No: 200107072/W1 
Neutral Citation Number: [2002] EWCA Crim 2671
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 4th November 2002
B E F O R E:

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division) 

MR JUSTICE HUGHES 
 
MR JUSTICE ROYCE 

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R E G I N A 

-v- 

JOSEPHINE SMITH
 
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MS V BAIRD QC appeared on behalf of the APPELLANT
MR PARKINGS QC appeared on behalf of the CROWN
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J U D G M E N T
1.	THE VICE PRESIDENT:  On 30th November 1993, at Norwich Crown Court, following a trial before Garland J, the appellant was convicted, unanimously, by the jury of murder and sentenced to life imprisonment.  On 22nd November 1994, the Full Court dismissed the appellant's renewed application for leave to appeal against conviction following refusal by the Single Judge.
2.	The grounds advanced before the Full Court related, first, to the admissibility of evidence of the defendant's financial misconduct bearing on her credibility about the history of her marriage, and secondly, to the adequacy of the lies direction in the summing-up.  No criticism was made at that time of the summing-up in relation to provocation.
3.	The appellant now appeals against conviction on a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, on the basis that developments in the law of provocation, together with what is said to be fresh expert evidence, show that the conviction is unsafe.
4.	The circumstances, in outline, were these.  It was not in dispute that, on 30th July 1992, the appellant, who was then 32 and the mother of three small children, shot and killed her husband, Brian, while he was asleep, using a shotgun taken from her father's house several days before.  The issue for the injury was whether the killing was murder or, as was advanced on behalf of the defence, manslaughter by reason of diminished responsibility or, in relation to which no evidence was led on behalf of the defence, manslaughter on the ground of provocation.  Crucial to the issue was said to be the credibility of the appellant.
5.	The defence case was that she was suffering from a depressive illness, as a result of which her responsibility was substantially impaired within the meaning of section 2 of the Homicide Act.  The doctors, on whom the defence relied, reached that diagnosis as a consequence of investigating the history given to them by the appellant.  Therefore, there was a good deal of debate, in the course of trial, by way of cross-examination and otherwise, as to whether the account of her matrimonial history was or was not correct.
6.	Evidence was given by the appellant and others that she had been ill-treated by the deceased on a regular basis over a long period.  This ill-treatment included the infliction of bruises, humiliating sexual demands, threats to their children and a heated argument on the day before the death which, as will emerge, the trial judge referred to, more than once in his summing-up, as the 'long row'.  There was also evidence of the appellant's dishonesty in relation to debts faced by her and her husband at the time of the killing.  The Crown relied on the evidence of her dishonesty in relation to those matters as undermining the credibility of the account which she had given to the doctors.
7.	So far as the prosecution case is concerned, it is unnecessary to rehearse it in detail.  There is no doubt that Mr and Mrs Smith were in severe financial difficulties and had been for several years at the time of the deceased's death.  They had been made bankrupt in June 1991 and the appellant, in order to stave off financial disaster, had made a claim, falsely, for income support in which she was assisted by her husband.  She had also, it was said, fraudulently remortgaged her father's house and that had included forging her father's signature and that of a witness.
8.	The Crown's case was that the appellant was the one in charge of the family finances and it was said she had gone to considerable lengths to conceal the extent of the problems from her husband. The family were apparently due to be evicted from their home on the day after the killing, although the appellant said that she was unaware of this.
9.	There were a number of witnesses who said that their overall impression, from the outside of the marriage, was that it was good.  There was evidence from five psychiatrists, Dr Fowles and Dr Ball, on behalf of the prosecution, Dr Latcham and Professor Eastman, to whom we shall return, and Dr Cordess on behalf of the defence.
10.	It was not in dispute that the appellant's medical records showed that she had had a long standing history of consultations and referrals for anxiety and depression, certainly from 1984 onwards and possibly from an earlier time.  In November 1984, she had seen a consultant psychiatrist and had appeared generally unhappy.  In August 1985 she had seen another psychiatrist who noted few problems in the marriage but a complaint that her husband was unsympathetic towards her difficulties.  Two months later, that psychiatrist saw the appellant again and noted that the root of her problems seemed to be with her husband whom she described as rigid, obsessional, possessive and seeking to control her.  The psychiatrist's notes also recorded on that occasion that the two seemed to be fond of each other.
11.	In 1986 there was an episode of panic attacks and, in consequence, the appellant was prescribed Diazepam.  In April 1989, she was seen by her general practitioner in a weepy and depressed condition, saying she was worried about her ability to cope and about money matters.  She was given high doses of antidepressant medication.
12.	She continued to have sleeping difficulties. In January 1999, she again saw a consultant psychiatrist, appearing to be very stressed and having lost a lot of weight.  Antidepressants were again prescribed and, 2 months later, there was another note of her difficulties lying mainly in her relationship with her husband, whom she felt controlled her so she had no independence.  The psychiatrists expressed the view that she exaggerated the controlling tendencies of her husband.
13.	A health visitor described her contact with the appellant during the first half of 1990 when she was weepy and not sleeping and unable to cope but, by the summer of that year, she seemed quite well and reasonably relaxed.  She had last seen the appellant at the end of July, and had discussed with her Mr Smith's good points, although the appellant expressed anxiety as to whether he would ever change.
14.	At the trial, Dr Latcham said the appellant's medical history showed her to be vulnerable to anxiety and depression.  She displayed typical symptoms of clinical depression, which pointed to depressive illness, with severe aspects amounting to an abnormality of mind to a degree substantially diminishing her responsibility.
15.	Doctor Eastman thought that the appellant was suffering from long-standing moderate depression, and learned helplessness arising from Battered Woman Syndrome and that there was substantial impairment of responsibility by reason of the consequential distortion of her thinking. Her apparent lack of remorse might simply be callousness or could be evidence that her thinking remained distorted.
16.	Dr Cordess broadly agreed with Dr Latchman and Dr Eastman.  He too referred to Battered Woman's Syndrome and typical learned helplessness and a depressive reaction to her predicament with anxiety and fear in relation to her children's future as well as her own.
17.	For the Crown, Dr Fowles could find no evidence of depressiveness, such as to amount to an abnormality of mind.  The appellant's depression, in his view, was no more severe than might be expected of a woman with three young children and an unsupportive husband who was drowning in a sea of debt.  He agreed that she had Battered Woman Syndrome and he accepted that emotional battering could produce similar effects on the victim to those resulting from physical or sexual abuse.  He disagreed with Dr Eastman as to whether the appellant was suffering from a moderate depressive illness.  He found nothing in her appearance to support that diagnosis.  Dr Ball agreed with Dr Fowles. He accepted that, if the appellant's account was true, it was consistent with Battered Woman Syndrome but it was not a major mental disorder or a serious depressive illness.
18.	The appellant was interviewed by the police on three occasions at the end of July, the beginning of September and the beginning of October.  She said that her husband would have nothing to do with the bankruptcy, she carried the family burdens and he had been violent towards her.  She said that he had remortgaged the house but failed to keep up the repayments and she had decided, three days before the killing, to leave him.  She had tried to do so, in May or June 1991, but on those occasions he had seized their eldest child and threatened that, if she left, she would never see him again.  She had taken the gun from her father's house so that she could show it to her husband in order to be able go away, and leave, if the need arose.  She had been worried that, if she left, her husband would have come looking for her. On the night of the shooting, she had seen her husband shake the eldest child and there had been a row lasting a couple of hours. Her husband had gone to bed after midnight. She thought to herself that she had had enough. She had gone to the car, taken the shotgun from the boot and gone into the bedroom and fired.  She said she had been frightened of him for years and could not take any more.
19.	The defence case, as we have said, was that she was suffering from a depressive illness, so that her responsibility was substantially diminished under section 2 of the Act.  The appellant gave evidence in support of that, giving an account of her marriage substantially in accordance with what she had told the police in interview.  She added that she wanted to get away from him safely without fear of him coming after her and the children.  Her prime aim was her children, and she would do the same again if it were necessary to protect them.
20.	The appellant's niece gave evidence that the appellant had told her that she was scared to leave her husband, fearing that he would track her down and harm her and the children.
21.	A man, who had been the deceased's employer, said that the deceased could be very unkind to the appellant, and he, on one occasion, had seen her with a black eye.  He had seen the deceased shouting at her more than once.
22.	On behalf of the appellant, Ms Baird QC, who did not appear in the court below, advances four grounds of appeal.  The first two relate to the judge's summing-up and are expressed in the grounds in this way. First, the judge wrongly restricted the jury's attention to events immediately surrounding the killing, rather than inviting them to consider the history of potentially provocative behaviour.  Secondly, the judge failed to give the jury an analysis of what conduct was capable of amounting to provocation and as to how the jury should approach the issue.
23.	The third and fourth grounds relate to the fresh evidence proffered from Professor Eastman, on the basis that, had it been available at the trial, it would have provided important material for the jury to examine the appellant's characteristics in relation to provocation.  It is said, further, that, had Professor Eastman's present evidence been available at the trial, the appellant would have been entitled to a full analysis of the characteristics relevant to the reasonable man test under section 3 of the Homicide Act 1957.
24.	That section, which is headed "provocation" is in these terms:
"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."
Miss Baird places particular reliance on the words "everything both done and said" when advancing the first of her grounds of appeal.
25.	In order to understand the way in which that ground is put, it is necessary to rehearse a number of passages in the summing-up to which Miss Baird drew attention.  The learned judge, having referred to the legal requirements in relation to the defence of diminished responsibility, turned to the defence of provocation which, as he rightly told the jury, was one of which the defendant was entitled to take advantage, even though it had not been raised on her behalf by counsel.  The learned judge proceeded to direct the jury impeccably, in relation to the burden of proof, with regard to provocation, and then, at page 11, line 16, he said this:
"What would amount to provocation in this case and which you will have to consider is the long row that started at about 9.30...."
Then on the same page at line 23 he said:
"I will go over that in greater detail but that is the possible provocation; that long row and the things said during the course of it."
At the top of page 12, line 2, he said this:
"...you have to look at three questions: was there provoking conduct or words?  Those, as I say, must lie in the row." 
He went on to refer to the other relevant questions.  At page 14, line 5, he said:
"On the evidence of course we do not know how long the defendant sat brooding over what Brian Smith had said during the course of the row."
At page 34, having, by that stage, rehearsed the earlier matrimonial history about which the appellant had given evidence, the judge said this at line 8:
"Finally what about the circumstances of the shooting and anything that might amount to provocation." 
The implication from this, submits Miss Baird, was that the earlier history of the marriage, which the judge had just dealt with, was not pertinent to provocation.  At page 35, at line 18 the judge posed the question:
"Is this straightforward murder? Is it a killing by a battered wife provoked by a final row?"
At page 36 line 8 he said:
"Was there a sudden temporary loss of self-control provoked by what had happened during the course of the row?"
26.	In the light of those repeated references to the long row and the other matters to which we have referred, Miss Baird submits that the jury would have been left with the impression that the history of the marriage was irrelevant to provocation.
27.	The related ground which, in a sense, follows naturally from the first ground, is that the judge did not analyse the conduct which was capable of amounting to provocation.  That conduct we have already sufficiently identified. Miss Baird submits that there is ample authority for the proposition that a trial judge should analyse the conduct bearing upon the issue of provocation and give the jury appropriate guidance about it.
28.	So far as the third and fourth grounds, in relation to the evidence of Professor Eastman, are concerned, Miss Baird submits that the law has to be taken at the time of trial as being that which it is now authoritatively declared to be.  Her submission is that Professor Eastman's evidence proffered to this Court, notwithstanding that he gave evidence at trial, is fresh evidence and should be admitted, having regard to the considerations, some of which are specifically identified in section 23 of the Criminal Appeal Act 1968, as amended.  The overall consideration identified in that section is, of course, whether this Court thinks it necessary and expedient in the interests of justice to admit such new evidence.  But one of the four matters specifically referred to in the section is, of course, whether or not the evidence was available at trial.
29.	Professor Eastman was called de bene esse because, on behalf of the Crown, Mr Parkings QC wished, in particular, to challenge the proposition that what Professor Eastman had to say to this Court was truly fresh evidence rather than an expression of view based upon material available at trial about which he could have been asked then.
30.	Professor Eastman is a distinguished psychiatrist. It is unnecessary to dwell upon his qualifications.  At the behest of the Criminal Cases Review Commission, he prepared two further reports, his original report, for the purposes of trial, having been made in November 1993.  The two new reports are dated 8th March 2001 and 5th July 2001.
31.	In the first of those two reports, at page 9 (page 84 of the bundle) he refers to a report of Dr Kelly and her reference to the study of a woman called Kirkwood.  Professor Eastman says:
"Kirkwood's description does, perhaps, slightly 'reframe' the notion of 'learned helplessness' by describing how the interaction between the layers of abuse and control by the man and the reactions of the woman can result either in an 'inward spiral', where the woman becomes increasingly helpless, or an 'outward spiral', whereby she 'escapes'. It therefore amounts to a further explanation of the possible mechanism by which women may became more 'helpless'."
At page 10 of his report (page 85 of the bundle), he says this:
"...emphasis upon the threats that were allegedly made to Mrs Smith's children are, in my opinion, well put and do amount to additional information which I would not have given evidence about at the trial... We found that it is very common for women who kill their abusing partners to be precipitated into doing so when threats are extended from the woman herself to her children. This gives an explanation of how a woman in a state of 'learned helplessness' might 'turn'.  Again, this is perhaps relevant in the context of provocation...."
At page 11 of his report, he said:
"In my original report I was not asked to consider provocation.  In any event, at that stage, I believe I had probably not had much experience of considering psychiatric information on abused women...as it might be relevant to 'mental characteristics' that might properly be considered in modifying the objective 'reasonable (wo)man test' in provocation. Were I asked to write the same report on Mrs Smith now, even in the absence of instruction from lawyers to consider provocation, I would normally address 'Camplin characteristics'."
At page 12 he said:
"...her symptoms of anxiety are likely to have made her much less able to tolerate threats, her symptoms of depression would have meant that she would have been more susceptible to assaults and threats  ('I am worth no more than further battering, or threats of it') and her state of 'learned helplessness' would have emphasised again a truly perceived sense of powerlessness in the face of further provocations which themselves emphasised the victim's power."
He went on:
"A specific aspect of depressive illness, that is irritability and a lowered threshold for violence, would, in my view, have been further relevant as a mental characteristic to loss of control in the context of provocation, according to my understanding of the development in the law apparently represented by Morgan Smith.  Again, evidence of cognitive distortion, and a true belief in a woman such as Mrs Smith that she did not have any way out, would have heightened the effect of any provocation upon her."
32.	In his report of 5th July he said that he accepted that:
"...apparent discrepancies between what the appellant has said on different occasions to different people might potentially cast doubt upon a possible appeal based on provocation." 
He went on, at the second page of that report (page 118 of the bundle) to say:
"I would not, of course, quarrel with the view that inconsistency, and even lying, about ordinary matters is of some potential relevance to forming a clinical view about the person's mental condition.  However, in my opinion, inconsistency or lying casts a substantially lesser shadow of doubt over an expert medical opinion about 'diagnosis' than it does over 'ordinary' matters to be considered by the Court in relation to the plea of either provocation or diminished responsibility.  There are several reasons for justifying this conclusion."
He went on to identify, among other reasons, the fact that it is much more difficult to lie about symptoms than about ordinary matters and he referred to the evidence in the medical records of the appellant describing her symptoms, over many years, of anxiety and, more recently, of depression.  He said this:
"The presence of such descriptions in the medical notes, where there can be no question of them having been 'constructed' for some legal advantage, is a potentially strong validating factor...  It does lay a strong foundation for the likely presence of such symptoms, as the appellant describes them, being present at the time of the offence."
In summary at page 4, he expresses the view:
"Unreliability or inconsistency on the part of the potential appellant is of some relevance to the likely validity or not of certain 'mental characteristics' which are, in turn, potentially relevant to the 'reasonable woman test'. However, in my opinion, such unreliability is of much greater significance in terms of the 'ordinary' aspects of a provocation defence."
That approach, distinguishing the degree of credibility in ordinary factual matters, as distinct from history of medical symptoms, was re emphasised by Professor Eastman when he was cross-examined.  He accepted that there was a substantial history of dishonesty and fraud on the appellant's behalf.  But that, in his view, had to be looked at in the light of his approach adopted which we have identified.
33.	He accepted, in cross-examination, that he had, in the course of his evidence, at the trial, identified characteristics now relied on by him as relevant to provocation, namely, the long-standing symptoms of depressive illness and of anxiety, learned helplessness, irritability and cognitive distortion. But, he said, the significance of those symptoms is very different when a section 2 defence as distinct from a section 3 defence is being considered.
34.	The weight of section 2, in relation to diminished responsibility, rests on abnormality of mind, whereas the weight in section 3 rests on the provocative conduct. He said that more minor symptoms are relevant to a section 3 defence than to a section 2 defence.  Accordingly, the treatment of the data in relation to the appellant's medical history would have been different, so far as he was concerned, had a defence of provocation been advanced with medical support at the time of trial.
35.	The submission made by Ms Baird, in the light of Professor Eastman's evidence, is that, had the jury heard what he had to say on the subject of provocation, it would have been clear that the appellant had a particular fragility likely to make her respond more strongly than would others to provocative conduct.
36.	On behalf of the Crown, Mr Parkings submitted that, so far as the first two grounds of appeal are concerned, it was an inaccurate characterisation of the summing-up to suggest that it had focussed inappropriately on the long row.  Mr Parkings drew attention to the reference at the very beginning of the summing-up, by the judge, to the deceased's character and his attitude towards his wife and children.  Mr Parkings drew attention to a passage at page 10 of the summing-up where the judge said:
"Consider all the facts, all the circumstances:  The nature of the killing. The conduct of Josephine Smith beforehand, at the time of the killing and after it. Consider her earlier medical history; the panic attacks, the depression. Approach it in a broad common sense way members of the jury because it is all for you to decide and to decide on the whole of the evidence."
37.	It is however, to be noted in passing that that passage were in the context of diminished responsibility.  It was immediately before the learned judge turned to deal with provocation.  It is, however right that, when dealing with provocation at page 12, the learned judge referred to the characteristics of the defendant and to the battered wife syndrome, forcing her into a state of learned helplessness: 
"...subject to Slow Burn Anger which builds up to a point where violent action is taken." 
That reference was in the context of the direction about provocation.
38.	In our judgment, not without a degree of hesitation, there are two matters which, in conjunction, render the verdict of guilty of murder unsafe.  First, it is true that the judge in his summing-up, more than once, directed the jury to consider all the circumstances, including the defendant's medical history, panic attacks and depression.  But one of those occasions, as we have just indicated, was in the context of diminished responsibility.  Repeatedly throughout the summing-up, in the terms which we have rehearsed, the judge, in relation to provocation, focused on the long row on the day of the killing.
39.	This may well have led the jury to conclude that the defendant's medical history, although relevant to diminished responsibility, was not relevant to provocation.  To this extent, it may have been that they were misled.  Secondly, the law in relation to provocation, as clarified by the majority of the House of Lords in Morgan Smith [2001] 1 AC 146, namely, that the particular characteristics of the defendant are to be taken into account by the jury in relation not only to whether the defendant was provoked, but also as to whether a reasonable person would have been provoked, must be taken to have been the law at the time of the appellant's trial.  The judge, in fact, directed the jury correctly in accordance with that principle.  But, it was a principle of law which, at the time of trial, had only recently been identified by this Court, (see Ahluwalia [1992] 2 All ER 889) and subsequently it gave rise to a strong divergence of view within the Privy Council, in Luc Thiet Thuan [1997] AC 131.  From the terms of Professor Eastman's report and in the implications of his evidence, the Morgan Smith approach does not appear to have been in his mind at the time of trial.  Whether this was because the principle was new, or for some other reason, none of the psychiatrists who gave evidence before the jury, whether for prosecution or defence, either in their reports or in their evidence, expressed any psychiatric opinion as to the relevance to provocation of the appellant's history of depression and anxiety.  They all agreed that there were long-standing symptoms of one or other or both of those conditions.
40.	In particular, at the time of trial, Professor Eastman was not asked to consider provocation and did not do so.  The effect of his evidence before us is that, had he considered it, he would have expressed the data from the appellant's medical history differently in the context of section 3 of the Homicide Act than in the context of section 2.  The essence of section 2, as he said, is abnormality of mind. The essence of section 3 is provocative conduct, and its effect on someone with the characteristics of the defendant.  Further, as he said, more minor symptoms are relevant to provocation, when they may not be to diminished responsibility.
41.	In these circumstances, we think it expedient, in the interests of justice, to admit Professor Eastman's evidence, without embarking on any further, more precise, analysis as to whether it can properly be characterised as fresh evidence or not.  It is possible that, had Professor Eastman given evidence such as he gave before us, in support of a defence of provocation, the jury's verdict would still have been the same.  But we cannot be sure that this would have been so.  It might reasonably have been different (see for the appropriate test Pendleton [2002] 1 WLR 72).  Accordingly, we allow this appeal and we quash the conviction for murder and the sentence of life imprisonment.
42.	The prosecution do not seek a retrial.  It is common ground that the appropriate course is for this Court to substitute a conviction for manslaughter and that we do.
43.	As the Court earlier indicated, the sentence appropriate, in the judgment of this Court, for this offence of manslaughter was one of 10 years' imprisonment, and that is the sentence which we pass. The effect of it is that the appellant will be, if she has not already been, released.