England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/05/2010

Lord Justice Maurice Kay :

1. In August 2008 these two appellants, together with David Comer, stood trial for murder. At the conclusion of the trial Slack was convicted of murder. Johnson was acquitted of murder but convicted of manslaughter. In the course of the trial she had also pleaded guilty to an offence of assault occasioning actual bodily harm. Comer was acquitted of murder and manslaughter but he had pleaded guilty to an offence of perverting the course of justice. Slack and Johnson now appeal against conviction for, respectively, murder and manslaughter, leave having been granted by the full court.
2. On the afternoon of 25 May 2007, sometime before 3.30pm, Alan Bowles (the Deceased), then aged 65, was killed in his flat. At the time Slack, Johnson and Comer were all present. Pathological evidence established that death was caused by a penetrating injury, consistent with the forcible insertion of a walking stick through the throat and into the body cavity. The Deceased had other injuries including five fractured ribs which appeared to be recent and to have resulted from blunt impact before the fatal injury. He also had injuries to his head, neck, nose, lips and shins.
3. The Deceased's flat was a meeting place for those who, like him, were consumers of alcohol and drugs. By 25 May, Slack had moved in and was living with the Deceased. Comer was a frequent visitor. However, the Deceased had begun to complain that Slack took money from him and put him in fear. A visitor to the flat at midday saw Slack and Johnson there. Johnson was drunk. The Deceased was in a state of distress and was shouting at Slack. When the visitor left shortly after 1.00pm he saw Comer walking up the stairs towards the flat. The only witnesses to what happened in the flat after that were Slack, Johnson and Comer.
4. Slack and Johnson remained together all afternoon after the Deceased had been killed. They were captured on CCTV footage at the King's Bar between 3.30 and 4.15 and they were seen together later at the Uptown Bar. The barmaid observed them drinking together and noticed that at some stage Johnson changed her clothes. Johnson said that she did not want the clothes that she had taken off. Slack and Johnson left together but Johnson later returned alone. At that stage she told the barmaid that Slack had killed the Deceased with a walking stick.
5. At 9.30pm Slack and Comer visited Slack's nephew. Slack said something to the effect that he was on a murder charge. The nephew called a taxi to take Slack away. Later, the nephew and Comer went to the Deceased's flat where the body still lay. Comer removed the walking stick and disposed of it in the river. This formed the basis of the offence of perverting the course of justice.
6. The next day, 26 May, Slack visited his sister. He spoke to his nephew and gave an account of what had occurred. It resembled the evidence he was later to give to the jury. He also visited a friend in Cambridge where he gave an account of what had happened, this time in a more explicitly inculpatory form.
7. On 28 May Slack's sister reported the murder to the police. Later that day Comer was arrested. In his second interview he gave an account broadly similar to his evidence at trial.
8. On 29 May Slack was arrested. A Community Police Officer gave evidence that Slack had said that he was a paranoid schizophrenic but "they" had not given him any medicine. He said that he knew what he had done and that he had taken a life. Slack made no comment in interview.
9. On 30 May the same barmaid to whom we have referred heard Johnson on the phone to her mother saying that the police were looking for her. She told her mother that there had been an argument and that the Deceased had threatened Slack with a knife. He had been disarmed and she had thrown the knife out onto the balcony. She had given the Deceased a good kicking and Slack had put the walking stick down his throat. Comer had been present. When the barmaid spoke to Johnson on later occasions, Johnson denied kicking the Deceased or taking any part. Johnson was arrested later that day. In interview she denied that she had taken part in the incident. She said that the Deceased had attacked Slack with a knife and that Slack had taken the knife and she had thrown it onto the balcony. She said that Slack had lost control and that he had put the stick down the Deceased's throat. She had told him to stop. She said that Comer was there and, at one point, she stated that he had participated by kicking the Deceased. She said that she had neither intervened nor called an ambulance through fear and that she had wanted to leave.
10. Slack gave evidence in which he sought to place the blame on Comer. He described previous incidents in which he said Comer had used violence against the Deceased. As regards the day of the killing, Slack said that the Deceased had been angry with him in the morning and had sought to stab him with a kitchen knife but Slack had disarmed him and put the knife in the kitchen. The dispute had continued. Johnson had collected the knife from the kitchen and held it in front of the Deceased, telling him not to threaten Slack, after which she threw the knife onto the balcony. All this was before the midday visitor arrived. After the visitor had left and Comer had arrived, argument continued between the Deceased, Johnson and Comer. Johnson then attacked the Deceased kicking and punching him to the chest and stomach. The Deceased was accusing Slack of having taken money from him. Slack picked up a cushion and placed it over the Deceased's mouth to shut him up but it did not. The Deceased threatened to give information to the police about Comer's father and the supply of drugs. Slack said that he took hold of the Deceased's walking stick and put the rubber stopper at the bottom into the Deceased's mouth to shut him up. Comer was behind him and he kicked or pushed the stick which was still in the Deceased's mouth with force. Slack pulled it out and saw the blood. Slack said that he had used the stick on the spur of the moment but had not intended to cause serious injury. He said that Johnson may have caused the rib injuries and the injuries around the Deceased's mouth but that she had had nothing to do with the stick. He said his recollection of events was hazy. When the parties had gone their separate ways, Comer had suggested that whoever got caught first should say nothing. He said he had not made any admissions of murder to anyone although he may have said that he was involved because, after all, he was there. He denied the conversation with the Police Community Officer.
11. Comer also gave evidence. He described previous incidents between Slack and the Deceased in which Slack had been violent. He said that after he arrived at the flat on 25 May a fight broke out between Johnson and the Deceased. They were punching each other and the Deceased had a bloody nose. The fighting then stopped. Slack then went into the Deceased's bedroom and came back with two pillows. The Deceased was sitting there moaning. Slack then put the pillows over the Deceased's face causing him to struggle. Slack then said "This ain't working", threw the pillows down and took the walking stick. He pushed it down the Deceased's throat. The stopper was not on the end of the stick. Slack used both hands and knelt on the Deceased's chest to force the stick in. He kept it there for about 20 seconds until the Deceased was dead. He said that he had done nothing but Johnson was telling Slack to stop. He admitted returning to the flat later and taking the walking stick prior to disposing of it in the river. He said that he had lied initially in interview because he was scared of Slack.
12. Johnson did not give evidence. Expert witnesses called on her behalf referred to her IQ being in the "extremely low" bracket. Her memory function was poor and one expert referred to her as highly suggestible.
13. It is apparent from that summary that Slack and Comer were running cut-throat defences. Although both described Johnson assaulting the Deceased prior to Slack's introduction of the cushions and the walking stick, neither said that she was party to the fatal use of the walking stick. It was after the close of the defence case that the prosecution obtained leave to add a Count of assault occasioning bodily harm to the indictment in relation to Johnson, whereupon she pleaded guilty to that offence.

Rulings in the course of the trial

14. In the course of the prosecution case, the prosecution sought and obtained a ruling that evidence of Johnson's bad character be admitted in order to show that she had a propensity to use uncontrolled violence when under the influence of alcohol. Comer's previous convictions were admitted as being relevant to the issue whether or not he had participated in the assault. On behalf of Johnson submissions of no case to answer were made at the end of the prosecution case and again at the end of the defence case. Both were unsuccessful. Following the closing speech for the prosecution, an application was made on behalf of Johnson to discharge the jury. It was said that the earlier bad character ruling had been made on the basis that at that time the case for the prosecution was that Johnson had physically participated in the attack with the walking stick whereas the case was now being put on the basis of joint enterprise in the form of encouragement. The application was refused.

The grounds of appeal

15. On behalf of Johnson, trial counsel formulated more extensive grounds of appeal than those now pursued on her behalf by Mr Vincent Coughlin QC (who did not appear at the trial). The grounds of appeal upon which he relies relate to (1) the admission of bad character evidence; (2) the refusal of the judge to discharge the jury; and (3) the direction on bad character in the summing up. He does not suggest that the judge was wrong to reject the submissions of no case to answer. However, on behalf of Slack, Mr Stephen Spence does not concede that the judge was correct to reject the submissions of no case to answer on behalf of Johnson. Slack's grounds of appeal are predicated on the primary submission that the judge ought to have acceded to submissions of no case to answer in relation to Johnson or ought to have discharged the jury upon her application. In either of those eventualities, it is submitted that the only fair consequence would have been to discharge the jury in relation to Slack so as to enable him to be tried without the prejudice that flowed from the content of Johnson's police interviews. Mr Spence also criticises the way in which the judge dealt with Johnson's interviews in his summing up.

Johnson: bad character evidence

16. The prosecution opened and were entitled to open the case on the basis of joint participation by all three defendants in the fatal attack. It was at a late stage in the prosecution case that an application was made to adduce bad character evidence in relation to Johnson. It was made by reference to Johnson's claim in interview to have played no part whatsoever in the violence and, indeed, to have an aversion to violence. The evidence sought to be adduced embraced convictions on two previous occasions. On 30 March 2001 Johnson was convicted of an offence of wounding a man with intent to do him grievous bodily harm and an associated offence of causing actual bodily harm. On 21 September 2007 she pleaded guilty to an offence of battery where the victim was her own mother. In a lengthy ruling the judge held that the evidence was admissible pursuant to section 101(1)(d) of the Criminal Justice Act 2003 in that it was "relevant to an important matter in issue between the defendant and the prosecution". It was considered relevant to propensity by reference to section 103(1)(a). The judge further held that, if the prosecution had persisted with an application by reference to section 101(1)(f) – "evidence to correct a false impression given by the defendant" – he would also have admitted the evidence on that basis in view of what Johnson had said in interview. The judge adverted to section 101(3) and section 78 of the Police and Criminal Evidence Act 1984 but concluded that the admission of the evidence would not have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
17. Evidence of the convictions was then adduced by way of formal admission. In both cases the formal admissions included detailed accounts of the events that had given rise to the convictions. In both cases, Johnson had carried out violent attacks upon the victims in their own homes at a time when she had been drinking. The detailed description of the earlier offence of wounding with intent also contained material suggesting that, in the aftermath, Johnson had attempted to minimise her involvement.
18. In our judgment, there can be no possible criticism of the ruling to admit the evidence. We do not accept the submission that the case against Johnson was a weak one which would be distorted by the jury hearing of the details of previous violence. By her own admission (in the telephone conversation to her mother which was overheard by the barmaid on 30 May) she had given the Deceased "a good kicking" before Slack had used the walking stick on the Deceased. She had spent the hours after the killing drinking with Slack. Notwithstanding her denials in interview, there was evidence implicating her as a participant in the attack. The judge directed himself carefully as to the law and gave due consideration to the question of fairness. We consider his ruling to have been permissible and, indeed, correct.
19. The next question is whether subsequent developments in the trial were such that the admissibility of the bad character evidence ought to have been reviewed at the close of the defence case. By then, Slack and Comer had given evidence implicating Johnson in the initial violence but not in the attack with the walking stick. When Slack was cross-examined on behalf of Johnson he said that she had taken no physical part in the walking stick attack. In answer to cross-examination on behalf of the Prosecution he said "I can only assume the fractured ribs came when Johnson jumped on him and punched him and the injuries around the mouth were when she punched him but Johnson had nothing to do with the stick". Comer described the initial fight between Johnson and the Deceased, he added:

"It stopped at one stage and [the Deceased] fell back into his chair … he was bloody nosed and his face looked as if he's had enough and Johnson sat back down. I thought that was the end of everything."

20. He then described Slack attacking the Deceased, first with the pillows and then with the walking stick, throughout which Comer and Johnson remained seated. When cross-examined on behalf of Johnson he said:

"Johnson was egging him to stop. She was egging him to stop."

21. He was equivocal about the time frame. At one point he said that the incident between Johnson and the Deceased "had blown over" before Slack used the walking stick, but when cross-examined on behalf of the Prosecution he said:

"I think he was getting the pillows while the punching was going on. [The Deceased] had fallen back in the chair and Johnson was not punching him in the chair."

22. In the summing up that passage was put in direct speech before the judge lapsed into indirect speech:

"He said there was no real break from the one event, punching and the pillows."

23. We do not have a transcript of this evidence and have to rely on the summing up. Mr Coughlin invites us to distinguish between that which is in direct and that which is in indirect speech. However, we are not minded to distinguish in that way.
24. It was in the light of the evidence given by Slack and Comer that the Prosecution and the judge came to see the case against Johnson differently from the original allegation of joint murderous violence in which all three defendants had physically participated. The emphasis shifted to an analysis which accepted that Johnson had not participated in physical violence after the initial punching or "good kicking". She was not physically active in the walking stick incident. However, the Prosecution maintained that she should still be convicted of murder or, alternatively manslaughter, on the basis of encouragement. It was at this stage of the trial that the count of assault occasioning actual bodily harm was added to the indictment and Johnson pleaded guilty to it.
25. The question that now arises is whether the bad character evidence which had been admissible at the earlier stage had now become inadmissible because the allegation against her was no longer one of physical participation in the final, fatal attack. Mr Coughlin submits that the previous convictions did not show a propensity to encourage others to take violent action, nor did they suggest that she would use or encourage the use of such a highly uncommon weapon as a walking stick.
26. In our judgment, the admissibility of the bad character evidence had not come to an end. The allegation of murder remained (and, Mr Coughlin concedes, rightly remained) before the jury. It was for the jury to decide whether Johnson was actively encouraging murder, manslaughter or nothing when Slack began to deploy the walking stick. It is artificial to suggest that a propensity to drunken violence cannot be relevant when considering drunken encouragement to violence. It was relevant to Johnson's state of mind, as indeed was her newly admitted assault occasioning bodily harm. Although by this stage in the trial, the judge was indicating an acceptance that the use of the walking stick "took the incident to a new level" and that the case against Johnson on murder or manslaughter "has to be one which relates to Slack's use of the stick", it is unrealistic and over-schematic to seek to draw an analytical line at the point where Johnson's active violence came to an end. Indeed, on Comer's evidence, there was no real break between Johnson's assault and Slack's resort to the pillows and on Slack's evidence he took hold of the walking stick almost immediately after he had failed to quieten the Deceased with the pillows. In these circumstances, it seems to us that the bad character evidence was as relevant to encouragement as it was to physical participation. To admit it had not become less fair. It remained for the jury to determine the facts in the light of careful direction by the judge. It is quite clear that that is what they did. They were not impelled by the unpleasantness of the previous convictions to infer the worst about Johnson. They acquitted her of murder. They plainly convicted her of manslaughter on the basis of encouragement of some use of the walking stick but not the ramming of it down the throat of the Deceased. That much is readily deducible from the verdicts. It may well be that she was assisted in that regard by Comer's evidence to the effect that at that stage Johnson was urging Slack to stop. Whilst we cannot know whether the jury accepted all of Comer's evidence, it is plain from the verdicts in respect of Slack and Comer that they accepted at least substantial parts of it.
27. We are satisfied that the bad character evidence in relation to Johnson was properly admitted in the first place and remained properly before the jury thereafter.

Johnson: refusal of the application to discharge the jury

28. This ground of appeal is closely related to the previous one. Following the closing speech for the prosecution an application was made on behalf of Johnson to discharge the jury. The contention was that the original bad character ruling had been made on the basis that the case for the Prosecution was that Johnson had physically participated in the walking stick attack whereas now the Prosecution case was put on the basis of encouragement. This led trial counsel to submit that any earlier justification for the admissibility of the bad character evidence was greatly diminished; but if the later position had been appreciated on the earlier occasion the evidence would not have been admitted; and that, accordingly, the only fair course was to discharge the jury in Johnson's case.
29. As we have concluded that the course of the trial did not convert the bad character evidence from being admissible to being inadmissible, and that it remained admissible in relation to the issues continuing before the jury, it follows that we find no error in the refusal of the judge to discharge the jury.

Johnson: the summing up

30. This ground of appeal relates to the terms in which the judge summed up Johnson's bad character.
31. The judge's directions began with a passage referable to all defendants. He said this:

"In the old days, juries were usually not told about a defendant's previous convictions. This was because of the fear that such information would prejudice the jury against the defendant and that they would give it more weight that it deserved. Today, such evidence is often admitted because a jury understandably wants to know whether what the defendant is alleged to have done is out of character or whether he or she has behaved in a similar way before. Of course, a defendant's previous convictions are only background. They do not tell you whether he or she has committed the offence with which he or she is charged in this case. What really matters is the evidence that you have heard in relation to that offence, so be careful not to be unfairly prejudiced against the defendant by what you have heard about his or her previous convictions."

32. The judge then considered the position in relation to Johnson. He reminded the jury of the two previous convictions and added:

"The defendant accepts by her plea of guilty to the added count of assault occasioning actual bodily harm that she attacked [the Deceased], but of course she has always vehemently denied any allegation that she participated in the subsequent attack on him involving the use of a walking stick or that she formed any intent in relation to that matter."

33. He then said:

"When you consider that issue, you may consider it relevant that on two previous occasions, the defendant had been convicted of using violence in the manner just set out. The prosecution say that those convictions plus her now admitted actions on this day show that she has a tendency to use uncontrolled violence injuring old people in their own homes and minimise her actions. It is for you to decide if that assertion by the prosecution is correct and the extent to which, if at, the previous convictions assist you in deciding that issue. I must also emphasise to you that such convictions would be equally relevant to a consideration of manslaughter and do not relate to your consideration for the murder count anymore than they relate to the manslaughter count."

34. The judge then dealt with the two male defendants before adding:

"In the case of all three defendants, do not use the convictions for any other purpose than that which I have set out, and in all cases, do not assume guilt because they have previously been convicted of criminal offences."

35. Mr Coughlin submits that these passages do not add up to a proper explanation as to why the jury had heard the bad character evidence or the ways in which it could be said to be relevant to their task. He says that the direction was insufficiently tailored to the circumstances of the case.
36. Guidance on this subject was first given in Hanson [2005] 2 Cr App R 21, paragraph 18. Rose LJ returned to the matter in Edwards [2006] 1 Cr App R 3 at paragraph 3 where he said:

"The guidance proffered in paragraph 18 of Hanson as to what a summing up should contain was, whilst … not intended to provide a blueprint, departure from which will result in the quashing of a conviction. What the summing up must contain is a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt. It should be explained why the jury has heard the evidence and they ways in which it is relevant to and may their decision, bearing in mind that relevance will depend primarily, though not always exclusively, on the gateway in section 101(1) of the Criminal Justice Act 2003, through which the evidence has been admitted … provided the judge gives such a clear warning, explanation and guidance as to use, the terms in which he or she does so can properly differ. There is no rigid formula to be adhered to."

37. Further guidance was given by Lord Phillips of Worth Matravers LCJ in Campbell [2007] 2 Cr App R 28.
38. We have considered the direction in the present case in the light of these authorities. We are satisfied that the judge did not materially diverge from the requisite approach. The judge explained why the law now permits evidence of this kind to be adduced but expressed himself in terms which made clear that the jury should not overemphasise the significance of the convictions. He also made clear that the jury should not assume guilt because of them. Mr Coughlin complains that the judge ought to have said at this point in the summing up that, notwithstanding any propensity to violence, Johnson was not physically involved at the walking stick stage and that her physical involvement had ended before Slack armed himself and took the violence to "a whole new level". All this was made abundantly clear elsewhere in the summing up. We do not consider that the omission to knit it into the direction on bad character rendered that direction deficient or defective. We should add that as he concluded his summing up, but in the absence of the jury, the judge specifically invited counsel to assist in these terms:

"If there are problems in this case with anything I have said factually or in law I do hope I am going to be told."

39. No point was made on behalf of Johnson to the effect that the directions in law affecting her were unsatisfactory. We do not consider that they were.

Slack

40. The perfected grounds of appeal on behalf of Slack are essentially parasitic upon a successful appeal by Johnson. It is said that as the judge acknowledged that if Johnson's submission of no case to answer had been allowed or her application for the discharge of the jury had succeeded then the jury should also have been discharged in Slack's case. This contention was built on the fact that the jury had heard in Johnson's case, by reference to her police interviews and conversations with others in the absence of Slack, material that was highly prejudicial to Slack even though not admissible against him. Moreover, Johnson had not given evidence and so there had been no opportunity to cross-examine her about these matters. In the event, we have held that the judge was correct to reject Johnson's submissions of no case to answer and to refuse to discharge the jury on her application. To that extent, Slack cannot derive any benefit from Johnson's appeal.
41. At the hearing, Mr Spence took a rather broader approach. He submits that, in any event, the safety of Slack's conviction is undermined by prejudice flowing from Johnson's case. He points not only to her blaming of Slack in interview but also to the evidence of her conversation with the barmaid and the barmaid's evidence of what Johnson told her mother on the telephone. He emphasises Johnson's low IQ and the untested nature of what she had said as a result of her not having given evidence. Essentially, he is submitting that, with the benefit of hindsight, this court ought to conclude that at some point the indictment ought to have been severed so as to protect Slack from this prejudice and that the obvious point was on the occasion of the application to discharge the jury at the completion of the evidence. He also relies on the expressed view of the judge that, if the jury had been discharged in relation to Johnson, they would also have been discharged in relation to Slack. In this context we should record that the judge later wrote to this court offering an explanation of what he had said. Mr Spence suggests that the explanation is somewhat at variance with the actual words used at trial. However, we do not need to express any view on that.
42. We do not accept Mr Spence's submission. The dynamics of this trial resembled those of many joint trials in which some defendants give evidence and others do not in circumstances where some have incriminated others in interview and, one way or another, conflicting defences are run at trial. This case cried out for a joint trial of all three defendants. That, of course, necessitated strong direction from the judge in relation to any evidence that was evidence in the case of one defendant but not the others. It is plain from the transcript of the summing up that the judge gave the jury such a direction and that he had given repeated warnings in the course of the trial. The summing up includes this passage:

"… there are a number of warnings and directions which I will give you at this point … The first one is to reiterate the general warning I have already given you on numerous occasions about how you deal with any allegations which defendants have made about other defendants which were not made under oath in the witness box in this courtroom. On occasions, they were made to friends or relatives or acquaintances. In the case of Comer and Johnson, allegations were made in police interviews which you have in summary form. Although you have heard this many times before, I must remind you yet again that those out of court statements are not evidence against other defendants. Those defendants were not there at the time and were not in a position to deal with the matters which were being raised."

43. When the judge reminded the jury of Johnson's police interview he again repeated more than once that it was not evidence against Slack or, indeed, Comer.
44. In truth, the case against Slack was a very strong one. He admitted that he had taken the walking stick and put it to the Deceased's mouth. Although he denied forcing it down the Deceased's throat and further denied any intention to cause serious injury, he had said nothing in police interview. However there was evidence of his conversations with others in which he had effectively admitted the offence. Whilst it is true that, in evidence, he either denied or sought to explain away such evidence. However, it came from a number of sources, none of whom were shown to bear him any ill-will. His evidence that it was Comer who in fact killed the Deceased only emerged at trial. He had made no such allegation to any witness prior to his arrest and, as we have noted, he was silent in interview. To one witness he had said that "He was in a bit of trouble and would not say why. He and a couple of others. He said a man called Chinny was involved." Plainly the couple of others were Comer and Johnson and it is common ground that Comer was sometimes known as "Chinny". Slack's evidence was that his reticence resulted from an agreement he had reached with Comer to that effect. However, the jury were able to evaluate the respective evidence of Slack and Comer and they came to an unequivocal conclusion about it. We are entirely satisfied as to the safety of Slack's conviction.

Conclusion

45. It follows from what we have said that the appeals against conviction of both Johnson and Slack are dismissed. We finish with this observation. One does not have to read very far between the lines of the transcripts to appreciate that this was or became a somewhat fractious trial. The judge had to deal with many difficulties. In our view, he dealt with them appropriately and well.