Case No: 00/4006/Z5
Neutral Citation Number: [2001] EWCA Crim 2834
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 11th December 2001
B e f o r e :

LORD JUSTICE KENNEDY
MR JUSTICE HUGHES
and 
MR JUSTICE PENRY-DAVEY
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	R		
	-v-		
	GARY JAMES PEARCE		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr Michael Wood QC (appeared for the appellant)
Ms Wendy R Joseph QC (appeared for the Crown)

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Judgment

Lord Justice Kennedy : 
Introduction
1.	On 16th June 2000 in the Crown Court at Inner London this appellant was convicted of murder, and was sentenced to life imprisonment.  He now appeals against conviction by leave of the single judge.
2.	During the afternoon of 9th August 1999 police officers were called to the appellant’s house at Glenrosa Street, Fulham, South London and found the appellant’s brother Paul Pearce on the bathroom floor.  When both men were drunk the appellant had stabbed his brother three times in the chest with a kitchen knife.  One of the wounds had penetrated the heart and was fatal.
3.	The police had earlier been called to the house as the appellant had been arguing with his partner when she refused to give him more money to buy alcohol.  They left when assured that the situation was resolved.  It was she who called the police after the stabbing.  The appellant initially told the officers that four or five men had kicked in the door of the house and were responsible for the killing.  In interview next day he said that he had no recollection of the incident.  At trial there was no issue about who wielded the knife.  The issues for the jury were whether the appellant had the necessary intent to kill or to cause really serious harm having regard to the degree of his intoxication, and, if he was found to have the necessary intent, whether he was provoked. 
4.	The first ground of appeal, which the appellant did not get leave to argue from the single judge, concerns the decision of the trial judge to permit the prosecution to treat two witnesses as hostile and to cross-examine them in relation to statements which they had made to the police.  Those witnesses were Joanne Pearce, the appellant’s 15 or 16 year old daughter and Loveina Pearce, the woman who had lived with the appellant for 19 years and borne three children to him.  In the ground of appeal it was alleged that in relation to each witness the decision of the judge “failed to properly take account of the right to respect for family life guaranteed under Article 8 of the European Convention on Human Rights and infringed the right to a fair trial under Article 6.”
5.	The ground of appeal on which the appellant did obtain leave to appeal is ground 6, and it reads –
“In directing the jury on the issue of provocation the judge erred in failing to direct them that the defendant’s alcoholism was a characteristic that they could take into account when considering the reasonable man’s capacity for self control.”
6.	In relation to ground 1 we heard submissions from Mr Wood QC for the appellant and then granted leave to appeal so that we could have the benefit of submissions from Ms Joseph QC for the Crown in relation to this ground also.
Ground 1
7.	Mr Wood chose to advance his submissions primarily by reference to Loveina Pearce, the longstanding partner of the appellant.  Mr Wood pointed out that if they had been married she would have been a witness who was competent but not compellable, and submitted that in 2001 the position of a marriage certificate should not be the touch stone of compellability.  He further submitted that the reason why a wife is not compellable is to protect relationships within the family, and in recent years, both in this country and in Europe, courts when deciding whether or not such a relationship exists have looked at substance as well as at form.
8.	In X, Y and Z v UK [1997] 24 EHRR 143 the right to respect for private and family life enshrined in Article 8 of the European Convention was relied upon in order to challenge the refusal of the United Kingdom to register a post operative transsexual as father of a child born to a partner by artificial insemination donor.  Article 8 provides –
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”
9.	Although the challenge failed Article 8 was found to be applicable, and paragraph 36 of the judgment of the court reads –
“The Court recalls that the notion of ‘family life’ in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships.  When deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.”
10.	Mr Wood submitted that in the present case the appellant and Loveina Pearce had a de facto relationship which amounted to family life, and that should have resulted in Loveina Pearce being protected from being required to give evidence against her co-habitee.  We were told that such protection is granted co-habitees in some European and non-European states.  
11.	Mr Wood also invited our attention to Fitzpatrick v Stirling Housing Association Ltd [2001] 1 AC 27 where the homosexual co-habitee of a protected tenant applied under the Rent Act 1977, as amended, to take over the tenancy when the tenant died.  The court then had to consider whether the applicant had lived with the deceased “as his ... wife or husband” within paragraph 2(2) of Schedule 1 to the 1977 Act and whether he was “a member of the original tenant’s family” within paragraph 3(1).  In the House of Lords it was held that although the words in paragraph 2(2) extended the meaning of spouse to those not legally married they contemplated a relationship between a man and a woman, so they were not wide enough to enable the applicant to succeed.  However the words in paragraph 3(1) were wide enough to include the applicant.  At 38D Lord Slynn said –
“The hallmarks of the relationship were essentially that there should be a degree of mutual interdependence, of the sharing of lives, of caring and love, of commitment and support.  In respect of legal relationships these are presumed, though evidently are not always present as the family law and criminal courts know only too well.  In de facto relationships these are capable, if proved, of creating membership of the tenant’s family.”
At 51 H Lord Clyde said –
“The concept of the family has undergone significant development during recent years, both in the United Kingdom and overseas.  Whether that is a matter for concern or congratulation is of no relevance to the present case but it is properly part of the judicial function to endeavour to reflect an understanding of such changes in the reality of such social life.  Social groupings have come to take a number of different forms.  The form of the single parent family has been long recognised.  A more open acceptance of differences in sexuality allows a greater recognition of the possibility of domestic groupings of partners of the same sex.  The formal bond of marriage is now far from being a significant criterion for the existence of a family unit.  While it remains as a particular formulisation of the relationship between heterosexual couples, family units may now be recognised to exist both where the principle members are in a heterosexual relationship and where they are in a homosexual or lesbian relationship.”
12.	For the Crown Ms Joseph submits that although there has been a marked change in public perceptions as to what constitutes a family unit that is not really relevant because we, like the House of Lords in Fitzpatrick must start with the words of the statute, and in the present case the statute which is relevant is that which would have applied to Loveina Pearce had she been married to the appellant.  The relevant words are to be found in section 80(1) of the Police and Criminal Evidence Act 1984. Those words were reconsidered by Parliament as recently as 1999, when the section was re-enacted in an amended form by the Youth Justice and Criminal Evidence Act of that year.  They speak of the “wife or husband of a person charged” being compellable only in certain circumstances.  They do not speak of a person in the position of a wife, and Loveina Pearce was not the wife of the appellant.  Mr Wood’s primary submission is that we should read down the words of section 80(1) so as to make them compliant with his interpretation of the Convention, but the words are clear and are not capable of being expanded so as to embrace a relationship to which they plainly do not apply.  In any event we do not accept the proposition which underlies Mr Wood’s submissions in relation to this aspect of the case, namely that proper respect for family life as envisaged by Article 8 requires that a co-habitee of a defendant, whether or not married to him, should not be required to give evidence or to answer questions about a statement which he has already made.  This is plainly, as Ms Joseph submits, an area where the interests of the family must be weighed against those of the community at large, and it is precisely the sort of area in which the European Court defers to the judgment of states in relation to their domestic courts.  There may be much to be said for the view that with very limited exceptions all witnesses who are competent should also be compellable, and certainly the material before us does not enable us to conclude that because a concession has been made to husbands and wives proper respect for family life requires that a similar concession be made to those in the position of a husband or a wife.  As Ms Joseph points out, if the concession were to be widened it is not easy to see where logically the widening should end.  That objection may not be insuperable but the possibility of serious limitations being placed upon society’s power to enforce the criminal law is obvious.  Ms Joseph accepts that at one level the requirement that Loveina Pearce give evidence can be regarded as an interference with her rights under Article 8(1) but, she further submits, the situation is clearly within the ambit of Article 8(2).  The interference is in accordance with the law and it is properly regarded as necessary in a democratic society for the prevention of crime.  The words “necessary ... for the prevention of... crime” appear in the Contempt of Court Act 1981, and in that context were considered by the House of Lords in Re an Inquiry [1988] AC 660.  In that case Lord Griffiths said at 704 that the word “necessary” takes its colour from its context, and in this context its meaning “lies somewhere between ‘indispensable’ on the one hand and ‘useful’ or ‘expedient’ on the other”.  As to prevention of crime, reference was made to Article 10 of the European Convention, and Lord Griffiths said at 706B that in his view it is clear that prevention of crime is being used “in its broad general sense in Article 10”.  Ms Joseph submits that the same applies to Article 8(2) and we agree.  We expressly reject any suggestion that those words should be so confined that they cannot be used in relation to criminal proceedings after a crime has been committed.  Apart from anything else a successful prosecution may exercise a powerful influence on others minded to offend in a similar way.
13.	We therefore reject the appellant’s submissions in relation to the decision to treat Loveina Pearce as a hostile witness and, as Mr Wood conceded, the arguments in relation to Joanne Pearce are not as strong as those in relation to Loveina Pearce.  It would plainly require primary legislation to bring children within the scope of the concession to be found in section 80 of the 1984 Act.  We were addressed about the “moral dilemma” of obliging a child to answer questions about her father, but essentially the legal points are the same and we must therefore conclude that there is no substance in ground 1.
Ground 6
14.	We turn now to ground 6, and we begin by considering what evidence there was in relation to the appellant’s abuse of alcohol?  Joanne Pearce said that both the appellant and Paul Pearce, who had been living in the household for a few months, drank too much.  When sober they were the best of friends, and her father was a lovely person but horrible when drunk.  Loveina Pearce’s evidence was to the same effect.  She said that the appellant had an alcohol problem for a long time.  She did not like him drinking and he had been trying not to drink, but when Paul came to stay his good intentions went out of the window.  She confirmed that when the brothers were sober they got on well, but said that Paul, who was much bigger than the appellant, could be a bully when in drink.  When the police arrived the appellant was clearly drunk.  On the basis of a blood sample taken later that day it was calculated that his level of intoxication at the time of the killing was between 255 and 305 milligrams percent, associated in a normal person with extreme drunkenness.  He had also used cannabis and diazepam.  He was medically examined after his arrest, and when seen by another doctor next day the appellant said that he had mental health problems, including agoraphobia, xenophobia and anxiety, for which he was taking medication.  The doctor found him to be alert, orientated in place and time, and fit for interview.  Subsequently the appellant told the doctor that he had been in hospital for 3½ weeks two months earlier.  He said that he drank up to 10 cans of beer a day.  He could not remember how much he had drunk on the previous day, but he said that he had been drunk.  The doctor gave the appellant some diazepam to prevent alcohol withdrawal symptoms.  
15.	At trial the appellant did not give any evidence or call any witnesses to give evidence on his behalf, but there was evidence, particularly from Joanne Pearce as to what went on between the brothers at the time of the killing, which was relevant to the issue of provocation.  Loveina Pearce was out of the house at that time.
16.	Provocation is dealt with in section 3 of the Homicide Act 1957 which states:
“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.”
17.	When the judge came to direct the jury as to provocation he asked them to consider whether Paul’s conduct may have been such –
“as to cause a reasonable and sober person of the same age and sex as the defendant to do as he did?  What, you may be wondering, is a reasonable person?  Well it is simply a person who has the degree of self-control which is to be expected of the ordinary citizen who is sober at the time and about the same age as the defendant; mid thirties, a male and who shares this unusual characteristic with him, which I have already referred; that he has a previous experience rendering him, if you accept the evidence, a bullied, younger and smaller brother.  So, imagine such a person, who has been bullied for years by his older and bigger brother, who is about 34 or 35, a man who is sober, stone cold sober and who then is subjected to, whatever you find as a fact this defendant was subjected to, by his brother Paul.”
18.	So the jury was directed in clear terms to disregard alcohol, and the transient effect of alcohol.  No one questioned the propriety of that direction at the time, but six weeks later on 27th July 2000 the House of Lords gave judgment in R v Morgan Smith [2001] 1 Cr App R 31.  In that case it was held by the majority that in relation to provocation the personal characteristics of the accused should be taken into account both in considering whether the accused had been provoked to lose his self control and in deciding whether the provocation was enough to make a reasonable man do as he did.  In the light of that decision Mr Wood submits that alcoholism was a characteristic of the appellant which in relation to the issue of provocation the jury should have been permitted to consider.  
19.	In Morgan Smith Lord Slynn considered the effect of Camplin [1978] AC 705.  He went on to point out that section 3 of the 1957 Act is not concerned only with the reactions of a reasonable man saying at 37, line 22 –
“It is important to bear in mind that the section left the decision to the jury and took away the judge’s power to direct the jury as to what characteristics of the accused could as a matter of law be taken into account and to withdraw the question from the jury on the basis of the judge’s personal view.”
At line 27 he continued –
“This does not mean that the objective standard of what ‘every one is entitled to expect that his fellow citizens will exercise in society as it is today’ is eliminated.  It does enable the jury to decide whether in all the circumstances people with his characteristics would reasonably be expected to exercise more self-control than he did or put another way that he did exercise the standard of self-control which such persons would have exercised.  It is thus not enough for the accused to say ‘I am a depressive, therefore I cannot be expected to exercise control’ the jury must ask whether he has exercised the degree of self-control to be expected of some one in his situation. 
It thus seems to me that the particular characteristics of the accused may be taken into account at both stages of the enquiry.”
20.	At page 58 Lord Hoffmann said –
“Judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics.  They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation.  First it requires that the accused should have killed whilst he had lost his self-control and that something should have caused him to lose self-control ...... secondly, the fact that something caused him to lose self-control is not enough.  The law expects people to exercise control over their emotions.  A tendency to violent rages or childish tantrums is a defect in character rather than an excuse.  The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence of murder to manslaughter.  This is entirely a question for the jury.  In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of emotions but, on the other hand, not allowing someone to rely on his own violent disposition.  In applying these standards of behaviour, the jury represent the community and decide ... what degree of self-control ‘everyone is expected or entitled to expect his fellow citizens will exercise in society as it is today.’ The maintenance of such standards is important.  ....
The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make up.  In most cases, nothing more will need to be said.  But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule.  It may sometimes have to yield to a more important principle, which is to do justice in the particular case.  So the jury may think that there was some characteristic of the accused whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account.  If the jury take this view, they are at liberty to give effect to it.”
21.	 We have cited those passages at some length because it is on those passages that Mr Wood seeks to rely.  He concedes that at trial there was no evidence that persistent alcohol abuse had become so much a part of the appellant’s personality that it was outwith his control, or had caused some change in him which could be related to the relevant events.  Mr Wood further concedes that when an ordinary individual, without a history of severe alcohol abuse, gets drunk that self-induced intoxication cannot be relied on when, as the statute requires, the jury considers the question of “whether the provocation was enough to make a reasonable man do as he did”.  But Mr Wood submits that in the present case the position was different.  Because the evidence showed that the appellant was a habitual abuser of alcohol the jury should have been permitted to take that “characteristic” into account, both when considering the effect of the conduct of the deceased on the appellant, and when considering the acceptability in law of the appellant’s level of response.
22.	For the Crown Ms Joseph said that in this case there never has been any evidence of the kind that would need to be available if the appellant was to rely on alcoholism as a characteristic. The evidence to which we have already referred went no further than to show that the appellant frequently drank to excess, and was pugnacious when drunk, so the jury was rightly told not to have regard to the effects of alcohol upon him.
23.	We accept that in the light of Morgan Smith the trial judge would not today have directed the jury precisely as he did, but we further accept that for the reasons given by Ms Joseph the appellant’s alcohol abuse was not shown to be relevant to the issue of provocation in this case, and the judge was therefore right to instruct the jury to disregard it.  As Lord Hoffmann said in Morgan Smith the law expects people to exercise control over their emotions.  That applies equally, in our judgment, to ingestion of alcohol and drugs, especially when the person in question knows that over-indulgence leads to reprehensible behaviour.  A defendant who has apparently simply voluntarily over-indulged, and who chooses not to call evidence, is going to have great difficulty in showing that the provocation was enough to make a reasonable man do as he did, especially if it seems likely that if not affected by alcohol he would not have been provoked to lose his self-control at all.
24.	We therefore conclude that ground 6 of the Grounds of Appeal is also without substance.  We are satisfied that the conviction remains safe and the appeal against conviction is accordingly dismissed.