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FELL, R v. [2000] EWCA Crim 26 (27th March, 2000)
Case No: 99/06509/W4
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 27th March 2000
B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE HIDDEN
and
MR JUSTICE ASTILL
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REGINA
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and -
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TARA
MAY FELL
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Ms Vera Baird (Appeared on behalf of the Appellant)
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Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE ASTILL:
1. On Monday 6th March we allowed this appeal quashing the sentence of 4 years
detention in a Y.O.I. and substituting for it a Probation Order for 2 years.
2. We now give our Reasons.
3. The Appellant was originally charged with murder but pleaded guilty to
Manslaughter on the 6th September 1999 in the Crown Court at Truro before HHJ
Forrester. The Case was then adjourned and on 1st October 1999 before the same
judge sitting at the Central Criminal Court she was sentenced to 4 years
detention in a Y.O.I.
4. The victim was Jason Henderson who had been the Appellant's boyfriend. They
met when she was 14 years and when he was 19 years and a sexual relationship
began immediately. When she was 16 they began to live together. He had previous
convictions for offences of dishonesty and he recruited her to take part in his
criminal activities. He was already the father of a child by another
relationship. On one occasion he left her and she took an overdose in an
apparent suicide attempt. She stopped going to school, went briefly into care
and then back to her parents. She was expelled from school and moved back in
with Henderson. She had a miscarriage, took a further overdose and he began to
be violent towards her, on her description which we are disposed to accept, 2 -
3 times per week. She had no means of support and was entirely dependent upon
him and carried out domestic duties in an isolated home where they lived. He
was a regular cannabis user and as her depression deepened she began to take
cannabis also.
5. In early 1997 Henderson was sent to prison. Despite his promises to change
his ways, 2 weeks after his release he began to beat her again. He frequently
locked her in the home whilst he was away carrying out his various activities.
During this time she was the subject of a 12 months Probation Order imposed
after her conviction for handling a cheque-book stolen by him. She did not
respond well to that Order. After his release and as a result of his frequent
beatings she was seen to be injured on a number of occasions. She sought
psychiatric help and twice came to the attention of the Police after she had
been injured by him. She would respond to his violence by attacking him and
those who lived nearby frequently heard shouting and screaming and crying.
6. On 17 March 1998 she telephoned the Police in a very distressed condition
saying that she had been involved in a fight with Henderson and that she was
frightened that he would follow her and attack her. She was later found sitting
on the pavement complaining of being hit by him. She had swollen lips and areas
of reddened skin.
7. On 3 April 1998 she made the decision to end the relationship and Henderson
told her that she could take a few possessions with her. There was an argument
during which the Applicant punched Henderson. He responded by grabbing her by
the throat and she punched him again and followed him into a bedroom where he
locked her in. A visitor to the house let her out and she picked up a knife and
waved it at Henderson telling him to get out.
8. Thereafter the description of events is dependent upon her account only. It
was that Henderson picked up a knife and then put it down and went to attack
her. She picked up a knife and there was a struggle as Henderson grappled with
her during which the knife went into his back causing the fatal wound.
9. There is independent confirmation of her immediate distress because she was
heard shouting for help and a passer-by entered the flat and found Henderson
lying there. She demonstrated extreme distress. When the Police arrived she was
found to be distraught and shaking curled in the foetal position. She was
arrested and examined by a doctor who noted bruising to her upper arms,
breasts, neck, back and legs. She was interviewed that evening and the
following day and during those interviews she sobbed uncontrollably.
10. The Appellant was examined by Dr. Reeves a Consultant Forensic Psychiatrist
for the Defence. He noted that she was receiving anti-depressant medication. He
took a history from her and said this about her relationship with Henderson.
"He ordered her about and she seemed to have been more or less his slave".
11. He noted from her medical records that her General Practitioner thought she
was depressed in July 1997 and still depressed in December 1997. The General
Practitioner gave her further anti-depressants in March of 1998. He considered
that she had "situational anxiety, stress and depression". Dr. Reeves concluded
that on consideration of her medical records and his own findings the Appellant
had an abnormality of mind that would have substantially impaired her
responsibility. He did not consider that she was either a present or future
danger to partners or anyone else. He found a number of features of Battered
Womens' Syndrome; chronic depressive illness; a feeling of hopelessness and
helplessness and despair; inability to act effectively; inability to see any
escape from the situation or any future; self blame for the violence inflicted
upon her by her male partner; a failure to see that what was happening was
abnormal because she was isolated from reality; shame and a poor sense of worth
and submission as a form of self protection. Having considered these elements
Dr. Reeves concluded that the Appellant fell into the category of "a battered
wife". Dr. James, the Prosecution Psychiatrist, found that she suffered from at
least a moderate degree of clinical depression which amounted to an abnormality
of mind. He also found features of Battered Womens' Syndrome.
12. After the Appellant pleaded guilty to manslaughter by reason of diminished
responsibility the Case was adjourned for further reports to be prepared. Dr.
Reeves found her no longer clinically depressed and had no doubt that she would
co-operate with a Probation Order. Dr. James did not see her again but assessed
future risk as much reduced by the period of time that had gone by.
13. There was a Pre-Sentence Report prepared by a Probation Officer who had
seen the Appellant many times since the death of Henderson. He noted that she
had been, as he put it "traumatised with desperate grief and misery" after the
death and he too noted that the Medical and Psychiatric Records showed
immaturity, emotional disturbance, attempts at suicide, eating disorders,
alcohol and drug use and possible miscarriages all arising within what he
called a "volatile and dysfunctional relationship" with the deceased who had
great influence upon her. However by the time of the Report the Probation
Officer assessed her as having matured and developed better emotional and
cognitive control mechanisms. She presented only a moderate risk which could be
controlled by attendance at an Aggression Management Course. After an initial
period of 3 weeks in custody in April 1998 the Appellant had been granted bail
and had been on bail for 17 months. During that period she had obtained work as
a trainee manageress and had become engaged to a new partner. She was
reconciled to her family and there were excellent character references. It was
the view of the Probation Officer that a custodial sentence was likely to
destroy the very positive steps towards rehabilitation which had been achieved
by the Appellant. Her emotional state was still fragile and her progress
towards a normal life would be fractured by a period in custody. She was, in
the opinion of the Probation Officer, entirely suitable for any Community
Disposal.
14. We have read the letters in support written by others which were referred
to by the Probation Officer. It is clear that in her new life she flourished.
She was described variously as "genuine"; "good natured"; "honest and hard
working and sensitive and caring"; "trustworthy, reliable and honest". Those
letters speak very well of her and the progress that she has made towards
leading a stable life. Miss Baird referred us to R v Chambers [1983] 5
Cr.App.(S) 190; R v Gardner [1994] 15 Cr.App.(S) 364. and R v
Higgins [1996] 1 Cr.App.(S) 271. in support of her submission that a
non-custodial sentence was appropriate.
15. In R v Chambers Leonard J giving the judgment of the Court said:-
"In cases where the evidence indicates that the accused's responsibility for
his acts was so grossly impaired that his degree of responsibility for them was
minimal, then a lenient course will be open to the Judge. Provided there is no
danger or repetition of violence, it will usually be possible to make such an
Order as will give the accused his freedom, possibly with some supervision".
16. Dr. Reeves considered that the responsibility here was minimal. In R v
Gardner the Doctor reported that the Appellant was subject to "unremitting
physical and verbal attacks" which led to "a cumulative state of exhaustion,
hopelessness, helplessness and depression, these features being characteristic
of what has been described as Battered Women's Syndrome". And then "as the
violence progressed she lost all effective coping strategies or the will to
resist and became increasingly depressed and passive". The Court considered
that that was one of the exceptional cases when a non-custodial sentence for
manslaughter would be appropriate. As in this case the Appellant in
Gardner had demonstrated since the offence an increasing maturity and
responsibility leading to the view that she was unlikely to re-offend.
17. In R v Higgins the Court emphasised the need to have regard to the
feelings of the family of the deceased. (We have consciously done so in the
present case.) The Court also noted R v Gardner and came to the
conclusion that the exceptional circumstances allowed the Court to substitute a
Probation Order for 2 years in place of the sentence of imprisonment that had
originally been passed. The short facts there were that the Appellant had been
subjected to prolonged and persistent verbal and physical abuse by her
alcoholic husband which had resulted in reactive depression and an abnormality
of mind which substantially impaired her mental responsibility for her act.
18. As we have indicated we too have had regard to the fact that a life was
taken. The family of the deceased are entitled to know that we have given full
consideration to that. The question for us is whether there are in the present
case those exceptional circumstances which might allow us to take the unusual
course of passing a sentence other than custody. Although some of the
descriptions of the treatment to which this Appellant was subject come from
her, there is sufficient independent evidence, both factual and medical, for us
to come to the conclusion that from a young age this vulnerable Appellant was
subject to persistent and prolonged violence from a man older in years who was
dominating, domineering and demanding. The Medical Records show that she
suffered clinical depression over a long period of time and other evidence
demonstrates that the only period of stability that she enjoyed was when the
deceased was serving a term of imprisonment. When he was discharged her
suffering at his hands resumed. The Medical Reports from both Prosecution and
Defence doctors show that she demonstrated many of the features of Battered
Womens' Syndrome. It was in those circumstances that the stabbing which caused
his death occurred.
Having given the matter very careful consideration and understanding the
difficult task faced by sentencing Judges in cases of this type we have come to
the conclusion that there are circumstances here which enable us to take the
wholly exceptional course of passing a Community Sentence. It is clear that the
Appellant, who is now 20 years, has, since she was at least 14, lived a life
which has damaged her personality. Her association with Henderson was a major
cause. Since her arrest she has made remarkable progress. That has been brought
about by her own efforts and the change in her life-style. A custodial sentence
would be likely, in our judgment, to damage and may bring to an end that
rehabilitation. She has served the equivalent of about a 12 month sentence and
this is the appropriate time for her to be given an opportunity to continue the
progress that she has made since this tragic event. It is for these reasons and
in those circumstances that we quashed the sentence of 4 years and substituted
for it the Probation Order of 2 years.
MISS BAIRD: My Lord, may I remind you that at the end of the hearing on 6th
March when I represented Miss Fell, your Lordships ordered that legal aid
should be extended to those who instructed me since the change of advisers.
That order has not found its way either into the judgment or into the court's
order and I wonder if I could ask you to reiterate that?
LORD JUSTICE HENRY: Yes. That is what we then ordered.
MISS BAIRD: Thank you, my Lords.
© 2000 Crown Copyright
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