England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
His Honour Judge Patience Q.C.
T20097241

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2010

Lord Justice Leveson :

1. On 10^th February 2010 in the Crown Court at Maidstone before His Honour Judge Patience QC and a jury, the appellant, Rickie Joseph Mount, was convicted of the murder of Adam Beaney ("the deceased"). He was subsequently sentenced to imprisonment for life with a specified minimum term of 20 years less 253 days spent on remand. At the same time, his mother, Maxine Liddle, was convicted of assisting an offender and was sentenced to 2 years imprisonment. Rickie Mount now appeals against conviction and sentence by leave of the single judge.

Summary

2. The background to the case is that the appellant was concerned about the relationship which had developed between the deceased and his ex-girlfriend, Alicia Stankovich, who is the mother of his one year old daughter. In particular, the appellant harboured thoughts of reconciliation with her. During the evening of 28 May 2009, the appellant heard that the deceased was out in Faversham alone. On hearing that he was about to meet Brenda Kettle, he went back to his flat and armed himself with a knife. His friend, Adam Valleley, went with him. The appellant later said that he simply wanted to talk to the deceased.
3. Having spoken to Brenda Kettle on the phone to confirm that the deceased was, in fact, on his own, the appellant approached him at the Faversham Recreation Ground whereupon there was a discussion about the relationship which the deceased had with Ms Stankovich. The appellant instigated a three way phone conversation during the course of which the deceased grew upset and moved away. Thereafter, the deceased punched the appellant to the face several times during which time the appellant taunted him saying that he punched 'like a girl': there was no issue about these taunts which were admitted. The appellant then produced a knife. At one stage, the appellant said that the deceased had triggered a nerve. Suffice to say that the case for the Crown was that he then stabbed the deceased in the chest with severe force whereupon the deceased collapsed. The case for the appellant was that he did no more than wave the knife in front of the deceased and did not touch him in any way.
4. The incident took place at about 1.25 am. Although there was evidence of two others seeing a prone body in the Recreation Ground thereafter, there were important inconsistencies in timing and description of the clothing so that it is not possible to be confident of identification. There is no doubt, however, that he was found at about 3.00 am by Ben Turner who was walking home through the Recreation Ground some 200 yards away from the location of the fight with the appellant. He called the police and waited for their arrival and the death of the deceased was thereafter confirmed.

The Facts in detail

5. For the purposes of this judgment, it is unnecessary to rehearse the background to the relationship between Alicia Stankovich and either the appellant or the deceased although, at one stage, the police had found it necessary to warn the appellant about harassing his former partner and, in addition, shortly thereafter, in February 2009, there was a confrontation between the two men in which there was a fight. Ms Stankovich said that the appellant had started it by barging into the deceased, holding him up against a car and then attempting to punch him in the face, whereupon the deceased had struck him: this account was consistent with an admission made by the appellant in cross examination that he had told his friend Jamie Bullock that he had started the fight by throwing the deceased on the bonnet. In evidence, however, the appellant said that the deceased had been the aggressor and had barged him whereupon he was set upon by four men who had punched him and kicked him while on the ground. After this incident, there was apparently no further unpleasantness.
6. We move to the events of the evening of 28 May 2009. As for the deceased, he spent time drinking with friends and although there were some differences as to timing and whether or not they went to a party, there was a consensus, supported by evidence of employees at various public houses, that the deceased was drinking but in good humour. Having left the Swan and Harlequin public house after 11.30 pm, he was seen at the nearby Tesco supermarket. CCTV shows the deceased wandering in and out of the shop (where a security guard noted him as drunk but friendly). Between 12.06-12.10 am, he was wandering outside the shop (which had then closed) after which he returned to the Swan and Harlequin, arriving at 12.20 am and leaving shortly thereafter; he was on his own. At 12.27 am, he spoke to Alicia Stankovich saying that he was outside a friend's house and at 12.45 am, he received the call from Brenda Kettle and agreed to meet her at Tesco's, receiving later calls at 1.03 am and 1.05 am when she changed the meeting place to the Recreation Ground. By 1.10 am, they had met; there is no suggestion that the deceased had any idea that Brenda Kettle had been in touch with the appellant or any of his friends.
7. As for the appellant, he had spent much of the day with friends. He became cross with Alicia Stankovich that she had re-arranged contact with his daughter and the fact that he had missed her first day at nursery: he had apparently not received a text which she had sent. Later in the evening, he was drinking with friends (at some stage going to buy further alcohol at Tesco's). One of those present was Brenda Kettle who, he learned, knew the deceased. He told her that a week previously Alicia Stankovich had given him the impression that she had split up with the deceased but, as a result of the change of access arrangements, he had begun to think that the relationship was ongoing. Ms Kettle's impression was that the appellant did not seem concerned that the two were still seeing each other: he was concerned about the access arrangements to his daughter. Suffice to say that he asked Brenda Kettle to telephone the deceased to see if he was still seeing Ms Stankovich. After several attempts, starting at 11.19 pm, she spoke to him at 12.45 am and the two chatted easily with the deceased confirming the continuation of the relationship. Ms Kettle's evidence was that it was her own initiative to make the arrangement to meet the deceased at Tesco's although the appellant was with her and she told him about it immediately afterwards.
8. It is worth adding that by this time in the evening, the appellant had consumed six or seven bottles of beer and had only taken two out of six Ritalin tablets (prescribed for his longstanding condition of Attention Deficit Hyper-activity Disorder) although there is no suggestion that this medication, which should not be taken with alcohol, or the fact that he had not taken the full dose, is relevant to any of the events which followed.
9. Having learnt of the arrangement with the deceased, the appellant decided that, instead of going to Tesco's, he first wanted to go home. He did not tell Ms Kettle the purpose of his visit but, in fact, he armed himself with a knife from his kitchen drawer (which she did not see); he later explained in evidence that this was in order to "scare off anyone who jumped him". He also spoke to another friend, Adam Valleley, who met up with them on the estate: he told Adam Valleley that he wanted to meet the deceased. It was thereafter that Ms Kettle contacted the deceased and re-arranged the meeting for the Recreation Ground. Shortly before the meeting, Brenda Kettle separated from the two men and met the deceased. While with him, she received a call from the appellant asking whether the deceased was on his own. She confirmed that he was and gave evidence that she told the deceased that the appellant was going to join them and that he seemed fine with that prospect.
10. That is what happened. The appellant and Adam Valleley joined Brenda Kettle and the deceased; she sat with Adam Valleley on the bench while the appellant and deceased were talking. They then telephoned Alicia Stankovich and had a three way conversation during which, according to Ms Stankovich, the deceased accused her of sleeping with the appellant and was angry. She told him not to listen to the appellant and calmed him down; the deceased then said that he was on the way home.
11. Meanwhile, Brenda Kettle only heard sufficient of the conversation on the phone to realise that they had fallen out. She walked off and sat further down on another bench where she was joined after some minutes by the deceased who she said was angry. The appellant and Adam Valleley (who also reported that the phone call led to an argument) approached and the deceased got up and walked to the appellant and threw a punch at him. Adam Valleley spoke of the deceased punching the appellant to his ribs while the appellant taunted him saying words to the effect that he punched like a girl and "nice shot, darling"; it may be that the phone was accidentally knocked on because Alicia Stankovich received a further call at 1.44 am and heard similar taunts.
12. According to Adam Valleley, what happened thereafter was that the deceased punched again and the appellant pulled out the knife, approximately 6 inches in length. He then punched at the deceased with his hand holding the knife; it seemed that he made contact to his chest or arm, with the force pushing the deceased backwards; but he did not see if the knife made contact. The deceased screamed "knife" three or four times and ran off. At one point the deceased told the appellant to watch out for the consequences of bringing a knife to a fight. As far as Brenda Kettle was concerned, the appellant swung his arm widely to strike at the deceased just beneath his neck. She did not see a knife and she did not see if his blow connected. She heard shouting and swearing but could not say what was said. She did not see the appellant throw his arms outwards.
13. Both agree that the appellant chased the deceased and that the appellant walked back as the deceased got to the field. They then went back to the appellant's flat where, at 1.50 am, the appellant spoke again to Alicia Stankovich. She, in the meantime, had received a further call from the deceased who had told her that he had been in a fight and had been slashed but that he was then on his way home and when the appellant spoke, he admitted that they had been in a fight but he denied stabbing the deceased. Ms Stankovich thereafter tried all night, without success, to contact the deceased.
14. Back at the flat, shortly before 2.00 am, the appellant's mother visited. He told her that the deceased had hit him 3 or 4 times and that he had slashed the deceased who had then run off; he demonstrated what he had done. He was asked if he had the weapon and the appellant directed her to the sink from where the knife was retrieved.
15. The only other detail it is worth adding is that another friend of the appellant, Jamie Bullock (who had himself drunk five or six bottles of beer) said that, on his return to the flat, the appellant told him that he had met with the deceased, they had talked to Ms Stankovich over the telephone and then they had argued. The deceased had hit the appellant 5 or 6 times and the appellant had pulled out the knife and had stabbed him. He asked if he had killed the deceased and he said that he had not; the deceased had walked off. Having refreshed his memory from his witness statement, he said that the appellant had demonstrated how he had stabbed the deceased by a right hook movement towards the deceased at shoulder height: that evidence was challenged but he denied having a motive to lie.
16. In the light of one of the grounds of appeal, the evidence of the pathologist is not unimportant. The deceased suffered a single wound 5 cm in depth on the front of the left side of the chest just above the nipple. It was 7 cm in length gaping to 4 cm passing through the side of the breast bone and the cartilage of one of the ribs cutting the front of the pericardium around the heart and penetrating the right ventricle. Dr Shorrock considered that the force required to inflict the wound was severe. It could be inflicted as two people, one with a knife, come together, with the victim standing still as the attacker stabs, or with the knife being held rigidly and firmly as the victim forces himself onto it: it had to go through bone and unless held firmly, the arm would simply be pushed back. There would have been no immediate external bleeding until 2-4 seconds thereafter when the blood would have seeped slowly onto the clothing. There would be no adverse consequences for a minute or two with the victim being able to walk, talk and run but after a few minutes he would be unable to walk; he would then be out of breath and unable to stand; he would then become unconscious. This process would take 2-10 minutes although the greater the activity, the less time it would take. When Dr Shorrock was asked about the evidence in the trial: a swinging punch with a knife in the right hand which was forceful, he considered the injury consistent with that account.
17. We turn to the evidence of the appellant as to the 29 May which he had taken off work so that he could be present when his daughter went to nursery for the first time but, when he turned up, Ms Stankovich had already taken their daughter in. He was upset and they argued. He was later allowed to collect her with Ms Stankovich's sister but a further text message altered the agreed access arrangements which upset him. This led to an argument which his mother sorted out for them.
18. He had spent the day with friends but only had started drinking alcohol after he went to Tesco's at approximately 9.00 pm. He said that Brenda Kettle was drunk and told him that the deceased had twice asked her out. On the spur of the moment, he asked her to telephone the deceased to see if he was still seeing Ms Stankovich; he did so because of her change in attitude to access. Ms Kettle did so and the deceased confirmed that he was whereupon Ms Kettle arranged to meet him. At first, the appellant was not concerned and then he decided to go with her to talk to him. He telephoned Adam Valleley to ask him to come in case the deceased was with other people. He said that Brenda Kettle had told him that the deceased was either with, or meeting, two others and so he thought he ought to take a knife with him in case those with the deceased jumped him. It was just there as a prop to scare them off He went home and took the smallest knife from the kitchen drawer. When interviewed, he had not mentioned being told this because he wanted to protect Ms Kettle. He told Jamie Bullock that he was taking one of the knives and he told him not to lose it.
19. En route Ms Kettle walked in front of them using her telephone and she told them that she was meeting the deceased at the recreation ground. He then lost sight of her and telephoned to be told that she was with the deceased. She telephoned back and said that the deceased wanted to speak to him. He said that Ms Kettle and Adam Valleley sat on the bench whilst the appellant and deceased spoke. The deceased was sniffing and wiping his nose and he suspected that the deceased had consumed more than just alcohol. They agreed that Alicia Stankovich was playing them off against each other. The deceased asked him to telephone Stankovich and he did. He told her that there was someone who wanted to speak to her and the deceased spoke. She asked what they were doing and the telephone went dead. She telephoned the deceased and they argued.
20. He said that Brenda Kettle walked off and the deceased followed her. He determined to go home and they walked up to pass the deceased and Kettle. The deceased got up and approached. He did not say anything but punched the appellant to the face or chest. He could hear Alicia Stankovich shouting down the telephone which must have been in the deceased's pocket. The deceased hit him and told the appellant to hit him back but he refused. The deceased hit him 5 or 6 times. The appellant laughed and told him that he hit like a girl and said "nice shot darling". Then the deceased hit him on his nose and he pulled the knife from his waistband. He held it at waist height and showed it to the deceased saying "Come on then". He waved it around to scare the deceased but did not hit him with it. The deceased shouted "knife" and ran off. He slipped but got up and ran down a path towards the Market Inn. He did not run into the recreation ground. As he ran off he threatened the appellant. The appellant then put the knife away and walked back to his flat with the other two. He telephoned his mother to say that the deceased had beaten him up.
21. Once back at his flat nothing was said about what had happened and Valleley did not ask if he had stabbed the deceased. He put the knife back in the drawer. His mother came to the flat he told her that he had argued with the deceased and that the deceased had hit him. He did not say that he had a knife or that he may have cut the deceased. He did not demonstrate a punch.
22. He said that he pointed out the knife in the drawer and the following morning, after he had discovered that the deceased was dead, his mother phoned and told him that the police wanted to speak to him. He went round to his mother's home and she told him that she had disposed of his clothes and the knife. He had neither asked her to nor wanted her to; it meant that he had to lie in interview. He also lied in interview to protect others. He denied that he had stabbed the deceased and could only assume that someone else had done so after their confrontation.

Conviction

23. We now turn to the grounds of appeal not all of which were before the single judge. First, Mr Glass QC (who did not appear in the court below) argues that the judge was wrong to refuse to give leave to the defence to cross examine Ben Turner, who had found the deceased at about 3.00 am both about his conviction, over ten years previously, for possession of a lock knife and also about his interest in and collection of knives, about which he made comment to the police (which did not involve the deceased in any way). Mr Turner had both called the police and remained until they attended; it was agreed evidence that he had been in the company of others until around 3.00 am when he started to walk home across the Recreation Ground. Save for his finding the body, there was not the slightest evidence that Mr Turner had anything at all to do with the deceased or even knew him.
24. Mr Glass recognised that there was no basis upon which counsel defending the appellant could have put to Mr Turner that he had stabbed the deceased but submitted that it would have been entirely proper to ask him whether he had done so and then point out to the jury the coincidence that the man who found him had both a conviction for an offence in connection with and a very real interest in knives. The jury could then have been asked whether that coincidence might the appellant had killed the deceased.
25. As to the facts, the Crown argued that such a submission was to invite the jury to indulge in pure speculation. It would have meant speculating without the slightest evidence that Mr Turner left his friend's house and within minutes had stabbed a man who 90 minutes earlier had, in fact, been threatened with a knife and been seen to receive a thrust from a man who was undeniably in possession of a knife in the same area that he was later found. More significantly, it would have meant that although utterly unharmed (for there is no suggestion that the deceased had otherwise been injured), he remained at the Recreation Ground on his own, communicating with no-one for the same period of 90 minutes without answering his phone or opening text messages, his last call being at 1.36 am.
26. Judge Patience analysed the application in the light of s. 100(1)(b) of the Criminal Justice Act 2003 and correctly identified the test in the context of this case that the bad character Mr Turner was admissible if it had substantial probative value in relation to a matter in issue which was of substantial importance in the context of the case as a whole. The judge concluded that the material did not have substantial probative value to any matter in issue in the case, observing:

"I have to consider the extent to which the evidence, as set out in this application, shows or tends to show that Mr Turner was responsible each time. What that means is that he was responsible not only for possession of an offensive weapon in 1999, and for possessing a collection of knives, and making comments such as he did at his home to the police and at the same time stabbed Adam Beaney. It seems to me that the evidence has no such tendency … to show that one and the same man, namely Ben Turner, was responsible for all those things. Nor indeed does it show it."

27. Mr Glass accepts that the judge's approach cannot be criticised; he argues simply that he reached a decision that was not open to him on the evidence. We do not agree. Section 100 provides that the bad character of a person other than the defendant is admissible "if and only if" it can be brought within the provisions of the section the purpose of which was specifically to prevent bad character being deployed simply to generate speculation. It is common ground that the only justification in this case was section 100(1)b; the judge approached that decision entirely properly and reached a conclusion which was open to him and, in our view, correct.
28. The remaining grounds of appeal concern the issues which the judge left to the jury. In particular, he ruled that there was no evidential basis upon which it would be appropriate to leave the defence of accident to the jury: Mr Glass contends that he was wrong not to do so. Secondly, with the agreement of counsel, he also declined to leave self defence: that decision is not itself criticised but Mr Glass submits that self defence had a part to play in relation to the start of the incident which might have affected the jury's later consideration of the case. Finally, although the judge left the issue of manslaughter, Mr Glass criticises the formulation of involuntary manslaughter which the judge chose. We deal with these grounds in turn.
29. In relation to the argument that the defence of accident should have been left to the jury, before the judge, reliance was placed on a number of features some of which can be put together. The first was the fast moving nature of the incident with the fact that the two men were in close proximity and, for a time, the deceased "dancing around" while there was, at least, a little movement from the appellant. The second feature was the three scenarios identified by Dr Shorrock which, in two cases, were consistent both with accident and the injuries found. Third was the evidence of the appellant which was to the effect that at one stage he wondered what he might have done and whether he might have caught the deceased with the knife albeit concluding that he had not. Finally, he pointed to the evidence of Adam Valleley who was not giving a blow by blow account and might have missed a collision between the two men which could have been accidental. The judge said that he had considered them both individually and collectively and concluded that there was no basis upon which a jury, properly directed, could safely reach a conclusion that there might have been an accident and that to do so could only be based on theories and speculation which the jury would be directed to avoid.
30. Mr Glass seeks to refer to the interview of the appellant (summarised before the jury). Without considering whether this evidence was technically adduced at the trial, we set out the exchange upon which reliance is placed in these terms:

"Q. Were you defending yourself. A. Well yeah cause he had smacked me.

Q. You were defending yourself? A. I wasn't … using the knife in force to go at him… I was using it to scare him".

Q. Was he attacking you … when you pulled the knife? A. Yes.

31. Mr Glass seeks to expand this evidence into a series of propositions which he contends demonstrate that the judge erred. These propositions are that (i) the appellant was attacked; (ii) he produced a knife to scare off the deceased in lawful self defence; (iii) he did not stab or strike the deceased with the knife; (iv) if the jury find that he did strike the deceased with a knife then it was an accident and not intended; (v) had he not been attacked he would not have produced the knife.
32. If the case of the appellant had been that he lawfully produced the knife in self defence as a threat and had accidentally stabbed the deceased in a fast moving fight, doubtless the approach of the judge would have been different. The fallacy comes in the fourth proposition. The appellant's case – and his factual evidence – was throughout to deny accident: he did not suggest it in interview and, at trial, said he was waving the knife only without any kind of contact with the deceased even resiling from the possibility mentioned to his mother that he caught the sleeve of the deceased. Once the jury rejected that account, as they clearly did, what was the evidence to give rise to the possibility of accident? Although Brenda Kettle saw no knife, both her evidence and that of Adam Valleley (who did see the knife) was of a punching motion and the evidence of the pathologist was of the use of severe force which had to be sufficient to pass through the sternum. Such force required deliberation either to punch forward with the knife (which the pathologist considered entirely consistent with the injury) or to hold the knife secure as the sternum of the deceased pressed against it (again as to which type of movement there was in fact no evidence). Furthermore, there was not the slightest suggestion of a struggle at close quarters with the two men rolling on the ground or grappling with each other so that the knife might have inflicted this injury. There was an exchange of blows alone with the appellant taunting the deceased (as he admitted) for the weakness of his blows. Finally, although strongly challenged, there was the evidence of Jamie Bullock to the effect that the appellant had admitted stabbing the deceased (with a further conflict between him and Adam Valleley as to whether the latter had indicated how far the knife had penetrated).
33. Miss Laws submits that the judge was in the best position to decide whether there was evidence sufficient to leave accident to the jury in the context of the entirely correct approach that it was not open to the jury to speculate. For our part, we find no hint of any evidence that the necessarily forceful impact with which the sternum of the deceased came into contact with the point and blade of the knife was or may have been unintended. The judge concluded that there was a danger that the jury might be tempted to reach such a conclusion on the basis of theories and speculation whereas he intended to direct them that the case could not be decided on the basis of "guesswork, theorising or speculation". We agree and find no fault in his decision. This ground of appeal also fails.
34. We have already noted that it was common ground at the trial that self defence was not open to the appellant not least because he had arranged the circumstances of the meeting with the deceased who he knew was alone and had done so having deliberately gone home to arm himself with a knife. Further, at the meeting, although the deceased struck the first blow, there was no question of the appellant seeking to disengage; rather he taunted the deceased saying that he "hit like a girl". He then produced the knife, and (on the basis that the jury had rejected his primary defence that he did not inflict any injury on the deceased) used it with to stab the deceased in circumstances in which he conceded that had stabbing would have been uncalled for, excessive and unnecessary.
35. To be fair, Mr Glass does not contend that the decision of those advising the appellant (or, presumably, that of the judge) to the effect that there was no basis for leaving the full defence of self defence was wrong. He argues that the judge should not have said that the concept of self defence did not arise because it did: the jury should have been directed as to the lawfulness or otherwise of producing the knife when the appellant was being attacked. Thus, the judge should have told the jury that they should consider whether the simple production of the knife after the appellant had been attacked might have been in lawful self defence and that its subsequent use had to be considered in that context. It is submitted that this might have assisted the jury both in relation to accident and intention.
36. We have already concluded that the defence of accident was not open to the appellant. As to intention, the lawfulness or otherwise of the production of the knife (as opposed to the purpose for which it was produced) could not affect that assessment. The learned judge made it very clear:

"The defendant's case is, as I have already reminded you. Yes, he went to the Recreation Ground; yes, he was armed with a knife. But he never used it on Adam. He only produced it to scare him off and the knife never made contact with Adam's body."

37. This issue of the intention with which the knife was used to inflict the fatal injury does not arise unless the jury have rejected the appellant's defence that his knife never came into contact with the deceased. Once that factual case has been rejected, however, in our judgment, there was no obligation on the judge to spell out the circumstances in which the production of the knife might have been in lawful self defence. Whether the knife was produced to scare the deceased was one issue which was certainly left to the jury; whether, on the other hand, the fact the appellant was or may have been justified (as a matter of law) in producing the knife does not affect the judgments as to whether, in fact, he stabbed the deceased or, if he did so, his intention at the time. We reject this ground of appeal.
38. It was, of course, important that the judge did address the question of intention and provide the jury with an appropriate direction on the possible alternative verdict of manslaughter. This direction gives rise to a further ground of appeal which was not initially considered by the single judge and has only recently been formulated by Mr Glass. It is to the effect that the judge failed to direct the jury that it was open to them to convict of manslaughter if they were satisfied that the appellant had caused the death of the deceased intending to cause some physical injury but not intending to cause really serious injury.
39. The direction that the judge provided the jury was delivered both orally and also provided in writing. We set out the relevant part of the direction in full:

"(2) There is no doubt that Adam Beaney was stabbed by someone, and sustained a fatal injury from which he died. Rickie Mount denies that he stabbed him. He asserts that the knife which he produced, after he had been punched five or six times by Adam Beaney, did not make contact with Adam's body.

(3) In order for you to convict him of either murder or manslaughter, the Crown must make you sure that Rickie Mount unlawfully stabbed Adam Beaney, which Rickie Mount denies. In order for you to convict him of murder, the Crown must make you sure that, when he did so, he had either of the intents described in paragraph (1) [ie to kill or to cause really serious bodily harm].

(4) If you are sure that Rickie Mount stabbed Adam Beaney unlawfully, how do you, the jury, form a judgment about his intent at the time? Firstly, you should bear in mind that an intent can be formed and maintained for a long time, until the act intended has been carried out. Equally, an intent can be formed quickly and suddenly and last for a very short time. Immediate regret for having given effect to an intent, or remorse for the consequences of having done so cannot avail a defendant. An intent is still an intent.

(5) Secondly, you form you judgment by looking at what the defendant said and did before, at the time of, and after the stabbing. For example, consider whereabouts on his body Adam Beaney was stabbed. What force was used to stab him? Was it to cause him at least really serious bodily harm, or for some different purpose?

(6) If you are sure that either intent has been proved and you are sure that Rickie Mount stabbed Adam Beaney, then you must convict him of murder.

(7) If you are not sure that he intended either to kill, or to cause really serious bodily harm, then you must find him not guilty of murder. If, however, you are sure that, when Rickie Mount stabbed Adam Beaney, that was something which all sober and reasonable people would inevitably have recognised must subject Adam Beaney to at least the risk of some harm, albeit not really serious harm, in that event you must convict him of manslaughter. In these circumstances, it is immaterial whether or not he knew that his actions were unlawful and dangerous, or whether or not he intended harm."

40. This is a classic analysis of the ingredients of involuntary manslaughter, following the approach in R v. Church [1966] 1 QB 59 (at 70) and emphasises that the test is objective (later confirmed by the House of Lords, albeit in very different circumstances, in DPP v. Newbury [1977] AC 500). Mr Glass accepts that once the jury had rejected the defence case that the appellant had not stabbed Adam Beaney and assuming that neither accident nor self defence were available, it became unarguable that the stabbing was not unlawful and that the jury should simply have been directed to consider whether the appellant had committed the unlawful act with an intention to cause some (but not serious) bodily injury. He submits that the directions, as given, pushed the jury towards murder rather than manslaughter.
41. We do not consider this new proposed ground of appeal to be arguable. The judge gave an entirely appropriate direction. Involuntary manslaughter is a single offence albeit that it might be formulated in different ways depending on the circumstances. The formulation of the judge follows an approach which is very commonly used and entirely accurately describes the lesser intent required, accurately identifying the objective standard to be applied. We do not accept that to direct the jury that if all sober and reasonable people would inevitably have recognised that stabbing the deceased must subject him at least to the risk of some harm in any sense pushes the jury to murder: it is no more than a proper description of the differences in intent required for murder and manslaughter. We do not give leave to argue this ground and, in the circumstances, the appeal against conviction is dismissed.

Sentence

42. The appellant was 20 years of age at the time of the killing and is now 22. On the one hand, he was of prior good character and there are a number of references which speak highly of him: he is described as considerate, honest, thoughtful and helpful. In addition, we recognise that the appellant has been receiving treatment for ADHD since the age of eight and has been suffering for two years from depression. On the other hand, the judge took the view that he had resented the fact that the deceased had supplanted him in the affections of Alicia Stankovich, holding him responsible for some of the tensions and difficulties associated with access to his daughter. The judge also decided that the appellant had determined to confront the deceased and had armed himself with a knife; he observed that there was no need to do so and no need to produce the knife because the deceased was alone. He went on to conclude that the appellant worked the deceased up, taunted him and deliberately stabbed him. The judge said:

"You knew that you had stabbed him. You did nothing to help him. You did not go to see if he was injured or not. Rather, with callous disregard, you went back to your flat, told others what you had done and demonstrated it – and that includes your mother. Thereafter, you thought only of yourself. She helped you get rid of potentially incriminating evidence. Thereafter, when you were arrested, you lied to protect yourself and, indeed, her."

43. As for the mitigating features, besides the personal circumstances to which we have referred, the judge accepted that the appellant did not intend to kill the deceased. Mr Glass argues that the use of the knife was not premeditated: to the extent that the appellant did not go to the recreation ground intending to kill, we accept that submission. The judge, however, expressed his view as to the appellant's determination and decision to arm himself which was entirely open to him on the evidence and with which we entirely agree. This was not therefore a case of a fight during the course of which a knife which happened to be lying around was picked up. Neither do we accept that the behaviour of the deceased was provocative or that the use of the knife was defensive. The taunts of the appellant more than demonstrate that such was not the case. The appellant did not walk away because he had engineered the confrontation which he always intended should take place.
44. Although we have no doubt that the appellant acted out of character, that does not meet the judge's entirely justified conclusion that the appellant's short fuse and impulsivity, particularly when he had been drinking, created a danger to the public.
45. The learned judge was constrained by s 269(5) of the Criminal Justice Act 2003 and, in particular, by para. 6 of Schedule 21 which prescribes a starting point for the minimum term to be served within the mandatory sentence of life imprisonment as 15 years. In that regard, it is important to note that the para. 5A of Schedule 21 (which identifies a starting point of 25 years for those taking a knife to the scene intending to have it available for use as a weapon and thereafter using it to murder) was not in force for murders committed prior to 2 March 2010 (see Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010 SI 2010 No 197). That does not, of course, mean that the use of a knife is irrelevant: by increasing the starting point in such murders, Parliament was reflecting ever increasing public concern. As the judge observed:

"This is yet another case in which the carrying of a knife in a public place and its use has led to the needless death of a young man. You are someone with a short fuse, who acted impulsively on this occasion and with deadly effect…. [T]he fact that his death was brought about by the use of a knife was a grossly aggravating feature of this case."

46. It was then necessary to consider the aggravating and mitigating circumstances both identified within paras. 10-11 of Schedule 21 which allowed the court to identify a minimum term "of any length" (para. 9).
47. Mr Glass submits that the finding that there was no intention to kill, the minimal premeditation (relying on the judge's assessment of the appellant as having a short fuse) and the good character and personal circumstances of the appellant (including, in particular, his age) would all have served to reduce the starting point by a period of years. Although he accepts that the use of the knife (taken to the scene) was a seriously aggravating feature, he argues that this should do no more than take the case back up to a minimum term less than the starting point. We do not agree that the assessment of comparative weight of these features is as Mr Glass suggests. Further, we recognise that the trial judge was in the best position to make an assessment of the appellant's culpability and we bear in mind the increasing public concern concerning the fatal use of knives. Nevertheless, para. 5A of Schedule 21 was not in force at the time of this murder and we have reached the conclusion that the sentence imposed does not fully reflect the mitigating features, the appellant's prior good character and his personal circumstances. In our judgment, the appropriate minimum term should be one of 17 years. To that extent this appeal against sentence succeeds.

Conclusion

48. The appeal against conviction is dismissed. The appeal against sentence is allowed to the extent of leaving in place the sentence of life imprisonment but reducing the minimum term specified under s. 269(2) of the Criminal Justice Act 2003 to 17 years less time spent on remand. So that nobody misunderstands the effect of this sentence, the minimum term is precisely what it says: only thereafter will it be open to the Parole Board to direct the release and then only if it is considered that he no longer represents a risk to the public.