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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Thornton, R. v [1995] EWCA Crim 6 (13 December 1995) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1995/6.html Cite as: [1996] 2 Cr App R 108, [1996] WLR 1174, [1995] EWCA Crim 6, [1996] 1 WLR 1174, [1996] 2 All ER 1023, [1996] 2 Cr App Rep 108 |
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THE COURT OF APPEAL (CRIMINAL DIVISION)
The Strand London WC2 |
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B e f o r e :
(Lord Taylor of Gosforth)
MR JUSTICE HIDDEN
and
MRS JUSTICE EBSWORTH
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R E G I N A | ||
- v - | ||
SARA THORNTON |
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John Larking, Chancery House, Chancery Lane, London WC2
Telephone 0171-404 7464
(Official Shorthand Writers to the Court)
behalf of THE APPELLANT
MR B ESCOTT COX QC and MR J GIBSON appeared on behalf of THE CROWN
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Crown Copyright ©
Wednesday 13 December 1995
THE LORD CHIEF JUSTICE: Sara Thornton appeals against her conviction of murdering her husband Malcolm Thornton. The case has been referred to the Court by the Secretary of State pursuant to Section 17 of the Criminal Appeal Act 1968. The appellant was convicted on 23 February 1990 at Birmingham Crown Court after a nine-day trial. There was an appeal which was dismissed by a different constitution of this Court on 29 July 1991. Subsequently, representations were made to the Secretary of State on the appellant's behalf. They were based primarily upon further medical evidence and its impact on the defence of provocation, a defence which was not relied upon by the appellant at her trial although it was left to the jury by the judge.
She met the deceased, her second husband, in May 1987. Like her, he had been married before and he had a son Martin aged 18. The appellant and the deceased began living together in the Autumn of 1987 and were married in August 1988. Even before the marriage, it was clear that the deceased had a serious drink problem. He underwent treatment for alcoholism but his condition and behaviour deteriorated in 1989. As a result the marriage was stormy. There were angry arguments when the deceased was drunk and he used violence to the appellant. In her evidence she described a number of assaults. It is unnecessary to specify all the incidents prior to the final weekend but about 20 May the appellant left the house (which was in their joint names) after the deceased had punched her in the face and knocked her out. She reported that incident to the police and the deceased was charged with assault. The case was pending at the time of his death. After the appellant left, the deceased's son Martin came to stay at the house. On 26 May the appellant and her daughter returned.
On 11 June she returned home accompanied by Mrs Thomas. The deceased had been drinking and there was an angry altercation. It continued after Mrs Thomas left. The deceased picked up a guitar and threatened to hit the appellant with it. She had a kitchen knife in her hand. According to Martin, she said "You touch my daughter, you bastard, and I'll kill you", pointing the knife at the deceased and holding it in both hands. Martin claimed he had to take the knife from her. The appellant's account was that she had the knife in the normal course of preparing lunch, that she made no threat to kill the deceased and was not disarmed by Martin. On the same day, when the deceased was in the bath, the appellant gave him Mogadon tablets. Martin saw her administer two, but she crushed four more and concealed them amongst pieces of chicken she fed to the deceased. She then telephoned the doctor saying he had taken an overdose and was suicidal which, as she admitted in evidence, was a deliberate lie. An ambulance and the police were called but the deceased refused to go to hospital. After they left there was an angry scene. The deceased threw a chair which broke the glass in the kitchen door. The police were called again.
Question: "Did he beat you up tonight?"
Question: "Did he threaten to?"
In her interviews with the police she said repeatedly she only intended to frighten her husband.
At her trial the appellant did not seek a verdict of not guilty but relied upon diminished responsibility to found a verdict of manslaughter. Three psychiatrists were called: Dr Bullard and Professor Brandon for the defence and Dr Brockman for the Crown. All of them agreed that the appellant's personality disorder could be regarded as an abnormality of mind. The issue between them was as to whether that abnormality substantially impaired the appellant's mental responsibility.
Nevertheless, there is no doubt that the appellant had been subjected over a period to violence and abuse by her alcoholic husband and, on her evidence, abuse and threats were levelled at her shortly before the stabbing. In those circumstances the trial judge considered he had a duty to leave provocation as an issue for the jury's consideration. He was clearly right to do so. (See Hopper 11 Cr App R 136; Bullard 1957 AC 635 and most recently Rossiter 95 Cr App R 326).
"I come now to the question of loss of control and provocation. It is my duty to mention this to you, members of the jury, (because) you will notice that (counsel for the defence) did not address you on the basis of provocation and it will I think be obvious to you why in a moment, when you have heard what I have to say to you about it. Members of the jury, the word provocation in ordinary language is used pretty freely and not always very appropriately."
The judge then gave an example of colloquial use of the word "provocative". He continued:
"You are not being asked to consider 'did he lead her a miserable life?' whether you think he did or not on the evidence. Nor are you asking yourself 'does she deserve sympathy?' because that is not the issue in the case. For the purposes of the charge of murder, provocation consists of some act or series of acts done or words spoken or a continuation of words and acts which causes in the particular defendant a sudden and temporary loss of self-control and which would have caused a reasonable, sober person to lose her self-control and to behave as the defendant behaved. So there are two questions. The first question is whether the provocative conduct, such as it was, if there was any, caused the defendant to lose her self-control. There has to be a sudden loss of self-control. The defendant herself asserts that there was no sudden loss of self-control. Members of the jury, that no doubt is why (counsel for the defence) did not address you and invite you to consider provocation. But, even if that were the case, there would still be the second part.
The second question is whether the provocative act would have caused a reasonable, sober person to lose her self-control and behave as the defendant behaved and on this, of course, you would take into account the whole picture, the whole story, everything that was said, possibly anything that was done, if there was anything done, on this night, according to the effect it would have on a reasonable, sober woman in the position in which the defendant believed herself to be and, of course, a reasonable, sober woman, like a reasonable, sober man, is expected to have ordinary powers of self-control, normal powers expected of a person of the sex and age of the particular defendant and sharing her characteristics as you have been able to discover them.
Members of the jury, so far as this aspect is concerned, even if Mrs Thornton had lost her self-control, you would still have to ask whether a reasonable women in her position would have done what she did and, if you think (and this is for you to say) that she went out and found a knife and went back into the room and as a result of something said to her, stabbed her husband as he lay defenceless on that settee, deep into his stomach, it may be very difficult to come to the conclusion that that was, and I use the shorthand, a reasonable reaction. There are.... many unhappy, indeed miserable, husbands and wives. It is a fact of life. It has to be faced, members of the jury. But on the whole it is hardly reasonable, you may think, to stab them fatally when there are other alternatives available, like walking out or going upstairs."
A number of criticisms of that passage were made on the first appeal. Principally it was submitted the trial judge was wrong to direct the jury that, for the defence to succeed, the provocative words or conduct have to have caused in the defendant "a sudden and temporary loss of self-control". That concept was said to be too rigid. In rejecting the submission this Court traced the concept from a dictum of Tindal CJ in Hayward [1833] 6 C & P 157 through the well known direction of Devlin J approved by this Court in Duffy [1949] 1 All ER 932 up to the present day (see Thornton 96 Cr App R 112 at pages 117-119).
In Ahluwalia 96 Cr App R 133 at pages 137-139, there was again a challenge to a summing-up which was in accordance with the Duffy direction. It was argued that a woman subjected over a period to verbal and physical abuse may kill her abuser because of a "slow burn" reaction to the cumulative maltreatment rather than because of a sudden and temporary loss of self-control and the concept of provocation should accommodate such a case. In rejecting that argument, this Court said:
"The phrase 'sudden and temporary loss of self-control' encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase. It serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind. Counsel suggested that the phrase might lead the jury to think provocation could not arise for consideration unless the defendant's act followed immediately upon the acts or words which constituted the alleged provocation. .....
Nevertheless, it is open to the judge, when deciding whether there is any evidence of provocation to be left to the jury and open to the jury when considering such evidence, to take account of the interval between the provocative conduct and the reaction of the defendant to it. Time for reflection may show that after the provocative conduct made its impact on the mind of the defendant, he or she kept or regained self-control. The passage of time following the provocation may also show that the subsequent attack was planned or based on motives, such as revenge or punishment, inconsistent with the loss of self-control and therefore the defence of provocation. In some cases, such an interval may wholly undermine the defence of provocation; that, however, depends entirely on the facts of the individual case and is not a principle of law. ........
We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of a delayed reaction in such cases, provided that there was at the time of the killing a 'sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it would be that the prosecution would negative provocation. ......
Counsel's argument in support of this ground of appeal amounted in reality to an invitation to this Court to change the law. We are bound by the previous decisions of this Court to which reference has been made, unless we were convinced that they were wholly wrong. Where a particular principle of law has been reaffirmed so many times and applied so generally over such a long period, it must be a matter for Parliament to consider any change. There are important considerations of public policy which would be involved should provocation be redefined so as possibly to blur the distinction between sudden loss of self-control and deliberate retribution".
As to the background relevance, the trial judge told the jury in the present case to "take into account the whole picture, the whole story" and he reviewed the evidence of abuse both verbal and physical which the appellant had endured from the deceased over the whole period of their brief marriage. Criticism that the judge had confined the jury to considering what occurred on the fatal night was rejected by this Court as were all other criticisms of the summing up made on the first appeal.
What then is new on this appeal? Mr Mansfield sought leave to adduce further medical evidence. No objection was made by Mr Escott-Cox for the Crown and he agreed to the further evidence being put before the Court in written form. It consisted of further statements from Dr Bullard and Professor Brandon who gave evidence at the trial, a statement from Dr Glatt which was available at the first appeal but not put in the forefront of the appellant's case and reports from Dr McKeith and Dr Gudjonsson made more than two years after the trial. Clearly some of that evidence would have been available at the trial but we agreed to admit it all pursuant to Section 23(1) of the Criminal Appeal Act 1968.
"We cannot help feeling that, if after the very detailed study which they had made of the case, (the psychiatrists) had held the opinion that her mental disorder made it more likely that in the case of verbal insult she would have given way to impulsive tendencies or aggression, they would have said so, and would have stressed this characteristic as significant in her loss of self-control; but, as with her legal advisers, her medical consultants were also constrained by the account which she herself gave of the events leading up to the fatal stabbing."