England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Queen Elizabeth II Law Court Derby Square Liverpool L2 1XA
		6th December 2016

THE LORD CHIEF JUSTICE:

1. On 19 February 2016 in the Crown Court at Preston before Kerr J and a jury the appellant (now aged 24) was convicted of the murder on 14 August 2015 of Damon Searson, aged 24 years. She was sentenced to life imprisonment with a minimum term of twelve years. She appeals against conviction with the leave of the single judge.
2. The issue before us relates to social media messages and the way they should be adduced in evidence. We shall set them out in a moment.
3. We say at the outset that this is a tragic case. It is unnecessary to set out the details of the tragedy, particularly for the appellant for whom this court and plainly the trial judge had the greatest sympathy. An outline will suffice.

The factual background

4. The deceased had a very bad criminal record. It comprised 18 convictions for 33 offences, including one for assault occasioning actual bodily harm on a former girlfriend. The last court appearance of the deceased had been in July 2012. He had a very serious alcohol problem, but by early 2015 was in rehabilitation.
5. It was then that he met the appellant, who was a year younger than he. She had qualified as a hairdresser. She had worked hard and long hours in a hairdressing salon. The deceased visited that salon to have his hair cut, but he attended more and more frequently. From time to time he was on his own with the appellant. In circumstances which are not altogether clear they began a relationship.
6. There is little doubt that their relationship was emotional and stormy. Although at times they had dreams, as do many young couples, of setting up a home together, they also had massive rows. As is common these days, many details were set out in Facebook exchanges both with the deceased and with the appellant's close friends. From those exchanges it is clear that the appellant resented the deceased's drinking and taking drugs. Although he would stop drinking for a while, he would always relapse. When drunk he could be very aggressive and very violent.
7. The appellant, on the other hand, wanted him to live a decent life. She wanted him to work as hard as she did. However, he was more interested in spending her money and living off her hard work than earning a living for himself. Indeed, he resented the long hours that it took her to earn the money which he would then spend. In addition, he was described as possessive and controlling. The appellant believed that he was seeing other women, although she was not seeing other men. She resented being falsely accused by him of infidelity and being called "a slag" by him. Despite his treatment of her and his failure to take any steps to reform himself, she loved him. In short, she appears to have believed that it was her mission in life to make him a better person so that he could live a good life and find happiness with her.
8. In February 2015 the deceased left rehabilitation and move in to live with the appellant and her mother. That arrangement did not last long. The appellant tried to get him to work. She took him out with friends, including her best friend, Chelsea O'Brien. Eventually, the appellant found a caravan to rent in Morecambe. She transferred money into the deceased's account for him to contribute towards it. Unsurprisingly, he spent it on drink. On 1 August 2015 they moved into the caravan. At first they were happy, but rows then started.
9. The circumstances in which the deceased was killed on 14 August 2015 can be briefly related. The account that was given by the appellant was largely accepted by the prosecution, up until the time of the fatal incident. During the day the appellant had worked, as was usual. The deceased had met her and they had gone back to the caravan and had supper. However, at some time during the evening it appears that arguments started on topics such as the deceased's failure to find work, he calling her names, accusing her of talking to other men, and his excessive drinking. It was plain from her own evidence, supplemented by Facebook messages she posted, that, unsurprisingly, she became very angry.
10. What happened in the period immediately before midnight is disputed. There can be little doubt that the appellant threw certain things at the deceased from the kitchen at one end of the caravan to where he was on the sofa at the other end. At midnight Scott Addy, a neighbour in the next door caravan, heard a knock on his caravan door and heard a female voice. He opened the door but found no one, so he walked a short distance to the appellant's caravan and entered. He saw the deceased lying on the floor with the appellant pressing cloths to his chest. She had a phone in her hand. She was calling an ambulance. The call had been made at 12.07am. The appellant said that the deceased was drunk, he had been messing with a knife and it had gone into his chest.
11. When an ambulance and police officers attended the scene they were given an account by the appellant that they had been play-fighting when the deceased had picked up a knife and pretended to get her with it. She had hit him away. He was messing around with her, holding the knife. When she hit him, his arm went away and the knife stuck into him.
12. The following day, after her arrest and when interviewed at Lancaster Police Station, she provided a prepared statement. In that account she said that the deceased was lying on a couch with the phone nearby. There had been a knife on the counter next to her and he had asked her to throw the knife to him. She had presumed that he proposed to use the knife to fix the phone. She threw the knife towards him, aiming for the floor in front of him. The next thing she saw was him pulling the knife out of his chest and blood was pouring from him. She then called an ambulance.
13. A post-mortem examination showed that there had been a penetrating stab wound on the left side of the chest. The knife had passed horizontally inwards, had cut through the protective coating between the ribs and had penetrated the heart. The wound was approximately 10cm in length.

The course of the trial

14. Before turning to the issue involving the social media messages, it may be helpful briefly to mention what happened at the trial. It was the Crown's case that the appellant had lost her temper and had inflicted the wounds, intending to cause really serious bodily harm. The Crown relied on the Facebook and text messages between the appellant and the deceased to show the tumultuous relationship to which we have referred and the significant lack of trust between them.
15. The evidence of the pathologist was particularly relied on as showing that the appellant's version of events did not fit in with the way in which the wound had been caused.
16. The defence case was that the deceased had been lying on the sofa and the appellant had thrown the knife towards the ground in the course of an argument. She did not see the weapon enter the deceased. It may be that he was high on alcohol, and he may have rolled over on to it and somehow the knife had entered the heart.
17. It is important to point out that, consistent with the appellant's instructions, no defence of manslaughter was run. The judge, however, left to the jury the issue in the case which was essentially: had the appellant deliberately stabbed the deceased? If she had done so, had it been done with intent to cause really serious bodily injury? If she had not had that intent, had she had an intention of causing some harm? It was for the jury to consider whether the Crown had proved that and therefore had disproved her account of accident.

The way the issue as to the social media messages arose

18. It was in that context that, prior to the commencement of the trial, an issue arose in relation to the admissibility of some of the social media messages. What appears to have happened is that leading counsel who had originally represented the appellant withdrew and Mr Trafford QC came in at short notice to conduct the defence a few days before the trial. On going through the Crown's opening and the trial papers he had a concern about certain social media messages. It had been the Crown's position that the messages to which we shall refer in a moment were part of the background and that they were not evidence of reprehensible conduct.
19. The messages included:

(i) An exchange between the appellant and the deceased on 16 July 2015, less than a month before he died, in which the appellant said:

"Crying myself to sleep for the second time this week, and it's only Wednesday, thanks Damon, I'm so angry and hurt, I honestly want to rip Jack's face off and fucking stab you."

(ii) The exchange between the appellant and her best friend, Chelsea O'Brien on 28 July 2015, which read as follows:

"CHELSEA O'BRIEN: Who you gonna stab this time, calm down. LOL.

THE APPELLANT: Damon, fucking hate him, LOL.

CHELSEA O'BRIEN: What has he done, is he down.

THE APPELLANT: He came down at the weekend but gone now. I fucking CBA [can't be arsed] with him, who the fuck goes through their GF [girlfriend's] phone and roots through her bedroom and in her drawers when she's asleep!! Fucking pissed off, absolute weirdo."

(iii) The exchange with a woman called Kaisaha on 9 August, which included the appellant saying (as part of a longer message):

"I think I'm going to vom. If he tells me he's been fucking anyone I'm stabbing him."

20. We have been told by the Crown advocate that the attitude of the Crown was that these exchanges were not evidence of reprehensible conduct. They were admissible in any event as part of the background. The Crown therefore had not served any notice of bad character as they were simply part of the background.
21. It is apparent from what we have been told today that Mr Trafford took the view that these were highly prejudicial and the judge should exercise his discretion not to admit them. He thought that the Crown wanted to adduce them under section 101(1)(c) of the Criminal Justice Act 2003 (CJA 2003) and he prepared a short written argument for the trial judge on that hypothesis. That occurred on the Friday prior to the commencement of the trial which was due to take place on the Monday.
22. Over the weekend it seems that the Crown had second thoughts. A written skeleton argument was prepared for the judge. It was not as clear as a judge should have expected, but it seems that the Crown were plainly taking the point that the exchanges did amount to reprehensible conduct and were admissible either under section 98 of the CJA 2003 as to do with the offence, or under section 101(1)(d) of the CJA 2003 as relevant to an issue in the case.
23. The background to what had happened perhaps explains the significant difficulties that the judge had when he came to give his ruling. It is a matter of some regret, we would suggest, that more thought and detailed consideration had not been given by the Crown to these documents. Mr Trafford was quite right to anticipate that they were prejudicial and quite right to anticipate that the Crown might want to adduce them as bad character evidence, even though that thought had not occurred to the Crown.

The ruling by the judge

24. It is clear that when the Crown presented its argument to the judge, the argument was not of the quality which it should have been in such a difficult case, bearing in mind the position of this young appellant and the relationship into which she had entered. It is evident from the judge's ruling that he did not entirely follow the argument that had been advanced before him. Having heard counsel for the Crown today, we are not in the least surprised at the difficulty the judge faced. Such a case plainly required much more experienced counsel.
25. The judge concluded, although it is not necessary for us to reach a view on this, that although the evidence was evidence of reprehensible conduct for reasons we shall explain in a moment, it was not within section 98. He took the view that there was not a sufficient nexus in time to make it admissible. The law as to that is well explained by Professor Spencer in his book, Evidence of Bad Character, at paragraph 2.31 of the third edition, and Blackstone 2017 at paragraph F13.10, and recent decisions of this court including that in R v Lunkulu and Others [2015] EWCA Crim 1350 at [94] to [100].
26. The judge went on to consider whether it was admissible under section 101(1)(d). He took the view (and he had to for this purpose) that the Crown's submission that this was evidence of reprehensible conduct was, in fact, correct, contrary to the view that they had taken earlier. He considered that the exchanges we have set out were capable of being interpreted as evidence of reprehensible conduct, as a threat to stab would be. Whether or not they were, in the ultimate analysis, was for the jury to consider. The judge went on to hold that they were of sufficient probative value that they were relevant to the defence of accident, and potentially relevant to rebutting that defence. He then considered whether he should exercise his discretion to exclude them and concluded that it was not unfair to admit them.

The direction to the jury

27. The judge gave a very careful direction to the jury as to how they should use the messages. He said:

"There are a small number of messages which, if taken literally, include expressions of a wish or intention to 'stab' Damon. As you know, there is a disagreement about how you should interpret those messages. The Crown say that they are relevant to whether [the appellant] is telling the truth when she says she threw the knife and says she did not stab Mr Searson with it. They say that her use of the word 'stab' in those messages makes it more likely that what she did was just what and that her use of the word 'stab' helps you to be sure that this was not an accident, as she claimed. The defence, on the other hand, say that is complete nonsense and that the Crown are reading far too much into casual private message sent between close friends, which are just a figure of speech, to use [the appellant's] phrase, and that it is absurd to suppose that they were seriously meant.

You will recall that Miss Chelsea O'Brien agreed with that when asked questions about it by Mr Trafford for the defence, that her evidence was that such remarks were not seriously meant.

Members of the jury, you will have to decide what you make of those messages, taken in their proper context. The messages that included references to violence and stabbing and so forth were about three or four in number out of hundreds or thousands. You will decide what weight you give to them and whether they support the prosecution case and make it less likely that [the appellant] is telling the truth when she says that Mr Searson's wound was inflicted be accident, but I must warn you not to rely too heavily on those few messages. You must not allow them to overshadow the direct evidence of what happened at the scene. By the 'direct evidence' I mean the physical evidence of what happened; the position of the sofa, the position Mr Searson was found in, the knife, the green plastic Seven Up bottle and so forth. You cannot convict [the appellant] of murder wholly or mainly on the basis of what she said in those Facebook messages a few weeks and days before Mr Searson died."

We shall return at the end of this judgment to consider what the judge said as to the real issues in the case.

The submissions to us and our conclusion

28. In eloquent submissions advanced before us, Mr Trafford first submitted that the evidence contained in the three messages was not evidence of bad character as it was not "other reprehensible behaviour", as defined in section 112 of the CJA 2003. He pointed to the decisions of this court in R v Fox [2009] EWCA Crim 653 and R v Osbourne [2007] EWCA Crim 481. Those are decisions where, on the particular facts of those cases, this court took the view that in the first case notations in a personal notebook and in the second case evidence about previous aggression were not evidence of reprehensible conduct.
29. In our judgment each case must be considered on its own facts. The cases helpfully summarised in Archbold, in Blackstone and in Professor Spencer's work are illustrations of what is a fact-specific determination. The issue, quite simply, is: in context were the messages capable of amounting to reprehensible conduct? In our view the message in this case could be properly read in that way. It was for the jury ultimately to assess whether or not they were. The Facebook messages contained sufficient for a jury to be entitled to conclude that they amounted to threats to stab. Without doubt, if such a conclusion were reached, that would be reprehensible conduct.
30. The second issue, again argued eloquently by Mr Trafford before us today, was that the messages were not relevant to an important matter between the parties so as to be admissible, even if evidence of bad conduct, under the gateway in section 101(1)(d) of the CJA 2003. It was submitted that the issue in the case was not premeditation, as it was accepted by the Crown that what had happened was unpremeditated. It was submitted therefore that the social media exchanges could not possibly be of assistance.
31. Again, we have looked at that in the context of this case. It seems to us that they were potentially relevant to the issue of accident. If the appellant had expressed the view on previous occasions that she might stab the deceased when stressed or angry, that was in our view evidence that might be of assistance to the jury in determining an important issue between the parties, i.e. in this case whether what had happened was accidental or whether it had been a result of the appellant stabbing the deceased with the necessary intent.
32. We have next considered the third submission as to whether it was unfair to admit the evidence in the sense that its prejudicial value outweighed its probative weight. We think that the judge was entitled to exercise his discretion as he did. We cannot see any basis for saying that the view he took was not a view that was open to a judge.
33. Finally, the fourth submission made by Mr Trafford was that the direction on this issue given by the judge in his summing-up was incorrect. We have set out the passage at length. We consider that the judge gave a correct direction. He directed the jury to the potential relevance, but went on to stress that the real issue in this case turned on much simpler issues.
34. Accordingly, and despite the eloquent way in which these arguments have been presented to us and the other authorities which have been placed before us and to which it is not necessary to refer, we consider that in this fact-specific case the judge was right in the conclusion he reached. The evidence was admissible.

The safety of the conviction

35. In accordance with our duty on every appeal that comes before this court, we have to consider whether the conviction was safe. The real issue, as the judge identified in the passage we have set out, relates to the formidable case that the appellant faced. Her evidence was that this was an accident. She did not say that she had stabbed the deceased, or that she had not meant to do him serious bodily injury. That was not her case. She had therefore to contend with the pathology evidence of the deep stab wound and the fact that it had penetrated through the protection that surrounds the heart.
36. Having considered that evidence together with all the other evidence in the case, we are entirely satisfied that in the way in which the case proceeded before the jury, this was an entirely safe conviction. It is, therefore, with some regret because of our sympathy for the appellant that we have to dismiss this appeal.
37. MR TRAFFORD: Your Lordship indicated at the beginning of this appeal some discomfort with how some of the academic works, as well as submissions by leading counsel throughout the country, misunderstood the structure of the Act. In particular, your Lordship appeared to identify that the section 98 through to 101 route was one that remained unclear and caused this court, and therefore puisne judges and other judges throughout the land, some difficulty in dealing with it.
38. THE LORD CHIEF JUSTICE: Yes.
39. MR TRAFFORD: Your Lordship, therefore, may consider, despite the fact that the Supreme Court have dealt only last month with an issue arising from the bad character provisions – that is to say, the standard of proof required for non-conviction bad character –
40. THE LORD CHIEF JUSTICE: Yes.
41. MR TRAFFORD: - in the case of Mitchell that was handed down, I think, in October, that another opportunity may be afforded to their Lordships to consider the broader scheme of the Act.
42. THE LORD CHIEF JUSTICE: If you wanted to apply for us to certify a point of law, we would require you to do so in writing. You have 28 to do so.
43. MR TRAFFORD: I understand.
44. THE LORD CHIEF JUSTICE: Obviously we would consider any such application, but at the moment it is difficult to see what point of law arises in this case that could be said to be of general public importance –
45. MR TRAFFORD: Thank you. I understand.
46. THE LORD CHIEF JUSTICE: - on the way in which the case was argued and the way in which the matter appeared, but we note what you have said, and, of course, you have 28 days in which to apply, and we will carefully consider any application.
47. MR TRAFFORD: I am grateful.