Horsman, R v [2001] EWCA Crim 3040 (14th December, 2001)

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Cite as: [2001] EWCA Crim 3040

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Horsman, R v [2001] EWCA Crim 3040 (14th December, 2001)

		Neutral Citation Number: [2001] EWCA Crim 3040
		Case No: 2000/3858Z3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand,
London, WC2A 2LL

14th December 2001

B e f o r e :

LORD JUSTICE JUDGE
MR JUSTICE HOLMAN
and
MR JUSTICE MACKAY
____________________

REGINA

- v-

HORSMAN

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Nicholas Hilliard (for the Crown)
Mr Edward FitzGerald QC (for the Appellant)
____________________

HTML VERSION OF JUDGMENT
(AS APPROVED BY THE COURT)
____________________

Crown Copyright ©

Lord Justice Judge :

This is an appeal by Malcolm Horsman against his conviction of murder on 1 June 2000 at the Central Criminal Court before His Honour Judge Hyam, the Recorder of London, and a jury. It is argued on his behalf that the judge mis-directed the jury on provocation, and that, in addition, there is evidence which should be admitted and received by this court under section 23 of the Criminal Appeal Act 1968.

On the morning of 16^th December 1998, the appellant killed his wife Ursula at the home they had occupied together in London for about two years before Mrs Horsman’s death. They were married in 1983. For many years their marriage had been a happy and successful one.

The cause of death was suffocation. Mrs Horsman’s mouth and nose had been obstructed, or her head had been pressed down into a firm but yielding surface, thus depriving her of oxygen. There were injuries around her nose and mouth and her lips had been crushed against her teeth, which indicated heavy pressure. There was a mark on the right side of her chin, probably the result of finger pressure. The pressure on her face must have been firm, and sustained for not less than one minute, and between one and three minutes in total.

There were marks on the deceased’s arms consistent with some sort of restraint, together with other marks typical of a struggle, and if she had struggled, then oxygen would have been used up more rapidly, and her death would have occurred more quickly: so, too, if she had had a cold. In any event, however, death would not have occurred unless her airways had been obstructed for at least one minute. It was accepted that some of the marks on the deceased’s arms could have been caused after death.

After killing his wife, the appellant behaved perfectly normally, as though nothing had happened.

He left home at about 8.30am that morning, wearing a suit and raincoat. A few minutes later he returned home. He then left again, carrying what looked like a picture wrapped in brown paper under his arm. At some time during that day he attended a storage facility in Lillie Road. The appellant also visited his office in Theobalds Road. He signed a number of blank company cheques and wrote and signed company cheques to the Management Company for the rent on his flat, and to American Express for his business expenses. Later that day he went to the Old Kent Road to buy bags and string.

At about 4.30pm he went to Chelsea Police Station and told the officer that he had killed his wife. He said that they had had an argument, “a big argument”, and that they had had a fight. He went on “I had other things to do after I left, to clear my head”. He then repeated what he had said to another officer, explaining that after an argument with his wife he had “smothered her with a pillow”. The appellant was searched. He was found in possession of two watches, a ring and some jewellery, which he said he had taken from the bedside table “afterwards”, as he thought someone else might take them. While he was waiting for a medical examination he said that what had happened hadn’t yet really hit him and he supposed that that was “why he carried on with his normal routine”.

The police went to the appellant’s home. The deceased was found lying on the floor of the bathroom adjoining the main bedroom. She was wrapped in a white sheet. The bed in the main bedroom was unmade, and the bedclothes were disturbed. There were clusters of small spots of blood on the bed linen, consistent with coughing, spitting or sneezing of blood, and blood and saliva on the pillowslip.

On the following afternoon, in the presence of his solicitor, a full and properly recorded interview took place. We shall shortly return to narrate the details of what the appellant said.

The appellant undoubtedly caused the death of his wife. He represented himself at trial. This was a matter of deliberate choice made by a highly intelligent, articulate, forceful and determined man. He had informal discussions with counsel who was a friend. He instructed a firm of solicitors who in turn instructed leading counsel. All the issues appear to have been explored. Both counsel, and his family, urged him not to represent himself. It is fundamental to a proper understanding of the issues which arise in this appeal that, although the possibility is now virtually brushed aside by Mr Edward FitzGerald QC on his behalf in this Court, the appellant believed, and certainly hoped, that he had a reasonable prospect of achieving an acquittal both of murder and manslaughter on the grounds of accident, and he prepared his case accordingly. Failing that, he expected to persuade the jury that he lacked the intention required for murder. For both these linked purposes the appellant recognised that the presentation to the jury of the picture of a harmonious and mutually fulfilling marriage would be more likely to attract a degree of sympathy for a husband in his position, and that evidence of difficulties and troubles would have made it seem more probable to the jury that his wife’s death was not a simple accident, nor unintentional. These tactics, in his own words, represented “his best form of defence”.

For completeness, we add that at one time an inquiry was made into the question of automatism, hence the instruction of a distinguished expert in this particular field, Dr Fenwick. In the end that issue was not pursued. Instead, a case for diminished responsibility was prepared and duly presented. One of the issues in dispute is whether the appellant suffered from vascular disease: it still remains an issue, the appellant continuing to contend that he does, and the Crown that he does not. We have not been invited to decide this issue for ourselves. By the end of the trial the judge rightly left to the jury the options of a total acquittal of both murder and manslaughter; acquittal of murder, but conviction of manslaughter on the basis either of the lack of intent or provocation, or diminished responsibility; and finally, guilty of murder.

It is suggested as the first ground of appeal that the judge’s directions to the jury on the issue of provocation were inadequate, amounting to a misdirection or non-direction. It is further contended that there is evidence of cumulative provocation which was not before the jury and that in the light of that evidence the verdict of the jury should be reduced from murder to manslaughter.

The starting point is the interview on 17^th December. For the purposes of the present appeal, the striking feature is that although the appellant was critical of his wife, at trial he was on at least three occasions to distance himself from what he had said to the police and dismiss these aspects of the interviews, or the interviews as a whole, as giving “a distorted” picture of the state of the marriage. By then, the emphasis was fully focused on the harmony and happiness of the marriage. Now, on appeal, attention is once again focused on matrimonial difficulties, and criticisms of his wife.

The major contention the appellant was advancing at interview was that his wife’s death was an unintended accident. He attributed his own actions (as best he could remember them) to words she had spoken, deliberately in order to hurt him. Although no specific incidents were identified, there had been a level of tension between them for some time before the death. For example, he spoke of a “hurtful streak she had in her”, that she spoke “quite hurtfully to him on occasions”, saying “many wounding things”. She could be “abrupt”. He agreed with the interviewing officer’s attempt to summarise the atmosphere he was trying to convey as “bickering” – she was “bickering” him. In short, at that interview, he was not suggesting that his wife’s nasty language immediately before his death was unique. It represented something of a pattern, not enough to come anywhere near justifying a divorce, but nevertheless a pattern of behaviour.

He described the moments immediately before his wife’s death. She was in bed. She had a cold.

“This developed into a persistent nag in this early part of the morning and we had of course discussed it the day before, probably the day before that, and probably the day before that and then she said something which was extraordinarily wounding, it was, it was, it was a thing which sparked the whole episode in a sense. She said you, you’re mean, and everyone knows you’re mean and I feel and this was a very, very powerful destabilising factor. I say that because I don’t consider me myself mean at all………..I grabbed her in a sort of fury about this provocative statement, we wrestled to the ground on the side of the bed and from then onwards the whole thing was a sort of confusion and I really do have an amnesia about exactly, precisely what had happened but clearly when that turmoil was over my wife was still and seemed lifeless “.

He described how she made a noise which seemed to be a “death rattle”. It was obvious she was dead. He noticed a pillow on the floor with some blood on it, and that prompted him to wonder whether he somehow might have smothered her. Her night shirt was up around her neck, and he had some minor cuts to his hand.

Later in his interview he described, among other things, how his wife was “quite capable as we all are of saying wounding things” and acknowledged that he too had probably said them.

Difficulties “over the last five years” were attributed to his wife’s aspiration to live in Belgravia, “which is expensive because she feels that gives her a position in the society which she now feels part of, which gives her a security and I was very sympathetic towards these things, but it did produce some sort of difficulties which I surmounted about a sort of life style factor”. We can illustrate the appellant’s manner during the course of the interview by citing a very lengthy passage, in response to the interviewing officer’s request that he should describe his wife’s personality to him.

“Yes I can. Enthusiastic, bouncy, well liked by people in general, but she did have, what I call, a Swiss Miss attitude. She could become what I would say slightly, I can’t think of a word, I’ve never had to describe it before Abrupt, but in general she had a range of friends who liked her especially in the community that she then established herself in the last five or six years in a sense of course as I said before prompted this question for better status to a certain extent which did produce an undercurrent of irritation. I was conscious always feeling for example that every time you should travel Club Class or whatever rather than take a cheap economy and there were, she definitely had a feeling perhaps insecurity that she should be seen to have a comfortable life whereby that’s, I’m not particularly inclined to. I want to go, it doesn’t, I happen to go to a theatre and I want to go and see the theatre, if in fact there’s only a Ł10 seat I’ll take it whereas she would feel that unless she got a good seat, locking into the play that this would be unattractive to her. So on odd occasion I went to the theatre on my own ‘cause there was only an odd ticket for the theatre and she would prefer not to come. I think she’s someone who took great pride in her appearance which means that you know its quite expensive and that was important to her. It was part of her strengths, security, and there most certainly was a feeling. I mean there were things said in the course of, quite consistently, that you know we should be able to afford that and if not then we bloody well should be able to afford that because you should, you know, you’re cleverer than other people and yet not as clever as you they have made that money. There was a constant drip, drip of what I would call you know you’ve done it before why can’t you do it now without quite understanding that you know sometimes given my style which is not a corporate style, its more of a, you know, sometimes it works, sometimes it doesn’t, more an ad hoc style of earning money, that there was a lack of sympathy of that and it was expressed quite forcibly and quite hurtfully on occasions but in every relationship with man and wife there are elements in each other’s background which are hurtful and, but it doesn’t in the end normally mean that you break up and therefore I think whatever those, that hurtful streak she had in her, I think perhaps on my side not being able to provide the sort of property she wanted, living in rented accommodation, I think was equally an irritant to her but at the end it doesn’t basically alter the, you know, the fact we got on well together but it didn’t stop her raising these issues which I felt were going to the heart of my, almost as a man in a sense you know, it was a question of I’m impotent in commercial affairs and certainly you know one’s had successes before and they come and go and there was this drive for sustaining a life style which was expensive and which nevertheless gave her the position she wanted, from an insecure background. I mean I am a liberal, so I’m totally sympathetic to the ways that people arrive and situations like, and I understood her problem but there was this very, very, very deep thing culminating in the fact of me, whereas before on occasions you know we looked at property, it hadn’t worked out or this is expense or whatever it may be and sort of drifted off. We’re coming now to this clear case of two properties, one of which we I think can afford comfortably and then being in a position to look at and the consistent and you know point, we must take the opportunity, I need to have it, we need it. This is a sense I think was that sort of, that sort of subconscious tension which was developing at some stage, she had to accept this is what made me comfortable and I in turn, sorry, had to be sympathetic towards her position which I was and I must say that the last few days as we came up to you know signing contracts and all that it became drip, drip, drip, drip, drip, drip, drip, drip. I can’t deny that and I think really however it was and I know, feeling of, but it’s when somehow or other, when that question of being mean was said you know you’re mean, people think so, it seemed to go very deep”.

This interview formed the basis of the judge’s directions on provocation. Looking at it as a whole, it did not convey a picture of ghastly misery, or a profoundly unhappy marriage, but suggested that by the time of his wife’s death, there were serious tensions in their relationship, arising from the wife’s dissatisfaction with the appellant’s ability to provide her with the life style, and in particular, the property that she craved. Equally, although the appellant was absolutely adamant that he never on a single occasion was violent, or even threatened her with violence, he too was capable of speaking sharply and woundingly in response.

At his trial, nearly 18 months later, the appellant gave evidence that they had “a very happy marriage …. I promise you I had a very happy marriage. Of course we just did not row. Of course there were certain issues about, that she might well have been demanding on occasions, but all women are demanding, and she was also wanting high standards but that is important in that sense”. No doubt referring to the interview he said “you have imagined in fact if we are moving onto the night before her death that we talked about nothing incessantly but about properties and all the rest, it was nonsense. I mean, we talked about going to India with the wedding we were going to in January, big issues of deciding of how we should do that. There were things like Christmas presents, you know had we got, who have we not missed out. There were a whole variety of things we discussed….. most certainly listening to that, you know what I’m supposed to have said in that interview, it seems to distort the picture completely. It is just not my wife and myself’s relationship….We were companions. I mean, there was not anything we did not do together. She would be phoning me up two, three times a day in the office about this and that situation. I did not have any friends which were not her friends. I did not have any pastimes which really took me away…… I mean, if there was a deep tension in our marriage then you cannot contain it completely at home, it does come out with your friends and relations who say ah yes, there is a problem there, even though you would not be displaying it”. That passage in his evidence was plainly preparing the jury for the witnesses he was to call to demonstrate that there were no such problems, indeed no tensions at all.

The appellant told the jury that the words “you are mean and everyone knows you’re mean”, were the catalyst for “this dreadful tragedy”. “Her remark was massively provocative to me. It was a major provocative statement. I have always felt I am a generous person. It was the sharpest most painful thing she could have said to me.” The only thing he could recall was putting his hands on her shoulders. “ I did not deliberately suffocate her with a pillow.” He had no idea what he intended, if he intended anything at all. He had “never, never, never, never, never ….ever touched a woman in anger or even a man in anger”. He had no idea why it happened. When the judge asked whether he intended to kill her or cause her really serious bodily harm he replied “not at all,….not at all. What my companion? The person that I loved? As you know My Lord, there is evidence that in fact she died by accident which the defence will be putting forward as you know. It was an accidental situation. I cannot deny that I went forward and put my arms onto her shoulders. It seems to me if you are going to kill someone you go for their throat first”. Not long afterwards he again returned to observe that “perhaps in the end of this dreadful situation it was an accident.” He then told the jury that he would be calling various witnesses to demonstrate that the universal response to his wife’s death was “deep sadness”, but total support for him in his predicament.

We must now turn to consider the way in which the appellant’s case was prepared for the trial, and the arrangements made by him, or on his behalf, for witnesses to give their evidence. The context is the ground of appeal that there is “new” or “fresh” evidence of “cumulative provocation” of which these, and other, witnesses now speak, which was not adduced before the jury.

This evidence, seeking to support the contention that the death was an accident, reflected the evidence given by the appellant personally.Any analysis of the preparation of his defence should begin by referring to his letter to one of the witnesses, Mrs Barclay, which was itself typical of the letters he wrote to potential witnesses. He asked Mrs Barclay to provide a witness statement to reflect the truth as she saw it, asking that the following, among other issues, should be covered.

“That from your experience that all times in your presence I was never physically violent towards Ursula or showed any intention of being so. That on all occasions we presented a happily married couple without tension.”

Mrs Barclay made a statement on 10^th November. In it she said

“At no time did we ever see Malcolm be violent towards Ursula nor we see even a threat of such a happening. On the contrary we never heard Malcolm raise his voice in anger or display even a suggestion of physical or verbal aggression. At all times my husband and myself saw them as a warm and loving couple. Further more our mutual friends have never said differently”.

She referred to a speech made by the appellant on his wife’s 50^th birthday “expressing the happiness and conviviality that he and Ursula shared in their married life together. In turn Ursula told me proudly how touched she was that Malcolm had expressed those mutual feelings publicly”.

Mrs Barclay was called to give evidence. She was asked and in effect gave evidence in accordance with her statement. She spoke about the last time they had met, a few days before Mrs Horsman’s death. She said “they were their usual convivial selves. Always lovely to have at a party because they were always so nice together and very often, behind Malcolm’s back, she would tell me how wonderful he was, how convivial, how kind. I heard this on many occasions”.

Following conviction, in circumstances to which we shall shortly come, Mrs Barclay made a further statement dated 1^st December 2000. This is said to contain “fresh” or “new evidence”. What is revealing is that she describes her awareness that at his trial, “Malcolm did not wish to have Ursula’s memory sullied in any way….. I deliberately described Malcolm and Ursula as being “always so nice together, rather than detailing how I found Ursula to be when not in the company of Malcolm. When explaining that “behind Malcolm’s back”, Ursula would “very often” compliment him, I used the words “very often” rather than “always”. This was because whilst there were occasions when Ursula would sing Malcolm’s praises, there were also many occasions when she was less than complimentary about him.”

She described the arrangements for her attendance at the Central Criminal Court. When she arrived she met one of the appellant’s daughters and they had a brief discussion. She asked the daughter what was expected of her and “Catherine explained that Malcolm was anxious that Ursula not be “bad mouthed” in any way (this was something I was already aware of) Catherine said that she wanted me to concentrate upon what I thought of her father and how he related to and behaved with Ursula.” The witness continued that she recalled asking the daughter whether she wanted to talk about any of Mrs Horsman’s negative points, and, in particular, point out that she could be a “very provocative women”. The daughter said words to the effect of “no, daddy doesn’t want that”.

This reflects a very clear pattern. Another witness, James O’Hara, explained in a very recent witness statement dated 26^th October 2001, how he came to give evidence.

“Malcolm asked me to prepare a short statement about him and Ursula. He made no specific suggestions as to what I should include in the statement, although I was aware from earlier conversations with him that he was anxious to portray his marriage as a happy one during the trial”.

Hedi Kummer-Lanz, the deceased’s sister, described her attendance at the Central Criminal Court. She said that

“before appearing in the trial, Malcolm did run through the questions that he would ask me in court…..It was an extremely emotional situation for both of us. I did know that he absolutely wouldn’t let anybody say something bad about my sister.”

In her evidence she was asked by the appellant:

Q “Do you think Ursula was happy with me?”

A. “It certainly seemed to me”

Q “Did she ever complain about our relationship?

A “No, never”.

Q “But do you believe that if there was a problem in the relationship she would have spoken to you about it?”

A “Yes.”

The same impression is conveyed by a further witness, Nicholas Berwin, who having said in evidence at trial that he believed that the appellant was innocent of the charge, explained in a statement dated 17^th November 2000, following conviction, that he was: “very conscious whilst in the witness box of Malcolm’s deep rooted desire to not insult the memory of Ursula in any way”. He went on to add that before giving his evidence, he was “well aware that Malcolm, in preparing his defence, had made it clear to those of us who were close to him that he would not countenance any sullying of Ursula’s name…. Whilst ensuring that all my answers in the witness box were truthful and honest ones, I was conscious that it was Malcolm’s desire that there be no “insulting” of Ursula’s name”.

Another witness called by Mr Horsman, Ester Coleman, was asked by the appellant:

Q. “Did you get a feeling throughout this period that right up that we were a happy couple?

A. Yes, sir. I know it was very happy, very happy couple. That’s why I stayed there for a long time”.

She now says that was not the whole story. Before she gave evidence at the Central Criminal Court she can:

“.....recall Juliet saying something about me not saying anything against Mrs Horsman. I cannot remember her exact words but I thought that what she was saying was that I was not “allowed” to say bad things about Mrs Horsman. I was a bit surprised by this and said “Oh really!”. I may have misunderstood the point that Juliet was making because of my limited English and it may well have been that she was saying that Mr Horsman did not “want” me to say anything bad about his wife, but I entered the Court thinking that I was not “allowed” to say such things.”

Mr Horsman in his evidence before us asserted that he did not try to influence these witnesses. He regarded his decision to represent himself as stupid. He did so because he felt that he could “get across” that he was not a violent person and could communicate better with the jury. He would have liked to have been found “not guilty”, but he was not involved in a conscious effort to mislead the jury. Although he suggested that “this stupid decision” represented a manifestation of the lack of “self protection”, in our judgment the reality is that the appellant believed that he would be more likely than counsel to persuade the jury to find that his wife’s death was an accident.

His daughter, Juliet Hope, has loyally supported her father throughout these proceedings. Putting it as neutrally as possible, she was extremely frustrated that her father was determined to represent himself. She believed, and we are disposed to accept that, whatever her father’s position, she still genuinely believes, that it was important to him to establish that the marriage had been harmonious, not as a tactic, but because he was absolutely clear in his own mind that it was. These were the facts he wanted established, and at Court, she simply asked the witnesses to answer the questions asked by her father. She did not ask them not to say anything nasty. In the context of the explanations sought to be advanced to explain the appellant’s decisions about the conduct of the trial, we note that in November 1999 Mrs Hope had written to Dr Fenwick that “only recently when evidence of close friends, even her sister saying that she had become very demanding, has he reluctantly agreed that maybe there could be some validity in what we saw”.

Returning to the end of the trial, from the summing up, it is clear that the appellant argued before the jury that the death was “accidental”, or alternatively that he had no intention to kill or cause her injury. The Recorder summed up “It was, as he asserts, a pure accident.... The next part of his argument on this question is this. In order to demonstrate that he had no intention to kill or cause really serious bodily harm, he relies on the many witnesses who have spoken of the harmony of the marriage. That they always seem to get on well and that was the observation of all who had seen him together with his wife including relations, such as the sister and cousin of his wife, and their friends and colleagues……the truth was that it was a happy marriage and they were good companions”. The jury were again reminded of the appellant’s own account: “she died by accident.”

We can now conveniently consider the first ground of appeal. Mr Edward FitzGerald QC’s criticism of the summing up is limited to the directions on provocation, and in particular the way in which the Recorder directed, or failed to direct the jury, about the possible relevance of vascular disease.

The evidence that the appellant suffered from vascular disease affecting the brain function in the frontal lobes, and resulting in “reduced impulse control” depended on the evidence of Dr Fenwick. His diagnosis was disputed by the Crown, and required resolution by the jury and, if correct, was primarily relevant to the issue of diminished responsibility. Nevertheless, as the Recorder rightly appreciated, this evidence also bore on the issue of provocation. If the condition existed, the jury had to reflect on the possible impact, both on the potential gravity of the taunting words spoken by the deceased to the appellant and, and Mr FitzGerald emphasised, separately or distinctly, on the consequent potential reduction in the appellant’s ability to exercise reasonable self-control.

Mr FitzGerald reminded us of the developing case law, culminating in the decision of the House of Lords in R v Smith (2001) AC146, decided in the House of Lords after the conclusion of the summing up in the present case. We do not find it necessary to recite Mr FitzGerald’s analysis of the speeches in the House of Lords. We accept his submission that the effect of the speeches of the majority in Smith is that vascular disease, if any, was potentially relevant to both issues. That follows from the answers given by the majority in the House of Lords to the certified question, and their conclusion that the Crown’s appeal should be dismissed. The issue is whether the summing up sufficiently conveyed to the jury the potential dual relevance of the vascular condition (if any), or inappropriately confined it to the gravity of the taunts to which the appellant asserted he had been exposed. In respectful agreement with Lord Hoffman in Smith we do not believe that any “prescriptive formula” is either necessary or helpful.

The judge began by reminding the jury of the essential legal ingredients relating to provocation as a defence. After using the language of section 3 of the Homicide Act, he warned them not to be “mislead” by the term “reasonable man”. In that context he explained it was an “imaginary sober person having the power of self-control to be expected of an ordinary person of the age and sex of the defendant and in other respects sharing such of the accused’s characteristics, and the circumstances in which the defendant was at the time which would, in your view, affect the gravity of the provocation to him”. He then analysed the “characteristics and circumstances” which arose for consideration which the jury might conclude “were shared with the defendant”.

These included his generous disposition, his financial position, his business success or otherwise, and specifically and expressly

“any vascular disease which he might have had, which in your judgment, might have affected his ability to control himself”.

He went on to direct the jury that “the gravity of verbal provocation may well depend on the characteristics and circumstances of the person who is taunted.” Having reminded the jury of some of the evidence, he went on to direct them that if they concluded that the appellant had in fact lost his self-control

“the next and exacting question is: whether a person having the power of self-control to be expected of an ordinary person of the age and sex of the defendant and sharing such characteristics and circumstances with the defendant as you consider might have affected the gravity of the provocation to him would have both lost his self-control and done what the defendant did as a result of any provocation. The question is whether the imaginary person with ordinary powers of self-control would, in like circumstance, have been provoked, not only to lose his self-control, but would also have reacted to the provocation as the defendant did”.

The judge did not then repeat any particular individual characteristics and circumstances. From his earlier directions, vascular disease was plainly included, and the judge linked all the characteristics and circumstances he had identified earlier in relation to the gravity of the provocation and the loss of self-control.

Dealing with the burden of proof, the judge directed the jury that the prosecution had to make them sure that the defendant was not provoked, or if he was, “that a person with the powers of self-control to be expected of an ordinary person would not have been provoked either to lose his self-control or to do what the defendant in fact did”. Taken in isolation, and out of context, and without reference in particular to the earlier directions, it could be argued, and Mr FitzGerald did argue, that he had mis-stated the test. Accepting for present purposes that Mr FitzGerald’s analysis is correct, we must examine the single sentence not only against everything which the judge had already said, but with his subsequent directions.

He summarised the prosecution case on self-control, and then turned to the defendant’s argument. He said:

“the argument which he advances is that he was in fact provoked and any person with the powers of self-control to be expected of an ordinary person sharing my characteristics and circumstances including, if Dr Fenwick is right, the onset of vascular disease, which lessens my power of self-control, governed as it is by the frontal lobes of the brain, which have been affected, would have reacted as I did and would have done what I did. So that is his argument in response”.

The judge plainly left the issue of vascular disease to the jury. He did not criticise or cast any doubt on the validity of the argument advanced by the defendant if the jury accepted the evidence about his vascular condition. He did not, as had the trial judge in Smith, describe it “as neither here nor there” in relation to self control. Perhaps, he might have added words to the effect that the argument he had just summarised merited proper consideration. But given the overall context of what he had already said to the jury, notwithstanding the single, potentially erroneous sentence, we have concluded that the jury would have indeed examined the evidence of vascular disease in relation to both the aspects of provocation. Accordingly, this ground of appeal fails.

Immediately after conviction steps were taken to appeal. We were told that the energy for this appeal was generated by Mrs Hope. Whether this is so or not, the significant feature in the grounds of appeal is that, at the very least with the appellant’s agreement, and within four weeks of his conviction, notice of appeal was given in which the grounds were not confined to alleged defects in the summing up or problems with the conduct of the trial, but also raised the question of “new” or “fresh” evidence of precisely the criticisms of Mrs Horsman which the appellant had adamantly refused to deploy at trial. That ground is now advanced with the benefit of statements from witnesses who could certainly have given this evidence if they had been invited to do so, and most of whom had been discouraged from doing so.

In her evidence to us, Mrs Hope said that she had taken this “new” evidence to the lawyers who had been retained to act on the appellant’s behalf. No doubt, given that the appellant had started his sentence, this was true. But having seen Mrs Hope, and Mr Horsman, we are wholly unconvinced that the appellant’s will was somehow overborne by pressure from his daughter and the rest of his family, or that he was truly reluctant for the points to be taken. In short, the appellant is impliedly asserting, contrary to his evidence at trial, that his interviews with the police on 17^th December 1999 did not after all present a distorted account of his marriage. There were tensions. Harmony was not absolute. Criticism of his wife’s behaviour towards him is justified. So now, through Mr FitzGerald, he seeks to persuade this Court to admit in evidence on appeal precisely the body of evidence which for tactical reasons he was determined should be, and was in fact, excluded from the jury.

In order properly to consider the application to receive evidence, we decided to admit evidence to assess whether there was a reasonable explanation for the failure to adduce it at trial. At paragraph 34 and 35, we have summarised the oral evidence of the appellant and Mrs Hope on this issue. We also allowed evidence to be called on behalf of the appellant from Dr Fenwick. His explanation for the appellant’s conduct at trial was that he was “in denial”, therefore quite incapable of appreciating what his wife was really like, and refusing to accept or admit what would otherwise have been the cause or one of the causes of the mental pain from which he was suffering. He would not, and could not accept that his wife had been aggressive to him. And that explained why he would not advance evidence to the effect that she was.

Dr Fenwick reiterated that the appellant suffered from vascular disease. He pointed out that he was seriously hypertensive, overwhelmed with a sense of grief for his wife, for his own life and what he had lost, and for himself. He was “in denial” through the period leading up to the trial, and during the trial itself. Immediately after conviction, he was faced with the fact that the jury had found that he was a murderer, a violent man. So he had been forced to start looking at himself and questioning whether his wife was as “good” as he had thought. He was now able to acknowledge that she was not.

To deal with Dr Fenwick’s evidence, Dr Chesterman was called by the Crown. He explained that “in denial” was a term used in a number of different ways, sometimes to describe an unconscious mechanism which forced unpleasant memories away from the sufferer’s awareness, but also where the individual in question was simply denying acts which were inconvenient to his or her own case. Dr Chesterman’s view was that it was impossible to test from which form of denial an individual was suffering, and the only way of deciding which of the two categories applied was to check against the other sources of information.

Dr Chesterman did not accept the case for vascular disease. He rejected hypertension as a condition of the mind, pointing out that the appellant’s cognitive function was tested in great detail, without adverse findings. He explained that although hypertension could lead to pathology which affected the brain, it did not follow that the patient’s mental condition had deteriorated as a result. He acknowledged that grieving was a normal process, and could certainly lead to distracted preoccupation as part of the process. That could lead to someone in the appellant’s position deciding to represent himself at trial. Dr Chesterman reported that the appellant had said that he had been helped to come to terms with his grief by representing himself. That, indeed, is what the appellant had told the jury.

Dr Chesterman did not accept that the “denial” from which the appellant was suffering in this case arose from an unconscious mental mechanism. He regarded the detailed and spontaneous account of the marriage and the relevant events, during the police interviews, as showing that in the immediate aftermath of the death the appellant remembered that he had been exposed to provocative and irritating behaviour by his wife. He mentioned Mrs Hope’s letter to Dr Fenwick with its suggestion that the appellant had “reluctantly agreed” that there may have been some validity in the criticisms of his wife. Dr Chesterman accepted that this isolated passage in the letter might be open to a variety of interpretations, and we do not think it provides a sufficiently reliable piece of information against which to test this issue. However, Dr Chesterman regarded what was described as the “concerted effort” to persuade the witnesses to say that the marriage was harmonious, and not to say otherwise, as demonstrating a clear understanding in the appellant that something adverse about his wife’s behaviour might indeed be revealed. We accept that if the appellant’s memory had unconsciously emptied itself of any area of criticism of his wife, he would not have been adamant that the witnesses who might have spoken about it, should be discouraged, or even persuaded, to make no reference to them. Dr Chesterman also believed that another relevant source of information was the appellant’s view, expressed more than once, that the final insult which triggered off his reaction, was made deliberately. If there had been no previous occasions of unpleasant remarks, it would be more likely that Mr Horsman would have regarded such a remark by a loving wife as a misdirected, unpleasant, but not deliberately wounding comment. Finally, the circumstances of the present appeal were sufficient to make him very sceptical that the denial mechanism was unconscious. Dr Chesterman felt that this was a rapid change, rather than a very slow, gradual dawning of enlightenment, which would have been “unconscious”.

This evidence was highly impressive. We accept it. We reject the contention that Mr Horsman’s “denial” resulted from the operation of a genuinely unconscious mind. The interview with the Police was detailed and informative. Many of his answers were given at great length. Information was not extracted from him. The answers were not predicated by the questions. Therefore in the immediate aftermath of the horrible incident, his memory of his wife’s unpleasantness was clearly imprinted in his memory. The appellant was consistent throughout, from the interview through to his evidence at trial, that the remark made by his wife had been intended to be wounding. That, indeed, helped to explain his response. At trial he had therefore not shut out all possible areas of criticism of his wife, and more important, if the remark had been an entirely isolated incident, it would have been difficult for him to conclude that she had been deliberately wounding him. In assessing the answer to the question – was this an unconscious mechanism or mere denial of the inconvenient? - two further known facts, the conduct and preparation of the defence evidence, and the virtually immediate appeal based on evidence which criticised his wife, both point in the same direction and are inconsistent with an unconscious mind. In summary, reading the transcript of the interview, checking that against the material available to us from the papers of the trial itself, and reflecting on the evidence that we have heard from Mr Horsman, his daughter, and Dr Fenwick, and informed by the opinion of Dr Chesterman, we reject the explanation proffered for the failure to use evidence critical of the appellant’s wife at trial. There was no reasonable explanation for failing to adduce it then. The appellant made a conscious tactical decision to do so, in the expectation that this would improve his prospects of an acquittal.

It is in these circumstances that we must examine the application to receive further evidence. Under S23 of the Criminal Appeal Act 1968 we may, if... “necessary or expedient in the interests of justice -….. receive any evidence which was not adduced in the proceedings” from which the appeal lies. In considering whether to do so, we must have to regard to the four specific considerations prescribed in s23 (2). Those considerations are not exclusive, or conclusive. The interests of justice must prevail. One of those interests is that there should be a single trial of the allegation made by the prosecution against the defendant, and that both sides should call all the relevant available evidence at that trial. Otherwise the entire trial process would be subverted. That explains the criteria. If the criteria in paragraphs (a) (b) and (c) are fulfilled, then on some rare occasions, the absence of a reasonable explanation for failure to adduce the evidence, as required in paragraph (d), will not prevent the court from considering admissible evidence, capable of belief, to avoid a miscarriage of justice and wrongful conviction. (see R v Sales 2000) 2CAR431; R v Arnold (1996) 31BMLR24 and Ex Parte Pearson (2001) 1CAR141.)

We have examined the new statements of Kummer-Lanz, Scott-Dalgleish, Attie, Berwin, Golfer, O’Hara, Marks and Hope. Scott-Dalgleish had made a statement to the police which was served on the defence. Mrs Hope was present throughout the trial assisting her father as McKenzie friend. Marks was readily available. The other witnesses were called at trial. It is argued that without this evidence, the jury was provided with an incomplete and misleading picture of the matrimonial relationship, and indeed of a degree of mental deterioration developing in the appellant himself.

Some of the contents of the statements amount to no more than gossipy criticisms of the dead woman’s personality and character. She was said to have been a social climber, with illusions of grandeur. Some of the evidence, like the report of an occasion when the appellant was seen in his car making a V-sign, is trivial. Some of it is hearsay. However, added together, this evidence would have provided a measure of support for the allegations made about his wife by the appellant in his police interviews, perhaps no more than by way of emphasis and perhaps with increased credit-worthiness because of greater specificity. The statements do not however provide support for the suggestion that during his interview the appellant had been reticent in his descriptions about his wife’s behaviour or the difficulties in their relationship in the year before she died. As to reducing self control in the appellant, the additional material is virtually negligible.

We bear in mind Mr FitzGerald’s reference to “cumulative provocation”. In the present context this catch phrase covers the victimisation of one spouse, who has endured a lifetime of abject misery, with consequent physical injury, or illnesses such as reactive depression or post traumatic stress disorder. It is sometimes also extended in the forensic argument to what are not much more than manifestations of an unattractive aspect of character, to be set against more agreeable qualities which help a marriage to survive. This particular case, even on the basis of the new statements, fell far closer to the second rather than the first category. Moreover, although the appellant admitted that he, too, had been capable of and had made his own wounding remarks to his wife, and notwithstanding all the criticisms now drawn to our attention, the personal relationship with his wife, as well as the marriage itself, while subject to some serious tensions, remained intact.

We are prepared to assume that the evidence relating to Mrs Horsman’s behaviour towards her husband is capable of belief. It would have been admissible to the issue of provocation. We nevertheless have overwhelming reservations whether the deployment of this evidence at trial could have had any effect whatsoever on the verdict. The appellant’s case before us is based on loss of self-control caused by wounding words, deliberately used, which resulted in his wife’s violent death, not as the result of a sudden blow or blows, but by suffocation, as she lay in her bed. This unfortunate woman must have struggled for her life, in vain, until her resistance was eventually overcome. It comes as no surprise that the jury (admittedly without the supporting evidence for the appellant’s account in interview) rejected provocation as a defence.

Decisions about these matters are normally made by juries at trial. In this case, however, the jury was deprived of the opportunity to hear the supporting evidence as a result of the deliberate decision and tactical manoeuvrings of the appellant to seek an unjustified, unqualified acquittal. In our judgment, manoeuvrings of the kind which occurred in this case do not begin to make any sort of reasonable explanation for the failure to deploy this evidence, and when they are unsuccessful, a very powerful case is required to justify allowing an appellant, in effect, to re-present the case to another jury. Exceptionally, of course, it may happen, but this case comes nowhere near it.

We refuse the application to admit the evidence of these witnesses either on the issue of cumulative provocation, or the suggested reduction in self control.

This appeal is dismissed.

© 2001 Crown Copyright

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