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Cite as: [2013] WLR(D) 79, [2013] Crim LR 599, [2014] QB 103, [2014] 1 QB 103, [2013] EWCA Crim 157, [2013] 1 Cr App R 33, [2013] 3 WLR 1056

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		Neutral Citation Number: [2013] EWCA Crim 157
		Case No: 2012/201928 D2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TEESSIDE CROWN COURT
HIS HONOUR JUDGE FOX QC
T20117207

Royal Courts of Justice
Strand, London, WC2A 2LL

22/02/2013

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LADY JUSTICE RAFFERTY
and
MR JUSTICE SIMON
____________________

Between:

	DAWIT ASMELASH	Appellant
	- and -
	R	Respondent

____________________

N M Davey QC for the Appellant
A Edis QC for the Respondent
Hearing date: 5th February 2013
____________________

HTML VERSION OF JUDGMENT
____________________

The Lord Chief Justice of England and Wales:

On 4 April 2011 Haileab Tadesse was killed by Dawit Asmelash. He was stabbed twice by a knife, once to the top of his back, which resulted in a superficial wound, and once, fatally, to the chest. The first wound would have required a mild degree of force, but the fatal wound to the left side of the chest required a severe force. It was deeply penetrating, cutting through skin, fat, intercostal muscle, the diaphragm (twice), through the heart and into the right lung, a total of 8.5 inches in depth. The appellant was unable to extract the blade, and the handle broke off when he tried to do so, leaving the blade in the back.

On 5 March 2012 in the Crown Court at Teeside, before His Honour Judge Fox QC and a jury, Asmelash was convicted of murder. On the following day he was sentenced to imprisonment for life, with a specified minimum term of 15 years.

With leave of the single judge he appeals against conviction on the basis that the judge's direction about how the jury should approach the "loss of control" defence in the context of self induced intoxication was wrong. He also renews his application for leave to argue that the judge's directions in relation to self defence were flawed.

The essential facts are straightforward.

An asylum seeker from Ethiopia, the appellant entered the United Kingdom illegally in 2006, and in December 2010 he was granted indefinite leave to remain. In March 2011 he moved into 29 Palm Street in Middlesbrough, an address frequented by a transient population of foreign nationals. He lived in one of the upstairs bedrooms. The deceased moved in to the same accommodation shortly afterwards. He was from Eritrea, and they spent a great deal of time together drinking.

On 4 April 2011 they had spent the day in their customary way, drinking alcohol together. During the early evening they were seen together, both appearing the worse for drink, arguing with and speaking crossly to each other. They were seen in a local shop, still engaged in some form of argument, in which the deceased appeared to be the more aggressive of the two men. They left the shop together, and were observed on CCTV footage walking along the footpath towards their home some half an hour before the fatal incident.

Shortly after 9 o'clock one of the other residents of 29 Palm Street was woken by a loud noise. He went into the lounge and there saw the appellant standing on the sofa, and the deceased standing on the floor. Each was holding the other by the clothing. From his greater height the appellant tried to headbutt the deceased, and he was punching and fighting him. When the witness tried to separate them, the appellant pushed him against the wall, and when he tried again, the appellant shouted "leave me alone" and "the knife is already in him". More or less simultaneously the deceased screamed and fell backwards onto the floor, with a black knife handle sticking out of his side. When the appellant said that he wanted to pull the knife out, the witness left the house to find help. He did so, and a passer by telephoned for the police. A few minutes later the appellant came out of the building and suggested that they should say that the deceased had hurt himself.

By the time the police and paramedics arrived, the deceased was lying dead on the floor. There was a smell of alcohol, and there were some cans on the floor. The paramedic observed the tang of a knife blade protruding out of a puncture wound on the left side of the chest. Apart from the two stab wounds there were no defence or restraint injuries. The cause of death was cardiogenic shock as a result of direct injury to the heart and extensive blood loss.

A toxicological analysis showed that the alcohol level of the deceased was 231mg per 100 millilitres of blood. No alcohol was detected in any of the samples provided by the appellant, but by the time the samples were taken any traces of alcohol would have been eliminated.

The police arranged for the appellant to be taken to the police station, at that stage believing him to be a witness. He told the police that he had been drinking all day. He did not know what had happened but had found the deceased on the floor. He was arrested on suspicion of murder just after midnight on 5 April 2011. Early next morning he was medically examined. There was an 11mm scratch on the back of his left forearm above the wrist joint, and a 5mm scratch overlying the mid-finger knuckle of his left hand.

The appellant was interviewed under caution. In his first two interviews he denied responsibility for the death, asserting that he had been drinking with him during the day, and was out of the house at the crucial time because he had left the house to find some cigarettes. He found the deceased lying on the floor when he returned. Thereafter he replied "no comment".

When he gave evidence at trial the appellant explained his involvement in some earlier incidents with other members of the Eritrean community. In relation to the incident on 4 April, he said that the deceased was a drinking friend. On that date they had drunk steadily through the day. During their last visit to a cash point, the deceased had a knife in his hand and the appellant tried to take it off him. In the struggle he cut his own forearm. After that, in the street, the deceased argued with and was rude to a lady from Abyssinia; and the appellant took the knife to stop the deceased following her. That made the deceased angry. He told the appellant that he should not have interfered and shouted and abused him. By the time they returned to 29 Palm Street, the deceased was still abusing him. The appellant put the knife under the table in the living room. The deceased insulted the appellant's mother, and then, having put the music on in the living room at very high volume, he danced around and pushed his penis towards the appellant's face. For the time being the appellant remained seated on the sofa, assuming that the deceased would settle down, but he did not. He kept calling the appellant a son of a bitch and hit him on the bridge of his nose with a beer can.

At this point he picked up the knife from under the table because he did not want to die. He turned on the deceased and tried to scare him. He grabbed him and stabbed him in the back. The deceased exposed himself, and went on hitting him. The appellant could not cope any longer. He went to stand on the sofa and the deceased followed him. He tried to get away, but again the deceased followed him. They grappled together. He felt he had no exit route. He was frightened. He swung the knife and it went into the deceased's body. The deceased fell to the floor and as the appellant tried to remove the knife, the handle broke off.

He denied saying anything to the effect that the deceased had injured himself or committed suicide. He had lied during the first interview because he did not really know what had happened. He had swung out at the deceased because he was frightened. He had not deliberately chosen to strike him in the chest. The deceased had made him so angry that he could not control himself. However he was not so drunk that he did not know what he was doing. He agreed that he had made a deliberate decision to swing the knife to protect himself.

Addressing the loss of control defence, in the context of what were otherwise conventional directions which are not criticised, the judge directed the jury:

"Are you sure that a person of Dawit Asmelash's sex and age with a normal degree of tolerance and self restraint and in the same circumstances, but unaffected by alcohol, would not have reacted in the same or similar way?"

Amplifying this direction the judge told the jury that he had deliberately inserted the words "unaffected by alcohol" into his written route to verdict, because, as he put it, the law had never said that the "voluntary consumption of alcohol can assist a criminal offender. If it did, the flood gates – you may think – would be open and every violent drunk would say "I must be judged against the standards of other violently disposed drunken people even though I may be like a lamb when I am sober"."

This unequivocal direction is criticised in a careful submission by Mr Neil Davey QC. The argument involves an analysis of s.54(1)(c) and s.55 of the Coroners and Justice Act 2009 (the 2009 Act). S.54 provides:

"(1) where a person ('D') kills or is a party to the killing of another ('V'), D is not to be convicted of murder if …

(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D …

Section 54(3) provides:

"In sub-section (1)(c) the reference to "the circumstances of D" is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint."

Focussing on the circumstances of D, Mr Davey suggested that, assuming the provisions of s.54(1)(a) and (b) were engaged (and for present purposes we assume that they were) the fact that the appellant was drunk at the material time was one of his "circumstances" to be considered in accordance with s.54(1)(c). The appellant should not be precluded from advancing the partial defence simply because, entirely coincidentally, he happened to be intoxicated. It would be otherwise if he had been drinking to give himself Dutch courage for some violent action, but the partial defence should be available so as to ensure that D would not be in any worse position than a sober person who might have acted as he did in similar circumstances. Mr Davey was not contending that the defendant should be entitled to take advantage of his self-induced intoxication, but that the fact of such intoxication should not of itself preclude him from advancing the partial defence. He drew attention to the first supplement to the Current Crown Court Bench Book where, in the context of s.54(3) of the 2009 Act, it is stated that "D's circumstances would include the consumption of alcohol. The jury will no longer be directed that a reasonable man is a sober man. The jury will need to decide whether a man in these circumstances (including the consumption of drink) but nevertheless possessing a normal degree of tolerance and self-restraint might act as D did. It is suggested that the jury may still be directed that D's conduct is to be judged by the standard of the person who retained a normal degree of tolerance and self-restraint even if that person had consumed alcohol as D did."

Mr Davey also drew attention to a paper written by Professor Ormerod published in November 2010 where the then new "loss of control" provisions were analysed. At paragraph 73 Professor Ormerod observes that "s.54(3) only appears to exclude a circumstance on which D seeks to rely if its sole relevance is to diminish D's self-restraint. This could open the opportunity for D to adduce all sorts of evidence. In particular, D might claim that his intake of alcohol or other intoxicants was a relevant circumstance and that the intoxication did not simply diminish his self-restraint, but also had some other relevance – e.g. that it caused a relevant mistake. This may amount to no more than a plea of lack of intent on grounds of intoxication, but it will make directing the jury more complex". These observations are effectively repeated in Smith and Hogan's Criminal Law, 13^th edition, at p.526. The current edition of Blackstone is to much the same effect. (B1.34-B1.37)

Mr Andrew Edis QC submitted that the judge's direction to the jury was correct, entirely in accordance with well understood principle. Everyone agreed that the appellant was drunk as the result of self-induced intoxication. No one suggested that this caused him to be mistaken about anything that was going on at the relevant time, or about what he was doing. Accordingly the only relevance of the drunkenness was that it affected the appellant's self-restraint, and caused him to act in a way in which he would not have acted if sober. Such drunkenness was an irrelevant consideration. It may have had some relevance to his general capacity for tolerance or self-restraint: but no more.

Mr Edis suggested that the relevant passage in the Crown Court Bench Book ignored the effect and the wording of s.54(3). He further pointed out that the views expressed by Professor Ormerod did not appear to support the proposition that self-induced intoxication was excluded as a circumstance for the purposes of s.54(3) in so far as it might reduce the defendant's capacity for self-restraint. Rather Professor Ormerod was suggesting that it was possible that self-induced drunkenness might be relevant if, for example, in drink the defendant acted on the basis of a mistaken belief. By contrast, Mr Edis drew attention to the Law Commission Report. (Law Commission No. 34) on Murder, Manslaughter and Infanticide (published in 2006). He reminded us that the 2009 Act had not fully or faithfully followed all the recommendations of the Law Commission, and that in some respects, it had ignored them. Nevertheless in the present context the statutory provisions had followed the Law Commission recommendations very closely. At 5.41, where the report is directing attention to temporary intoxication rather than chronic alcoholism, the Law Commission reported that "abnormal states of mind, such as intoxication or irritability, should also be left out, as should other factors that affect a general capacity to exercise adequate self-control". This approach is consistent with very well understood policy considerations, robustly summarised by the observations of the trial judge in his summing up. In the absence of any express provision to the effect contended for by Mr Davey, the court should proceed on the basis that the law was unchanged. What is more, the issue of self-induced intoxication has already been considered in this court in the context of newly enacted provisions related to diminished responsibility in R v Dowds [2012] 1 Cr App R 34, at para 35. In that context, the defence could not be founded on voluntary intoxication, even if acute.

The question for decision in this appeal is whether the voluntary consumption of alcohol falls within the ambit of s.54(1)(c), as amplified by s.54(3) of the 2009 Act, when consideration is being given to the question whether a person of the defendant's sex and age "with a normal degree of tolerance and self-restraint and in all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint might have reacted in the same or a similar way to D".

It has of course been long understood that the consumption of alcohol, or indeed the taking of drugs, may diminish the ability of an individual to control or restrain himself, so that, in drink, or affected by drugs, he may behave in a way in which he would not have behaved when sober or drug free. Although it may sometimes impact on the question whether the constituent elements of a crime, in particular in relation to the required intent, have been proved, self-induced intoxication does not provide a defence to a criminal charge. This principle was applied to the defence of provocation in McCarthy [1954] 2 QB 105, and in the context of the law of Jersey which corresponded with s.3 of the Homicide Act 1957, underlined in Attorney General for Jersey v Holley [2005] 580. Indeed for several decades now, judicial directions to the jury considering the provocation defence in the context of the voluntary consumption of alcohol, referred to the reasonable sober person in the position of the defendant. If Mr Davey's submission is correct, a remarkably benign development to the issue of alcohol has been adopted as part of the statutory ingredients of the loss of control defence when, simultaneously, the defence itself is in many ways much more restrictive than the former provocation defence. In Dowds, after a valuable analysis of the policy reasons underlining the approach of the criminal law to the issue of self-induced intoxication, headed Voluntary Drunkenness in English Criminal Law, the court observed:

"The exception which prevents a defendant from relying on his voluntary intoxication, save upon the limited question of whether a "specific intent" has been formed, is well entrenched and formed the unspoken backdrop for the new statutory formula. There has been no hint of any dissatisfaction with that rule of law. If Parliament had meant to alter it, or depart from it, it would undoubtedly have made its intention explicit."

As Hughes LJ explained in Dowds, on occasions when recasting a defence in statutory form, express provision is made about the approach to self-induced drunkenness (see s.75(5) of the Criminal Justice and Immigration Act 2008 which put the law of self-defence into statutory form). On other occasions, however, a new statute simply proceeded on the basis of the well established principles of law, and specific legislative provision was unnecessary.

In essence, therefore, Mr Davey's submission proceeds on the basis that in the absence of any express statutory provision, in the context of "loss of control", a new approach to the issue of voluntary drunkenness is required. We disagree. We can find nothing in the "loss of control" defence to suggest that Parliament intended, somehow, that the normal rules which apply to voluntary intoxication should not apply. If that had been the intention of Parliament, it would have been spelled out in unequivocal language. Moreover, faced with the compelling reasoning of this court in Dowds in the context of diminished responsibility, it is inconceivable that different criteria should govern the approach to the issue of voluntary drunkenness, depending on whether the partial defence under consideration is diminished responsibility or loss of control. Indeed, given that in a fair proportion of cases, both defences are canvassed before the jury, the potential for uncertainty and confusion which would follow the necessarily very different directions on the issue of intoxication depending on which partial defence was under consideration, does not bear contemplation.

Our conclusion does not bear the dire consequences suggested by Mr Davey. It does not mean that the defendant who has been drinking is deprived of any possible loss of control defence: it simply means, as the judge explained, that the loss of control defence must be approached without reference to the defendant's voluntary intoxication. If a sober individual in the defendant's circumstances, with normal levels of tolerance and self-restraint might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence just because he was not sober. And different considerations would arise if, a defendant with a severe problem with alcohol or drugs was mercilessly taunted about the condition, to the extent that it constituted a qualifying trigger, the alcohol or drug problem would then form part of the circumstances for consideration.

In our judgment the judge was right to direct the jury as he did. This ground of appeal fails.

We can deal briefly with the renewed ground of appeal. The summing up has been subjected to rigorous examination. It is suggested that the judge misdirected the jury about self-defence. It is only right to record that at the time when they heard the summing up, counsel did not detect any problem. The transcript has now been studied. This has led to a renewed ground of appeal, the essence of which is that the judge misdirected the jury by diminishing the subjective element of the defence. It is clear that the judge addressed first, the state of mind of the defendant himself, and then what might be described as the relevant objective considerations. (See pages 8-10, and again at page 11, lines 23/24). Reading these directions together, it is clear that the jury was directed that it should not convict the defendant unless sure that his actions were unreasonable and disproportionate to the threat of or actual violence from the victim as he, the defendant, personally perceived that threat. The defence was properly put to the jury.

This appeal is dismissed.