No: 200306002/D2 
Neutral Citation Number: [2005] EWCA Crim 1021
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 12th April 2005
 
B E F O R E:

LORD JUSTICE HOOPER  
MR JUSTICE TUGENDHAT 
 
SIR DOUGLAS BROWN 

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R E G I N A 

-v- 

NICHOLAS FARNELL
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR T OWEN QC & MR R TROWLER appeared on behalf of the APPELLANT
MR G BEBB QC appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE HOOPER:  On 22nd March 1996 in the Crown Court at Winchester, before Ognall J and a jury, the appellant was convicted of murder.  Subsequently Thomas J refused leave to appeal against conviction and the application was not renewed.
2.	The grounds before Thomas J contained no reference to either the trial judge's direction on provocation or to the trial counsel's decision not to rely on the defence of provocation which forms the basis of the appeal before this Court now.
3.	An application was made to the Criminal Cases Review Commission in June 1997.  Thereafter the commission declined, on two occasions, to refer the conviction to the Court of Appeal.
4.	The appellant sought a judicial review of this decision. On 15th April 2003 Mitchell J and Kay J sitting in the Divisional Court quashed the Commission's decision not to refer the appellant's conviction and remitted the case back for reconsideration.  Mitchell J gave a substantial judgment explaining why, in his view, the Criminal Cases Review Commission had erred Kay J agreed.  Thereafter the Commission referred the matter back to this Court.
5.	In Part 1 of the Statement of Reasons the Commission helpfully summarises the facts and evidence in the case. For our purposes it is sufficient if we merely set out paragraphs 1.1 of the Statement through to 1.11: 
"At about 10 am on 6th May 1995, Mr Farnell was driving to buy a newspaper when he saw his nextdoor-but-one neighbours, Mr and Mrs Pottage, drive past. Mr Farnell turned round and followed them back to their house in order to confront them about the noise caused by their puppy barking.  He drew up behind their car, blocking them in. 
An argument ensued during which Mr Pottage said "I'm losing my temper now just fuck off." Mr Farnell replied: "I am not worried about you losing your temper," walked back to the passenger side of his car and returned carrying a crowbar.  Evidence was given that Mr Farnell said to Mr Pottage "You want some do yah?" before striking him with the crowbar once on the side of the head, knocking him unconscious. Mr Pottage's head struck the pavement, resulting in the jury that subsequently caused his death. 
A number of people arrived at the scene.  One of the neighbours asked Mr Farnell why he had done it and he replied "Because I lost my fucking temper." When the police arrived, he told them "We're neighbours and it was all over a dog.  We had a huge argument, I was already uptight and I just flipped and hit him over the head." 
Mr Pottage went into a comma and died on 10th May 1995 after a decision was taken that no further treatment would assist his condition and that the ventilator should be removed.
During his interviews with the police, Mr Farnell indicated that he had wanted to have a conversation with Pottage about the dog but that he was told to "F... off." Mr Farnell claim: "...I felt that Bill was about to do something, I thought he was going to hit me, okay?  I went, my heart was beating ten to the dozen, I was, I was very stressed and very nervous because I am not used to confrontations with people anyway.  So I walked round to my car and got a crow bar... they both started jeering at me and saying 'Oh you're not going to use that' and laughing... and I just pick[ed] it up and hit him in the neck with the end of it.  Don't know why, and I, from the start I never intend to cause him any harm.  I wanted to have it out with him, and have a man to man talk about it, and I just ended up doing that, I don't know why." 
When the police asked Mr Farnell why he had gone to get a crowbar he said: "I wanted Bill and Christine to pay attention to what I was saying, but all they did was laugh and taunt me... I was frustrated.  All the anger and frustration that had built up in me over a period of weeks, months, over various things, came to a head at that point." He said that he had no intention of using the crowbar: "No definitely not. I couldn't.  I've never been a person of [sic] fighting or confrontations.  I couldn't imagine myself hitting somebody or something like that causing injury" (Summing-up, page 23B-E). "I intended to show it to Bill and Christine so they would take me seriously. I was not angry, just frustrated. I did not intend to hit anybody.  I had not lost my temper." (page 29B-C)
Mr Farnell pleaded not guilty to murder but guilty to manslaughter on the grounds of diminished responsibility.  At a trial in December 1995, the jury was unable to glee a verdict and was discharged.  Mr Farnell was re-tried in March 1996.  At the re-trial, the defence case was one of diminished responsibility due to depression.  Four psychiatrists gave evidence at the trial: Dr Mendelson and Dr Gordon for the defence; Dr Stone and Dr Callinan for the Crown. 
Dr Mendelson considered that "this was a man with minor personal difficulty, but those problems occasion by his personality have never been serious.  He was bullied and the subject of some deration at school.  He was normally on what I know far from aggressive, and I would deduce that his temper, from the history I had, had never led him to significant violence before.  He was becoming increasingly depressed over the preceding two years to May 1996.  He was miserable, irritable, sleepless, lacking in energy, and evincing a progressive social withdrawal; and so far as his professed intolerance of noise is concerned that is a significant characteristic of depression.  He felt that Mr Pottage was being aggressive, insulting and derisive to him and that that behaviour, coloured by his depression, led him to feel that he was being particularly belittled because one of the effects of depression is that it tends to make the person who suffers from it magnify and distort insults or perceived insults" (Summing-up page 40B-41A). 
Dr Gordon testified that Mr Farnell had had a depressive illness for perhaps as long as five years. This "was of a severity to amount to an abnormality of mind and such as substantially to impair his mental responsibility for his actions."  He considered that Mr Farnell had been suffering from moderate depression "which severely restricted his capacity to control his action." Dr Gordon conceded that Mr Farnell's GP had not given him any treatment when he had complained of feeling depressed previously. (Summing-uping up, page 43F-45A). 
Mr Callinan took the view that Mr Farnell had a condition akin to, but less severe than, depression called dysthymia. "These symptoms did not constitute a mental illness.  Simply put, I did not feel that his symptoms ever reached a level which would interfere with his functioning; that is, his ability to manage his everyday affairs... [T]hese symptoms occur commonly in the general population and did not require psychiatric intervention... I found no evidence of clinical depression." (Summing-up page 35D- 36A). The question of abnormality of mind did not even reach "first base." (page 11F).
Dr Stone was "prepared to concede... that in the light of his description of his state of mind for the last month preceding the 6th May, his state may arguably be regarded as 'an abnormality of mind'." He concluded, however, "it was not in my opinion severe enough substantially...to diminish his mental responsibility for his actions.  It was too mild a depression...to account for or to explain what he did on the 6th May." (Summing-up, page 37G to 39G)" 
6.	When summing-up the case to the jury Ognall J gave the jury directions on the issue of provocation.  He directed the jury to consider whether the allegedly provoking conduct in fact caused the defendant to lose his self-control.  He had told the jury that the burden was upon the prosecution to disprove provocation.
7.	Before us Mr Bebb accepted that there was evidence upon which a reasonable jury could properly find that the appellant had been provoked, whether by things done or by things said or by both together, to lose his self-control.  That concession, which, in our view, was rightly made, is important when considering what happened thereafter in the summing-up.
8.	The judge set out a second question, which it is not necessary for us to repeat, and then moved to a third question: 
"Might that conduct have caused a reasonable person who had lost his self-control to react and do as this defendant did in striking Mr Pottage with the crowbar?" 
The judge then went on to say:  
"...before I read further you will remember that the defence in this case in their closing address explicitly accepted that no reasonable person even if provoked by the Pottages' demeanour or response -- you remember the taunting, the disparaging of him, the making little of him, the question: 'What are you going do with that?' when he appeared with the crowbar -- the defence explicably accept that whatever your view as to the nature of the Pottages' response, no reasonable person would or might have reacted to it as this accused did in the circumstances; that is, by taking this crowbar and striking Mr Pottage as he did.  In those circumstances, whilst of course as I have told you already it is my clear duty to leave the matter for you, the jury, to decide, you perhaps will not be troubled by consideration of it very long." 
The judge then resumed his reading from his written test and reminded them of the third question.
9.	In the course of submissions before us the prosecution made two other important concessions, again, in our view, rightly.  The prosecution conceded that the summing-up was defective in the light of section 3 of the Homicide Act of 1967.  By virtue of that section the question whether the provocation was enough to make a reasonable man to do as the did, must be left to be determined by the jury.  In treating the matter in the way which he did, it is accepted that Ognall J did not give a direction that complied with section 3 (see for example, R v Whitfield (1976) 63 Cr App R(S) 39). If that were the only defect, then the result of this appeal might well have been different.
10.	However, the prosecution also rightly accept that on the law, as it now stands, following the decision in R v Smith (Morgan) [2001] 1 AC 146, the jury should have been invited to consider the reasonable man test against the background of the medical evidence about the condition of the appellant.
11.	It is not necessary for us to decide whether or not had counsel was right to make the concession having, regard to the state of the law as it was in 1996.  Nor is it necessary for us to conduct an examination of that law to see whether or not the learned judge should have put the reasonable man question in a different form.  What is clear is that this Court must approach that summing-up, having regard to the decision in Smith.  That is made clear, for example, in the decision of this Court in R v Josephine Smith [2002] EWCA Crim 261.
12.	There was before us an application to call fresh evidence relating to the mental condition of the defendant at the time of the killing. It has not been necessary for us to hear that evidence.  We take the view that there was sufficient evidence before the jury, from the experts, particularly those called on behalf of the defendant, that if Morgan Smith had been decided before 1996, then a more elaborate summing-up would have to have been given to the jury.
13.	In the light of those two defects, and in the light of the decision in Josephine Smith, we have to ask ourselves whether or not the conviction is nonetheless safe.
14.	The test that we have to apply is well-known.  It can be found set out for example in paragraph 41 of Josephine Smith.  As Rose LJ said in that case: 
"The jury's verdict might still have been the same if the jury, in that case, had had the evidence of Professor Eastman before them.But we cannot be sure this would have been so.  It might reasonably have been different...." 
That test is taken from the decision of the House of Lords in Pendleton [2002] 1 WLR 72.  So absent those two defects, and in particular the second of the two defects, might the jury's verdict reasonably have been different?
15.	Mr Bebb submits that the jury's verdict would have been the same because counsel would have made the same concession even if Morgan Smith had been decided before the hearing of the trial in 1996. 
16.	We do not accept that submission. In our view, it is quite clear that a verdict "might reasonably have been different" about the two defects. In those circumstances, as we have already announced, we quash the conviction for murder.
17.	Having announced our decision, we asked Mr Bebb whether he sought a new trial. He told us that he did not.  The appellant always admitted an unlawful killing and, in the circumstances of this case, the result of the quashing of the conviction is that a verdict of manslaughter, by reason of provocation, is substituted for that of murder. 
(Submissions re: sentence) 
18.	LORD JUSTICE HOOPER:  We now turn to the issue of sentence.  The appellant in 1996 had previous convictions for offences of dishonesty and had been sentenced to imprisonment. 
19.	Mr Owen refers us to a decision of this Court, Attorney-General's Reference No 19 of 1999 (R v Marvin Wayne Kitchener) [2000] 1 Cr App R(S) 287.  With all respect to Mr Owen, the only relevant similarity between that case and the present one is that the dispute was over a barking dog.  In that case, the offender had returned to his home with his family and was confronted by a group of neighbours who had gathered outside his house to protest over the continuous barking of his dog. Subsequently a fight broke out after he had armed himself with a knife.  This is quite different.  There was no confrontation of that kind.  We have to be loyal to a notional jury verdict of manslaughter by reason of provocation.  But nonetheless, sentencing the appellant on that basis, we take the view that the provocation was at very much the lower end of the scale.  What the appellant did that day was appalling.
20.	We take the view that the proper sentence would have been one of 8 years' imprisonment. We substitute for the sentence of life imprisonment, a sentence of 8 years' imprisonment.
21.	MR OWEN:  I am obliged. Could I raise one question of costs which often arises in Criminal Cases Review Commission cases?  There was a quite considerable amount of work in preparing and presenting the application before the grant of legal aid in for the appeal itself. Clearly the costs of the Divisional Court have already been dealt with. Could I ask that you make a defendant's costs order to be taxed on the usual basis, in relation to the pre legal aid costs?
22.	LORD JUSTICE HOOPER:  Yes.  Unless you have submissions, that is the normal order.  It is a matter for the assessment officer to decide what are the proper costs to bring in to this case.
23.	MR JUSTICE OWEN:  I am obliged.
24.	LORD JUSTICE HOOPER:  Thank you both for your help.