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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pagett, R. v [1983] EWCA Crim 1 (03 February 1983) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1983/1.html Cite as: (1983) 76 Cr App R 279, [1983] Crim LR 394, [1983] EWCA Crim 1 |
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CRIMINAL DIVISION
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B e f o r e :
MR. JUSTICE CANTLEY
and
MR. JUSTICE FARQUHARSON
____________________
R E G I N A |
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v |
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DAVID KEITH ![]() ![]() |
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Whitefriars Street, Fleet Street, London EC4Y 8BH. Telephone Number: O1-583 7635.
Shorthand Writers to the Court. )
R.
ALLEN appeared on behalf of the Appellant.
MR. M. BOWLEY Q. C. appeared on behalf of the Crown.
____________________
Crown Copyright ©
(As approved by judge)
On 27th March, 1981 the appellant, David Keith Pagett
, was convicted, after a trial before Mr. Justice Park and a jury, on a number of counts relating to very serious offences — one count of possession of a firearm with intent to endanger life; two counts of kidnapping; three counts of attempted murder; and one count of manslaughter. On each count he was sentenced to a term of 12 years' imprisonment concurrent.
The two officers retreated to the top landing. It was very dark up there. D. S. Sartain walked along the landing, but could see nothing downstairs; he returned to D. C. Richards at the top of the stairs. He stood by the banister. D. C. Richards was on his right. They could see practically nothing. They could hear the appellant threatening to kill them. The appellant said to Gail: "Talk to them, they don't think I mean it. " Gail screamed: "he is going to kill me. " The appellant shouted out words to the effect that they were testing him and he was going to show them. A figure loomed round the corner on the upper flight of the stairs and started coming up towards the police officers. As D. C. Richards shouted to the appellant to stand still, the appellant fired his shotgun. D. S. Sartain fired two shots, and D. C. Richards fired four. There was another shotgun blast from the appellant. D. C. Richards fired two more shots, and D. S. Sartain one. The officers had fired their guns instinctively, not taking any particular aim. Gail shouted: "You've
shot me. You'
ve
shot me. " As D. C. Richards was reloading his gun, D. S. Sartain ran down the stairs. D. C. Richards followed. They found the appellant sitting on the floor at the corner of the landing, with Gail sitting on top of him. The shotgun was on the floor: D. S. Sartain slid it out of the appellant's reach. Thirteen unused cartridges were later found in the appellant's pocket. It was plain that he had been using Gail as a shield as he went up the stairs, though the police officers could not see this. She received three bullet wounds, of which she later died. The appellant was unharmed by the bullets fired by the police officers. Very fortunately, the two police officers were unharmed by the shots fired by the appellant, which struck the banister and were deflected up towards the ceiling.
"A person who unlawfully and deliberately causes the death of another person intending to kill or to do serious bodily harm to that person is guilty of murder, and so in the present case the prosecution have to prove beyond all reasonable doubt two things: first that by his unlawful and deliberate acts the defendant caused Gail's death or was a cause of her death. Secondly, in doing those acts he intended to kill or to do serious bodily harm to her. "
"Now, Members of the Jury, if you were satisfied that he did those 2 unlawful and deliberate acts, the question now becomes whether by those acts he caused or was a cause of Gail's death. It sometimes happens that difficult questions arise when a jury has to decide whether something is a cause of the death of the victim. This is just such a case. In those circumstances it is for me to decide as a question of law whether by his unlawful and deliberate acts the defendant caused or was a cause of Gail's death, but the answer to that question of law depends upon findings of fact which you alone can decide, and accordingly I have to direct you that if you find the facts I am about to mention proved beyond all reasonable doubt, then the defendant would have caused or been a cause of Gail's death. It might help you if I explain that the act of an accused person on the charge of murder need not be the sole cause or even the main cause of the death of the victim. It is not necessary to prove actual physical violence on the victim by the accused, but let me illustrate that point by an old case which came before the courts years and years ago. A man quarrelled with the woman he was living with. He ran towards her in order to hit her but he did not succeed in doing so. In fear or in retreat from the attack she jumped or fell from a window and was killed. The courts held that he, although he had not laid a finger on her, was a cause of her death.
"I turn now to the question whether the defendant caused or was a cause of Gail's death. I am going to mention the facts. If you are sure that the following facts have been proved beyond all reasonable doubt, then the defendant would have caused or would have been a cause of Gail's death. First of all, that he fired the shot-gun deliberately at the police officers before any shot was fired by them. In other words, sure that he fired first. Secondly that his act in firing at the police officers caused them to fire back with the result that bullets from their weapons shot Gail and caused her death. Next, that in firing back for that reason the police acted reasonably either by way of self-defence or in the performance of their duty as police officers, or both. I will explain that in a little more detail in a moment. Lastly, that from the beginning to the end of the firing Gail was being used against her will and by force by the defendant as a shield to protect him from any shots fired by the police. If you are not sure about any of those matters, acquit him, and you will acquit him of course because the chain which links his deliberate and unlawful acts with Gail's death will have been broken. "
Finally, in connection with the count of murder, he gave the following direction on the necessary intent (plainly founded upon Hyam v.
D. P. P. (1975) A C 55):
"Members of the jury, if you were satisfied by the evidence so that you felt sure that the defendant caused or was a cause of Gail's death, the prosecution must next satisfy you on the charge of murder that by his deliberate and unlawful acts he intended either to kill Gail or to cause her really serious bodily harm. In other words, they must satisfy you that he acted with a willingness in his mind to produce, as a consequence of what he did, either the death of Gail or serious bodily injury to her.
"The prosecution will have established the necessary intent if they satisfy you that in doing what he did, he knew that it was probable that his unlawful acts would result in Gail's death or in really serious bodily harm to her.
"I have used the word 'knew'. Another word which expresses equally well the state of mind which has to be proved is 'foresaw'; he foresaw that it was probable that his unlawful acts would result in Gail's death or in really serious bodily harm to her. "
Having directed the jury on the count of murder, the learned judge turned to the alternative count of manslaughter. Here he gave a direction (obviously founded upon D. P. P. v.
Newbury (1977) A C 500) as follows: "A person would be guilty of manslaughter if he intentionally did an act which was unlawful and dangerous, and that act caused the death of another person. For this purpose — the purpose of the charge of manslaughter — the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to the risk of some harm resulting from it, albeit not serious harm. On a charge of manslaughter it is not necessary to prove that the accused knew that his act or acts were unlawful, nor is it necessary to prove that he knew his acts were dangerous.
"So if you were sure in this case that the two unlawful acts — the assault on the police by firing at them and the assault on Gail — considered in the way I have described, caused Gail's death and that they were acts which all sober and reasonable people would inevitably recognise would subject Gail to the risk of some harm, then the defendant would be guilty of manslaughter. "
(1) The learned judge erred in law in directing that the jury must as a matter of law find that the appellant caused the death of the deceased, if they were satisfied as to the four matters of fact which he sets out. The learned judge ought rather to have left it to the jury to determine as an issue of fact whether the defendant's act in firing at the police officers was a substantial, or operative, or imputable, cause of the death of the deceased.
(2) In the alternative, if the learned judge was correct in himself determining as a matter of law what facts would amount to causation of the death by the appellant, he ought to have held that the appellant had not in the circumstances of this case caused the death of the deceased. The learned judge, in directing himself upon the law, ought to have held that where the act which immediately-resulted in fatal injury was the act of another party, albeit in legitimate self-defence, then the ensuing death was too remote or indirect to be imputed to the original aggressor.
(3) If the learned judge's direction as to causation was correct, then he erred in law in directing the jury that they could bring in an alternative verdict of manslaughter. The requirement that the jury had to be satisfied that the deceased was being used by the appellant as a shield required the jury to apply a test which was the same or very similar to the test of mens rea in murder.
The United States authorities cited to us, which reflect some diversity of judicial opinion, were concerned with the question whether an accused person could be convicted of the murder or manslaughter of a person by shooting, where the fatal shot was fired not by the accused but by some other person. In Commonwealth v.
Almeida 362 Pa. 596 (1949), a case concerned with a robbery in the course of which shots were exchanged with police officers and a police officer was killed, the accused (one of the robbers) was convicted of the murder of the police officer. It was held by the Supreme Court of Pennsylvania, following dicta in the earlier case of Commonwealth
v.
Moyer 357 Pa. l8l (1947), that it was immaterial whether the shot which killed the police officer was fired by one of the robbers or by a police officer, the circumstances being such that the police officers were acting both in justifiable self-defence and in the performance of their duty. In these circumstances, even if the fatal shot was fired by one of the police officers, "The felonious acts of the robbers in firing shots at the policemen, well knowing that their fire would be returned, as it should have been, was (sic) the proximate cause of Officer Ingling's death". The point was, as appears from this brief quotation, considered by the court to raise a question of causation. The decision was subsequently followed in Commonwealth
v.
Thomas 382 Pa. 639. However, in Commonwealth
v.
Redline 137 Atl. (2d. ) (Pa. ) (1958), the earlier case of Thomas was overruled, and Almeida itself, although not formally overruled, was plainly disapproved by the majority of the court. In Redline, it fell to the court to consider a case of armed robbery which gave rise to a gun battle between the robbers and police officers, in the course of which one of the robbers was killed by a bullet fired by one of the police officers. A majority of the Supreme Court of Pennsylvania held (following a number of earlier authorities, including in particular Commonwealth
v.
Campbell 89 Mass, 541 (1863), Butler
v.
The People 125 Ill. 64l (1888), and Commonwealth
v.
Moore 121 Ky. 97 (1905)) that the conviction of one of the robbers for the murder of the deceased robber could not stand, the fatal shot not having been fired by him but by another person with whom he was not acting in concert. It was on this case in particular, and on the earlier cases cited in it, that Lord Gifford founded his argument in the present case.
"The legal situation which for years obtained in this State in cases of felony-murder was aptly epitomized by Mr. Justice Parker in Commonwealth v.
Guida 341 Pa. 505, 308, 19 A. 2d. 100, as follows: '.... if a person killed another in doing or attempting to do another act, and if the act done or attempted to be done was a felony, the killing was murder. There was thus supplied the state of mind called malice which was essential to constitute murder. The malice of the initial offense attaches to whatever else the criminal may do in connection therewith. '.... And so, until the decision of this court in Commonwealth
v.
Almeida...., the rule which was uniformly followed, whether by express statement or by implication, was that in order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. " It was this principle, reflected in the earlier cases, which was reaffirmed in the case of Redline.
We turn to the first ground of appeal, which is that the learned judge erred in directing the jury that it was for him to decide as a matter of law whether by his unlawful and deliberate acts the appellant caused or was a cause of Gail Kinchen's death. It is right to observe that this direction of the learned judge followed upon a discussion with counsel, in the absence of the jury; though the appellant, having dismissed his own counsel, was for this purpose without legal representation. In the course of this discussion, counsel for the prosecution referred the learned judge to a passage in Professor Smith and Professor Hogan's Criminal Law, 4th ed., at page 272, which reads as follows: "Causation is a question of both fact and law. D's act cannot be held to be the cause of an event if the event would have occurred without it. The act, that is, must be a sine qua non of the event and whether it is so is a question of fact. But there are many-acts which are sine qua non of a homicide and yet are not either in law, or in ordinary parlance, the cause of it. If I invite P to dinner and he is run over and killed on the way, my invitation may be a sine qua non of his death, but no one would say I killed him and I have not caused his death in law. Whether a particular act which is a sine qua non of an alleged actus reus is also a cause of it is a question of law. Where the facts are admitted the judge may direct the jury that a particular act did, or did not, cause a particular result. " There follows a reference to R. v.
Jordan (1956) 40 Cr. App. E. 152.
There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused's own act, does not operate as a novus actus interveniens. If authority is needed for this almost self-evident proposition, it is to be found in such cases as R. v.
Pitts (1842) C. & M. 284, and
R. v.
Curley (1909) 2 Cr. App.
R.
96. In both these cases. the act performed for the purpose of self-preservation consisted of an act by the victim in attempting to escape from the violence of the accused, which in fact resulted in the victim's death. In each case it was held as a matter of law that, if the victim acted in a reasonable attempt to escape the violence of the accused, the death of the victim was caused by the act of the accused. Now one form of self-preservation is self-defence; for present purposes, we can see no distinction in principle between an attempt to escape the consequences of the accused's act, and a response which takes the form of self-defence. Furthermore, in our judgment, if a reasonable act of self-defence against the act of the accused causes the death of a third party, we can see no reason in principle why the act of self-defence, being an involuntary act caused by the act of the accused, should relieve the accused from criminal responsibility for the death of the third party. Of course, it does not necessarily follow that the accused will be guilty of the murder, or even of the manslaughter, of the third party; though in the majority of cases he is likely to be guilty at least of manslaughter. Whether he is guilty of murder or manslaughter will depend upon the question whether all the ingredients of the relevant offence have been proved; in particular, on a charge of murder, it will be necessary that the accused had the necessary intent, on the principles stated by the House of Lords in Hyam
v.
D. P. P. (1975) A C 55.
No English authority was cited to us, nor we think to the learned judge, in support of the proposition that an act done in the execution of a legal duty, again of course being an act itself caused by the act of the accused, does not operate as a novus actus interveniens. Before the judge, the cases relied on by the prosecution in support of this proposition were the two Pennsylvanian cases already referred to, Commonwealth v.
Moyer and Commonwealth
v.
Almeida. However, since the case of Redline, neither of these cases can be regarded as authority in the State of Pennsylvania: Redline was not cited to the learned judge, we suspect because it is not referred to in Hart and Honore's Causation in the Law, almost certainly because the report of Redline was not available to the learned authors when their treatise went to the press. Even so, we agree with the learned judge that the proposition is sound in law, because as a matter of principle such an act cannot be regarded as a voluntary act independent of the wrongful act of the accused. A parallel may be drawn with the so-called "rescue" cases in the law of negligence, where a wrongdoer may be held liable in negligence to a third party who suffers injury in going to the rescue of a person who has been put in danger by the defendant's negligent act. Where, for example, a police officer in the execution of his duty acts to prevent a crime, or to apprehend a person suspected of a crime, the case is surely a fortiori. Of course, it is inherent in the requirement that the police officer, or other person, must be acting in the execution of his duty that his act should be reasonable in all the circumstances: see section 3 of the Criminal Law Act, 1967. Furthermore, once again we are only considering the issue of causation. If intervention by a third party in the execution of a legal duty, caused by the act of the accused, results in the death of the victim, the question whether the accused is guilty of the murder or manslaughter of the victim must depend on whether the necessary ingredients of the relevant offence have been proved against the accused, including in particular, in the case of murder, whether the accused had the necessary intent.
The principles which we have stated are principles of law. This is plain from, for example, the case of Pitts, to which we have already referred. It follows that where, in any particular case, there is an issue concerned with what we have for convenience called novus actus interveniens, it will be appropriate for the judge to direct the jury in accordance with these principles. It does not however follow that it is accurate to state broadly that causation is a question of law. On the contrary, generally speaking causation is a question of fact for the jury. Thus in, for example, R. v.
Towers (1874) 12 Cox C. C. 530, the accused struck a woman; she screamed loudly, and a child whom she was then nursing turned black in the face, and from that day until it died suffered from convulsions. The question whether the death of the child was caused by the act of the accused was left by the judge to the jury to decide as a question of fact. But that does not mean that there are no principles of law relating to causation, so that no directions on law are ever to be given to a jury on the question of causation. On the contrary, we have already pointed out one familiar direction which is given on causation, which is that the accused's act need not be the sole, or even the main, cause of the victim's death for his act to be held to have caused the death. Similarly, it was held by this court in the case of
R. v.
Blaue (1975) 6l Cr. App.
R.
271 that "It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious belief which inhibited her from accepting certain kinds of treatment was unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death. " (See at page 274 per Lord Justice Lawton delivering the judgment of the court. ) This was plainly a statement of a principle of law. Likewise, in cases where there is an issue whether the act of the victim or of a third party constituted a novus actus interveniens, breaking the causal connection between the act of the accused and the death of the victim, it would be appropriate for the judge to direct the jury, of course in the most simple terms, in accordance with the legal principles which they have to apply. It would then fall to the jury to decide the relevant factual issues which, identified with reference to those legal principles, will lead to the conclusion whether or not the prosecution have established the guilt of the accused of the crime of which he is charged.
It was submitted by Lord Gifford that any such conclusion would be contrary to the principles stated by the House of Lords in D. P. P. v.
Stonehouse (1978) A. C. 55. In that case, which was concerned with an attempt to obtain property by deception, the trial judge directed the jury that certain conduct of the accused, if proved, would in law constitute the actus reus of an attempt. It was held by a majority of the House of Lords that the judge must leave it to the jury to decide on the evidence whether or not the accused had committed the alleged attempt, and the judge may not even direct the jury that, if certain acts are proved to their satisfaction, they must amount in law to an attempt. However that case simply exemplifies in a particular context the well-established principle that it is the function of the judge to direct the jury on the applicable law, and that he must not deprive the jury of their function to decide, on the law so stated to them, whether in fact the relevant offence has been committed. That principle does not conflict with what we have just stated with regard to the law of causation, which is consistent with the general approach that it is for the judge to direct the jury with reference to the relevant principles of law relating to causation, and then to leave it to the jury to decide, in the light of those principles, whether or not the relevant causal link has been established.
We turn finally to the third ground of appeal, which was that the learned judge erred in law in directing the jury that they could bring in an alternative verdict of manslaughter, because the requirement that the jury had to be satisfied that Gail Kinchen was being used by the appellant as a shield required the jury to apply a test which was the same as or very similar to the law of mens rea in murder. We can deal with this point quite shortly. In our judgment, even in circumstances such as these, the mens rea for murder and manslaughter are not the same. In the case of murder, the test (as stated by Lord Hailsham in Hyam v. D. P. P. (1975) A C 55 at pages 73-79) is "a subjective test of what was the state of mind of the accused". Before the act can be murder it must be "aimed at someone" and must in addition "be an act committed with one of the following intentions, the test of which is always subjective to the actual defendant:
"(i) The intention to cause death;
"(ii) The intention to cause grievous bodily harm in the sense of that term explained in Smith (1961) A. C. 290, at page 335, i. e., really serious injury; "
(iii) Where the defendant knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts..... "
LORD JUSTICE ROBERT GOFF: That is quite right.
LORD JUSTICE ROBERT GOFF: Secondly, the date we have provisionally in mind is Friday fortnight.
MR. ALLEN: That is l8th February.
MR. ALLEN: I will take that date from the court back to my clerk.
LORD JUSTICE ROBERT GOFF: It is actually the only date when Mr. Justice Farquharson can be here.