England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		7th November 2013

1. MR JUSTICE MADDISON: On 13th July 2012 the applicant, John Fairweather McGrory, was convicted by a jury in the Crown Court at Reading of an offence of murder. He received a sentence of life imprisonment, with a specified minimum term of 14 years. He applied on seven grounds, to which we will return, for leave to appeal against his conviction. The application was refused by the single judge, Spencer J, and is now renewed.
2. The facts of the case are comparatively straightforward. The deceased was the applicant's wife. He married her in 2007 but they had been in a close relationship for at least 10 years before that, having had twin sons together in 1997.
3. The relationship had its difficulties. In 2002 she complained to the police that he had strangled her. The complaint was recorded in a police crime report but the deceased declined to support a criminal prosecution at that time. In or about 2003 she embarked on an affair with another man and left the applicant for a time, taking the children with her. However, she later returned to the applicant. Then, in 2005, she made a witness statement to the police, describing three occasions, in addition to that in 2002 on which she said that the applicant had strangled her. In 2011 she embarked on another affair, this time with a man in Scotland. She told the applicant about the affair and that she wanted to divorce him. There was evidence from the applicant's work colleagues and sons that he became unhappy and moody as a result of his wife's affair, threatening to kill her and the man concerned.
4. The deceased visited the other man during the New Year period 2011 to 2012. She returned home late on 2nd January 2012. The following morning the applicant called the emergency services, calmly asking for the police and stating that he had killed his wife during a domestic argument. The police attended and discovered the deceased on the kitchen floor with a tight ligature, in the form of a dog leash, around her neck and bruises on her chin consistent with having been tightly gripped. She never regained consciousness and was pronounced dead on 4th January. When asked why he had done it the applicant replied: "I just flipped".
5. A post mortem examination established fractures on both sides of the larynx, indicating that severe pressure had been applied by hands and ligature, although the pathologist could not tell in which order, and that at least 20 seconds of sustained pressure would have been used.
6. At his trial the applicant accepted that he had killed his wife, intending to kill her or to cause her grievous bodily harm. He gave evidence that they had argued and she had said that he should leave the house so her new partner could move in. He recalled being very angry and grabbing her by the throat but then everything went blank until he found himself standing over her. He believed that he had strangled her and accepted that he must have used the dog leash, though he had no recollection of doing so. He had called the police immediately.
7. In evidence he also referred to the prior history of his relationship with the deceased. He had not, he said, previously grabbed her by the throat. He had however held her gently by the throat although she had done the same to him a few times. He added that following his wife's affair in 2003 their relationship had been satisfactory until in 2011 he learned about her affair in Scotland. She would then repeatedly taunt him about her new partner. He became depressed, he said, and prone to mood swings and he resorted to alcohol and cannabis. He had been to see his doctor about this on 28th December 2011. He had threatened to kill his wife's partner, but meaning by that that he would beat the partner up rather than literally kill him.
8. His defence at the trial was that he was not guilty of murder but guilty of manslaughter as a result of diminished responsibility, as defined in section 2 of the Homicide Act 1957 in its present form, or loss of control, as defined in sections 54 and 55 of the Coroners and Justice Act 2009 or both.
9. There are seven proposed grounds of appeal against conviction. Three of them, numbers 1, 3 and 4 relate to the decision of the trial judge, Her Honour Judge Zoe Smith, to admit in evidence the statement that the deceased made to the police in 2005, describing the three acts of strangulation to which we have referred. It is to be noted that the judge refused to admit evidence of the complaint made by the deceased in 2002.
10. Ground 1 is that this evidence did not fulfill the tests for the admissibility of evidence of bad character, set out in sections 101(l)(c), (d) and (f) of the Criminal Justice Act 2003, pursuant to all of which the judge said that she would admit the evidence. As the single judge observed however, when the judge came to direct the jury about this evidence, she did so solely by reference to section 101(1)(d) and we therefore need to decide only whether or not the judge was entitled to admit the evidence pursuant to that paragraph.
11. Mr Raggatt QC, on the applicant's behalf, submits that she was not. He observes that section 101(l)(d) permits the admission of bad character evidence if "it is relevant to an important matter in issue between the defendant and the prosecution." He submits that the evidence of previous strangulation was not relevant to any such matter in issue, in essence because the applicant admitted that he had killed the deceased by strangling her and done so intending to kill her or to cause her grievous bodily harm.
12. We disagree, as did the single judge. The central issues in the case were whether or not the applicant was affected by diminished responsibility and/or loss of control when he strangled his wife. However section 103(1)(a) of the 2003 Act provides that important matters in issue in this context include the issue whether or not the defendant has a propensity to commit offences of the kind with which he is charged. If the applicant had a propensity to strangle his wife during domestic arguments when angry, but when there was no evidence that his responsibility was diminished and when he was able to stop what he was doing, before the consequences were fatal, that was, as the trial judge and the single judge said and as we agree, plainly relevant to the issue whether or not his responsibility was in fact diminished on the occasion of the deceased's death and/or to the issue whether or not he had in fact lost his self control when he strangled her.
13. We move to the third ground of appeal which is in effect that even if the evidence of bad character was admissible, pursuant to section 101(l)(d) of the 2003 Act, it should not have been admitted because it was based entirely on hearsay statements made by the deceased. We agree with the single judge that this ground of appeal is on analysis misconceived.
14. It is right that a number of cases, including a decision of the Grand Chamber of the European Court of Human Rights, in the case of Al-Khawaia v United Kingdom [2012] 54 EHRR 23, have indicated that a conviction based solely or to a decisive extent on hearsay evidence read to the jury might result in a breach of Article 6(3)(d) of the European Convention of Human Rights, which provides that "everyone charged with a criminal offence has the rights ... to examine or have examined witnesses against him ...". It is also right that any finding that the applicant had previously strangled his wife would of course be based solely on evidence read to the jury. But, as the single judge correctly in our view pointed out, the applicant's conviction of murder was based on many different features of the evidence of which the evidence that he had previously strangled his wife, if accepted, would be but one. Accordingly, there was no question here of hearsay evidence forming the sole or decisive evidence on which the applicant's conviction was based.
15. Proposed ground of appeal 4 is that the judge was wrong to admit the evidence of previous strangulations on the further ground that she failed properly to apply section 114(l)(d) of the 2003 Act, which renders hearsay evidence admissible only if the court is satisfied that it is in the interests of justice for it to be admitted, and section 114(2), which requires the court, when making that decision, to have regard to the nine factors listed in section 114(2) and any others it considers relevant.
16. Again, we disagree. True it is that the judge in her relevant judgment referred to section 78 of the Police and Criminal Evidence Act 1984 rather than section 114(1)(d) of the Criminal Justice Act 2003 when considering the fairness of admitting the evidence but there is no significant difference between the two provisions for the purposes of this case. The judge went on to say that she "had regard to matters that the court takes into account when admitting evidence under section 114". This was plainly, in our view, a reference to the factors set out in section 114(2) and we have no reason to believe that she did not consider them.
17. Since the witness statement had clear probative value in relation to the issues of diminished responsibility and loss of control, in the way that we have indicated, since it was the only available evidence of previous strangulations, since it was made in contemplation of proceedings with a signed declaration as to its truth, and since the applicant could, and indeed did give evidence, that he had never previously strangled his wife as alleged, it is not arguable, in our view, that the judge misapplied section 114 when deciding to admit the witness statement in evidence. She did, as we have already indicated, exclude the report of the strangulation in 2002 and did that because it was not clear from the crime report exactly what the deceased had said on that occasion.
18. The remaining proposed grounds of appeal numbers 2 and 5 to 7 all relate to the summing-up. Ground No 2 complains that the judge failed adequately to direct the jury about how the statement relating to the previous strangulations might assist them in determining the issues of loss of self-control and diminished responsibility.
19. In our view, however, the judge did direct the jury adequately. In relation to loss of control, she said this:

"Members of the jury, you heard about that statement and its contents because the prosecution contend that it is relevant to an issue between the prosecution and the defence as to whether ... the defendant had a propensity, that is a tendency to resort to strangling her and the prosecution submit that on this occasion in January he was resorting again in effect to his usual behaviour rather than it being as a result of the loss of control. The purpose of this evidence is not to generate prejudice against the defendant and you must guard against that. You know and I have reminded you that the defendant denies that he ever took hold of her throat in a violent way at all and says that her statement about these matters is untrue. The statement was made to a police officer but you know that the contents of it have never been tested, there has been no trial at which it has been subjected to cross-examination and of course there has been no opportunity to observe Mrs McGrory, to observe her demeanour in speaking about these matters. The defendant was never convicted of any of those matters and indeed he was never charged with any of them and there is no other evidence that supports what Mrs McGrory says. You also know what that Mr McGrory made a statement on the 23rd September to a police officer, so presumably when Mrs McGrory called the police on that day."

The judge went on to remind the jury of the account which the applicant gave at that time, in essence that she had gone for him and he had restrained her, and continued:

"If you are not sure that the defendant behaved towards Mrs McGrory as she described in that statement, strangling her, then you will ignore what she said. No propensity by the defendant to behave in that way would have been proved and you should therefore ignore, as I say, what she said about those matters. It is only if you are sure that what she said is true and accurate could you find that he did have some propensity. If he did, it will be for you to decide what assistance that gives you in deciding the issue as to whether he did lose control on this occasion, or whether it was resorting to his usual behaviour without losing control. Even if you were sure, you would have to bear in mind that the events referred to in the statement of 2005 were a very long time ago and even if you accept the defendant had a tendency to act in that way, when he had not lost control in the past, it does not follow that he did not lose control on this occasion. The defence submit on this, that you could not be sure that these events in the statement ever happened for the reasons I have just stated and he has always right from the very start denied any such behaviour and furthermore it is submitted by Mr Raggatt, that the occasions upon which the statement refers to the defendant allegedly behaving in that way are all to do with domestic incidents which in the context of this case are relatively minor as being the cause for those and cannot be said to have been therefore part of the crisis of 2005."

20. In relation to diminished responsibility the judge dealt with the matter in shorter terms as follows:

"And they [that is the prosecution] submit to you that if you were sure he strangled her in the past, and you know the defendant denies that he did and the defence say you could not be sure he ever did, that if you were sure that he did, at a time when he was not depressed, then the prosecution submit that there is a propensity for the defendant to strangle her, that is to control her, which had nothing to do with depression."

21. In our view, the criticisms made of those passages of the summing-up are unjustified. They were perfectly fair and adequate directions and there is nothing in either or both of them to render the applicant's conviction unsafe.
22. We turn to grounds 5 to 7. Ground 5 is as follows:

"The learned Judge failed to properly or otherwise adequately direct the jury as to the approach that they should take to evidence of the Applicant's mental health at the time of this killing as it might affect or support his defence of 'Loss of Control' pursuant to sections 54 and 55 of The Coroner and Justice Act 2009. It is respectfully submitted that the summing-up contains no direction that adequately deals with this matter which said failure renders fundamentally flawed in this respect."

23. The evidence of the applicant's mental health which is referred to here is the evidence given by Dr Hopley, a psychiatrist called to give evidence on behalf of the appellant. In so far as it was relevant to this ground of appeal it was to the effect that at the time of the killing the applicant was suffering from depression, of moderate severity which would have significantly impaired anyone's ability to exercise self-control; and that someone suffering from this disorder would, as the judge summarised it, have a "reduced ability to deal with taunting and to cope with those sorts of pressures compared to someone not suffering from depression."
24. The judge did remind the jury of Dr Hopley's evidence in detail, when dealing in her summing-up with the defence of diminished responsibility but not when dealing with the defence of loss of control. It is of this that complaint is made.
25. It is therefore necessary briefly to consider sections 54 and 55 of the Coroner and Justice Act 2009 which define the defence of loss of control. These sections refer to the defendant concerned as "D" as will we. Section 54(1) provides that this defence arises if (a) there was indeed a loss of self-control at the time of the killing; (b) that loss had a qualifying trigger, as defined in section 55 of the Act; and (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 in a similar way to D". Section 54(3) provides, amongst other things, that "the circumstances of D" do not include circumstances "whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self restraint."
26. Reading together section 54(1)(c) and (3) it is clear, in our view, as indeed it was Spencer J, that the applicant's reduced tolerance and self restraint due to his depression, assuming for the moment that there was such a reduction, cannot have been relevant to the defence of loss of control and that the judge was therefore correct not to refer to Dr Hopley's evidence when dealing with that defence. In our view, proposed ground of appeal 5 is not arguable.
27. We turn to proposed ground 6, which is as follows:

"The learned Judge further mis-directed the jury as to the proper meaning and scope of the defence of 'Loss of Control' by importing into her directions concepts that were or appear to have been based upon the law as it related to the former - and now entirely abolished - defence of 'provocation' in that she purported to define this defence in terms that are not included anywhere in the statutory definition and that were therefore inherently confusing and otiose to a proper consideration of the issues raised by it."

28. Towards the beginning of her summing-up the judge handed to the jury a five-page document, dealing with the defence of loss of control and read through it with the jury. On the first page the three statutory ingredients of the defence were correctly set out; on page 2 were notes expanding on the first ingredient, namely the need for an actual loss of control.
29. The passage of which criticism is made is as follows:

"Self-control is the same thing as self restraint. It is a person's ability to resist an impulse or an urge to act. Loss of control is something more than mere anger. A defendant loses his self control if his ability to restrain himself was so overwhelmed that he could not resist the impulse to attack. In other words he was no longer master of his actions."

30. It is not a requirement of the law that this legal concept be explained to the jury in any precise defined form of words and quite simply, in our view, this passage did not misstate the law, nor did it, as the single judge put it "harp back improperly or impermissibly to the old law of provocation."
31. On page 4 of the document the judge elaborated on the requirement of section 54(1)(c) of the 2009 Act that:

"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 in similar way to D."

32. The passage of the document of which criticism is also made, is:

"The law expects us to exercise self restraint in the face of violence and when things are said and done which are of an extremely grave character and causes us to have a justifiable sense of being seriously wronged, but the law acknowledges that there may be circumstance in which any man might react, and you will have to consider whether a man with a normal degree of tolerance and self restraint but in the defendant's circumstances might have reacted in the same or a similar way to the manner he did ie to strangle her with a ligature and asphyxiate her."

33. We take the same view of this passage as we did of the first that was criticised. It did not, in our view, misstate the law and it did not wrongly import any concepts which were relevant to the old law of provocation but would be irrelevant to the defence of loss of control under the 2009 Act.
34. The seventh and final ground of appeal is as follows:

"Throughout her summing up the learned Judge entirely failed to give the jury any proper or adequate guidance as to the inter relationship between the two defences that fell to be considered and how to approach the medical evidence in the case as it impacted upon each of them separately.

Given the difference in the burden and standard of proof as far as each is concerned and upon whom it lay in each instance this too is a fundamental flaw in her approach to the case."

35. There is a degree of overlap between ground 7 and the preceding grounds and some of what we have had to say applies equally to ground 7. We have reread the entire summing-up and consider the criticisms made of it in ground 7 to be unjustified. The legal directions given, in our view, were accurate, the evidence was summarised clearly and the summing-up was structured in a way likely to have been very helpful to the jury. For the sake of completeness, we note that the judge did make it clear that different burdens and standards of proof attach to the two defences of loss control and diminished responsibility.
36. Having considered all of the proposed grounds of appeal individually and collectively, we can find nothing to cast any doubt on the safety of the applicant's conviction for which this renewed application is refused.
37. We conclude by expressing our gratitude to the single judge for the care and detail with which he considered this matter.