drunk about seven pints of Guinness during the day and at least six measures of spirits. Both he and deceased were quite drunk when they left the public house. They first went to a Chinese restaurant where they had a meal. Minor sexual activity, which the judge described as "petting", had occurred at various places.
13. When they reached the driveway the deceased took her trousers off so that they did not get dirty and placed them on the bonnet of the car in the driveway. He said she was naked from the waist down and undid his zip. He could not get a proper erection because of the amount he had drunk. He touched her private parts and tried to have intercourse but could not penetrate because of his inability to achieve an erection. They had both laughed at his failure to achieve sexual intercourse. He used his fingers on her vagina but did not achieve any deep penetration. He touched her anus with his thumb because she told him she liked it.
14. Having failed again to achieve full intercourse, he did up his zip and said, "Better get ready, I should be on my way home." She then put her trousers back on, he said, and added "make it worth my while." She threatened to shout and cause trouble if he did not pay. She bent down, picked something up and threw it in his direction. It missed. She ran forward and grabbed him. He pushed her away. She came forward again and threw punches at him, one of which caught him on the end of the nose. He then struck her with the reflex action of a boxer in a combination of punches with both hands. She fell heavily. Momentarily, he said, he did lose control. He said he thought he was being set up for a robbery. He said he did not kick the deceased. He had never kicked anybody in his life. The injuries she sustained were from a single flurry of punches. He left the deceased on the night thinking she was only dazed and drunk. He was afraid she would complain to the police.
15. He was cross-examined in detail. We will need to refer to that verbatim. We mention it only briefly now. He said he did not feel humiliated about his inability to get an erection. They were laughing together. She was not laughing at him. He did not tell the police on the night that they had failed to have sexual intercourse because he thought it did not matter. At interview he said that they had had sexual intercourse.
16. The evidence relied on at this hearing comes from the judge's summary of events in his summing-up. Attempts have been made to trace the transcript evidence, but understandably, since the trial was over 34 years ago, those attempts have been unsuccessful. We have set the evidence out in some detail at this stage in order to place counsel's submissions in context, but it will be necessary to refer to the evidence, in particular the evidence of the appellant, in more detail by reference to the transcript of the summing-up.
17. It was not suggested at the trial that provocation should be put to the jury. The judge did say in terms that provocation did not arise. Neither, he told them, and this is still the position, did self-defence. The appellant was represented by experienced counsel who did not raise the partial defence of provocation.
18. Section 3 of the Homicide Act 1957 provides:

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

19. On behalf of the appellant, Mr Rees QC submits that there was sufficient evidence to require that provocation be left to the jury and that provocation did arise on the evidence. Secondly, and that being established, the assessment of the evidence should, in accordance with the wording of section 3, have been left to the jury. It would not be safe, it is submitted, for this court to substitute its own view of what is to be decided, or what a jury would have decided. The appellant was entitled to have the decision of a jury on the point. He refers to the fact that, following their verdict of guilty of murder, the foreman of the jury stated:

"My Lord, is it possible, at the request of the jury, that you will consider such leniency as you can within your powers?"

Mr Rees accepts that the jury could have things other than provocation in mind when posing that question, but he submits that it is a real possibility that it was the provocative conduct of the deceased which led to the recommendation made by the jury.

20. The conduct constituting provocation is said to be: first, the laughter about the lack of an erection; second, the threat to shout out; third, the request, or implied request, for money, with the accompanying fear of set-up for a robbery; and, fourth, the assault by the deceased on the appellant, particularly the punch on the nose.
21. On the question of alternative verdicts, Mr Rees has referred to the recent decision of the House of Lords in Coutts [2006] UKHL 39. In that case the question of alternative verdicts was considered in a general way. It was not suggested that the earlier authorities, which deal specifically with provocation upon a trial for murder, are affected by the opinions expressed in Coutts . The test, it is submitted, is that stated by Lord Bingham of Cornhill at paragraph 23:

"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably fro m his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency."

Lord Hutton expressed his agreement with that paragraph at paragraphs 61 and 62.

22. Mr Rees submits that the threshold of provocative conduct resulting in a loss of self-control is crossed in this case, and, that being so, the issue of the reasonableness of the appellant's reaction to it should have been left to the jury. He accepts that the prosecution had opened the case as a serious sexual assault and had claimed at the trial that the injuries were caused seriously and purposively. He does, however, draw attention to the judge's reference in his summing-up to loss of temper. The account given by the appellant, which we have already summarised, was one that had not arisen before the trial. In the course of cross-examining him the Crown suggested, as the judge has recorded in his summing-up, that it was the reference to his inability to obtain an erection "that must have caused him to lose his temper", that part of his evidence not having been disclosed to the police. A reference to loss of temper had also been made on an earlier occasion. This was a gloss which the prosecution, it is said, put upon the case when they heard the evidence of the failure to obtain an erection. In any event, submits Mr Rees, what matters is not how the Crown put their case, but what evidence there was when considering whether it was of a nature which required the defence of provocation to be considered by the jury.
23. For the prosecution, Mr Dennis QC submits that provocation is not, on the evidence, a live issue. He relies, naturally, on the fact that experienced counsel at the trial and the judge himself did not consider that evidence had arisen which made provocation material. Mr Dennis submits that any loss of self-control which occurred must be in the context of provocation.
    
24. That aspect was considered in this court in Van Dongen [2005] EWCA Crim 1728, May LJ presiding. At paragraph 42 May LJ referred to the judgment which a trial judge has to make when he decides whether provocation has on the evidence arisen. May LJ stated:
    "To decline to make the judgment would mean, as the judge in the present case thought, that judges would be obliged to give a provocation direction in all, or nearly all, murder cases in which there is a defence of self-defence and more than speculative evidence that the defendant may have lost his self-control because of things done or said or both."
25. Mr Rees accepts that it is not in every self-defence case where the first threat, or even the first violence, has come from the deceased, that a defence of provocation arises. However, he points to the case of Franco [2001] UKPC 38 where it was held, where self-defence failed, that provocation should have been left. That case is different on the facts, certainly in that the violence by the appellant in that case, or part of the violence by the appellant in that case, occurred when the threat from the deceased no longer existed. Mr Rees submits that there is reason to believe that the violence used by the appellant in this case did result from the provocation about which evidence was before the court.
26. The test was stated in the House of Lords in the case of Acott [1997] 2 Cr App R 94. Lord Steyn at page 100E stated:

"It remained the duty of the judge to decide whether there was evidence of provoking conduct which resulted in the defendant losing his self-control if in the opinion of the judge, even on a view most favourable to the accused there is insufficient material for a jury to find that it is a reasonable possibility that there was specific provoking conduct resulting in a loss of self-control there is simply no issue of provocation to be considered by the jury."

Page 102D:

"It follows that there can only be an issue of provocation to be considered by jury if the judge considers that there is some evidence of a specific act or word of provocation resulting in a loss of self-control. It does not matter from what source that evidence emerges or whether it is relied on at trial by the defendant or not. If there is such evidence the judge must leave the issue to the jury. If there is no such evidence but merely the speculative possibility that there has been an act of provocation it is wrong for the judge to direct the jury to consider provocation."

27. :

"What is sufficient evidence in the particular context is not a question of law. Where the line is to be drawn depends on a judgment involving logic and common sense. The assessment of matters of degree and intense focus on the circumstances of the particular case. It is unwise to generalise on such matters. It is a subject best left to the good sense of trial judges. For the same reason it is not useful to compare the facts of decided cases on provocation with one another."

28. More recently in Miao [2003] EWCA Crim 3486 Rose LJ VP stated at paragraph 38:

"It is for the judge to decide if there is evidence of provoking conduct, a loss of self-control. If there is sufficient evidence it is a matter for the jury. If there is insufficient material to find as a reasonable rather than as any speculative possibility, that there was provoking conduct and loss of self-control, there is no issue that the judge should not leave provocation to the jury. The trial judge is in many cases better placed than this court to assess the quality and effect of the evidence which has been placed before the jury."

29. We consider the evidence given, and it comes from the appellant himself, in the context of those statements of principle and in the context of the evidence about the injuries which occurred and the doctor's opinion as to how they were inflicted. The doctor's conclusion was that there had been a violent, forced sexual assault. At trial the appellant said that while he had struck the deceased he had no intent to cause her serious harm.
30. He was asked about his failure to obtain an erection. He referred to touching the deceased's private parts (page 14D):

"'When I touched her private parts with my fingers I did not deliberately injure them. I should not think I would have done so accidentally. It all depends on the movements you are using. In my love-making I was being normal.' With regard to her anus, he said, 'We were both laughing at the idea that I could not get a proper erection; from time to time such a thing has happened to me. It is nothing serious. I take it as a matter of course. I didn't feel humiliated and lose my temper. She wasn't laughing at me. She was giggling because I could not get an erection. That is not why this happened. I cannot account for the injuries to her anus, though I have thought about it."

That is no basis, in our judgment, for a claim that provocation should have been left to the jury.

31. Page 15A:

"Now I come to next question. Why did he hit her? Well, his evidence was that was this, and it is continuing his account that he gave to his own counsel about the events after he said he did up his zip, and said, 'Better get ready now, I should be on my way home how.' He went on to say, as she put on her trousers, that she said, 'Make it worth my while now.', and that he said that no money had been spoken of. He said, 'We have just been out for a few drinks,' and that would be the finish. 'Then,' he said, 'she threatened to shout and cause me trouble if I did not pay. She said I had plenty of money on me and I wouldn't notice it.' 'Suddenly,' he said, 'she dipped down, she picked something up and was throwing it in my general direction. So I ducked out of the way and she ran forward and grabbed me and I pushed her away. She came forward again and threw some punches at me. One caught me on the end of the nose. Next thing, she was down on the deck. I hit her before I even realised.' He said it was the reflex action of a boxer, to hit in combination punches with both hands, leading with his left. He says, 'She spun away and fell forward and hit the ground, making no attempt to break her fall. Her body hit the ground a heavy blow.' I pause there again, because that is the end of his account of the finance. A little later on in his evidence, still being asked by his learned counsel, he said, dealing with why he hit her, 'I took it at first that I had been set up, that she was acting as a decoy for somebody to rob me.' 'I had been in the merchant navy,' he said, 'and it is a thing that happens at foreign ports.' On the occasion that he said she threatened to scream that passed through his mind."

32. The judge then asked the jury to consider the credibility of that account, drawing attention, as he did, in the summing-up to the novelty of the explanation, in that it had not been stated at an earlier stage.
33. At page 16G, again, the failure to achieve sexual intercourse is considered:

"The Crown suggest that it was because it was this fact and her amused reaction to it, that must have caused him to lose his temper, that he did not want to disclose to the police. The accused says, 'The reason I didn't mention it was simply because I thought it didn't matter.' Well, he did say, as I have reminded you, in evidence that his failure caused the laughter, but he said that they both laughed together about it and it was not her laughing at him."

Again that is evidence which does not present a case of provocation.

34. Mr Rees submits, rightly in our view, that it is not what the Crown were or may have been suggesting when the new material arose, it is the contents of that material which the court must consider.
35. The judge then used the expression at 17A:

"He did also say in his evidence that momentarily he did lose his control."

36. That is relied on heavily by Mr Rees as establishing the necessary component which was stated by Lord Steyn in Acott at pages 100 and 102:

"Specific provoking conduct resulting in a loss of self-control."

37. However, the judge went on to consider the evidence in more detail (17B):

"Anyway, he says his loss of control was not because she had thrown something at him. So had it occurred when she hit him on the nose? And he was cross-examined about that, and said this, 'When she hit me I just hit out without even thinking about it. If anybody struck at me I would automatically hit out. You don't think when you have had drink. Actions you do in drink seem normal at the time. I have had five months thinking about it. It was just done in a couple of seconds. She just caught me on the end of the nose. I suppose that stung me. I am used to being punched and it would not worry me.' [The judge then corrected his reading of his notebook]. No, I am sorry. 'I am used to taking punishment and it would not worry me. I just hit out on instinct. It just happened. I don't remember when I hit her. You don't aim at a particular place. I just hit out at her face without thinking. I now know she was utterly defenceless."

38. The court has to consider whether there is evidence of provocative conduct resulting in loss of self-control. The evidence itself discounts the possibility in that regard either of the failure to obtain an erection and the amusement they both had about that and the throwing of an article at him.
39. When considering loss of self-control the approach is that stated by Lord Lane CJ in Whitfield 63 Cr App R 39 at 42. Lord Lane cited a judgment of Lord Goddard CJ, who was himself citing a direction given by Devlin J in R v Duffy [1949] 1 All ER 149:

"Provocation is some act or series of acts done or words spoken by the dead man to the accused which would cause in any reasonable person and actually does cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."

The words "by the dead man or his accused" have, of course, been superseded by subsequent authority.

40. The appellant was an experienced amateur boxer who described in his evidence his reaction to the punch on the nose. Another part of his evidence to which the judge referred, was that he punched his weight. What he told the jury was that he had an instinctive reaction to the punch on the nose. We are quite unable to equate that instinctive reaction with the concept of loss of control stated by Lord Lane CJ in Whitfield . In our judgment, what is contemplated by loss of control is something more, something in the category which Lord Lane had in mind, "sudden and temporary loss of self-control rendering the defendant so subject to passion as to make him for the moment not master of his mind". We cannot agree that the instinctive reaction of a former boxer to counterpunch, which is claimed to have occurred, can come within the category of loss of control contemplated and intended by section 3 of the statute. In our judgment, there was no relevant provocative conduct. To repeat the statement of Lord Steyn, there was no:

"... specific provoking conduct resulting in a loss of self-control."

41. We have considered the evidence given, and not arguments which the Crown may have attempted to base on it in supporting its own case of a sustained sexual assault, arguments quite unrelated to the events as described by the appellant in his evidence, a mere combination of punches.
42. We have had regard, too, to the nature of the attack. The medical evidence is far more consistent with a sustained and calculated attack, affecting a number of parts of the body, than the frenzied attack which does, unhappily, sometimes follow from a loss of self-control making the person so subject to passion as to be for the moment not master of his mind.
43. In our judgment, the question of provocation did not for those reasons arise in this case. The verdict cannot be found to be unsafe because provocation was not placed before the jury.
44. That being so, the further question upon which the submission to us has been focused, whether, if there had been conduct within the necessary category, it should have been left to jury, rather than this court forming its own view, is one on which we do not reach a conclusion. It would not be helpful for us to do so. We draw attention only to the recent statement of this court in the case of Van Dongen. May LJ stated at paragraph 65:

"Justice in a criminal trial rightly and necessarily concentrates on justice for the appellant. But the court must not overlook the matter of justice for those concerned with the victim also, nor the requirements of a proportionate criminal appellate system, which include that those who are surely and fairly shown to be guilty of murder, and have been so found by a jury, should not escape that consequence on gossamer grounds. In our judgment, the unavoidable facts of this case and the necessary logic of the jury's verdict rule out any possibility of a miscarriage of justice -- see Franco paragraph 19."

45. Plainly, there are cases where this court is entitled to uphold a murder conviction even when provocation should have been left to the jury, which in that case, though expressing their hesitation about it, at paragraph 44, the court held that provocation should have been left to the jury. We do not need to come to a conclusion on the facts of this case.
46. For the reasons we have given, this appeal is dismissed.
47. MR REES: Thank you. My Lord, one administrative aspect if I may? The appellant, having admitted he voluntarily waived his right to be present, the decision of the court nevertheless needs to be conveyed and, arguably, explained to him. Legal aid at the moment exists for both counsel but not for a solicitor, so to come to the point, will the court consider granting public funding for my instructing solicitor to take such steps as are reasonable to inform the appellant and to explain to him?
48. LORD JUSTICE PILL: Does that need a representation order? This is a very common occurrence, a appellant not attending. Why does it need a representation order to inform an appellant of the result?
49. MR REES: Your Lordship probably has the advantage over me. I am assuming that a transcript of the decision would not be conveyed to the appellant.
50. LORD JUSTICE PILL: If your application is that a transcript be sent to him, or sent to somebody for onward transmission to him at public expense, then we might be sympathetic.
51. MR REES: Then I will shift my grounds.
52. LORD JUSTICE PILL: If your solicitor is here, we are very pleased. No doubt he or she has helped you, but it is inevitable, where legal points are involved, that solicitors do not customarily get representation orders.
53. MR REES: Then I would frame my application in those terms. That would be more satisfactory. He can then read for himself the approach of the court.
54. LORD JUSTICE PILL: Yes. (Pause ). Yes, we will direct that a copy of the approved transcript should be sent to the appellant. What is the best way to do that, via your chambers, Mr Rees?
55. MR REES: Via the solicitor.
56. LORD JUSTICE PILL: Would you ask them to leave their appropriate address with the registrar and that will be done?
57. MR REES: I am grateful.
58. LORD JUSTICE PILL: Does anything else arise?
59. MR REES: My Lord, no.
60. LORD JUSTICE PILL: We are grateful to you both for helpful submissions.