Neutral Citation Number: [2016] EWCA Crim 1529
Case No: 20155313 C4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand 
London, WC2A 2LL 

Date: Tuesday 13 September 2016

B e f o r e:
THE VICE PRESIDENT
LADY JUSTICE HALLETT DBE  
MR JUSTICE FLAUX 

MRS JUSTICE SIMLER DBE 
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R E G I N A 

V 

JAMES MCDONALD
 
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Mr R Smith QC appeared on behalf of the Appellant
Mr I Unsworth QC appeared on behalf of the Crown
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J U D G M E N T(Approved)
1.	THE VICE PRESIDENT:  On 28th January 2015 the appellant killed his wife, Sophie McDonald, by beating and strangling her.  He accepted that he was guilty of manslaughter but wished to run the partial defence to a charge of murder of loss of control.  Having heard the prosecution case and the appellant give evidence over two days, the trial judge, His Honour Judge Gilbert QC ruled that the defence was not available to him.  On 3rd November 2015 in the Crown Court at Exeter the appellant changed his plea to guilty to a single count of murder.  He was sentenced to imprisonment for life and a minimum term of just under 17 years was specified.  He appeals against conviction with leave.  
2.	The prosecution case was reduced almost entirely to agreed facts.  The appellant, now aged 38, and the deceased married when they were aged 21 and they had three children.  The family ran up large debts.  By May 2014 the relationship had broken down.  The appellant moved from the family home in July 2014 but he had regular contact with their children.  The appellant knew that during the course of the marriage his wife had used drugs, had attended both Narcotics Anonymous and Alcoholics Anonymous and been unfaithful to him.  However, after they had separated, he discovered that her substance abuse and her infidelity with both men and a woman was far worse and far more extensive than he had appreciated.  Evidence produced by the defence showed that this had had a significant impact upon him at that time.  
3.	Divorce proceedings were commenced in September 2014 and a decree nisi granted on 10th December 2014.  Negotiations between the parties took place.  This led to an offer to settle by the deceased and then counter offers, the latest of which came from the appellant in early January 2015.  The deceased had discussed this offer with her solicitor the day before her death, but no agreement had been reached by 28th January.
4.	The couple arranged to meet at the appellant's flat at 3 o'clock on the afternoon of 28th January.  The deceased wanted to take some photographs to show her solicitor the state of the flat.  The police discovered her body 11 hours later.  It had been carefully wrapped in plastic sheeting and placed in a communal storage area.  
5.	The appellant was interviewed by the police and provided them with two prepared statements in which he said that the deceased had discovered cannabis growing in the loft.  He maintained that she used this to threaten him that unless he agreed swiftly to her financial proposal she would prevent him from seeing his children again, she would bankrupt him and she would render his mother homeless.  He said that he pleaded with her and begged her not to do that "after everything" (said to be a reference to the revelations of her drug and alcohol abuse and infidelity during the marriage and his standing by her).  He told the police he pleaded with her to stop threatening him but she continued.  
6.	He described backing away from her but she followed him, poking him in the chest and making more threats. This upset him.  She told him to "fuck off" and opened the front door.  He pushed her head forward and it struck the wall. She dropped to the ground immediately and did not move.  He said he had not thought about what he was doing and had just lost it.  He moved her into the sitting room and strangled her with an electric flex.  Having previously felt sick, he said he now became hysterical and claimed he was not thinking about what he was doing.  He described himself as normally a very calm and collected person and his actions after he had killed his wife were due to panic and fear.  This included not only disposing of the body but leaving the flat and collecting the children from school.  
7.	In a second statement he said that after his wife’s head had struck the wall she had fallen and he had stamped on her head.  He maintained that he had acted completely out of character.
8.	The applicable principles of law to be applied to the partial defence of loss of control were agreed between the parties.  They are set out for the most part in sections 54 and 55 of the Coroners and Justice Act 2009.  It is not necessary for us to rehearse those provisions.  They have been the subject of close analysis by this court on a number of occasions, in particular in Clinton and others [2012] EWCA Crim. 2 and more recently in Gurpinar [2015] EWCA Crim 178.  In Gurpinar the court, over which Lord Thomas CJ presided, endorsed the Clinton approach, namely that when considering whether or not a loss of control defence should be left to the jury, the trial judge must conduct a rigorous analysis of whether or not sufficient evidence has been adduced to raise the issue, so that a jury properly directed could reasonably conclude that the defence might apply.  The court also observed that a judge should not reject evidence that the jury might choose to believe and must conduct a more rigorous evaluation of the evidence than was the case under the old law of provocation.
9.	At paragraph 60 of the judgment, Lord Thomas said this:  
"A judge must then in that assessment have regard to the three components of the defence of loss of control under the Act (and not the former law), undertake a rigorous evaluation of the evidence against those components and set out the conclusion in a reasoned ruling. Provided that is done, bearing in mind the advantages a trial judge has over an appellate court, an appellate court will accord to a reasoned decision of a trial judge (examining the components of the defence of loss of control) the ambit of judgment in the evaluation of the evidence that is open to the judge when making a decision based on that evaluation. In such circumstances, an appellate court will not readily interfere with that judgment." 
10.	The defence case here was that the appellant suffered a loss of control as a result of things the victim said and did during her visit to the flat, but that these had to be seen in the context of the circumstances in which he found himself.  Mr Smith QC, on his behalf, was anxious to ensure that the court bear very much in mind all that had gone before, the difficult relationship between the appellant and his wife, the emotional consequences of the revelations about his wife's drug use and sexual infidelity and under the financial strain of the impending settlement.
11.	The prosecution countered with what they described as compelling evidence that the appellant had not lost control, in that he had wrapped up and concealed his wife's body, moved her to his car, disposed of her phone and taken steps to mislead the police, her friends, their children and her family.
12.	HH Judge Gilbert gave a full and carefully crafted ruling in which he set out the relevant provisions of the 2009 Act, the two leading authorities of Clinton and Gurpinar and he analysed the various elements of the defence of loss of self‑control.  Where a defendant kills another he is not to be convicted of murder but is to be convicted of manslaughter if 
(a) his acts resulted from his loss of control, 
(b) the loss of control had a qualifying trigger and 
(c) if a person of the defendant's sex and age with a normal degree of tolerance and self restraint and in the circumstances of the defendant might have reacted in the same or a similar way to the defendant.  
13.	In this case the qualifying trigger was said to be thing or things done or said (or both) which 
(a) constituted circumstances of an extremely grave character and 
b) caused the defendant to have a justifiable sense of being seriously wronged (pursuant to subsection (4) of section 55).
14.	The judge ruled on the factual basis most favourable to the appellant, namely that a jury might accept that the appellant had lost self‑control and that the deceased had threatened to deprive the appellant of access to his children, to bankrupt him and to cause his mother to lose her home if he failed to agree to her terms for a financial settlement.  However, the judge found that even if the deceased did act in this way and even when her conduct of the day was viewed in the context of all that had gone before, the circumstances taken as a whole did not constitute circumstances of an extremely grave character or circumstances in which the appellant had a justifiable sense of being seriously wronged. He described any threats made by the deceased as “conditional” rather than immediate in that the deceased would have had to persuade a court to rule in her favour.  He also bore in mind that the appellant had the benefit of legal advice.  
15.	He concluded there was no sufficient evidential basis upon which a jury properly directed could reasonably conclude that a person of the appellant's age and sex with a normal degree of tolerance and self‑restraint would have acted in a similar way.  Accordingly, he found that there was insufficient evidence of at least two of the requirements of the section to leave the defence to the jury.
16.	Mr Smith has argued just one ground of appeal, namely that the judge was wrong to withdraw the defence of loss of self‑control from the jury.  He moved swiftly from the first requirement given that the judge proceeded on the basis that there was sufficient evidence a jury might accept of loss of self control.  In addressing the judge’s approach to the qualifying trigger, Mr Smith took exception to the way in which the judge described it as conditional threats and ones that would not have caused the appellant’s reaction. He described the judge's attitude as too clinical and too legalistic and accused the judge of failing to bear in mind that the impartial defence of loss of self‑control was introduced as a recognition of human frailty. At a time of heightened emotion and exceptional stress a human being may not react rationally.  Mr Smith was particularly critical of the judge's approach to the background to the killing and the revelations of the extent of Mrs McDonald's infidelity and drug abuse the previous summer.  He understood that the judge virtually ignored the contemporaneous messages from the appellant to friends or family which indicate just how badly he had taken those revelations.
17.	Mr Smith accepted that if the defence had been left to the jury it may well be that the prosecution's arguments would have held sway and the appellant would still have been convicted of murder.  Nonetheless, he complains that this appellant has never had the opportunity of putting the only defence available to him before a jury.
18.	We have considered Mr Smith's eloquent and very persuasive submissions with care and we understand why he has advanced them before this court and why the single judge gave him the opportunity so to do.  A man accused of murder was effectively deprived of the opportunity of running the only defence available to him.  However, we must bear very much in mind the observations of the Lord Chief Justice in Gurpinar.  
19.	His Honour Judge Gilbert, one of the most experienced judges in the country before his retirement, directed himself properly in law. He applied the right principles and bore each element of the partial defence very much in mind. He gave a reasoned decision. He went into sufficient detail of the evidence. Had he gone into more it would not have been to the appellant’s advantage; the appellant himself seemed to underplay the significance of certain events upon which Mr Smith placed reliance.   For example, when cross‑examined by Mr Unsworth QC, the appellant admitted that he had moved on after the revelations in the summer of 2014 and had begun another relationship.  
20.	Finally, and importantly, the judge saw and heard the appellant give evidence.  The judge plainly found the appellant’s account of the deceased’s conduct and the effect upon him less than compelling. Having considered the transcript, we are not surprised. Even Mr Smith’s powers of persuasion could not be a substitute for sufficient evidence to meet the requirements of the Act. 
21.	Accordingly, we are satisfied that Mr Smith’s complaints are not justified and the appeal must be dismissed. 
22.	MR SMITH:  May I raise one matter, which I raised with Mr Unsworth in preparation for this?  
23.	THE VICE PRESIDENT:  Of course. 
24.	MR SMITH:  I do not want to detain the court.  It is simply this.  This is an extraordinarily difficult piece of legislation for counsel to advise defendants about.  This is a case on its facts where the nature of the threat that was being made was, as it were, evident from a very early stage in the proceedings and we saw the manner in which the trial judge evaluated those words.  What I am really saying is we knew what the evidence was going to be at an early stage.  Yes, there is a ‑‑ we would have said on behalf of the appellant, the atmosphere of the court is one thing but the words are still there.  So it was all ready.  It simply begs the question whether ‑‑ I am not asking the court for a definitive ruling, I cannot ‑‑ it is simply would my Lady see this as the sort of case where at a very early stage of the proceedings it would be right to invite a court to consider whether this defence is made out?  It has huge implications for defendants because they lose their credit for plea. 
25.	THE VICE PRESIDENT:  And huge implications for witnesses and the deceased's family. 
26.	MR SMITH:  Highly emotional circumstances for everyone concerned.  So let me just air this, if in this case, as we now understand the position as it is on appeal, would the court encourage in a similar case in the future that at the preliminary stages of the hearing, the PCMH or before, enquiries being made ‑‑ it would not be the trial judge but for instance in the Court Centre I practice for instance the Recorder of Bristol ‑‑ is invited to rule as to whether this defence is made out?  We think we would probably be met with an observation "We will have to see how it unfolds" but there are certain cases, and this may be one of their kind, where we say 'Well it is there to be decided now'.  I am just interested.  
27.	I hope my Lady excuses me raising it but because of the importance of it and having faced it since in my practice and dealt with it differently, I would value any observation that the court has.  
28.	THE VICE PRESIDENT:  ‑‑ about whether the ruling could come at an earlier stage and be appealed? 
29.	THE VICE PRESIDENT:  I suspect that most trial judges would say they wish to see how the evidence turns out and how the defendant describes the events.  But I will consider it further.  
30.	MR JUSTICE FLAUX:  You may be absolutely right in the peculiar circumstances of this case that much of what was going to amount to the defence was if not common ground, was well laid out in advance.  But just thinking about it on the hoof really, as you have been making your submission, I think I would agree with my Lady that in many cases the judge at a preliminary stage is going to say, 'Hang on a moment hasn't the court really got to hear the evidence?'.  
31.	MR SMITH:  We wholeheartedly agree with that and we see in a sense this case, but because it is so unusual on its facts that, if I may say so, the words are there, the background is there, the way it was expressed by the trial judge in the clinical way that he was right to do so, it was all there to be decided months before in effect, subject to ‑‑ but anyway I raise it simply because those of us at the Bar who have to deal with it this side would value to know how, particularly in a day where cases are meant to be managed as expeditiously and as carefully as possible, whether I and others ought to be alerting myself to that. There it is.
32.	THE VICE PRESIDENT:  I will ponder further and discuss with colleagues.  Thank you for raising it.