- On 21 June
1955 following a trial at the
Central Criminal Court that lasted for 2 days, Ruth Ellis was convicted of
the murder of David Blakely. She was sentenced to death. She did not appeal
against her conviction. The death sentence was carried out on 13 July 1955
and she was, as a result, the last woman to be hanged in the United Kingdom.
At the time the case attracted considerable publicity and the decision by
the then Secretary of State not to reprieve her was one with which many people
disagreed. In the debate that was then raging about the use of the death
penalty, the carrying out of the death penalty upon her was almost certainly
one factor that influenced thinking on the issue.
- This case is
not, however, in any way about the decision as to whether she should have
been executed
but raises the more fundamental question whether
she should have been convicted of the offence of murder in the first place.
Following her execution and for the many years thereafter, members of her
family campaigned about the injustice that they perceived had befallen her.
In due course the case was referred to the Criminal Cases Review Commission
("the CCRC"). By a decision dated 21 February 2002, the CCRC concluded
that there was a real possibility that the conviction would not be upheld
if a reference was made to the Court of Appeal and accordingly, despite the
fact that there had been no appeal at the time or since, made such a reference.
This is, therefore, the first opportunity that the Court of Appeal has had
to consider the conviction.
- It was never
in issue that Mrs Ellis had shot Mr Blakely. Indeed her statement under
caution
made to the police soon after the shooting included within
its first few words Mrs Ellis saying "I am guilty". It seems from
other documents that we have seen that she probably considered herself to
be guilty of murder and a letter written to the victim’s mother at the time
rather confirms that that was her thinking. However at trial she pleaded
not guilty and her very experienced defence team sought to persuade the jury
that the proper verdict was one of guilty of manslaughter by reason of provocation
rather than guilty of murder. A ruling made by the trial judge, Mr Justice
Havers, before closing speeches were made to the jury, effectively rendered
that argument an impossible one to maintain. As a result, Mr Melford Stevenson
QC, who was leading counsel for the defence, considered that he could no
longer address the jury and invite them to acquit of murder. He, therefore,
made no closing speech and the jury after hearing the judge’s summing up,
which confirmed his earlier ruling, convicted Mrs Ellis of murder in under
a quarter of an hour.
- The appeal with which the court is now concerned primarily focuses on the
ruling of the judge about provocation and the consequent directions to the
jury. A further point was taken in the grounds suggesting that, not withstanding
that the statutory defence of diminished responsibility had not been created
at the date of trial, the court can still conclude that factors that might
today have permitted such a defence to succeed, render the conviction in
1955 unsafe.
- At this stage we should perhaps set out in some detail the evidence at
trial, very little of which was disputed.
Facts
- Mrs Ellis was 28 years old. She was a married woman, who had separated
from her husband and had 2 children. The deceased, Mr Blakeley, was aged
25. He had only worked intermittently and spent most of his time racing motorcars
and building cars. The couple met in the middle of 1953 and a friendship
developed between them. At that time the deceased was engaged to another
woman.
- Shortly after
their meeting, Mrs Ellis became the manageress of a small club in Knightsbridge.
She had a small flat above the club where she lived
with her son, her daughter living with her ex-husband. The deceased moved
into her flat almost immediately, living there from Monday to Friday. Mrs
Ellis told the jury that he was very concerned about her and seemed very
devoted to her. She was asked if she was "very much in love with him
then" and she replied that she was not really.
- In December 1953, Mrs Ellis realised that she was pregnant. The deceased
offered to marry her but because she was not really in love with him and
thought that it was unnecessary to marry him, she decided instead to terminate
the pregnancy and an abortion was carried out in February 1954.
- They carried
on seeing each other until the following June. Mrs Ellis said that at this
time she "did not take the affair seriously" and she
explained that the deceased was still engaged to the other girl and it was
not until he broke off his engagement that she thought their relationship
was serious. She said that she "gave him an inkling" that she wanted
to break off their relationship, telling him that it was not good for the
business which she was running that she was living with him. She said that
he did not like it all when she said this.
- In the middle
of 1954, she met another man called Desmond Cussen, who was a member of
the club.
In the June, the deceased went away for 2 weeks to
Le Mans to race his motorcar and Mrs Ellis began an affair with Desmond Cussen.
She believed that this would bring to an end her relationship with the deceased
but on his return he came to see her and she did not tell him about her affair
with Cussen. She said that he was getting "rather jealous" by this
stage and wanted to know what she had been doing. She added "but, of
course I did not tell him". Their relationship resumed.
- Shortly after his return, he asked her to marry him. He told her that he
had broken off his engagement to the other girl. Her husband had started
divorce proceedings against her and she decided not to contest these so that
she could marry the deceased.
- After he had asked her to marry him, she said that he became very possessive
and jealous but he seemed devoted to her. She did not altogether trust him
because one night he stayed away and returned with love bites on his back.
She asked him to leave and he did. The next day he came to the club and apologised,
saying that he loved her.
- They resumed their relationship but he started causing trouble in the club,
objecting to her working there. She was having to give him money all the
time and was paying for all his drinks in the club.
- By October
1954, he had become violent towards her on occasions. She said that it
was always
because of jealousy in the bar. He would hit her with
his fists and she was bruised on many occasions. She made numerous efforts
to end the relationship. She described herself as having begun to "feel
ill with it all".
- Eventually,
in the December, she moved out of her flat and into Mr Cussen’s home. She
said that she
thought that this would be one way of breaking off
her affair with the deceased. She had not resumed her sexual relationship
with Mr Cussen. However she found it impossible to avoid the deceased because
he would appear at her club. Sometimes she went with him to a hotel for the
night, which she explained was "because I was in love with him".
She said that they were still on close affectionate terms but they would
quarrel and they still had fights, in which he would hit her.
- In February
1955, there was an incident at Cussen’s home, when the deceased visited
her whilst
Cussen was away. They had been out drinking together and
had both had a lot to drink. He had driven her home but did not want to leave
her. There was a fight and as she put it this time "I had really been
hurt". She had sprained her ankle and was badly bruised. He sent her
flowers and apologised. As a result they made up their quarrel.
- The two again rented a room together, but Mrs Ellis suspected that the
deceased was having an affair. She began to follow him. By this time she
too had become jealous and anxious. After spending a night outside another
woman’s home, she saw him coming out in the morning. She told him that they
were finished and he moved out. However, a week later he came back and they
resumed living together.
- In March, Mrs Ellis found that she was pregnant. The deceased was initially
happy about it and wanted her to have the baby. However at the end of March
he was again violent to her and on this occasion punched her in the stomach.
A few days later she miscarried although she said that she was not sure if
this had been caused by his violence.
- In spite of her recent miscarriage, on 1 April, Mrs Ellis went to watch
the deceased race at Alton Park. When his car blew up before the race, he
blamed her.
- The week before the killing was noteworthy in that Mrs Ellis had become
ill following the miscarriage and was bedridden for much of the week. The
deceased was kind and appeared devoted. The couple planned to spend the Easter
weekend together. On the Good Friday, the deceased left the flat that they
shared in the morning, promising to return at 8 pm to take her out for a
drink with racing colleagues, the Findlaters. However he did not return.
- Eventually
she telephoned the Findlaters to enquire as to his whereabouts. Anthony
Findlater told
her that the deceased was not at his home. As the
evening wore on Mrs Ellis began to suspect that the deceased was indeed at
the Findlaters. She asked Mr Cussen to drive her to Hampstead. Outside the
Findlaters house she saw the deceased’s car. First she rang the doorbell
and when no one answered she went to the nearest telephone box. Whoever answered
the telephone put the receiver down on her. She said that she was "absolutely
furious" with the deceased and that she wanted to see him and ask for
his keys back. Mrs Ellis kept telephoning and could hear a female giggle
in the background.
- She responded to the situation by pushing in the windows of the deceased’s
car. The police were called and on their advice, she left.
- She described
to the jury how that night she did not sleep. She was "still
in a temper" and she was very upset and not well. The next day she went
back to the Findlaters’ house. She said that by this time, she was "behaving
just like a typical jealous woman". She stood in the doorway to a house
opposite watching their front door. She was invited into the house, which
was for sale, and whilst the occupier made her tea, she sat and watched the
Findlaters’ house and saw the deceased enter the building with the Findlaters.
- She went home but remained obsessed by his absence and the unexplained
change in his behaviour. She decided to go back again. She stood in the street
listening to the noise inside the house, gaining the impression that there
was a party going on. She waited outside until she saw the deceased leave
the house, putting his arm around a young woman, whom she presumed was the
Findlaters’ nanny. She left the area for a short while, returning again just
after midnight to find that they had all returned and the lights were off.
By now she was persuaded that the deceased might be having an affair with
somebody else. She finally returned home.
- She told the
jury that she was very upset. At 9 am on the Sunday morning, 10 April 1955,
she telephoned
the Findlaters again. She thought that if the
deceased was sleeping alone in the lounge, he would be the one to answer
the telephone so that the other occupants would not be disturbed. When Mr
Findlater eventually answered the telephone, she said "I hope you are
having an enjoyable holiday because you have ruined mine".
- Again she anticipated
that the deceased would ring but he did not do so. She said that she had
completely forgotten what she did for the rest of that
day. At about 7.30 pm she put her son to bed. She was very upset and had "a
peculiar idea" that she wanted to kill the deceased. According to Mr
Cussen she asked him to drive her to Hampstead. In her evidence, she said
that she took with her a gun.
- In her statement to the police, she said about the gun:
"I
then took a gun which I had hidden and put in my handbag. This gun was
given to me about three years ago in a Club by a man
whose name I do not remember. It was security for money but I accepted it
as a curiosity. I did not know it was loaded when it was given to me but
I knew next morning when I looked at it. When I put the gun in my bag I intended
to find David and shoot him.
I
took a taxi to Tanza Road and as I arrived, David’s car drove away from
Findlater’s
address. I dismissed the taxi and walked back
down the road to the nearest pub where I saw David’s car outside. I waited
outside until he came out with a friend I know as Clive, David went to his
car to open it. I was a little way away from him. He turned and saw me and
then turned way from me and I took the gun from my bag and I shot him. He
turned round and ran a few steps round the car. I thought I had missed him
so I fired again. He was still running and I fired a third shot. I don’t
remember firing any more but I must have done."
- In evidence, Mrs Ellis did not go into this detail simply saying that
it was correct that she had taken the revolver up to Hampstead and shot him.
She was asked why she did it and she replied:
"I
do not really know, quite seriously, I was very upset."
- She said that she had not been able to control the peculiar idea that she
had formed before leaving the home of Mr Cussen.
- The evidence showed that she had fired all six of the rounds that were
in the gun, four of which had struck the deceased. He died before reaching
hospital.
- By way of cross-examination, the Crown asked Mrs Ellis just one question.
They asked what her intention was at the time of the shooting and she responded
that it was obvious that she had intended to kill the deceased.
- The defence
called a psychologist, Mr Whitaker. His evidence was that the situation
in which
she found herself was one that she was likely to think
was absolutely intolerable for her. She was convinced that he would return
to her despite further unfaithfulness and that when he did so she would be
unable to resist taking him back. He gave evidence that women were far more
upset by unfaithfulness than men, finding it less easy to "separate
their sexual experiences with men from their total personal relationships",
and that they were as a result "more prone to hysterical reactions than
men". His evidence was that the situation in which she found herself
was one that she was likely to think was absolutely intolerable for her.
She was convinced that he would return to her despite further unfaithfulness
and that when he did so she would be unable to resist taking him back.
Ruling
- At the conclusion of the evidence, the judge took the opportunity to discuss
with counsel the law in the absence of the jury. At the request of Mr Melford
Stevenson, Mr Christmas Humphries QC, leading counsel for the Crown, said:
"My
learned friend has asked me to assist him by putting my case to your lordship
as it stands at this moment and, of course, I am
quite happy to do that. It is contained in the one question that I put to
the accused woman, that if she, when she fired that revolver at close range
into the body of David Blakely, intended to kill him, and did do, that is
murder, save for one thing, and that is the law relating to insanity. But
she is sane, and in those circumstances it is for my learned friend to suggest
anyway, in which, those facts and if that law is right, she can be other
than guilty of murder."
- The judge then said to Mr Stevenson that he understood that he was intending
to address the jury on the question of provocation. Mr Stephenson replied
that he was. He continued:
"The
submission I make at the moment to your lordship – and I hope thereafter
I will make to the jury – is, first of all, the basic
question, so far as provocation is concerned, whether on a particular set
of facts the jury can take the view that the understanding of the accused
person was unsettled so that the ordinary control of the act which in most
people in a normal state inhibits violent conduct, inhibits any anti-social
behaviour, is completely displaced, so that for the time being the ordinary
controls are gone, and nothing but an impulsive desire to do something such
as killing occupies the mind for that time. My Lord, that is a loose, but
I hope an accurate, description of the ambit of provocation."
- Counsel later
made it clear that he was relying on "a long course
of conduct on the part of the dead man who had been the centre of an emotional
crisis by a woman like this one". He accepted that the judge had to
decide whether there was any evidence that could possibly amount to provocation.
- The judge, having heard argument, considered the matter over night and
gave his ruling in the following terms:
"I
feel constrained to rule that there is no sufficient material, even on
a view of the evidence most favourable to the accused,
for a reasonable jury to form the view that a reasonable person so provoked
could be driven, through transport of passion and loss of self control, to
the degree and method and continuance of violence which produces the death,
and consequently it is my duty as a judge, as a matter of law, to direct
the jury that the evidence in this case does not support a verdict of manslaughter
on the ground of provocation."
- As we have already indicated, following that ruling, Mr Stevenson did not
consider that he could properly address the jury. The judge in his summing
up to the jury dealt with the matter in the following terms:
"The
House of Lords, which, as you know, is the highest appellate tribunal of
this land, has decided that, when the question arises
whether what would otherwise be murder may be reduced to manslaughter on
the ground of provocation, if there is no sufficient material, even on a
view of the evidence most favourable to accused, for a reasonable jury to
form the view that a reasonable person so provoked could be driven, through
the transport of passion and loss of self control, to the degree and method
and continuance of violence which the produces the death, it is the duty
of the judge as matter of law to direct the jury that the evidence does not
support a verdict of manslaughter.
I
have felt constrained, members of the jury, to rule in this case that there
is no sufficient material, even on a view of the evidence
most favourable to the prisoner, for a reasonable jury to form the view that
a reasonable person so provoked could be driven, through a transport of passion
and loss of self control, to the degree and method and continuance of violence
which produces the death, in this case, and consequently it is my duty, as
a matter of law, to direct you, and I do direct you, that the evidence in
this case does not support a verdict of manslaughter on the ground of provocation.
It is not, therefore, open to you to bring in a verdict of manslaughter on
the ground of provocation."
The submissions in support of the appeal
- The appellant’s primary submission is that on the law as it was at the
time of trial, the judge was wrong to withdraw the issue of provocation from
the jury. It is contended that applying the law as it was in 1955, there
was evidence upon which a jury properly directed could have returned a verdict
of manslaughter by provocation.
- Mr Mansfield contends that Counsel for the Crown conducted the trial on
the basis that if the appellant accepted that she had an intention to kill
she would automatically be guilty of murder. He relies upon the initial observation
made by Mr Humphreys QC when the judge invited counsel’s views on the law,
which we have already set out. He submits that during the discussion that
followed the judge adopted this view of the law. Referring to Holmes v
DPP [1946] AC 588 he commented:
"Have
you got this passage as part of your headnote: ‘Consequently, where the
provocation inspires an actual intention to kill…or
to inflict grievous bodily harm, the doctrine that provocation may reduce
murder to manslaughter seldom applies. Only one very special exception has
been recognised, viz, the actual finding of a spouse in the act of adultery’?"
- He then added:
"That
seems to me to be one of the main difficulties in your case."
- Mr Mansfield argues that this was a misunderstanding of the law as it then
was and as it is now. He submits that any doubt about the matter had been
resolved by the Privy Council in AG for Ceylon v Kumarasinhege [1953]
AC 200 at p205, where Lord Goddard had made the matter clear:
"But as the Court of Criminal Appeal
set out in their judgment what they conceived to be the English law relating
to manslaughter their Lordships feel bound to observe that in one respect
the court were in error. They said in reference to English law, "if
it is established or clear from the evidence that through provocation of
howsoever grievous a kind may have been offered, nevertheless, if it could
be shown that the accused caused the death with an intention to kill, the
offence is one of murder not manslaughter. This is one of the fundamental
differences between our law and that of England." A little further
down in the judgment they said "in the case of murder, there must
be an intention to kill, in the case of manslaughter, no such intention
can exist." With all respect to the court, that is not the law of
England."
- Mr Mansfield further points to observations in Lee Chun-Chuen v The
Queen [1963] AC 220 at p227 where Lord Morris of Borth-y-Gest sought
to explain the meaning of Viscount Simon’s words in Holmes:
"It is plain that Viscount Simon must have meant the
word "actual" to have a limiting effect and that he had in mind
some particular category of intention. He cannot have meant that any sort
of intention to kill or cause grievous bodily harm was generally incompatible
with manslaughter because that would eliminate provocation as a line of defence…"
- Mr Mansfield submits that the rationale behind the trial judge’s decision
to withdraw provocation from the jury was undermined by his misunderstanding
of the law as it then stood. It is suggested that the ruling was not reasoned
in detail and the judge did little more than quote from part of Viscount
Simon’s speech in Holmes. He further complains that in his ruling
the judge made no reference to the evidence that he had considered nor did
he identify the basis for his decision. The defence of provocation was not
withdrawn because there was no evidence of provocation or loss of self-control.
The burden of proving that the killing was unprovoked was on the Crown. The
defence did not need to make out a prima-facie case of provocation but merely
to point to material which could induce a reasonable doubt.
- In these circumstances it is submitted that given the decisive effect of
this ruling on the outcome of the trial, it was incumbent on the judge to
provide a soundly reasoned explanation for the conclusion he had reached.
In view of the manner in which the point was argued by the Crown, and the
Judge’s intervention during legal argument, it is suggested that the Judge
proceeded or may have proceeded under a misapprehension of the law. Mr Mansfield,
therefore, argues that it would be wrong now to infer from the limited reasoning
in the judge’s ruling that contrary to the way in which the argument proceeded,
he had applied the right test in law.
- Thus Mr Mansfield invites the court to say that since there was unchallenged
evidence that at the time of the killing Mrs Ellis was unable to control
the impulse to kill the deceased, the issue of provocation should have been
left to the jury.
- In the alternative, even if the judge was right to rule as he did in accordance
with the law of provocation as it was understood at the time of trial, the
court should have regard to developments in the law of provocation since
that date and that if the law as it is understood today is applied, this
is a case where the issue of provocation clearly should have been determined
by the jury.
- It is accepted that the court has to consider the fact that significant
statutory changes were made to the law relating to provocation by section
3 of the Homicide Act 1957 which provided:
"Where
on a charge of murder there is evidence on which the jury can find that
the person charged was provoked (whether by things
done or by things said or by both together) to lose his self-control, 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."
- It is further accepted that in R v Derek Bentley (2001) 1 Cr.App.R.
307, Lord Bingham C.J. set out the approach to developments in the law since
trial (paras. 4 and 5 at p.310 ):
"(1)
We must apply the substantive law of murder as applicable at the time,
disregarding the abolition of constructive malice
and the introduction of the defence of diminished responsibility by the Homicide
Act 1957.
(2) The liability of a party to a joint enterprise must
be determined according to the common law as now understood.
(3) The conduct of the trial and the direction of the jury
must be judged according to the standards which we would now apply in any
other appeal under section 1 of the 1968 Act.
(4) We must judge the safety of the conviction according
to the standards which we would now apply in any other appeal under section
1 of the 1968 Act.
Where,
between conviction and appeal, there have been significant changes in the
common law (as opposed to changes effected by statute) or
in standards of fairness, the approach indicated requires the Court to apply
legal rules and procedural criteria which were not and could not reasonably
have been applied at the time."
- It is submitted
that the Common Law as to provocation has evolved to reflect changes in
the
values of society and that the court is required to have regard
to those changes that have taken place since. At the forefront of such changes
is the recognition of the need to have regard to the personal characteristics
of the defendant in considering the reaction of the reasonable man. Further
it is suggested that the law has developed to reflect a much better psychological
understanding of what has come to be known as "slow burn provocation" in
relation to the concept of the reasonable person. "Slow burn provocation" in
this context means provocation over a prolonged period that has a gradually
mounting effect on the person, who is subjected to it, so that a point is
reached where a relatively minor provocation pushes the person too far and
he or she acts in a way that might be seen as a disproportionate response
to the final part of the provocation but is to be understood, and thus viewed,
as the response of a reasonable person, to all that has happened over the
prolonged period.
- In the case of Ruth Ellis, it is submitted that when these factors are
taken into account, there would have been clear issues of provocation for
the jury to resolve. In addition, we were invited to admit fresh evidence
that would go these issues. We will return to the question of fresh evidence
later in this judgment.
- The third argument advanced, although Mr Mansfield did not orally address
us upon it, is that the statutory defence of diminished responsibility introduced
by the Homicide Act 1957 falls into a unique category. It is suggested that
it had its origins in the common law defence of insanity and thus, by some
reasoning that we do not fully understand, the court is entitled to set aside
the conviction for murder, notwithstanding that there was no such defence
provided by the law until some years after the trial.
- It should be
noted that the CCRC in referring this case to the court expressly concluded
that there
was "simply no basis to import the defence (which
came into being in 1957) backwards in time – either as a matter of statute
or of Common Law". However as the legislation presently stands, grounds
of appeal may be drawn other than those resulting in the reference without
any requirement to obtain the leave of the court to argue a ground even where
the CCRC has decided that it is without any merit.
The Crown’s Response
- Mr Perry, on behalf of the Crown, argues that the conviction was safe.
It was not in any sense an unfair trial, since it was properly decided on
the basis of the law as it existed before fundamental changes were made to
it by the Homicide Act 1957. The judge’s ruling was, it is submitted, a perfectly
proper one on the substantive law at the date of trial and in Bentley,
this court has already decided that the law at that date is the law to be
applied in an appeal such as this many years after the event. In so far as
there have been developments in the approach of the courts since that date,
they have to be seen in the light of the statutory changes that the 1957
Act introduced and that they are, as a result, consequential upon the changed
law.
- Mr Perry suggests that there were two essential issues in this case that
the judge had to consider in giving his ruling:
- Did provocation arise at all in this case where there was not suggested
to have been any act in the two days before the shooting that could be
seen as an act of provocation as recognised by the law at that time?
- Even if there
were an act or a series of acts that might have raised the possibility
of
a defence of provocation, was there any evidence that
could have led a jury to conclude that Mrs Ellis had suffered a "sudden
and temporary loss of self-control"?
- Mr Perry submits that the Common Law doctrine of provocation was formulated
to introduce a balance between the respect that the Common Law has always
afforded to the sanctity of life and a recognition that it would be unduly
harsh to treat those driven by provocation to so lose their self-control
that they took the life of another. To achieve this balance, a variety of
different judicial mechanisms were employed so as to maintain the defence
within limits seen to represent an acceptable balance between the competing
considerations.
- The first such mechanism was judicial control as to what conduct on the
part of the deceased could amount to a sufficient provocation to justify
a reduction of the offence from murder to manslaughter. Thus it was established
that mere words would not at Common Law suffice (see for example Holmes).
Mr Perry submits that the only provocative conduct recognised by the Common
Law as sufficient for these purposes was some form of violent act by the
deceased and the only exception that was recognised was the finding by a
man of his wife in the act of committing adultery.
- Another important mechanism by which judicial control was exercised was
by the requirement that, even if the accused had responded to an act of the
kind that satisfied the last requirement, the plea could be dismissed if
the response was wholly disproportionate to the provocative act.
- Each of these
controls could be exercised by the judge in deciding whether there was
material
that could be considered by the jury in this regard. The
Royal Commission on Capital Punishment that made recommendations that resulted
in the passing of the Homicide Act 1957, concluded that the balance that
had been struck had become too rigid in society as it had developed since
the Common Law rules had been made and that there ought to be changes in
the law so as to relax these controls. Parliament accepted that view and
changed the law in two material respects. First it relaxed the restrictions
on the actions of the deceased that could amount to provocation, permitting
regard to "everything both done and said". Secondly, it provided
that if there was evidence that the accused had lost his self-control as
a result of things that were done or said or both, the issue should be left
to the jury for them to decide whether it was sufficient to have caused a
reasonable man to act as the accused had. Thus the judicial control over
proportionality was removed and that issue was one left to the jury to determine
free of such control.
- Mr Perry submits that changes in the approach to provocation of necessity
have resulted from those statutory changes. He argues that once words alone
could be a basis for provocation the courts were bound to consider the importance
of the characteristics of the accused since the provocative words might be
directed to those characteristics. Hence such changes were a direct response
to the statutory changes to the law. Attention was drawn in this regard by
the CCRC to the observations of Lord Diplock in Camplin: (1978) 67
Cr. App R. 14 at p.20; [1978] A C 705 at p.717:
"But
so long as words unaccompanied by violence could not in law amount to provocation
the relevant proportionality between provocation
and retaliation was primarily one of degrees of violence. Words spoken to
the accused before the violence started were not normally to be included
in the proportion sum. But now that the law has been changed so as to permit
of words being treated as provocation even though unaccompanied by any other
acts, the gravity of verbal provocation may well depend upon the particular
characteristics or circumstances of the person to whom a taunt or insult
is addressed."
- Mr Perry submits
that the judge was quite right to rule as he did in this case on the existing
law. There was no act that could properly be seen as
a provocative act in response to which Mrs Ellis had acted. She had responded
in a pre-meditated way to the situation in which she found herself, which
may have caused her distress, but it was that situation rather than any act
or acts of the deceased which caused the distress. It may have been "a
transport of passion" but it was a calm, deliberate, pre-meditated killing.
The plea of provocation is inconsistent with planning and here there was
evidence of such planning. She had formed the intention to kill at the very
least two hours before she carried out the killing, she had armed herself
with a firearm for that very purpose and she had gone in search of David
Blakely intending to find him and kill him.
- Further, her response to the situation was a wholly disproportionate one
and the judge was entitled to conclude that no reasonable jury could have
concluded, even on the version of the facts that were most favourable to
Mrs Ellis, that her reaction was not one that a reasonable woman would have
had.
- As to the issues raised in respect of a defence of diminished responsibility,
Mr Perry argues quite simply that there was no such defence at common law,
and it is not possible to take the purely statutory defence of diminished
responsibility created by section 2 of the Homicide Act 1957 and apply it
as if it had been enacted at the date of the killing or the date of trial.
- In any event, if the need had arisen, he would have argued that the evidence
did not reveal any diminished responsibility.
Our Conclusions
- We deal first with the submission that the court should view the conviction
as unsafe because on the evidence then available, or on evidence that could
now be put forward, Mrs Ellis would today have been able to invite a jury
to consider a defence of diminished responsibility.
- As Lord Bingham C.J. made clear in Bentley in the passage to which
we have earlier referred, we must apply the substantive law of murder as
applicable at the time, disregarding the changes brought about by the Homicide
Act 1957. One of the changes to which he expressly referred was the provision
of the defence of diminished responsibility. We are clearly bound by that
decision, but in any event we do not have the slightest difficulty in concluding
that the decision was right.
- We have no doubt that the Commission was entirely right when it concluded
that this was an argument that could not be sustained and it did not altogether
surprise us that Mr Mansfield, whilst not altogether abandoning the point,
did not think that it merited oral argument before us.
- We turn, therefore, to the points that deserve rather more detailed consideration
relating to provocation. We think it necessary first to consider what the
law is that we have to apply to the issue of provocation. Clearly in this
regard too, Bentley establishes that it is the substantive law at
that date. However Lord Bingham made clear that where the Common Law has
itself developed, the court will have regard to such developments in determining
an appeal whenever the conviction occurred.
- Thus it is necessary to ask whether the material changes with which this
case is concerned are simply developments of the Common Law or whether they
result directly or indirectly from the changes effected by the Homicide Act
1957. The 1957 Act was undoubtedly legislation to change the law relating
to homicide as is made clear in its long title, and this is equally clear
from examination of the relevant provisions and comparison with the existing
law. Section 3 did not in any sense codify the existing law in relation to
provocation but amended it. It was thus a statutory change to the substantive
law and not a development of the Common Law.
- Further we are satisfied that the changes upon which reliance is placed
as to the relevance of the characteristics of the accused are a necessary
consequence of the change in the substantive law and cannot be seen as merely
the development of the pre-1957 Common Law. That was made clear by the House
of Lords in Camplin and we have already made reference to the speech
of Lord Diplock in this regard.
- Thus we are satisfied that we have to examine the ruling of Havers J. by
the law as it was before the 1957 Act came into force.
- As we have made clear Mr Mansfield submits that the ruling was one that
was based on a misunderstanding of the law, since the case had been conducted
by the Crown on the basis that there could be no reliance on provocation
where the killing was carried out intentionally. We accept that the Crown’s
approach was that this was the law. That seems apparent to us from the opening,
from the cross-examination limited to one question and from the observations
made by Mr Humphreys to the judge when he invited assistance on the law.
- We are also prepared to accept for the purposes of this appeal that the
prosecution’s view did not represent a correct interpretation of the Common
Law in that regard. In fairness to counsel, we should make clear that it
was a view of the law which was widely accepted. By way of example, the editions
of Archbold’s Pleading, Evidence and Practice in Criminal Cases stated the
law in these terms at the time and continued to do so until its 35th edition
published in 1962 (see R v Martindale [1966] 1 WLR 1564 at p 1567).
- The question
that we have to address is not whether the Crown’s view may have been wrong
but
whether the judge’s ruling was in any way based upon
such an approach. Mr Mansfield submits that the basis of the ruling is not
clear but we cannot accept that that is so. The judge’s ruling both at the
time when it was given and his direction to the jury in this regard were
both expressly on the basis that there was no evidence upon which a jury
could conclude that a reasonable person provoked as Mrs Ellis was would have
reacted as Mrs Ellis had done "to the degree and method and continuance
of violence which produces the death" (words clearly derived from Holmes).
It is clear that he was saying that whatever view the jury took of the facts,
the provocation such as it would be open to them to consider could not pass
the proportionate response test.
- Thus in no sense was he ruling that, because Mrs Ellis had admitted that
the killing was intentional, her guilt must follow as the Crown had submitted.
He may have taken that view at one stage during argument but if he did, having
reflected on the matter over night, that was not the basis upon which he
ruled that the issue of provocation was not to be considered by the jury.
It follows that this mistaken view of the law had no impact upon the conviction
of Mrs Ellis for murder and we have to consider the basis upon which the
judge actually ruled.
- There was clearly
unchallenged evidence that over a significant period of time, the deceased
had subjected
Mrs Ellis to violent conduct within their
relationship, culminating in the incident that preceded, and may have resulted
in, her miscarriage. If Mrs Ellis had reacted immediately to one of these
violent episodes then there can be little doubt, both on the law as it was
at the time of trial and as it is now, that there would have been a clear
issue of provocation that the judge would have been obliged to leave to the
jury. In considering the proportionality of the response the jury would have
been obliged to consider not only the final instance of violence which had
resulted in the violent response leading to death but also the whole history
of violence against which background the violent response had to be seen
to be fully understood. Thus a violent response, which might, if it were
a response to a single isolated incident, be judged to be disproportionate,
might nonetheless be considered not to be unreasonable if the whole background
was taken into account. This is the whole basis of the concept of "slow
burn provocation". However, there would remain a necessity for there
to be a triggering event and the response had to be considered as a response
to that triggering event, albeit set against any earlier violent background.
- It was, therefore, necessary for the trial judge in considering, as he
was bound to do under the pre-1957 law, whether there was evidence upon which
the jury could conclude that this was or may have been a case of provocation
as recognised by the Common Law, to determine what, if any, conduct may have
triggered the shooting of the deceased.
- At this stage of the consideration the judge was bound to recognise that
the Common Law imposed limitations upon the conduct that might be recognised
as a basis for a finding of provocation. We have already made clear that
prior to the statutory changes introduced in 1957, mere words could not amount
to provocation for these purposes. What, therefore, was the conduct upon
which reliance could be placed as resulting in the extremely violent reaction
of Mrs Ellis? We posed this question to Mr Mansfield in argument and he listed
a number of events over the relevant weekend. Essentially they were that,
having assured Mrs Ellis that he would return to her on the Friday evening,
the deceased did not do so and failed to communicate to her any explanation
for his sudden abandoning of her in this way. Further he had deliberately
concealed from her his whereabouts, refusing to speak to her on the telephone
and causing his friend to give misleading information as to where he was.
- The first question
for the judge to resolve was, therefore, whether these were events of a
kind
that the law recognised as a sufficient trigger even
when set against the earlier background so as to justify a conclusion that
this was a case of provocation such as to justify a reduction in the crime
committed from murder to manslaughter. We have no difficulty in concluding
that they were not, on the law as it was at the relevant time. Everything
alleged is in reality an omission rather than a positive act. Mr Mansfield
argues that although omissions they nonetheless involved positive acts. For
example the failure to go back to Mrs Ellis is an omission seen in that sense
but it involved the positive act of going to the Findlaters home. Whilst
we recognise the force of this argument what "provoked" Mrs Ellis
was not the going to the Findlaters home but the failure to come back to
her.
- Having regard to the restricted view of the Common Law as to what could
amount to provocation for these purposes, we find it wholly impossible to
see that any of the events of the relevant weekend could under the Common
Law be a sufficient basis for a conclusion that Mrs Ellis had been provoked
in a way that would justify reducing murder to manslaughter.
- The position is perhaps made clear by consideration of slightly different
facts. If the deceased had chosen instead of avoiding speaking to Mrs Ellis
to confront her on the telephone and tell her that he was finished with her
and was not returning to her and had done so in highly abusive and unpleasant
terms, there could be no question of such conduct being sufficient to amount
to provocation for these purposes. The position would clearly be covered
by the rule of Common Law that mere words would not suffice. It would, it
seems to us, be quite remarkable if the actions of the deceased in this case
involving no such abusive and unpleasant confrontation could be seen as a
sufficient provocation when the other instance was not.
- In Stingel v The Queen (1990) 171 CLR 312, the High Court of Australia
considered and rejected an appeal by a 19 year old appellant who had had
a long standing relationship with a girl which she had chosen to break off.
He remained obsessed and infatuated with her and would not leave her alone.
In due course he observed the girl with another young man in a car in the
course of sexual activity and approached and shot dead the young man. At
his trial for murder, the judge withdrew the issue of provocation from the
jury and the High Court of Australia on appeal upheld this decision. The
decision was referred to with approval by Lord Hoffman in R v Smith (Morgan) [2001]
1 AC 146 at page 169. He said:
"Male
possessiveness and jealousy should not today be an acceptable reason for
loss of self control leading to homicide, whether
inflicted upon the woman herself or her new lover. In Australia the judge
was able to give effect this policy by withdrawing (the) issue from the jury.
But Section 3 prevents an English judge from doing so. So, it is suggested
a direction that characteristics such as jealousy and obsession should be
ignored in relation to the objective element is the best way to ensure that
people like Stingel cannot rely upon the defence."
- We can see no proper basis for distinguishing between male and female behaviour
in this regard. In England in 1955, the position was that which was applicable
in Australia at the date of Stingel’s trial and thus the judge was
able "to give effect to the policy by withdrawing the case from the
jury". Whilst we think that the situation of Mrs Ellis was more likely
to excite sympathy than that of Stingel, Stingel’s case nonetheless
underlines that even the modern approach is to require something more than
mere possessiveness and jealousy. We have no doubt that under the law as
it was before the Homicide Act 1957, this was even more clearly the case.
- Whether it is right that the only circumstances in which the Common Law
recognised conduct other than violent conduct as a sufficient basis for a
finding of provocation was the finding of a spouse in an act of adultery
or whether other exceptional circumstances might have sufficed, it is clear
to us that the events of the Easter weekend leading to the killing in this
case could not justify any such conclusion that there was provocation of
the kind recognised by the law in this regard.
- Thus there
was no event of the requisite kind that could have triggered this killing
after the
physical violence preceding the miscarriage. This
attack had taken place approximately a fortnight before the killing. It was
never suggested by Mrs Ellis that she had acted as a result of this earlier
violence and it would, in reality, on the evidence have been quite impossible
for her so to do. It is an essential feature of such provocation that there
is "sudden and temporary loss of self control" as was made clear
in the direction of Devlin J in R v Duffy (Note) [1949] 1 All ER 932,
which was subsequently treated as a classic direction to the jury:
"Provocation
is some act, or series of acts, done by the dead man to the accused, which
would cause in any reasonable person,
and actually causes in the accused, a sudden and temporary loss of self control,
rendering the accused so subject to passion as to make him or her for the
moment not master of his mind."
- Whilst the Common Law has never sought to impose any time limit between
the provocative act and the killing, it could not possibly be said in this
case that a loss of self control, even if it did in part relate to the violent
act a fortnight before, was a sudden or temporary response to that violence.
Any conclusion to the contrary would clearly be wrong. Thus there was no
event recognised by the law as a provocative act of the relevant kind to
which a proportionate response might have been to take a gun and kill the
deceased in the manner that Mrs Ellis did. The judge was, therefore, entirely
right on the law as it was prior to the statutory changes brought about in
1957 to withdraw the issue of provocation from the jury.
- That conclusion effectively disposes of this appeal but we should perhaps
mention a number of other matters. Mr Mansfield sought to place before the
court fresh evidence which he suggested would impact upon the decision of
the court. The principle part of that evidence was psychiatric evidence relating
to the condition of Mrs Ellis at the time. We declined to admit that evidence
because we could not see that it could have any bearing upon our decision.
It would have had most relevance to the issue of diminished responsibility.
However, bearing in mind our conclusions that, even if it were possible to
put forward evidence that today would give rise to a real issue of diminished
responsibility, it was not possible to raise such an issue in respect of
a pre-1957 case, this could not possibly have led to our allowing the appeal
and as such the evidence could have had no relevance to our consideration
of the appeal. Further it was suggested that the evidence had some relevance
to the issue relating to provocation. However, since we concluded that the
characteristics of the accused person only became relevant to the issue of
provocation because of the statutory changes to the law, again this evidence
could not affect our conclusion in relation to a case before those statutory
changes, even if the evidence were accepted to be right. For these reasons
we declined to hear this evidence.
- The respondent also sought to place fresh evidence before us. That evidence,
if accepted to be right and admissible, might have led to a conclusion that
this killing was even more premeditated than it must have seemed at the time
of trial. In her evidence, Mrs Ellis had been unable to explain how she spent
the day before the killing. This was perhaps remarkable because she seemed
to remember so well all other matters in considerable detail. The evidence
the Crown would have wished to raise, the source of which was the solicitor
who acted for her at trial and who is himself now deceased, would have explained
this gap in her recollection. It would have shown that she had gone out with
Desmond Cussen during that day and amongst other things had engaged in target
practice at a tree in preparation for the killing that night. Clearly if
this evidence was right, it would suggest that this was a case very, very
far removed from the sort of case in which the law recognises a sudden and
temporary loss of self control justifying a conclusion of provocation reducing
murder to manslaughter.
- We considered that there were significant problems that would have to be
overcome before the Crown could rely upon this evidence and, even if it was
in law admissible, it would have been very difficult to know what weight
could safely be attached to the evidence when there was no opportunity to
see the evidence tested by cross-examination before us. In the circumstances,
we considered that the interests of justice did not require us to embark
upon this difficult exercise and we declined to hear this evidence as well.
- For the reasons that we have given we heard no new evidence and it follows
from our earlier conclusions that we are satisfied that this appeal is without
merit. Mrs Ellis was properly convicted of murder according to the law at
the time when she committed her offence. If her crime were committed today,
we think it likely that there would have been an issue of diminished responsibility
for the jury to determine but we are in no position to judge what the jury’s
response to such an issue might be. As we have made clear, it is no part
of our function to enter into the debate as to whether Mrs Ellis should have
been spared execution.
- We would wish to make one further observation. We have to question whether
this exercise of considering an appeal so long after the event when Mrs Ellis
herself had consciously and deliberately chosen not to appeal at the time
is a sensible use of the limited resources of the Court of Appeal. On any
view, Mrs Ellis had committed a serious criminal offence. This case is, therefore,
quite different from a case like Hanratty [2002] 2 Cr. App. R. 30
where the issue was whether a wholly innocent person had been convicted of
murder. A wrong on that scale, if it had occurred, might even today be a
matter for general public concern, but in this case there was no question
that Mrs Ellis was other than the killer and the only issue was the precise
crime of which she was guilty. If we had not been obliged to consider her
case we would perhaps in the time available have dealt with 8 to 12 other
cases, the majority of which would have involved people who were said to
be wrongly in custody. The Court of Appeal’s workload is an ever-increasing
one and recent legislation will add substantially to that load. Parliament
may wish to consider whether going back many years into history to re-examine
a case of this kind is a use that ought to be made of the limited resources
that are available. The exercise of the CCRC’s discretion in deciding whether
to refer cases is one that is a frequent source of challenge by way of Judicial
Review and it may be that an express power to consider factors of this kind
would enable the CCRC to take into account more readily the public interest
in making its decision.