Neutral Citation Number:
[2014] EWCA Crim 414
Case No:
2012/0559/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 19 February 2014
B e f o r e
:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
THE COMMON SERJEANT
HIS HONOUR JUDGE HILLIARD QC
(Sitting as a Judge of the CACD)
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B e t w e e n
R E G I N A
v
DARREN JEWELL
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Mr E Rees QC and Mr R Thomas
appeared on behalf of the
Appellant
Mr P Gair
appeared on behalf of the
Crown
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J U D G M E N T
1.
LADY JUSTICE RAFFERTY: Darren Mark Jewell, now 37, on 13th January 2012 in the Crown Court at Chelmsford was convicted of the murder of Anthony Prickett and sentenced to life imprisonment. He had earlier pleaded guilty to a number of not unconnected offences. The Registrar has referred to this court his application for leave to appeal against his conviction for murder. He has the advantage here of representation by Mr Edward Rees QC with Mr Thomas.
2.
Anthony Prickett, 42, suffered two fatal gunshot wounds to the abdomen outside his home shortly before five in the morning on Thursday 19th May 2011. Neighbours, alerted by shots, saw Jewell leaving in his van. Standing arrangements were for Mr Prickett to be collected at that hour by Jewell in one of the vans owned by Bulat Roofing for whom they worked.
3.
At 1.50 that afternoon a Vauxhall Corsa driven by Jewell was forced off the A1 near Edinburgh by armed officers and he was arrested. A search revealed a loaded home-made zip gun capable of firing .22 ammunition, and a further eight rounds of spare ammunition, and what the Crown described as a "survival kit": a rucksack holding spare clothes, a tent, a matchet, two butterfly knives, a folding knife, two cans of CS gas, a passport, a driving licence and a chequebook. A number of firearms and other weapons was found at Jewell's home.
4.
Interviewed by police in the presence of a solicitor over two days, he admitted he was responsible for the shooting but said he had not intended to kill, nor gone to Mr Prickett's address intending to kill him. He explained that over the preceding fortnight he had been the subject of intimidation by people unknown but of whom he thought Mr Prickett one. He had been followed and the tyres of his mother's car damaged. He told officers that on 18th May as he had driven home after work Mr Prickett told him that he, Jewell, had "two days left". He interpreted that as two days to live. On the morning of 19th May, he said, something snapped and, as if in a dream, he shot Mr Prickett. He had stayed up at night for the last fortnight holding a loaded shotgun he had had for years. He had made the zip gun when he was 15 or 16 and he had had the other guns found at his home for years for his own protection.
5.
The night before the shooting he visited his father and stole ammunition and keys to the Corsa. He had stayed up all that night with the shotgun and had written to neighbours leaving his keys and asking them to feed his cat, before leaving home that morning. After the shooting, he left the van, ran to his father's throwing the shotgun into the sea en route, took the Corsa and drove to Scotland where he intended to live before committing suicide. The Crown's case was that this was a premeditated killing, his that he lacked the mens rea for murder.
6.
Grounds of appeal are that in ruling that insufficient evidence had been adduced to raise the partial defence to murder of loss of control the judge fell into error.
7.
Miss Ashby had become his girlfriend on 2nd April 2011. She described him as caring and affectionate. She saw no temper, no threats, no violence. She did not detect anything on his mind. He did not seem preoccupied.
8.
Miss Kirby, his previous girlfriend, had lived with him from 2004 until April 2011. She described him as a gentle giant. He had a temper on occasion when he spoke of a red mist but she could think of only one episode when he lost his temper and that was when their dog was attacked by another dog. She was not aware of any problems between him and Mr Prickett. In April he had said he and Mr Prickett were working together and getting on really well. Close friends had never known Jewell hot-headed or quick tempered and they were at pains to describe him as hard working and notably caring.
9.
His mother described the damage to her car tyres during April and May 2011. On the evening before the shooting her son had seemed preoccupied and not his normal self. To his cousin who worked with him Jewell suggested that a man named Oldfield might be responsible for the damage to the tyres.
10.
Mrs Prickett, Anthony's mother, like many others described him as kind, full of life, with lots of friends. He had worked at Bulat for some 15 years. She had never heard him say anything against anyone.
11.
Miss Lott, a close friend, said he never mentioned any problems at work. The day before his death he seemed happy. He had some worries about money.
12.
His friends were consistent in their evidence. None detected any anxiety from Mr Prickett before his death. The tenor of the evidence was that he and Jewell got on. Indeed, even Mr Oldfield, sacked after a row with Jewell and who had worked with Mr Prickett for some 10 years and known him for 15, said that the workmen at Bulat got on well as a body and socialised.
13.
The evidence was that in the days leading up to the shooting Jewell was quieter than normal and the others thought perhaps he had been having some late nights. It was true that Mr Prickett had said he knew someone who could "rub someone out for money" in the context of a dissatisfied customer, but his workmates described this as light-hearted.
14.
Jewell told the jury he had worked for his father since 2004 and become his second in command. He worked with Mr Prickett but they did not socialise. In the morning he would collect first him and then others. He acquired air pistols in 1999 or 2000 legitimately when no licence was required. When the law changed and one was required he did not secure one. The killing had nothing to do with money, his girlfriend, his work, drugs or revenge. Leading up to it, he was once dropping Mr Prickett at home when a biker gestured and glared at him aggressively. Some mornings going to work he would notice a white van driving aggressively right behind him and it made him fearful. Various other things worried him such as a van pulling up beside him and its driver making throat-cutting gestures.
15.
He could not account for Mr Prickett's change in attitude, explaining that the two had become less close, and that made him frightened. He was not especially frightened of Oldfield, Mr Prickett or anyone else, but he was, he told the jury, fearful of their connections. It preyed on his mind what such people would do. Someone associated with a work mate was, for example, serving 17 years for arson. He had told Miss Ashby (his then girlfriend) that weekend, 13th to 14th, that things were troubling him. He had difficulty concentrating at work and sleeping. He did not sleep at all on the Monday night prior to the shooting and he did not sleep well on the Tuesday.
16.
On Wednesday at lunch he heard Mr Prickett on his telephone talking about somebody having their teeth smashed out for £600. The person on the other end was suggesting even more violence and Mr Prickett said it should be recorded so that he could look at it. During the call, Jewell told the jury, Mr Prickett was glaring at him. He felt so intimidated as to be unable to eat lunch. He wished he had confronted Mr Prickett but could not do so. He said he did not feel right and felt he was shutting down. It was getting hard to function.
17.
When he dropped Mr Prickett off that evening, the latter had been looking at him and saying things like: "One more evening, then you're dead" as if he knew Jewell were unravelling. He said he went home, showered and changed. He felt trapped. All he could think about was being seriously hurt and that it was not safe for him to stay at home. He visited first his father, then his mother. He asked his father if he could borrow a gun for protection against Anthony Prickett and his associates, explaining that he feared being hurt. His father suggested his son stay with him. Jewell eventually persuaded his father to give him a gun and ammunition but his father said to him: "Don't use it. If you have to use it, fire shots into the air." He explained that in interview he had lied about the origin of the guns and the movements of the van following the shooting and the judge told the jury that it might want to conclude that those lies were so as to conceal his father's involvement.
18.
Jewell's evidence continued that he took the gun home and sat with it next to him, expecting attack, until 4.30 in the morning when he put the cat note through his neighbour's door. Between three and four in the small hours he got his rucksack and filled it with clothing, tent and a survival kit. He wanted to go to Scotland to clear his head but at the same time wanted to go to work. He decided to drive to Mr Prickett's home, stopping en route to withdraw money. He stopped the van where he usually stopped and Anthony Prickett looked at him. He told the jury he just could not control it any more and shot him. Before getting into the van he had not planned to shoot Mr Prickett and as he got out he did not intend to shoot him dead. When first discharged the gun was held low and Mr Prickett went over. Jewell walked toward him and discharged a second shot into his head. There was no communication. He described it as not seeming real. He simply could not cope any more. He told the jury he was not in control of what he was doing. There was no aiming of the gun involved. He could indeed have shot into the air, but that would have worsened matters. He did not aim for Mr Prickett's head. He said: "I saw him. I snapped. My head was not good. I didn't know what I was doing."
19.
On Wednesday 11th January 2012 the judge gave a ruling on loss of control. We direct that in copy form it is annexed to this judgment. We quote from some parts of it:
i.
"I have examined the preliminary issue of whether the defendant was or, alternatively, might not have been acting in a considered desire for revenge. The Act [the Coroner's and Justice Act 2009] provides no assistance as to the meaning of that expression so for these purposes I have taken it to mean that the partial defence would be excluded if it was proved that the defendant engaged in a premeditated attack motivated by a desire to redress or punish some perceived grievance.
ii.
The evidence in the case provides very powerful support for the conclusion that the defendant felt aggrieved by the conduct of the victim who was, on the defendant's evidence, part of a campaign to intimidate and threaten him with extreme personal violence. The evidence further supports the almost inexorable conclusion that the defendant went to considerable trouble to plan and execute a lethal attack upon the victim. However, the issue of whether the killing was an act of revenge is not a matter that requires judicial resolution as Section 54(6) is confined to a consideration of the elements that give rise to the presumption in Section 54(5), namely the ingredients of whether the partial defence particularised within Subsection (1) are made out.
iii.
The question of whether the killing was motivated by revenge falls exclusively within the province of the jury and in the event that loss of self control is left to them as an issue then it would be for them, not me, to resolve. That being said, the evidence that might support a conclusion that this was a revenge attack is potentially relevant to a consideration of the issue of loss of self control where it might support the view that the attack was premeditated.
iv.
I turn now to the three ingredients of the partial defence. Firstly, is there evidence from which a jury could reasonably conclude that the defendant's acts, namely the two shots that he fired to kill Anthony Prickett, were the result of his loss of self control? The Act provides no definition of the expression 'loss of self control' beyond indicating that it does not have to be sudden. That is in Subsection (2) of Section 54.
v.
Accordingly, I look to the long history of cases involving the common law defence of provocation for guidance as to the meaning of the expression...
vi.
When asked at various times why he shot Mr. Prickett the defendant recited, as if reciting a mantra learnt from legal textbooks: 'I did it because I lost control. I could not control my actions. I could not think straight. My head was fucked up. It was like an injection in the head, an explosion in my head.' The mere assertion by the defendant that the reason for the killing was loss of control does not in my opinion on its own amount to sufficient evidence upon which a jury could reasonably conclude that the defence might apply.
vii.
It does not on its own meet the sufficiency threshold. Were it to do so the purposes of Section 54(6) could be thwarted by the simple device of a defendant reciting that mantra. There has to be more.
viii.
Accordingly, I have examined the totality of the evidence both for its quality and its sufficiency... I am directed by Section 54(6) to bring my opinion to bear upon the sufficiency of the evidence raised ... Any judgment ... should not ignore questions of quality and weight. Trial judges frequently perform such exercises when faced, for example, with Galbraith submissions ... I will only conclude that the partial defence of loss of self control shall not be available to him if I am satisfied so that I am sure that no jury, properly directed, could reasonably conclude that the defence might apply. When the evidence of the circumstances of the shooting, the period leading up to it and immediately following it, are examined closely there is clear evidence in my opinion to support the conclusion that the defendant was acting in a reasoned, rational and perfectly controlled way.
ix.
Following the final alleged act of threat come intimidation by Mr. Prickett, those words when they parted the night before: 'One more evening and you're dead,' spoken not directly to him but into thin air, the defendant had 12 hours in which he was able to reflect and react. During that period he conducted himself in a perfectly logical and controlled manner. He returned home, showered, changed, he visited both parents, he went shopping, he drove himself between the various locations.
x.
At his father's he told him of his fears, twice apparently. He borrowed a shotgun and ammunition for that gun as well as ammunition for a second zip gun ... He withdrew some £450 in cash in total from two machines. ... He packed a rucksack with a tent, clothing, a survival kit, and he put an assortment of weapons into his van. He then drove some eight miles to the victim's address ... He had with him the shotgun, loaded and with the safety catch off, according to his evidence..."
20.
Having rehearsed what happened at the scene, the judge continued:
i.
"No event occurred at the scene to explain why the defendant acted in that way. The history of the preceding 12 hours, which we might think of as a cooling off period, is entirely consistent with the defendant pursuing a considered and logical course of action directed ultimately to the purpose of shooting Mr. Prickett.
ii.
His conduct immediately after the shooting leaving the scene, changing vehicles, fleeing to Scotland all indicate a man able to act coherently and sensibly, fully in control of his faculties; indeed, pursuing a plan...
iii.
I find insufficient evidence has been adduced to raise the issue of the partial defence and it will not, therefore, be available to the defendant.
iv.
As a consequence of that finding I need not address the remaining issues, namely the existence of a qualifying trigger or the possibility that a reasonable man in the defendant's circumstances might have reacted in a similar way.
v.
However, it may be helpful ... if I do briefly address these other issues. I am of the view that there is no qualifying trigger here which might explain any loss of self control. Whilst there is evidence from the defendant - I note, however, unsupported by any other witness - that he was the subject of fear and intimidation emanating in some oblique way from Mr. Prickett, who he knew was associated with friends of a violent criminal, reinforced by strange encounters with a scar faced biker and an aggressive van driver, that this fear of violence of which the defendant spoke had not led him to conduct himself in an uncontrolled or illogical way during the 12 hours of the cooling off period.
vi.
What, on the defendant's evidence, proved to be the straw that broke the camel's back was the mere sight of Mr. Prickett at 4.55 on the Thursday morning. Mr. Prickett said nothing and did nothing apart from leave his home ... This sighting of the victim, on the defendant's evidence, caused the defendant to lose his self control, yet Mr. Prickett had done absolutely nothing at that point to trigger any response ... Indeed, the very fact of that meeting, and in circumstances where he was armed with a variety of weapons, was a meeting entirely of the defendant's own making.
vii.
... nor does a combination of evidence concerning both triggers together ... improve his position. That second trigger perhaps bringing into play the issue of the damaged tyres or the incidents at the worksite, the larking about and the inappropriate conduct ...
viii.
Finally, moving to the third issue ... I am satisfied so that I am sure that no jury could reasonably conclude that a reasonably tolerant and restrained man in the defendant's circumstances might have reacted in a similar way and accordingly the partial defence would fall at this hurdle too."
21.
The developed Grounds are first that the judge erred in assessing "sufficiency of evidence" by failing to give proper weight to the defendant's oral evidence and by going beyond the required assessment of whether the evidential test were met. In so doing, he usurped the jury's function and made a value judgment of the evidence as a whole.
22.
Next, there was sufficient evidence to leave to the jury that the killing resulted from loss of self control in accordance with section 54(1)(a). Next, the judge was wrong to withdraw the defence because the requirements of the qualifying trigger in section 54(1)(b) and normal degree of tolerance and self restraint in 54(1)(c) were also met.
23.
The legal framework
24.
Loss of control is considered by the authors of Smith and Hogan 13th Edition to mean a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning. The judge readily accepted that definition and so do we.
25.
Sections 54 and 55 of the Coroners and Justice Act 2009 ("the 2009 Act") read where relevant:
i.
"(1) Where a person ('D') kills or is a party to the killing of another ('V'), D is not to be convicted of murder if—
(a)
D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
(b)
the loss of self-control had a qualifying trigger, and
(c)
a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
i.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
ii.
(3) In subsection (1)(c) the reference to 'the circumstances of D' is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.
iii.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
iv.
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
v.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply."
26.
Section 55 where relevant reads:
i.
"(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
ii.
(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D ...
iii.
(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which—
(a)
constituted circumstances of an extremely grave character, and
(b)
caused D to have a justifiable sense of being seriously wronged.
iv.
(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
v.
(6) In determining whether a loss of self-control had a qualifying trigger—
(a)
D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b)
a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing ... "
27.
The evidence upon which a jury could reasonably conclude that the defence might apply on these facts came from the applicant’s interviews under caution and what he told the jury. The submission is that the jury could have found that he might incrementally have lost his ability to act in accord with considered judgment or a loss of normal powers of reasoning, leading to his ultimate snapping on sighting Mr Prickett. Examination of the circumstances, Mr Rees suggests, repays attention. On any view what happened was odd. A primary evidential feature generally supporting loss of control is, as here, that what happened was spectacularly out of character. The evidence as to the applicant was overwhelmingly positive. Consequently, what emerged was so wholly out of character as to portray a "kamikaze" type of behaviour to inflict very serious violence by a man who abandoned his home and his life as predictable consequences. That is said of itself to raise issues at least fit for a jury to consider about his ability to act in accord with considered judgment. The evidence is said strongly to suggest that in shooting the applicant had no realistic regard for avoiding suspicion. He must have known that he would, as he did, become the prime suspect. Everything about what he did that morning was known: the time of collection, it was a shooting in public in a residential area, colleagues would soon realise he was not arriving to collect them.
28.
Next, reliance is placed on his telling the police and the jury that he had lost control of himself. That without more is said to be sufficient to raise the issue in the section 54(5) sense that in reliance on section 54(6) a jury could reasonably conclude that the defence might apply. Taking interviews and evidence together, what was being described was a slow-burning process of building emotional tension and perhaps of disordered thinking, leading to the snapping point and absolute loss of control in the final moments.
29.
There is criticism of the silence in the judge's ruling as to the content of the interviews under caution. Mr Rees helpfully included in his written submissions a digest of relevant parts of the interviews under caution. It is not necessary for us fully to rehearse them here, save that we characterise them as indicating fairly and fully both questions generating answers and full answers.
30.
The defendant pointed out that his intention had been solely to pick up Mr Prickett and have another routine day but he could not "hack it any more", "could not focus". He explained he was going to go to Edinburgh, have a few drinks and then just live life in the wild until he died. He would use his zip gun to "top himself". When he pulled up he simply could not handle it any more, something snapped. He was so fearful he was not himself. He was not normally like that. He had never hurt anyone before. He could not think straight. It was lack of sleep, the threats were getting worse and the time was ticking. He felt trapped. He could not run anywhere. A good deal of his evidence we have already dealt with because it was recited into the judge's ruling.
31.
The developed argument is that the statutory language does not require evidence which in the opinion of the trial judge appears credible. Constitutionally an assessment of credibility is a matter for the jury:
Clinton
[2012] 1 Cr.App.R 26
. The judge must make a "commonsense judgment based on analysis of all the evidence": paragraph 26, adopted in
Dawes
[2013] 2 Cr.App.R 3
paragraph 50. It is conceded that a defence may be withdrawn from the jury where there is no evidence or none capable of establishing the elements of the defence. However, Mr Rees suggests that in a conflicting evidence case a choice necessarily has to be made between evidence, the judge fell into error in withdrawing the partial defence.
32.
To the extent that the evidence may be in dispute, the judge should recognise that a jury may accept evidence most favourable to the defendant and reject that most favourable to the Crown and so the judge must tailor a ruling accordingly. That is another way of saying that in discharging his responsibility the judge should not reject disputed evidence which the jury might choose to believe: adopted with approval in
Dawes
at paragraph 50. Accordingly, so this submission continues, the classic division of function requires a judicial evaluation to stop short of determining either credibility or quality. That is a matter for the jury. Mr Rees gave an example: In many homicides the evidence of, for example, self-defence or loss of control comes solely from a defendant. Any rule permitting a judge having evaluated his credibility and weighed it against other evidence to withdraw the issue would be dangerous.
33.
The balance of the submissions.
34.
The judge is said to have confused his duty to determine sufficiency of evidence with his own evaluation of credibility and/or weight that the jury might attach to the evidence of the defendant. In his ruling he wrote:
i.
"Any judgment as to sufficiency of evidence should not ignore questions of quality and weight. Trial judges frequently perform such exercises when faced, for example, with Galbraith submissions."
35.
The judge was quoting
Galbraith
as no more than an example and nothing more. There is nothing in this point.
36.
Next, the submission is that the judge erred in appearing to hold that the evidence of a defendant without more could not as a general rule amount to sufficient evidence of loss of control. Mr Rees criticised this quotation:
i.
"When asked at various times why he shot Mr. Prickett the defendant recited, as if reciting a mantra learnt from legal textbooks: 'I did it because I lost control. I could not control my actions...' The mere assertion by the defendant that the reason for the killing was loss of control does not in my opinion on its own amount to sufficient evidence upon which a jury could reasonably conclude that the defence might apply.
ii.
It does not on its own meet the sufficiency threshold. Were it to do so the purposes of Section 54(6) could be thwarted by the simple device of a defendant reciting that mantra. There has to be more."
37.
as a misinterpretation and consequently, reflected as it was in the summing-up, a fundamental misdirection. Given that the defendant's evidence and his interviews under caution were evidence in the case, it was not open to the judge, it is said, simply to discount his evidence as insufficient, unless he came to the additional but impermissible conclusion that it had necessarily to be rejected as not credible.
38.
Next, the Judge was criticised for weighing the credibility of the applicant's evidence against features in the case led for the Crown and in making findings of fact based upon a choice inter se. To take but one example, Mr Rees relies on the aspect of the ruling:
i.
"When the evidence of the circumstances of the shooting, the period leading up to it and immediately following it, are examined closely there is clear evidence in my opinion to support the conclusion that the defendant was acting in a reasoned, rational and perfectly controlled way."
39.
This, said Mr Rees, was for the jury not for the judge.
40.
Next, the judge was criticised for finding there was no qualifying trigger. Subsections (3), (4) or (5) of section 55 apply. Section 3 reads:
i.
"If D's loss of self-control was attributable to D's fear of serious violence from V against D ..."
41.
The judge is said to have failed to have sufficient regard to the fact that for the purposes of section 1(a) it matters not whether the loss of self-control were sudden. There was he argued evidence that the ultimate loss of control was attributable to such fear. He relied upon parts of the interview under caution when the applicant said:
i.
"For the past two weeks Anthony would be on the phone arranging with his friends an attack on someone for the right money. He would boast about how he knew people. He could have them done away with, never heard of again. He was insinuating more and more that I was the target. He was talking on the phone to his friends about how much. One night I was followed by his friends in a van, tailgating me and waving out the window pointing at me ... it was intimidation."
42.
Mr Rees contended that whether or not the defendant subjectively but genuinely felt fear of serious violence amounted to a question of whether there were a qualifying trigger and consequently it was a question for the jury. Paradoxically, he suggests, the judge accepted that the evidence provides "very powerful support for the conclusion that the defendant felt aggrieved by the conduct of Mr Prickett, who was on the defendant's evidence part of a campaign of intimidation".
43.
Finally, reasonableness. The judge is criticised as having usurped the function of the jury in finding that no reasonable one could conclude that a reasonably tolerant and restrained man in the defendant's circumstances might have reacted in a similar way. Any consideration of this must acknowledge the inherent paradox in the reasonableness test as, Mr Rees suggests, Lord Bingham pointed out in
Campbell
:
i.
"It is not altogether easy to imagine circumstances in which a reasonable man would strike a fatal blow with the necessary mental intention whatever the provocation."
44.
Flowing from that, the submission was that anyone who has lost control will act or over-react with a disproportionate response. The statutory test is not whether the defendant's conduct were reasonable or whether a reasonable person would similarly react, rather it is whether a reasonable person might similarly have reacted in matched circumstances. Consequently, the criticism is that the judge construed reasonableness too narrowly in limiting consideration to the circumstances at 0500 on the morning of the homicide without regard to the hinterland of threats and fear described by the defendant. It follows that he did not have regard to all the circumstances as subsection (3) required him to do.
45.
Discussion and conclusion.
46.
In our judgment, there are overwhelming difficulties in the way of these submissions. The factual backdrop is not helpful to the applicant. He armed himself with firearms (in the plural) and with what the Crown accurately described as a survival kit including a tent, spare clothing, passport, driving licence, cash, and other weapons and he did so some 12 hours before he drove to Mr Prickett's home, armed with a loaded shotgun and a loaded home-made pistol, shot him without warning and made good his escape. This bore every hallmark of a pre-planned, cold-blooded execution. His explanation that he was in fear of serious violence from Mr Prickett, who the night before had made a threat to kill him, must be seen in context. That context includes that the applicant went home and during the next 12 hours failed for example to seek help from the police or from his family or from his friends, save his father who was persuaded to loan him a shotgun. He then drove, alone, to Mr Prickett's home not, according to his evidence, intending to kill him, but shooting him at close range the moment Mr Pickett came out of his house. We remind ourselves of the words of the Lord Chief Justice in
Clinton
:
i.
"In reality, the greater the level of deliberation, the less likely it will be that the killing followed a true loss of self control."
47.
In our view, the 12-hour cooling off period, as the judge in his ruling labelled it, reflects exactly this analysis.
48.
The evidence that this was a planned execution is best described as overwhelming. Thus, the commonsense judgment based on an analysis of all the evidence (
Clinton
para 46)
49.
was inevitably as the judge described it.
50.
The judge ruled that there was insufficient evidence to leave the first component (section 54(1)(a)) to the jury and in our view correctly found that if any one of the three components is absent the partial defence fails. We would have taken the same route to a conclusion as did he. He out of an abundance of caution explained that the second and third components set out in section 54(1)(b) and (c) were also insufficient to establish the evidential burden. We agree with him both that that was unnecessary as a dispositive conclusion and that had one been essential his findings are supportable.
51.
Though this case pre-dated
Clinton
the way the judge set out his approach might suggest he had considered
Clinton
, so closely aligned is it to the reasoning there adopted. As to the first component, whether there is evidence of loss of control, sufficiency of evidence is bound to suggest more than minimum evidence to establish the facts. We struggle to see why it was impermissible for the judge to consider the quality and the weight of it, particularly given that he is adjured to analyse the whole of it, as
Dawes
sets out.
52.
Such analysis in our view could lead to but one conclusion. It is difficult to think of a clearer example of a
Clinton
"commonsense" judgment. The judge balanced the undisputed evidence against what was accurately described as no more than a bare assertion by the defendant "I lost control". His finding was plainly open to him and is unimpugnable.
53.
As to the objective test in section 54(1)(c), he was obliged to consider the sufficiency of evidence and ask himself whether the matter could be left to the jury once the evidential burden had been satisfied:
Clinton
paragraph 46. We would have adopted the same approach as the judge. On these facts, and in this context, the jury properly directed could not reasonably conclude that a man of Jewell’s age with a normal degree of tolerance and self-restraint and in the applicant's circumstances have reacted in the same or in a similar way.
54.
The argument that the judge fell into error by taking into account the quality and weight of the evidence and the applicant has not troubled us. Whether or not it were right to take this into account when considering the first two components, it certainly cannot have any direct bearing on the third. That task requires an objective assessment by the judge:
Dawes
paragraph 61.
55.
This judge was satisfied so that he was sure that no reasonable jury could conclude that a reasonably tolerant, restrained man in Jewell's circumstances might have reacted in a similar way. This, on the facts applying the legal framework and loyal to the authorities was a conclusion plainly open to him. In a cogent, lucid ruling the judge posed to himself all relevant questions. His conclusion is unimpeachable. Few more compelling evidential contexts are, to us at least, imaginable as establishing control over many hours preceding a shooting. If the statutory framework, read with
Clinton
and
Dawes
does not support the course this judge took, it is difficult to envisage circumstances in which it would.
56.
We are not persuaded that this conviction is unsafe and the referred application is rejected.
RULING ON LOSS OF CONTROL
1.
JUDGE BALL: The provisions of Section 54 to Section 56 of the Coroners and Justice Act 2009 govern the issue of the partial defence of loss of self-control which is raised in this case. By the provisions of Section 54(1) Mr. Jewell is not to be convicted of murder if (A) his actions in killing Mr. Prickett were the result of his loss of self-control and (B) his loss of self-control had a qualifying trigger and (C) a person of his age, sex and normal restraint in the circumstances of himself might have reacted in the same or a similar way.
2.
If sufficient evidence is adduced to raise an issue with respect to those three ingredients of the partial defence then the jury must assume that the defence is satisfied unless it is disproved by the Crown. That is provided for within Section 54(5).
3.
However, none of the above factors will avail the defendant if the jury were satisfied so they were sure that when the defendant killed Mr. Prickett he was acting in a considered desire for revenge. They are the provisions of Section 54(4).
4.
For the purposes of Subsection (5) to which I have referred above, sufficient evidence will have been adduced to raise the issue, that is the loss of self-control issue, if evidence is adduced on which, in the opinion of the trial judge, a jury properly directed could reasonably conclude that the defence might apply. That is 54(6).
5.
Accordingly, I have examined the evidence in the case to see whether in my view a jury could conclude that each of the required elements of the partial defence might apply in the case.
6.
Firstly, however, and it is by way of an aside, I have examined the preliminary issue of whether the defendant was or, alternatively, might not have been acting in a considered desire for revenge. The Act provides no assistance as to the meaning of that expression so for these purposes I have taken it to mean that the partial defence would be excluded if it was proved that the defendant engaged in a premeditated attack motivated by a desire to redress or punish some perceived grievance.
7.
The evidence in the case provides very powerful support for the conclusion that the defendant felt aggrieved by the conduct of the victim who was, on the defendant's evidence, part of a campaign to intimidate and threaten him with extreme personal violence. The evidence further supports the almost inexorable conclusion that the defendant went to considerable trouble to plan and execute a lethal attack upon the victim. However, the issue of whether the killing was an act of revenge is not a matter that requires judicial resolution as Section 54(6) is confined to a consideration of the elements that give rise to the presumption in Section 54(5), namely the ingredients of whether the partial defence particularised within Subsection (1) are made out.
8.
The question of whether the killing was motivated by revenge falls exclusively within the province of the jury and in the event that loss of self-control is left to them as an issue then it would be for them, not me, to resolve. That being said, the evidence that might support a conclusion that this was a revenge attack is potentially relevant to a consideration of the issue of loss of self-control where it might support the view that the attack was premeditated.
9.
I turn now to the three ingredients of the partial defence. Firstly, is there evidence from which a jury could reasonably conclude that the defendant's acts, namely the two shots that he fired to kill Anthony Prickett, were the result of his loss of self-control? The Act provides no definition of the expression "loss of self-control" beyond indicating that it does not have to be sudden. That is in Subsection (2) of Section 54.
10.
Accordingly, I look to the long history of cases involving the common law defence of provocation for guidance as to the meaning of the expression. I remind myself that classically it is taken to mean that at the moment of the killing a defendant might be said to be subject to such a passion as to make him for the moment not master of his mind. Whilst not requiring actions to be frenzied at such a time, it is not sufficient if a defendant is merely acting out of anger, ill-temper or rage. Loss of control connotes a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning.
11.
When asked at various times why he shot Mr. Prickett the defendant recited, as if reciting a mantra learnt from legal textbooks: "I did it because I lost control. I could not control my actions. I could not think straight. My head was fucked up. It was like an injection in the head, an explosion in my head." The mere assertion by the defendant that the reason for the killing was loss of control does not in my opinion on its own amount to sufficient evidence upon which a jury could reasonably conclude that the defence might apply.
12.
It does not on its own meet the sufficiency threshold. Were it to do so the purposes of Section 54(6) could be thwarted by the simple device of a defendant reciting that mantra. There has to be more.
13.
Accordingly, I have examined the totality of the evidence both for its quality and its sufficiency. I do not accept Mr. Levett's submission that where subjective assertions are made by the defendant that I should not exercise my judgment upon them or their quality but leave such matters to the jury. I am directed by Section 54(6) to bring my opinion to bear upon the sufficiency of the evidence raised in connection with the issue. Any judgment as to sufficiency of evidence should not ignore questions of quality and weight. Trial judges frequently perform such exercises when faced, for example, with
Galbraith
submissions.
14.
In performing this task I have set myself what I consider to be the standard appropriate to best protect the defendant from potential injustice, namely, I will only conclude that the partial defence of loss of self-control shall not be available to him if I am satisfied so that I am sure that no jury, properly directed, could reasonably conclude that the defence might apply. When the evidence of the circumstances of the shooting, the period leading up to it and immediately following it, are examined closely there is clear evidence in my opinion to support the conclusion that the defendant was acting in a reasoned, rational and perfectly controlled way.
15.
Following the final alleged act of threat-come-intimidation by Mr. Prickett, those words when they parted the night before: "One more evening and you're dead," spoken not directly to him but into thin air, the defendant had 12 hours in which he was able to reflect and react. During that period he conducted himself in a perfectly logical and controlled manner. He returned home, showered, changed, he visited both parents, he went shopping, he drove himself between the various locations.
16.
At his father's he told him of his fears, twice apparently. He borrowed a shotgun and ammunition for that gun as well as ammunition for a second zip gun that he already had. He withdrew some £450 in cash in total from two machines. (I am leaving out of account the £20 for the Co-Op.) He packed a rucksack with a tent, clothing, a survival kit, and he put an assortment of weapons into his van. He then drove some eight miles to the victim's address, arriving just before 5.00 a.m. at the usual time, as if to collect him for work. He had with him the shotgun, loaded and with the safety catch off, according to his evidence.
17.
When Mr. Prickett left his house with his work tools to accept the lift the defendant got out of his van, took the shotgun out from behind him and, without a word being exchanged, fired twice into the body of Anthony Prickett from some four and then some two metres distant. No event occurred at the scene to explain why the defendant acted in that way. The history of the preceding 12 hours, which we might think of as a cooling off period, is entirely consistent with the defendant pursuing a considered and logical course of action directed ultimately to the purpose of shooting Mr. Prickett.
18.
His conduct immediately after the shooting -- leaving the scene, changing vehicles, fleeing to Scotland -- all indicate a man able to act coherently and sensibly, fully in control of his faculties; indeed, pursuing a plan.
19.
I am of the firm opinion, having regard to all of the evidence, that no jury properly directed could reasonably conclude on the evidence in this case that the defendant might have been acting through a loss of self-control. It follows from that that I find insufficient evidence has been adduced to raise the issue of the partial defence and it will not, therefore, be available to the defendant.
20.
As a consequence of that finding I need not address the remaining issues, namely the existence of a qualifying trigger or the possibility that a reasonable man in the defendant's circumstances might have reacted in a similar way.
21.
However, it may be helpful, in the event that this case falls to be considered elsewhere, if I do briefly address these other issues. I am of the view that there is no qualifying trigger here which might explain any loss of self-control. Whilst there is evidence from the defendant -- I note, however, unsupported by any other witness -- that he was the subject of fear and intimidation emanating in some oblique way from Mr. Prickett, who he knew was associated with friends of a violent criminal, reinforced by strange encounters with a scar-faced biker and an aggressive van driver, that this fear of violence of which the defendant spoke had not led him to conduct himself in an uncontrolled or illogical way during the 12 hours of the cooling off period.
22.
What, on the defendant's evidence, proved to be the straw that broke the camel's back was the mere sight of Mr. Prickett at 4.55 on the Thursday morning. Mr. Prickett said nothing and did nothing apart from leave his home ready to be driven to work. This sighting of the victim, on the defendant's evidence, caused the defendant to lose his self-control, yet Mr. Prickett had done absolutely nothing at that point to trigger any response from the defendant. Indeed, the very fact of that meeting, and in circumstances where he was armed with a variety of weapons, was a meeting entirely of the defendant's own making.
23.
I should say nor does a combination of evidence concerning both triggers together, in my view, improve his position. That second trigger perhaps bringing into play the issue of the damaged tyres or the incidents at the worksite, the larking about and the inappropriate conduct towards Michael Bulet Junior.
24.
Finally, moving to the third issue under loss of self-control, I am satisfied so that I am sure that no jury could reasonably conclude that a reasonably tolerant and restrained man in the defendant's circumstances might have reacted in a similar way and accordingly the partial defence would fall at this hurdle too. By reacting in the same or similar way I mean responding to the circumstances that existed in Park Road that morning by losing self-control and picking up and firing the loaded shotgun twice into the body of Mr. Prickett.