No: 200106120/Z3
Neutral Citation Number: [2002] EWCA Crim 1975
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL

Thursday 27th June 2002
B E F O R E :

LORD JUSTICE KAY

MR JUSTICE PITCHFORD

and

MR JUSTICE OUSELEY

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R E G I N A

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PAUL ANDREW BYRNE

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MR P THOMAS QC appeared on behalf of the APPELLANT

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JUDGMENT
1.	LORD JUSTICE KAY: Between 15th and 18th October 2001 the appellant was tried in the Crown Court at Birmingham for the murder of a friend of his called Tony Warren. The trial took place before Rougier J and a jury and, at the conclusion of the trial, the jury returned a verdict that he was not guilty of murder but guilty of manslaughter. The judge, in circumstances to which we will come shortly, imposed a sentence of 8 years' imprisonment. The appellant now appeals against that sentence with leave from the Full Court.
2.	The prosecution case was that the two men, the appellant and Mr Warren shared an interest in heroin abuse and as a result had met in that way. On the relevant occasion, 4th August 2000, they met in the street. They then went to Mr Warren's house and both took drugs, Tamazapam and heroin. Thereafter they set-off for a public house. En route they stopped at a shop and Warren bought some strong cider, which they both consumed. At the public house, they both decided to make a telephone call and arranged to buy some crack cocaine from a dealer. While waiting, the appellant played pool while Mr Warren seemed to spend his time going about the public house trying to sell mobile telephone Top-up cards. After a while, Mr Warren went across to the pool table. It is clear that at the pool table he abused the appellant in various ways. There was evidence that he called him a 'wanker' and there was also evidence that, at the time, he was smirking and goading the appellant on. Indeed, that was the account, as given by the appellant himself, when first seen by the police.
3.	Warren then sat down on the table and it was at that stage that the appellant, so the Crown alleged, lost his temper, picked up a pool cue, holding it by the thin end and struck Mr Warren blows which struck him on the back of the head and the neck, with the thick part of the cue. The appellant contended that he was trying to strike him on the back, because of his condition, he had missed. Unfortunately, the blow to the neck connected with a particularly vulnerable part of the neck. There was evidence from a pathologist that explained that, the area struck was especially vulnerable at the time because the wall of the artery would have been particularly thin. In any event, the blow caused the artery to split and that led to death. The issue left to the jury was whether this was murder or manslaughter. The facts, to a large degree, being common ground.
4.	The defence had submitted throughout that this was manslaughter because the appellant never had the necessary intention for murder, in that he did not intend, either to cause really serious harm or to kill. At the conclusion of the evidence, the judge had to consider whether there was a basis for leaving manslaughter by reason of provocation tot he jury. There was the evidence of some provocative conduct on the part of the deceased. It was the Crown's case that there had been a sudden loss of self-control and, therefore, the judge concluded that there was an issue that had to be determined by the jury. Neither side took exception to that course, and the judge summed that matter up.
5.	Criticism is made of the way in which the judge summed-up the issue of provocation, because it is submitted that the judge failed to direct the jury as it is suggested he was required to do, that they had to consider not merely a reasonable man, but a reasonable man, with the characteristics of the appellant, namely a drug addict, in the circumstances in which he found himself. No appeal is brought against the conviction, and accordingly, in those circumstances, it is not a matter that we have to determine with any precision. It is suggested though that it had a relevance later to considerations of sentence. 
6.	The jury returned their verdict of guilty of manslaughter. They were not invited by the judge to explain in any way the basis upon which they returned that verdict. That is, it seems to us, is entirely consistent with what this Court has said in R v Cawthorne (1996) 2 Cr App R(S) 445, where the Court indicated that it was entirely a matter for the discretion of the judge whether or not to ask the jury to indicate the basis of their verdict. The judge, an experienced judge, came to the conclusion that, in the circumstances of this particular case, that was not a desirable course, and we can see no reason for criticising his exercise of the discretion that this Court has made clear he had. Accordingly, when the jury returned a verdict of guilty of manslaughter, it was for the judge to determine the proper basis upon which to impose sentence. It is submitted to us that, in the context of this case, it was for the judge to accept the basis that had been put forward, by the defence, as their defence, throughout the trial, namely that there was no intent established. The judge rejected that proposition and in passing the sentence, to which we have referred, he said this:
“Paul Byrne, your life from start to finish, I see, has been one of criminality, sometimes violence, more often dishonesty. I dare say a lot of it is down to your abuse of drugs and if you expect me to show sympathy for that you will disappointed, it is entirely of your own making.
Now you have reached the stage where you have brutally taken the life of your friend. I am afraid I am quite unable to accept your learned counsel's suggestion that I should consider this as a case where you did not mean to do any serious harm; the evidence is overwhelming that you lost your temper and you struck some very severe blows.” 
7.	Therefore, it is clear that the trial judge, on his understanding and consideration of the evidence, concluded that the proper basis for sentence was not lack of intent, but rather one of the provocation.
8.	The submissions made to us are that that was an inappropriate approach, in the circumstances of this case. Firstly, because the judge gave no proper explanation as to why he rejected the question of the defence of lack of intent. Secondly, it is submitted that where a judge does come to such a conclusion on the facts, there is an obligation upon him, in greater detail, to explain how he arrived at his conclusion. Reliance is placed upon a decision of this Court, in the case of R v Bowen [2001] 1 Cr App R(S) 282. That was a case in which the judge had not invited the jury to indicate on what basis they convicted of manslaughter, nor had he given any indication himself of the basis upon which he was passing sentence. In those circumstances, the Court of Appeal concluded that it was for the Court itself to decide the appropriate basis, if it could. Clearly, the court was in a difficult position, it had not heard the evidence. In order to justify any conclusion adverse to the appellant, the court would need to explain, in those unusual and exceptional circumstances, in some detail, how it felt able to reach a conclusion on the facts, without hearing the evidence. Accordingly in its judgment the Court explained in a couple of paragraphs, but nonetheless in some detail, why they reached the conclusion that they did. It is submitted to us that that demonstrates that there is a need for a trial judge, in such circumstances, to go into similar detail.
9.	The next complaint that is made about the approach of the judge in this case is that, even if it is accepted that the passage to which we have referred explained his reasons, it is quite clear that those reasons were imperfect because the judge spoke of the appellant having struck “some very severe blows”. We have been taken to the evidence of the consultant pathologist in this case and told that, so far as his evidence was concerned, he spoke of one forceful blow to the neck. He found it difficult to explain precisely what he meant by forceful, saying in effect that it was with sufficient force to cause the injury that it did. He also spoke of one other injury, consistent with a blow to the head, which he described as having been struck with moderate force.
10.	Accordingly, it is submitted that the conclusion of the judge that he had struck “some very severe blows” was a conclusion that the judge simply could not reach. That, it seems to us, is to ignore the other aspect of the evidence that the judge heard, which was the eyewitness account of those who had seen the striking of the blows. Those witnesses had spoken in differing terms, but it was a consistent theme from those witnesses that there were severe blows struck.
11.	On the factual basis that the judge reached his sentence, no submission have been made to us to suggest that that sentence would be manifestly excessive. However, it is submitted that the judge ought to have reached a conclusion that, here, there was simply two blows, one forceful and one moderate, and that if one looks at the case, in light of such a finding, even if it is right to approach this as a case of provocation, rather than lack of intent, one really ought to arrive at a lesser sentence than one of 6 years' imprisonment.
12.	Our attention has been drawn to a number of authorities in which lesser sentences have been passed, and various factors within those cases suggested to be appropriate considerations in this case.
13.	We deal, first, with the question as to the proper basis of sentence. It was for the judge, since he had concluded that he should not ask the jury to express their decision in terms of one possible finding of manslaughter or another, to decide the proper factual basis upon which sentence should be passed. That is just the same as in other cases, where a judge has to reach such a conclusion, the jury having returned a verdict of guilty but there being more than one factual basis upon which they may have acted.
14.	The judge does so by considering the totality of the evidence. It is unnecessary for him to review that evidence in detail in his sentencing remarks because he will already have done that in the course of his summing-up. But it is necessary for him to explain how it is that he arrives at his conclusion. Here, the judge sought to do so by saying that the evidence, suggested overwhelmingly that the appellant had lost his temper and had struck some very severe blows. We think that the judge was entitled to explain his decision in this way, although it may have been better if he had gone into matters in greater detail and explained a little more fully how he reached his conclusion. Nonetheless, this was a case in which it was essentially a matter of looking at the evidence in the round and deciding what the position was. The judge had decided that there was a loss of temper. He had evidence from a series of eyewitnesses about the severity of the blows that were struck; he had to have regard to the pathologist's evidence, but he was entitled to come to a conclusion adverse to the appellant.
15.	It may be that the proper conclusion was that one blow had been struck that was very severe, and another blow that was not as severe as the first. However we do not think that that invalidates his overall conclusion, that this was not a case in which, on the evidence, it was possible to say that that there had not been the required intention. The judge was bound to take into account the way in which the weapon had been used, it had been held not in the customary fashion but reversed so that the part that would be used to attack would be that which would strike the more severe blow. He had the evidence as to the nature of the striking and the fact that blows had been struck to those parts of the body which were vulnerable.
16.	In those circumstances, we consider that the judge was entitled to reach his conclusion, and that his reasoning and the explanation of his reasoning were sufficient, even if it might have been more fully expressed. For those reasons we are satisfied that this is a case to be approached on the basis of provocation.
17.	In fairness to counsel we should deal with one other aspect of his submissions in that regard, that is the context in which he raised the matter of the direction about provocation. His submission was that, if this was a provocation case, then the directions were inadequate. It does not seem to us that, if that is so, they can in any way have had any adverse impact upon the appellant because the jury accepted that this was a case of manslaughter.
18.	The degree of provocation was not severe, but once the judge had come to the conclusion that this could not be a case of lack of intent and once he recognised this was a case for the jury to decide whether this was in law provocation or not, the only conclusion to which he was then driven was that the jury had approached the matter on the basis that this was a provocation case. Whether or not that was a merciful approach, was not a question for the judge to determine.
19.	So the judge was left with a case in which there had been moderate provocation, followed by sudden retaliation, with the use of a weapon which was to hand but which had not been carried as a weapon. The submission is made that, even on that finding a sentence of 8 years' imprisonment is manifestly excessive. We do not agree that that is so. The Court has made clear in the Attorney-General's Reference No 33 of 1996 (R v Latham) [1997] 2 Cr App R(S) 10 that sentences in double figures and up to 12 years will be appropriate where a manslaughter by reason of provocation is found, when a weapon has been deliberately carried with the contemplation that it may be used, and is then used in circumstances which do not amount to murder.
20.	That sets an upper bracket for sentences of provocation relating to manslaughter. This is a case clearly significantly below that bracket because the weapon was not carried other than for a brief moment and the intention in any way to use it was only formed immediately before its use. The issue is whether a sentence of 8 years is appropriate in those circumstances. In our judgement it is within the range of proper sentences for a case mentioning the use of a weapon, such as the one used in this case. The provocation was, on any view of it, not extreme provocation, and therefore the sentence did not fall to be reduced to a great extent because of the degree of the provocation.
21.	We think that 8 years may have been at the top end of the range but it was not outside that range. According it follows that we do not consider this sentence to be manifestly excessive and we dismiss this appeal.