Practice and Procedure


PUBLISHED December 19, 2003

A judge's failure to specifically direct the jury in a murder case to take into account particular characteristics of the offender in considering the issue of provocation had not been fatal where the jury had been aware of the offender's particular characteristics; the jury would not have disregarded such characteristics when considering the issue of provocation.The third appellant (M) appealed against convictions for murder and attempted wounding with intent. The first appellant (B) appealed against conviction of doing acts tending and intending to pervert the course of public justice. M had been one of a group of five young men who had been charged with and convicted of various offences arising out of violent clashes between two groups of young men. It was the Crown's case that M, acting jointly with another man, had fatally stabbed one victim (A) and had, again acting jointly with another man, stabbed A's brother. B was M's father and the allegation against him was that he had procured a passport and airline ticket to enable M to flee the country. During the course of the trial, there had been two applications to sever the trial of B, both of which had been rejected. M contended that (1) the judge had failed to explain his jury directions in relation to provocation by reference to the particular facts of the case; (2) the judge, in giving jury directions on provocation, had failed to direct the jury on how to consider the "characteristics" of M when determining whether he had lost self control and stabbed A, or whether his actions in stabbing A had been reasonable in the circumstances, and (3) the judge had failed to give an adequate direction on the effect of lies told by M to the police at the stage when the jury had to consider the issue of provocation, as opposed to an earlier stage when the jury would have been considering whether M had in fact stabbed A. B contended that (4) the judge had erred in refusing to sever the trial of B from the trial of the other defendants.HELD: (1) The judge had emphasised to the jury the various matters which might have caused M to lose his self control, namely the use of CS gas against him, punching, kicking or the use of a knife against him. The judge had also reminded the jury of M's assertion that he had been stabbed prior to his stabbing of A. The jury had had the evidence of the particular facts of the case well in mind when they were considering the issue of provocation. (2) The judge's summing up on provocation had been adequate. Although the judge did not expressly direct the jury to take into account particular characteristics of M in considering whether he had lost his self control and whether such loss of self control was justified, the jury were aware of M's characteristics such as his age, size and sex. The jury would not have disregarded such characteristics when considering the issue of provocation. (3) The judge had had a difficult task in directing the jury. The direction in relation to provocation in the light of M's lies to the police could have been more directly dealt with. However, the judge had emphasised the need for caution in relation to drawing adverse inferences from any of the alleged lies, he had directed that the jury had to be satisfied that the alleged lie was told in relation to the particular offence the jury were considering, and he had emphasised that M's case was that he had not stabbed A at all. Moreover, the Crown had not been seeking to rely on any of the alleged lies in order to disprove provocation. The summing up had been adequate and M's conviction was safe. (4) The judge had been correct to conclude that the trial of B should not be severed because the charges against the son and the father had the same foundation of fact and the rule was that such charges should normally be tried together. There was a positive advantage in having a joint trial as it enabled the jury to see the whole picture.Appeals dismissed.

[2003] EWCA Crim 3713