England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 April 2003

Mr Justice Mitchell :

1. This is a challenge by way of Judicial Review to the decision of the Criminal Cases Review Commission ('the Commission') on 2 July 2002 not to refer the case of Nicholas Farnell ('the claimant') to the Court of Appeal (Criminal Division) pursuant to section 13 of the Criminal Appeal Act 1995.
2. On 22 March 1996 following a trial the claimant was convicted of murder. His defence at trial was that by reason of his diminished responsibility he was guilty only of manslaughter. The judge decided that on the evidence the issue of 'provocation' ought also to be considered by the jury. They were so directed. It was never part of the defence case that an appropriate verdict should be manslaughter on the ground of 'provocation'. In his closing speech to the jury defence counsel expressly disavowed 'provocation' as being an arguable explanation for the claimant's conduct.
3. The jury heard evidence from a total of four psychiatrists on the issue of 'diminished responsibility'. Two psychiatrists were of the opinion that his responsibility for the killing was substantially diminished. No aspect of the psychiatric evidence was referred to by the judge in his directions upon 'provocation'. The only 'characteristics' with which the jury were told to clothe the 'reasonable man' (or 'ordinary person') for the purposes of section 3 of the Homicide Act 1957 were that he should be of the same 'age and sex' as the complainant.
4. Following the conviction, the claimant's application for leave to appeal against conviction was refused by the single judge on 19 June 1996. The grounds before the single judge contained no reference either to the judge's directions on 'provocation' or to his counsel's decision at trial not to rely at all on 'provocation'.
5. On 22 June 1998 the claimant applied to the Commission for a review of his case. Following extensive representation the Commission reached the provisional decision not to refer the case to the Court of Appeal. The decision is explained in a letter dated 8 March 2001. Further submissions in writing were made to the Commission and the final decision not to refer was set out in a letter dated 27 April 2001. Thereafter, in a letter dated 16 July 2001 the Commission agreed that the claimant's case would be 'considered afresh' on the ground that the Commission's reasoning "may not necessarily reflect the position regarding the law of provocation after the case of Smith." This was a reference to the decision of the House of Lords in R v Smith (Morgan) [2001] AC 146 given on 27 July 2000. On 2 July 2002 (after further representations) the Commission confirmed by letter its provisional decision not to refer the claimant's case. It is this decision which is challenged. An application for leave to apply for judicial review having been refused by the single judge, on a renewed application before the full court leave was granted on 4 December 2002. The court is invited to quash the decision not to refer and require the Commission to give still further consideration to that question. The principal area of complaint, expressed in broad terms, is that the Commission misdirected itself as to the test which the Court of Appeal would apply were it to hear an appeal in this case founded on the trial judge's directions on provocation having regard (i) to the then state of the law; (ii) to the terms in which the jury were directed; (iii) to the development in the law as reflected in R v Smith (Morgan); and (iv) to the fresh evidence provided by three of the four psychiatrists who have now explained the relevance of their 1995/1996 findings as to the claimant's mental state to the issue of provocation and in particular to the issue of 'self-control'. It is accordingly submitted that the Commission's decision that there was no real possibility that the Court of Appeal would not uphold the conviction was tainted by error of law.
6. No issue arises in this case as to the Commission's powers. These were recited and explained in R v Criminal Cases Review Commission ex p Pearson [2000] 1 Cr App R 141 DC and R (Hunt) v Criminal Cases Review Commission [2001] 2 Cr App R 76 DC. Within the guidance to be found in Lord Bingham CJ's judgment in ex p Pearson are the following points:

i) The 'real possibility' test is imprecise "but plainly denotes a contingency which in the Commission's judgment is more than an outside chance or a bare possibility but which may be less than a probability or likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld (149F).

ii) "In a conviction case depending on the reception of fresh evidence the Commission must ask itself a double question: do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? If so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction?" (150 C-D).

iii) The Divisional Court when considering a complaint touching a decision of the Commission not to refer sits as a court of review. The question is not whether the Commission's decision was right or wrong but only whether it was lawful or unlawful (169E).

iv) It is not appropriate to subject the Commission's reasons to a rigorous audit to establish that they were not open to legal criticism. "The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere" (169G).

v) "Had the Commission decided to refer this case to the Court of Appeal, that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgment entrusted to the Commission. If this Court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function. The Divisional Court will ensure that the Commission acts lawfully. That is its only role. To go further would be to usurp the function which Parliament has, quite deliberately, accorded to the judgment of the Commission" (171F - G).

7. This last point was emphasised by Lord Woolf CJ in R(Hunt) v CCRC at p 78:

"[Section 13] is worded in a manner which reserves a residual discretion to the Commission not to refer albeit that the case is one where there is a real possibility the Court of Appeal would not uphold the conviction."

Later, at p 80:

"It is a residual but a very important jurisdiction which the Commission exercises. It imposes a heavy burden on the Commission. It is a jurisdiction which requires the Commission carefully to exercise the discretion which it is given by Parliament. In these circumstances it is important that the courts should not in inappropriate cases allow the Commission to be sucked into judicial review proceedings which are bound to detract it from fulfilling its statutory role."

8. THE ISSUE OF PROVOCATION AT TRIAL

(1) The Facts

It is necessary to summarise the salient facts. The claimant and the deceased (William Pottage) were near neighbours. The deceased and his wife had a young puppy whose barking on the morning of the killing had irritated the claimant. There had prior to that day been no significant hostility between the two households but on the morning of the killing the deceased and his wife, having arrived home in the car with some shopping, were approached by the claimant who got out of his car to speak to them. There was a row involving all three which began as the Pottages were getting out of their car. The row occurred because of the claimant's complaint about the barking dog and his threats to take action about it. Inevitably there is something of a conflict in the evidence about what was and was not said. The Pottages made their way round to the boot of their car to retrieve their shopping. The claimant continued to complain. Mr Pottage began to lose patience and told the claimant to do whatever he had to do. The Pottages opened the boot of their car, at the very least appearing to ignore the claimant who continued to address them. Mr Pottage told him to "fuck off". The claimant returned to his own car and seized a crow bar. He returned to the Pottages. As Mr Pottage moved to stand up from the boot he was struck once with the crow bar. That blow caused his death. The claimant's version of events as narrated to the jury in the summing-up was this:

" "On Saturday, 6^th May I woke up at about 8:30 to the sound of the dog barking. I shouted 'shut up' from the window but it just made it worse. I never complained about it before. I like dogs, and I had no trouble with my other neighbour who in fact kept two. On that morning I intended to go with Alan Young my labourer to fetch some building materials but he was late. I was in a state of agitation about the dog and lots of other things and I wasn't sleeping very well".

"His wife, perhaps you may think, members of the jury, in an effort to take him away from the immediate scene and to calm him down, suggested that he go off to the news agent and get a paper whilst he was waiting for his belated workmate. He did so: "As I was driving I saw the Pottages coming the other way, and I decided I'd speak to Mr Pottage about the dog, so I turned round as soon as I could and followed them back to Elgar Way. I was concerned that the dog was an on-going nuisance because it was left repeatedly in the garden and the dog was distressed. I spoke to Mr Pottage as he was getting out of his car. Neither of them apologised. I said: 'the dog's disturbing me'. Reply: 'You will have to put up with it; it's a puppy'. Both continued walking to the boot of the car. 'I'll call the RSPCA', I said. 'Fine, do that,' said Mr Pottage. Mrs Pottage for her part spoke of the rubbish left by me in a back alleyway. Mr Pottage was leaning into the boot and he told me to fuck off before he lost his temper.' I said: 'Go on, lose your temper.' I don't know why I said that. Both said to me that I'd not lived in the close for very long and I should go back where I came from. I was a troublemaker. At that point I went to my car and got the crow bar which I kept there for possible self-defence. I intended to show it to Bill and Christine so they would take me seriously. I was not angry, just frustrated. I did not intend to hit anybody. I had not lost my temper. I said: 'Look at this. Listen to me.' As I approached them in that way they both jeered and said: 'What are you going to do with that? 'At that, I struck Mr Pottage. I had lost my temper at that point' ……….

"He agreed that he may have told Ken Reid that he had done it because he had lost his temper and that he said to Sergeant Henderson that he was already uptight and just flipped and hit him over the head."

" "I was uptight", he said, "because I was worrying over a number of things.

In cross-examination ……

He was asked: "Did you not tell Ken Reid that you'd lost your temper?" He said: "Yes", but although I told Ken Reid that I'd lost my temper, I do not think that was necessarily an accurate way for me to express my reason for striking Mr Pottage". ……

It was put to him finally: "You lost your temper because you believed the Pottages were making a mock of you". He said: "No. I did not.""

(2) The defence stance on provocation

9. Just why the defence 'disavowed' provocation as an explanation for the defendant's conduct is not entirely clear to me. Leading counsel who defended him was highly experienced. The correspondence between the Commission and junior defence counsel while confirming the stance they took at trial falls somewhat short of explaining 'why'. He does say that 'provocation' was inconsistent with counsels' instructions without explaining in what way. The two explanations (diminished responsibility and provocation) are certainly not mutually exclusive and given the developments in the law of provocation in relation to the relevance of an individual's 'characteristics', evidence as to an 'abnormality of the mind' may equally have a bearing on 'provocation'.
10. However the hearing before us proceeded on the basis that as no definitive explanation for the disavowal of 'provocation' had been sought from defence counsel it was inappropriate to impugn their conduct of the defence particularly as the judge was in law obliged to leave that issue to the jury.

(3) The judge's directions

11. The judge gave the jury written directions on both 'provocation' and 'diminished responsibility'. We have not seen the document relating to 'provocation' but those directions are clearly reflected in the transcript of the summing-up. It is clear that he gave the then conventional direction. Questions 2 and 3 were in these terms:

"2. Might that conduct have caused a reasonable sober person of the sex and age of this defendant to lose his self-control? You take into account everything said and done according to the effect which in your opinion it would have on a reasonable man.

"3. Might that conduct have caused a reasonable person who had lost his self-control to react and do as this defendant did in striking Mr Pottage with the crow bar?"

12. Before embarking upon his explanation of provocation and identifying the three relevant questions the judge had said this:

"You know from what Mr Harman, Queen's Counsel, on behalf of Mr Farnell said to you about 20 or 30 minutes ago that it is not suggested here for one moment by the defence that the question of provocation is this man's defence. It is not relied upon by Mr Harman; but nonetheless the law requires that where in the evidence there is some material, however slender or limited, which warrants it, it is the duty of the trial judge to give the jury an appropriate direction. For that reason even though Mr Harman expressly disavows it I now proceed to do so. Do you understand?"

13. Having identified the three questions which the jury had to consider the judge said:

"Members of the jury, before I read further you will remember that the defendant in this case in their closing address explicitly accepted that no reasonable person even if provoked by the Pottages' demeanour or response -- you remember the taunting, the disparaging of him, the making little of him, the question: "What are you going to do with that?" when he appeared with the crowbar – the defence explicitly accept that whatever your view as to the nature of the Pottages' response, no reasonable person would or might have reacted to it as this accused did in the circumstances; that is, by taking this crowbar and striking Mr Pottage as he did. In those circumstances, whilst of course as I have told you already it is my clear duty to leave the matter for you, the jury, to decide, you perhaps will not be troubled by consideration of it very long "

14. Finally, at the end of his observations and directions on provocation the judge addressed the jury as follows:

"Since, as I have just told you, ladies and gentlemen, the defence do not dispute that the prosecution has disproved provocation you may readily agree with Mr Harman that provided the prosecution have made you sure of the necessary intent to do really serious harm then the defence you should focus upon in this trial is one of diminished responsibility. I turn now to my directions as to that"

(4) 'Characteristics': the relevant law in March 1996

15. On July 20 1995 the House of Lords gave their decision in R v Morhall [1995] 3 WLR 330 (applying R v Camplin [1978] AC 705 HL). It was held that for the purposes of section 3 of the 1957 Act the jury should be directed by reference to a hypothetical person having the power of self-control of an ordinary person of the age and sex of the defendant but sharing such of the defendant's characteristics as they thought might affect the gravity of the provocation to him. In Morhall the defendant's addiction to glue-sniffing was of particular relevance since the deceased's words, said to constitute the provocation, were directed towards that addiction. Accordingly, the judge should have directed the jury to take it into account in considering whether a person with the ordinary person's power of self-control would react as the defendant had done. Lord Goff said (p 336):

" … in an appropriate case it may be necessary to refer to other circumstances affecting the gravity of the provocation to the defendant which do not strictly fall within the description "characteristics" as for example the defendants history or the circumstances in which he is placed at the relevant time (see Camplin p 717C-D per Lord Diplock where he referred to "the particular characteristics or circumstances of the defendant and at p 727D per Lord Simon of Glaisdale who referred to "the entire factual situation" including characteristics of the defendant.)"

Earlier in the same month the Court of Appeal in R v Humphreys [1995] 4 All ER 1008 had held that abnormal immaturity and attention seeking by wrist slashing were characteristics which the jury were entitled to take into account in determining whether a reasonable person in the accused's situation would have lost his self-control provided they were permanent characteristics which set the accused apart from the ordinary person in the community and were specifically relevant to the provocative words or actions relied on to constitute the defence. In R v Dryden [1995] 4 All EB 987 the court held that in the circumstances of that case the defendant's obsessiveness and his eccentric character "were features of his character or personality which fell into the category of mental charactertics … which ought to have been specifically left to the jury".

16. These decisions sufficiently reveal the state of the law at the time of the summing-up in the claimant's case. Was there material in the evidence of the psychiatrists which was relevant to a direction on 'provocation'? Certain passages in the summing up do appear to be relevant

Dr Mendelson:

"He was becoming increasingly depressed over the preceding two years to May 1996. He was miserable, irritable, sleepless, lacking in energy, and evincing a progressive social withdrawal; and so far as his professed intolerance of noise is concerned that is a significant characteristic of depression.

"He felt", he said, "that Mr Pottage was being aggressive, insulting and derisive to him and that that behaviour, coloured by his depression, led him to feel that he was being particularly belittled because", said Dr Mendelson, "one of the effects of depression is that it tends to make the person who suffers from it magnify and distort insults or perceived insults.

"I conclude that this man was suffering from a persistent depression, an abnormality of mind likely to be of sufficient severity substantially to impair his responsibility for the killing."

Dr Gordon:

"Lastly, there was Dr Gordon. "This man," he said, "has had a depressive illness for perhaps as long as five years. All the people to whom I spoke confirmed that he had undergone a change of demeanour especially in the last nine months before the killing. He described to me lack of concentration, sleeplessness, headaches, suicide thoughts, intolerance of noise, some loss of interest in his work, some loss of interest in his wife and children, irritability, and a preoccupation with a range of anxieties such as his neighbours and the state of his marriage, as well as the fact that he was being progressively cut off from the former closeness with his own mother and his three sisters."

"It is my opinion," said Dr Gordon, "that his depressive illness was of a severity to amount to an abnormality of mind and such as substantially to impair his mental responsibility for his actions."

……

"I think on a scale of mild, moderate or severe depression this man was at the material time suffering from a moderate depression. He would have had in my opinion a condition which severely restricted his capacity to control his actions ……"

17. Thus, there was evidence (albeit not accepted by the Crown's psychiatrists) that the claimant suffered from a depressive illness one effect of which upon the sufferer was a tendency to "magnify and distort insults or perceived insults" and another effect of which was to "severely" restrict "his capacity to control his actions". This evidence in my view was relevant to the issue of provocation. Furthermore it was capable of colouring in a way favourable to the claimant a jury's view of the claimant's conduct for which an alternative explanation (advanced by the Crown) was that here was a man who simply lost his temper.
18. These 'provocation' points were certainly before the jury but in the context of diminished responsibility. That explanation was for the defence to establish on a balance of probability, whereas 'provocation', once raised, must be disproved by the prosecution.

LATER DEVELOPMENTS: R V SMITH (MORGAN) (2001) AC 146 AND THE 'FRESH EVIDENCE'.

19. In Smith the jury had been directed in accordance with the decision of the Privy Council in Luc Thiet Thuan v R [1997] AC 131. The jury were told that if they considered that the accused might have been suffering from a depressive illness they should decide whether a man suffering from such illness but with a reasonable man's powers of self-control might have responded to the provocation as Smith did. The fact that the depressive illness may have reduced Smith's own powers of self-control was "neither here nor there" and should not be taken into account. The Court of Appeal having allowed the appeal against that direction certified this question:

"Are characteristics other than age and sex attributable to a reasonable man …… relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected?"

20. The House of Lords answered the question in the affirmative. Of the distinction between the gravity of the provocation and self control Lord Hoffman said (167C-D : 168B-G):

"The theoretical basis for the distinction is that provocation is a defence for people who are, as Professor Ashworth put it, "in a broad sense mentally normal": see [1976] CLJ 292, 312. If they claim that they had abnormal characteristics which reduced their powers of self-control, they should plead diminished responsibility ……

The difficulty about the practical application of this distinction in the law of provocation is that in many cases the two forms of claim are inextricably muddled up with each other ……

Besides these practical difficulties in explaining the distinction to the jury, I think it is wrong to assume that there is a neat dichotomy between the "ordinary person" contemplated by the law of provocation and the "abnormal person" contemplated by the law of diminished responsibility. The 1957 Act made a miscellany of changes of the law of homicide which can hardly be described as amounting to a coherent and interlocking scheme. Diminished responsibility as defined in section 2 ("such abnormality of mind … as substantially impaired his mental responsibility for his acts and omissions …") is a general defence which can apply whatever the circumstances of the killing and was introduced because of what was regarded as the undue strictness of the defence of insanity. Provocation is a defence which depends upon the circumstances of the killing and section 3 was introduced, as I have suggested, to legitimate the consideration by juries of "factors personal to the prisoner". If one asks whether Parliament contemplated that there might be an overlap between these two defences, I think that the realistic answer is that no one gave the matter a thought. But the possibility of overlap seems to me to follow inevitably from consigning the whole of the objective element in provocation to the jury. If the jury cannot be told that the law requires characteristics which could found a defence of diminished responsibility to be ignored in relation to the defence of provocation, there is no point in claiming that the defences are mutually exclusive.

There are in practice bound to be cases in which the accused will not be suffering from "abnormality of mind" within the meaning of section 2 ("a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal": R v Byrne [1960] 2 QB 396, 403) but will nevertheless have mental characteristics (temporary or permanent) which the jury might think should be taken into account for the purposes of the provocation defence. The boundary between the normal and abnormal is very often a matter of opinion. ……"

Later at p 174D-175D

"In my opinion, therefore, judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics. They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation. First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control. For better or for worse, section 3 left this part of the law untouched. Secondly, the fact that something caused him to lose self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition. In applying these standards of behaviour, the jury represent the community and decide, as Lord Diplock said in Camplin [1978] AC 705, 717, what degree of self-control "everyone is entitled to expect that his fellow citizens will exercise in society as it is today". ……

The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. In most cases, nothing more will need to be said. But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule. It may sometimes have to yield to a more important principle, which is to do justice in the particular case. So the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it."

Thus, in respect of Smith's depression the jury should have been told "that whether they took it into account in relation to the question of whether the behaviour of the accused had measured up to the standard of self-control which ought reasonably to have been expected of him was a matter for them to decide" (p 174E).

21. I turn next to the 'fresh evidence'. All four psychiatrists who gave evidence at the trial were invited by the commission to relate their findings as to 'diminished responsibility' to the issue of provocation. Dr Callinan who gave evidence for the Crown and has since retired from practice was unable to assist.

Dr Stone (letter 13.12.01):

"In my opinion Mr Farnell was not subject to any special characteristics which would have effected the degree of control that he could be expected to have exercised in the face of the provocation he encountered ……"

Dr Mendelson (letter 16.01.02):

The following is a summary of the doctor's views –

(i) The claimant did have special characteristics which would have affected the degree of control he would be expected to have exercised in the face of the provocation he encountered.

(ii) His depression would have caused him to magnify any perceived insult. When not depressed he would be unlikely to be so vulnerable to perceived insult. His emotional reaction to the actions of the Pottages would have been likely to have been uncharacteristically adverse and overwhelming.

(iii) His impulsivity would have been exacerbated by his depressive condition.

(iv) It is difficult reliably to speculate on the degree of effect these vulnerabilities would have had on his relevant actions.

Dr Gordon (letter 13.11.01):

(i) His abnormality of mind was a depressive illness.

(ii) One symptom of the depression is noise intolerance.

(iii) The effect of the depression could have been to render him more sensitive to the noise of the dog, more irritable in regard to the victim's apparent refusal to take his concerns seriously and more angry in the face of the victim's apparent unilateral termination of the argument.

(iv) Violent thoughts in depressed people are more often directed internally but may at times be expressed externally, the low self-esteem being temporarily connected by a powerful aggressive act directed to another. I am inclined to such a view in this instance.

(v) I have sought further to describe how aspects of the defendant's personality, vulnerability and depressed mental state may have contributed to his being liable to impairment in his degree of self-control in regard to any defence of provocation.

THE DECISION OF THE CCRC – 2 JULY 2002

22. The Commission did not consider that there was 'a real possibility' that the Court of Appeal would find that the conviction was unsafe. That decision was reached on the following basis:

(1) On the evidence at trial provocation was properly left to the jury (para 9.5).

(2) The Commission rejected the argument that the judge in effect had withdrawn the issue from the jury (para 9.5).

(3) There was no reason to suggest that the original decision not to run provocation was flawed. The Commission considered that "the defence took a tactical decision that they had a better evidential chance of establishing 'diminished responsibility' than provocation' (para 9.39).

(4) The new psychiatric reports provide "some support for the proposition that [the claimant] was subject to personal characteristics that are potentially relevant to a defence of provocation ……".

(5) The Commission did not consider that the "restatement of the law in Smith would have required the trial judge to direct the jury in such different terms as to give rise to any issue as to the safety of the conviction" (para 9.41) (para 10.3(17)).

(6) The proper question for the Commission is whether if the defence were now allowed to argue 'provocation' on appeal, there is a real possibility they would succeed (paras 9.39 and 10.3(16)).

(7) "The Commission has considered the factual basis for a defence of provocation and the psychiatric evidence regarding Mr Farnell's ability to control his actions. It does not consider that there is any real possibility that the Court of Appeal would find Mr Farnell's actions sufficiently excusable in the terms of the section 3 test to warrant a conviction of manslaughter and thus render the murder conviction unsafe" (para 9.40).

(8) The Commission must evaluate the weight of the evidence of provocation in determining whether the "real possibility" test is satisfied (paras 10.3(14).

(9) The Commission rejected the proposition (founded upon Franco v R PC Appeal No. 70 of 2000) that in cases of provocation where there is evidence ……. to be considered by a jury the Commission should abstain from making its own evaluation of the impact of the evidence upon the safety of the conviction (paras 9.10 and 10.3(14)).

(10) The Commission relied on R v Pendleton [2002] 1 WLR 72HL for identifying the test as to how the Court of Appeal should assess the significance of fresh evidence (para 9.11) and Stirland v DPP [1944] AC 315HL and Johnson Davis and Rowe [2001] 1 Cr App R[8] 115 for identifying the test in cases of misdirection for the Court of Appeal's determination as to the safety of the conviction (para 9.13).

(11) The 'evaluation' exercise led the Commission to conclude:

(a) The new psychiatric reports provide "no meaningful support to the proposition that [the claimant's personal characteristics] were such as to make [his] response reasonable within the terms of section 3 (para 9.25 and 10.3(12)).

(b) The fresh reports "underline that 'diminished responsibility was the appropriate defence and that [the case of] Smith (Morgan) does not change that position" (para 9.26).

(c) The psychiatric reports, read as a whole, are not considered by the Commission to be supportive of a possible defence of provocation (para 10.3(18)).

23. It is clear from the reasoning of the Commission that it proceeded on the basis (1) that 'provocation' was correctly left to the jury; (2) that the 'fresh reports' disclosed relevant 'characteristics' and (3) that those reports would be received by the Court of Appeal under section 23 (the 'fresh evidence' provisions). The Commission then evaluated all the evidence relevant to the issue of 'provocation' and concluded that there was not a real possibility that the Court of Appeal would find the claimant's actions "sufficiently excusable in the terms of the section 3 test to warrant a conviction of manslaughter and thus render the murder conviction unsafe".

CONCLUSIONS

(1) The summing up

24. Although provocation was left to the jury, it was left on the basis that because of the stance taken by the defence, troubling them with the issue was little more than a formality. In my judgment the issue should not have been left to the jury either on that basis or in those terms. The defendant was entitled to a full direction on the issue. The jury should have been told that 'provocation' was an issue in the case which they had to consider regardless of the defence stance. Some of the psychiatric evidence given at the trial did disclose a characteristic (namely the depressive illness) which was relevant to provocation even if such evidence was then regarded as being confined to the issue of the gravity of the provocation.

At the very least there was, for those two reasons, arguably a misdirection on 'provocation' having regard to the then current state of the law. Furthermore whereas it was for the defence to establish 'diminished responsibility' on a balance of probability it was for the prosecution to disprove/negative provocation.

(2) The impact of R v Smith (Morgan) and the fresh reports

25. The decision of the House of Lords in Smith puts beyond doubt the relevance of the depressive illness to the issue of provocation in this case – regardless of the issue of 'diminished responsibility'.

A direction which reflected both the evidence given at trial and the material in the fresh psychiatric reports would differ considerably from that given at trial.

The Crown's case at trial on the issue of provocation was that the defendant simply lost his temper. That case received significant support from the evidence of the defendant's wife. In his summing-up the judge said:

"She was asked in cross-examination: "Isn't your husband a man with a bad temper?" And there was a long pause, members of the jury as my note indicates, then she said or agreed: "That my husband over the years I've known him has on occasions displayed a fiery temper and mood swings, and although we had -- as she called -- it a couple of fights they were long ago early in our marriage and I'd provoked him. But," she said, "I agree that before the 6^th May 1995 he had arguments with Mr Reid who lives at number 8 and with Mr Brook who the plan shows lives at number 10. Also, I agree that he challenged Mrs Pottage on this earlier occasion because he believed that she was staring at him in an unwarranted way. It was not an unusual occurrence", she said, "for my husband to lose his temper. He just has a bad temper."

Once the evidence as to the depressive illness and its consequences is relevant to the issue of provocation, the defendant's conduct at the scene would have to be considered in a different and potentially more favourable light because the fact of the defendant being 'bad tempered' on this occasion may then have been explicable on a less adverse basis – namely on the basis of the depressive illness.

(3) The approach of the CCRC to the summing up

26. The Commission did not consider "on the basis of the facts of the case that the restatement of the law in Smith would have required the trial judge to direct the jury in such different terms as to give rise to any issue as to the safety of the conviction" (para 9.41). The rationale of this conclusion is to be found in the same paragraph:

"The contention that the trial judge's direction would now be considered incorrect has no merit as an issue in isolation. During the trial the defence indicated repeatedly that they were not contending that Mr Farnell had been provoked. Thus the trial judge concluded that although the law required him to provide directions on that subject …… the defence position meant the issue of provocation was perhaps unlikely to take them long to resolve. In the context of the information then available, the trial judge's comments appear to be an entirely fair representation of the law as it then was and the defence case as then put."

Thus the Commission's assessment of the impact of Smith on this case is heavily coloured by the stance of the defence to the issue of provocation. With that approach I am unable to agree. The jury would have received a very different direction as a result of Smith and whatever the stance taken by the defence the defendant was entitled to a full direction unqualified by any observations as to the marginal relevance of 'provocation' in the light of the defence case.

As Lord Steyn (dissenting) observed in Luc Thiet Thuau v R [1997] AC 157 at 157 (PC):

"The fact that the defendant failed to discharge the burden resting on him of proving diminished responsibility does not demonstrate how the jury reasoned in respect of provocation. It was for the jury to decide whether the prosecution had disproved the defence of provocation to a satisfactory standard. And the misdirection deprived the defendant of his best card, viz the relevance of brain damage tending to cause the defendant to over-react to minor provocation. In these circumstances it is impossible to apply the proviso."

(4) The tests applied in the Court of Appeal

27. Section 2(1) of the Criminal Appeal Act 1968 (as amended) provides that subject to the provisions of the Act, the Court of Appeal – "(a) shall allow an appeal against conviction if they think that the conviction is unsafe". This provision came into force on January 1^st 1996 following the repeal of the former section 2(1) which contained the 'proviso'. The House of Lords considered section 2(1) in Stafford v DPP [1974] AC 878 and in R v Pendleton [2002] 1 WLR 72 HL.

In Stafford at p 892 Viscount Dilhorne said (approving R v Cooper (S) [1969] 1 QB 267 at 271):

"That this is the effect of section 2(1)(a) is not to be doubted. The Court has to decide whether the verdict was unsafe or unsatisfactory and no different question has to be decided when the court allows fresh evidence to be called."

Like Stafford, Pendleton was a fresh evidence case. In each case the House of Lords rejected the submission that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury. The 'jury impact' test dates back to Stirland v DPP [1944] AC 315 at 321 in which the House of Lords held that this was the test to be applied in 'proviso' cases. In Stafford Viscount Dilhorne acknowledged (p 893) –

"It is well settled that the Court of Appeal should only apply the proviso to section 2(1) if it is of the opinion that, if the jury had been properly directed, it would inevitably have come to the same conclusion. While of course the proviso cannot be applied where the court thinks the verdict unsafe or unsatisfactory [counsel] argued that in a "fresh evidence" case the court should follow the same principle as that applicable to the proviso and only hold that a conviction was safe and satisfactory if they thought that a jury which heard the fresh evidence would inevitably have come to the conclusion that the accused was guilty. I cannot accept this argument. When the application of the proviso is under consideration something has gone wrong in the conduct of the trial. In a "fresh evidence" case nothing has gone wrong in the conduct of the trial and I see no warrant for importing the principles applicable to the proviso into the determination of whether a verdict is or is not safe and satisfactory. The words of Section 2(1)(a) are clear and unambiguous and they are the words which have to be applied."

At p 906 Viscount Dilhorne said:

"While, as I have said, the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence the ultimate responsibility rests with them and then alone for deciding this question."

In Pendleton however the House of Lords, while agreeing that the approach in Stafford was the correct approach, credited the 'jury impact' test with a "dual virtue" to which their Lordships in Stafford "perhaps gave somewhat inadequate recognition". At p 83F-G Lord Bingham said:

"First, it reminds the Court of Appeal that it is not and should never become the primary decision maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict. If it might the conviction must be thought to be unsafe."

28. Having reviewed the fresh evidence in Pendleton Lord Bingham expressed his conclusion (with which the others of the Lordships concurred) as follows (p 88D):

"In the light of these uncertainties and this fresh psychological evidence it is impossible to be sure that the conviction is safe and that is so whether the members of the House ask whether they themselves have reason to doubt the safety of the conviction or whether they ask whether the jury might have reached a different conclusion."

29. Lord Hobhouse in his speech, having observed that the change in the language of the statute had reinforced the reasoning in Stafford and showed that appeals are not to be allowed unless the Court of Appeal has itself made the requisite assessment and has itself concluded that the conviction is unsafe, at p 90D said:

"A mere risk that it is unsafe does not suffice: the appellant has to discharge a burden of persuasion and persuade the Court of Appeal that the conviction is unsafe."

Later (at p 90H-91A) Lord Hobhouse said:

" 'Unsafe' is an ordinary word of the English language. It connotes a risk of error or mistake or irregularity which exceeds a certain margin so as, to justify the description 'unsafe'. It involves a risk assessment …… where the conviction is after a trial, it is the trial and the verdict which are relevant. But in my judgment it is not right to attempt to look into the minds of the members of the jury. Their deliberation are secret and their precise and detailed reasoning is not known. For an appellate court to speculate whether hypothetically or actually is not appropriate. It is for the Court of Appeal to answer the direct and simply stated question: Do we think that the conviction was unsafe?"

30. Detectable in their Lordships speeches in Pendleton (in contrast to those in Stafford) is an unequivocal warning to the Court of Appeal that when applying the test based upon Stafford and later cases (as the Court of Appeal did in Pendleton) the court should not "stray beyond its true function" by trespassing on territory reserved only for the jury (as the Court of Appeal did in Pendleton). The point was emphasised by Lord Bingham at p 82H:

"[Counsel] is right to emphasise the central role of the jury in a trial on indictment. This is an important and greatly prized feature of our constitution. Trial by jury does not mean that by jury in the first instance and trial by judges in the Court of Appeal in the second. The Court of Appeal is entrusted with a power to be exercised with caution, mindful that [it] is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury."

31. Pendleton was not a 'provocation' case – Franco v R [2001] UKPC 38 (a 'proviso' case) was. At the heart of this challenge to the decision of the Commission is the submission that the 'unequivocal warning', to which I have just referred, has a special significance in cases of 'provocation' such that those cases should in effect be regarded as a class apart for the purposes of section 2(1) of the Criminal Appeal Act 1968. This approach was rejected by the Commission (para 9.10).
32. The high water mark of the submission is the case of Franco – a decision of the Privy Council which is not of course binding on the Court of Appeal (see: R v Campbell (Colin) [1997] 1 Cr App R 199 at 208) although the decision is of obvious persuasive authority.

The Commission sought to distinguish Franco in this way:

"9.8 Mr Farnell's case can be distinguished from that of Franco. In Franco's trial no defence of provocation was advanced and no direction was given to the jury despite clear evidence of provocative conduct by the deceased. In Mr Farnell's trial despite the defence acknowledging that provocation was not an issue, the question was left to the jury albeit unenthusiastically. In the Commission's view Franco does not give special status to evidence of provocation. It merely establishes that evidence of provocation however tenuous is to be put before the jury in the same way as other defence evidence."

As between the case of Franco and the claimant's case I do not consider that the distinction identified in para 9.8 is sustainable. It ignores the case where provocation, although left to the jury might just as well not have been left. Given the terms in which the judge left provocation to the jury in the claimant's case and given that the jury never considered the aspect of the issue which was most favourable to the claimant, there is much to be said for the view first that the jury are unlikely to have given the issue serious consideration and second that in any event the issue as presented to them was incomplete.

Franco was a 'proviso' case; 'provocation' had not been left to the jury when it should have been. The Crown sought the application of the proviso on the conventional basis that the court could be satisfied that the jury would inevitably have come to the same conclusion and returned the same verdict even if the error or irregularity complained of had not occurred (see: Stirland v DPP [1944] AC 315 at 321). "In other words section 3 of the 1957 Act and its equivalents raised no special problems." In support of that submission the Crown relied upon R v Cox [1995] 2 Cr App R 513. In Cox there was no direction upon provocation when there should have been and the proviso was applied. In Cox the court distinguished R v Whitfield (1976) 63 Cr App R 39 and in Franco the Privy Council preferred the reasoning in Whitfield – another case in which provocation was not left to the jury but should have been. In Whitfield the court declined to apply the proviso. At p 42 Lord Widgery said:

"We have thought a good deal about this because the point in a sense seems to be a new one. We are impressed by the fact that Parliament in the Act of 1957 has taken the unusual step of deliberately insisting that a particular issue shall be tried by the jury and no one else. In other words the reaction of the reasonable man must be assessed by the jury because the section says so.

In this case no jury had an opportunity of expressing a view on the point at the court of trial. There is no jury in this court. If we apply the proviso we are in fact determining that issue otherwise than by the verdict of the jury. Although we are not prepared to go to the length of saying the proviso is never appropriate in this kind of case we do not feel that it would be right to apply it in this case."

Expressly adopting this last observation in Whitfield, (and citing Williams (Cardinal) v R (1998) 53 WIR 162 as an example of such a case), the Board in Franco also emphasised the jury's particular role in section 3. Lord Bingham said (para 18):

"In the opinion of the Board, the reasoning of the Court of Appeal in R v Cox, above, does not give adequate weight to the intention of Parliament expressed in section 3 of the 1957 Act and its overseas equivalents. The starting point must always be that in a trial on indictment the jury is the body to which the all-important decisions on the guilt of the accused are entrusted. This does not mean that every deviation from procedural regularity and legal correctness vitiates a jury's verdict of guilty. That would impose an unattainable standard of perfection and frustrate to an unacceptable extent the effective administration of criminal justice. But it does mean that an appellate court, which is not the trial tribunal, should be very cautious in drawing inferences or making findings about how the jury would have resolved issues which, for whatever reason, were never before it. This is particularly so in the context of section 3, since Parliament has gone out of its way, unusually, to stipulate that resolution of the objective issue, where it properly arises, should be exclusively reserved to the jury. To the extent that an appellate court takes it upon itself to decide that issue it is doing what Parliament has said the jury should do, and section 3 cannot be read as applying only to the trial court."

The need to give 'adequate weight' to the intention of Parliament as expressed in section 3 was therefore first emphasised not by the Privy Council but by the Court of Appeal in Whitfield. This not unimportant point is not recognised by the Commission (see paras. 9.6-9.9).

The Board concluded (at para 20):

"It may very well be that the jury in the present case would still have convicted the appellant of murder even if fully directed on provocation. The verdict makes plain that they rejected his evidence that he killed the deceased in the course of defending himself. But it does not follow that they would have rejected a defence of provocation. There was clear evidence that the deceased had acted in a violent and aggressive manner towards the appellant very recently; there was evidence of provocative conduct on the evening in question; there was evidence possibly suggesting a loss of self-control. It cannot now be known how the jury would have resolved this issue had it been left to them, as it should. This is not a case in which it would be proper to apply the proviso."

33. The unequivocal warning sounded in Pendleton is thus afforded a tailor-made emphasis in Whitfield and in Franco in the particular context of section 3:

"…… the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

Thus the question is one of opinion not law and the relevant opinion is that of the jury (see R v Camplin [1978] AC at 716D-E; G-H). In R v Dhillon [1997] 2 Cr App R 104, another case in which 'provocation' was not left to the jury but should have been, giving the judgment of the court Ward LJ said (at p 114):

"There is now only one test: does the Court think that the conviction is safe or unsafe? In deciding that we must pay particular respect to the almost unique statutory requirement imposed by section 3 of the Homicide Act that the question whether the provocation was enough to make a reasonable man do as this accused did must be left to the jury."

34. That section 3 ascribes to the jury the decision upon the objective question is emphasised repeatedly in Smith (Morgan): see Lord Slynn at 155B-C; Lord Hoffman at 162G-163G; Lord Clyde at 175C-cf Lord Hobhouse at 206B. Lord Hoffman's observations at p 163A-C are particularly in point:

"I do not think it possible to attribute to Parliament, in making this change, any intention other than to legitimate the relaxation of the old law in those cases in which justice appeared to require it and to allow the jury in good conscience to arrive at a verdict which previously would have been perverse. In other words, the jury was given a normative as well as a fact-finding function. They were to determine not merely whether the behaviour of the accused complied with some legal standard but could determine for themselves what the standard in the particular case should be. In this way they could, as the Royal Commission said, "give weight to factors personal to the prisoner" in cases in which it appeared unjust not to do so.

It follows, in my opinion, that it would not be consistent with section 3 for the judge to tell the jury as a matter of law that they should ignore any factor or characteristic of the accused in deciding whether the objective element of provocation had been satisfied. That would be to trespass upon their province. In a case in which the jury might consider that only by virtue of that characteristic was the act in question sufficiently provocative, the effect of such a direction would be to withdraw the issue of provocation altogether and this would be contrary to the terms of section 3."

35. Against that background I return to the question which the Commission must address: 'what test will the Court of Appeal apply?'. Whether the issue is one of misdirection/non-direction and/or of 'fresh evidence', the starting point is Section 2(1) of the 1968 Act – the court "shall allow an appeal against conviction if they think it is unsafe". It is permissible for the court to test their provisional view by applying the 'jury impact' test. In 'fresh evidence' cases however the Court of Appeal must not fall into the temptation of converting itself into a jury. An evaluation of the 'fresh evidence' is not to be conducted with that end in view. This is particularly important in fresh evidence 'provocation' cases in which Parliament has given the jury not simply primacy but an unfettered freedom of decision.
36. In my judgment this necessary appellate sensitivity to 'fresh evidence' cases, and to section 3 'fresh evidence' cases in particular, is not reflected in the Commission's approach to the issue of 'provocation' in this case. There are clear indications in the Commission's reasoning that it considers that the Court of Appeal will consider the fresh evidence and resolve the issue of provocation as a jury would - for example para 9.40:

"[The Commission] does not consider that there is any real possibility that the Court of Appeal would find Mr Farnell's actions sufficiently excusable in the terms of the section 3 test, to warrant a conviction of manslaughter and thus render the murder conviction unsafe."

Later, at para 10.3(12): "[The Commission] does not consider [the psychiatric reports] support the proposition that the characteristics were such as to make Mr Farnell's response reasonable within the terms of section 3".

37. In this case the jury were given a half-hearted direction on provocation which did no more than pay lip service to the issue. Furthermore the most favourable aspect of the issue to the claimant namely, the relevant characteristic of his depressive illness, the jury were never invited to consider at all. It follows that the true issue of provocation as now formulated was never effectively before the jury. If the Court of Appeal were to find that the issue is properly formulated and so formulated was not before the jury, while it is possible the jury's verdict would still have been the same, the Commission must consider whether there is a real possibility that the Court of Appeal could not be sure of that bearing in mind (i) that the Court does not for this purpose function either as the jury or as a jury and must give 'adequate weight' to the intention of Parliament as expressed in section 3: R v Whitfield; R v Dhillon and Franco v R; (ii) that the claimant's case on provocation as currently formulated (see: R v Smith (Morgan)) was never before the jury; and (iii) had it been before the jury it would have been for the prosecution to disprove it.
38. In my judgment the Commission has misunderstood the role of the Court of Appeal in cases such as this and accordingly has misdirected itself as to the nature of the appellate exercise (para 9.40).
39. Furthermore the Commission has failed to recognise the shortcomings in the directions upon provocation which in my judgment are to be found in the summing up, certainly when measured against the current state of the law, because it has attached too much weight to the fact that the defence 'disavowed' provocation (para 9.41) and no weight at all to the fact that the claimant was entitled to a full direction on the issue, regardless of the defence stance to it, and in particular he was entitled to a direction which did not present the issue as, in effect, a formality to be quickly disposed of.
40. It follows that I am prepared to grant the relief sought to the extent that I would quash the decision of the Committee to refuse to refer the claimant's case to the Court of Appeal and I would remit the case to the Commission with a direction that it should be reconsidered having regard to the approach we have endeavoured to identify in our judgments.

Mr Justice Maurice Kay :

41. I agree that the passages in paragraph 9.40 and 10.3(12) of the decision of the Commission are misdirections as to the nature of the appellate process and that, for that reason, this application for judicial review succeeds. I also agree with Mitchell J about the form of relief. In reaching these conclusions I am mindful of the fact that they do not go as far as Mr. Owen's central submission. That is to the effect that, having found that (1) the fresh evidence of the psychiatrists is relevant to provocation; (2) it would be received by the Court of Appeal pursuant to section 23 of the Criminal Appeal Act 1968; and (3) the direction by the trial judge was defective in the light of Smith (Morgan) and other authorities, the Commission was bound to conclude that there is a real possibility that the Court Of Appeal would find the conviction to be unsafe because, in view of the preminence of the jury in relation to provocation, it would be inappropriate for the Court of Appeal even to engage in an evaluation of the evidence. In my judgment, that submission goes too far.
42. Section 2(1) of the Criminal Appeal Act 1968 requires the Court of Appeal to allow an appeal against conviction "if they think that the conviction is unsafe" but to dismiss the appeal in any other case. As Lord Hobhouse of Woodborough put it in Pendleton (at pp 89+1 – 90A):

"…..the sole criterion which the Court of Appeal is entitled to apply is that of what it thinks is the safety of the conviction. It has to make the assessment. That is made clear by the use of the words 'if they think'….Lord Bingham of Cornhill LJ put the point clearly in R v. Jones (Steven) [1997] 1 Cr App R 86, 94…..: 'It seems plain on the language of the statute and on authority that the court is obliged to exercise its own judgment in deciding whether, in the light of the new evidence, the conviction is unsafe'."

Section 2(1) is not disapplied in provocation cases. It is still for the Court of Appeal "to make the assessment". To suggest otherwise would be to emasculate the Court of Appeal in the performance of its statutory function. I do not understand Franco to have decided otherwise. Lord Bingham said in terms (para 17) that "there will be cases where the proviso may properly be applied even where the objective issue should have been but was not left to the jury". On the other hand, it clearly behoves the Court of Appeal to approach its task with particular caution in a provocation case because of the pre-eminence of the jury in relation to section 3 of the Homicide Act as interpreted in Camplin Morhall, Smith (Morgan) and elsewhere. A perusal of the judgments in all the recent decisions cited to us shows the Court of Appeal assessing and evaluating the material before it, with appropriate caution, so as to form its own view on the safety of the conviction. Dhillon is a very good example, as is Josephine Smith [2002] EWCA Crim 2671.

43. The significance of all this in the present case is that when the Commission carries out its predictive task of deciding whether there is a real possibility that a conviction would not be upheld if a reference were made to the Court of Appeal, it must do so in the expectation that the Court will evaluate the mater itself, but with the particular caution appropriate to a provocation case, at all time mindful of the pre-eminence of the jury's opinion.
44. I have considered whether the misdirections which we are attributing to the Commission might have been susceptible to the more benevolent interpretation that they simply represent a shorthand version of the correct predictive test. I also have in mind Mr. Owen's concession that, on any basis, this is not a strong provocation case. However, I have concluded that the passages in question were misdirections, that the decision not to refer must be quashed and that the Commission must reconsider the question whether or not to refer.
- - - - - - - - - - - - -

MR JUSTICE MITCHELL: For the reasons given in the judgment to be handed down, the Commission's decision of 2nd July 2002 not to refer Mr Farnell's application to the Court of Appeal will be quashed. The case will be remitted to the Commission with a direction that the case must be reconsidered having regard to the approach which we have identified in our judgments. So much for paragraphs 1 and 2 of the draft order. So far as costs are concerned, we make the orders set out in paragraphs 3 and 4.

Thank you both very much. Have you anything else to say?

MR VASSALL-ADAMS: The only further matter, my Lord, is that at present the situation is that leading counsel is away and will be away for best part of a month.

MR JUSTICE MITCHELL: Yes.

MR VASSALL-ADAMS: In the circumstances, I am asking for liberty to apply within 21 days in the event that the defendant seeks to certify a point in the House of Lords.

MR JUSTICE MITCHELL: Yes, all right. You will send it through as rapidly as possible presumably.