R v TONY MARTIN [2001]

Neutral Citation Number: [2001] EWCA Crim 2245
No. 2000/02560/S1

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Tuesday 30 October 2001

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(The Lord Woolf of Barnes)

MR JUSTICE WRIGHT

and

MR JUSTICE GRIGSON

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R E G I N A

- v -

ANTHONY EDWARD MARTIN

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)

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MR M WOLKIND QC and MR M EDMONDS appeared on behalf of THE APPELLANT

MISS R HORWOOD-SMART QC and MR I JAMES appeared on behalf of THE CROWN

 

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J U D G M E N T

(As Approved by the Court)

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Tuesday 30 October 2001

THE LORD CHIEF JUSTICE:

On 19 April 2000, Mr Anthony Edward Martin stood his trial in the Crown Court at Norwich before Mr Justice Owen and a jury on an indictment containing a count of murder of Freddie Barras (count 1), a count of attempted murder of Brendan Fearon (count 2) and an alternative to count 2 of wounding with intent (count 3). There was also a count of possessing a firearm with intent to endanger life (count 4). Finally, there was a count of possession of a firearm without a certificate (count 5) which was the only count to which Mr Martin pleaded guilty.

The jury convicted Mr Martin by a majority of 10 to 2 of murder and wounding with intent. He was acquitted of attempted murder and of possession of the shotgun with intent to endanger life. He was sentenced to life imprisonment for murder, ten years' imprisonment concurrent for wounding with intent and 12 months' imprisonment concurrent in respect of his possession of the shotgun without a certificate.

At the time the offences were committed, Mr Martin was being burgled by the two people whom he shot. Because he was being burgled at the time there was considerable public sympathy for Mr Martin and media interest in his case. There were also suggestions that the law was in need of change.

THE LAW RELATING TO SELF-DEFENCE

There was no dispute that Mr Martin had shot the two men. Mr Martin's defence to the principal offences with which he was charged was that he was acting in self-defence. When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence. A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. (See Beckford v R [1988] 1 AC 130).

In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time, when he was defending himself. It does not matter if the defendant was mistaken in his belief as long as his belief was genuine.

Accordingly, the jury could only convict Mr Martin if either they did not believe his evidence that he was acting in self-defence or they thought that Mr Martin had used an unreasonable amount of force. These were issues which were ideally suited to a decision of a jury.

As to the first issue, what Mr Martin believed, the jury heard his evidence and they could only reject that evidence if they were satisfied it was untrue. As to the second issue, as to what is a reasonable amount of force, obviously opinions can differ. It cannot be left to a defendant to decide what force it is reasonable to use because this would mean that even if a defendant used disproportionate force but he believed he was acting reasonably he would not be guilty of any offence. It is for this reason that it was for the jury, as the representative of the public, to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr Martin believed himself to be in. It is only if the jury are sure that the amount of force which was used was unreasonable that they are entitled to find a defendant guilty if he was acting in self-defence.

These features of the defence of self-defence are critical to the outcome of this appeal. They are difficult to criticise and mean that Mr Martin is faced with the fact that the jury must have decided that when he shot the two men, he was either not acting in self-defence or, if he was, he used excessive force.

What has been the subject of debate is whether a defendant to a murder charge should be convicted of murder if he was acting in self-defence but used excessive force in self-defence. It is suggested that such a defendant should be regarded as being guilty of manslaughter and not murder. He would not then have to be sentenced to life imprisonment but usually instead to a determinate sentence the length of which would be decided upon by the judge, having regard to the circumstances of the offence. If it is thought that this should not be the law then the change would have to be made by Parliament. It was not even suggested on this appeal that it would be open to this court by judicial decision to bring about such a change. However, even in the case of a life sentence for murder the circumstances of the offence are taken into account. The Home Secretary, having considered the recommendations of the trial judge and the Lord Chief Justice of the day, fixes the tariff period, that is the period which has to elapse before a defendant can be recommended for parole by the Parole Board.

THE BACKGROUND TO THE CHARGES

Mr Martin is 55 years of age. He is of previous good character and at the material time lived at Bleak House, which is an isolated farm near the village of Emneth Hungate in Norfolk. The farm has been in Mr Martin’s family for several generations, and he himself has lived there alone for about 20 years. Nevertheless, the farm and the surrounding buildings are in an extremely dilapidated condition. The farmhouse, which is almost hidden by overgrown vegetation, gives the distinct impression, on the ground floor at least, of being derelict or, perhaps, a building site.

On the night of 20 August 1999, Brendan Fearon and Freddie Barras were driven by a third man from Newark to the vicinity of Bleak House which they subsequently entered by breaking a window on the ground floor. Both men were wearing gloves and carrying a torch and holdall bags. Although Fearon denied this, the circumstances gave rise to at least a very strong inference that they were intent on burglary.

The appellant claimed that he was asleep on the first floor and was disturbed by the noise. At some point he armed himself with a 12-bore Winchester pump-action shotgun which was capable of holding up to five cartridges, and loaded the gun. He asserted that he went down the stairs towards where he had seen a light. At some point, without giving any warning, he discharged the gun not less than three times; Barras was shot in the back and in his legs and Fearon was also shot in both legs. Although both managed to get out of another window, Barras collapsed and died a short distance from the house; Fearon managed to make his way to neighbouring premises and was subsequently arrested and taken to hospital. Barras’s body was found the following day by a neighbour who went to round up the appellant’s dogs.

The prosecution challenged Mr Martin’s account; their case upon the first four counts was that Mr Martin, having been disturbed by the approach of the burglars, had lain in wait for them and shot at them at short range with the intention either of killing or seriously injuring them.

Mr Martin’s case was that because of past experience he believed his house to be vulnerable to burglary and that the events of the night in question put him in genuine fear for his personal safety so that the discharge of the gun was in lawful self defence.

Grounds of appeal were lodged with this court by leading and junior counsel who represented Mr Martin at trial. Altogether ten grounds of appeal were put forward but the single judge refused leave on all save one (ground C) to which we shall return. Since the lodging of the original grounds of appeal Mr Martin has transferred his instructions to a fresh team of leading and junior counsel and solicitors. They now renew upon his behalf applications for leave to appeal against conviction on new and different grounds settled by the new team, together with applications for leave to call fresh evidence from five expert witnesses. We give leave to appeal on the first four fresh grounds and on the question of sentence.

During the 20 years that Mr Martin had lived at Bleak House, the house and the associated farm buildings had been broken into on several occasions and property stolen. It was apparent from his own evidence that Mr Martin was dissatisfied with police efforts to track down the culprits and with the general level of protection provided by the police to property in the area generally. In 1994 he had caught a man apparently stealing apples from his orchard and as the culprit drove away Mr Martin fired at the rear of his vehicle. As a result his shotgun certificate was revoked. At some time between then and the incident of 20 August 1999 the appellant came into possession of the Winchester repeater which he said had been left with him as an unsolicited gift by an anonymous donor. He had no licence for it.

On a number of occasions at meetings of the local Farm Watch and in discussions with neighbours and the local policeman Mr Martin was said to have made his dissatisfaction with the police very plain. He was heard to express the view repeatedly that self-help was the better way of dealing with criminals. He is said to have used such remarks as “you know the best way to stop them -- shoot the bastards”; that if a particular team of burglars returned he would “blow their heads off”; and he was also said to have suggested that he would recommend putting such criminals in a field and using a machine gun on them.

Brendan Fearon was at the material time 30 years of age and has a criminal record stretching back to 1994 involving convictions for burglary, criminal damage, assault and wounding, together with a number of drugs offences. Freddie Barras was only 16, but he also had a number of findings of guilt for dishonesty and bad or violent behaviour including assaults on the police. He was in fact on bail on 20 August, and there was evidence before the jury that he had told an acquaintance that he was planning a burglary on a remote farm in Norfolk. The third man, who had driven Barras and Fearon to the scene, but had not taken part in the burglary, also had an extensive record of dishonesty. He was said to have admitted to a police officer that he had recommended Bleak House to Barras and Fearon as a potentially “good target”. All these matters were made known to the jury.

THE EVENTS OF 20 AUGUST

The only witness who was able to give any account of the events of the night of 20 August, apart from the appellant, was Fearon. According to him, as he and Barras approached the farm they were surrounded and menaced by the appellant’s Rottweiler dogs, which were running loose. They retreated towards the farmhouse, Barras clinging to Fearon’s shoulder, and broke a window to get into what he thought was a shed in order to escape from the dogs. He used his torch when once in the building and realised that there was another, bigger room into which they moved. This was called the “breakfast room”. There were cans, bottles, bricks and rubble on the floor and they were both tripping and making a good deal of noise. Barras was still with him. He was using his torch to try to find a way out when he saw what he thought was a torch, a “load of flashing and I heard Fred shout, 'He’s got me' ”. The flashing came from the direction of the stairs. There was “a load of noise.... like cans and everything going over”. There was then another flash and he felt his left leg go numb. He frantically tried to get out through a window, eventually ripping the entire window frame out of the wall, and as he was so engaged there was a further flash and his other leg was injured. He described two shots in quick succession and then a pause before the third.

He got out of the window space, followed as he thought by Barras. He made his way to a nearby house, and was able to obtain help. When the flashes occurred he saw what he described as an old man standing in the stairway. In a taped interview, made under caution on 22 August, Fearon said that he had seen a man “on the stairs” pointing what he though was a torch at him. In a witness statement made the following day he said that after the second loud bang he saw someone standing on the stairs and described his position as being more than halfway up the stairs when he saw him; possibly three stairs higher than halfway up. On 10 September he made a further statement confirming that view saying that he saw the man and the stairs quite clearly. However, on 15 September he was taken back to Bleak House with police officers to walk through the route that he had taken on the night of the incident and the whole procedure was recorded on videotape. He then modified his previous account to state that he now thought that the man was probably at the foot of the stairs when he saw him and not halfway up. He made this assertion on the basis that when standing at the point at which he thought he was when he was first shot it was only possible to see the very bottom of the stairs and not the whole staircase, or even the halfway point.

The plans and photographs before the jury made it quite plain that in order to enter the breakfast room in which Barras and Fearon were when the shooting took place it is necessary to turn to the right at the bottom of the stairs and pass through a doorway or opening in a wall. A person descending the stairs would only be able to have a very limited view into that room until he reached ground level and moved a distance -- perhaps six feet -- towards this doorway. It should also be noted that the bottom three treads of the staircase were completely missing, and the resulting gap bridged by an aluminium folding ladder arranged in an 'M' shape. Another gap existed at the top of the stairs. The jury was taken to have a view of Bleak House during the course of the trial and would have been able to assess the situation fully and accurately for themselves. The members of this court have also seen a video which shows the interior of Bleak House.

Mr Fearon was cross-examined about his 28 August statement, but the change in his evidence about where the appellant was when he first saw him was not put to him, and his final version was not therefore challenged. It seems plain to us, and in the light of the information provided to the court by leading and junior counsel originally instructed, that this course was taken as the result of a considered and deliberate decision by the defence team. This decision is heavily criticised by Mr Wolkind QC who presently appears on behalf of the appellant, as will subsequently appear.

When the appellant gave evidence he told the jury that he had been sleeping fully dressed and with his boots on. He heard noises which alarmed him and he got out of bed and went onto the landing where he saw a bright light coming up the staircase. He became fearful and went back into the bedroom in a state of agitation, his heart beating loudly. He picked up the gun and loaded it and, as the noises from downstairs continued he went back onto the landing with the gun, picked his way over the gap at the top of the staircase and made his way down. When he was, as he thought, at about the mid- point of the staircase a light was shone at him which blinded and frightened him. He realised how vulnerable he was to whoever might be behind the light and whom he could not see. He fired his gun a number of times, but he could not remember how many. At that point he was still at the halfway point on the staircase. Having fired those shots he turned round and went straight back upstairs again into the bedroom. He remained there for some time and eventually made his way out of the house to his car to get a torch to look around the ground floor of the house. He could see no one and did not think at that stage that he had actually hit anyone when he fired his gun. He went back to his car and drove around the vicinity to see if there was anybody about, taking his gun with him but could find no one. He eventually went to neighbour's to tell them what had happened. He then went on to the house of a friend where he went to sleep on the sofa until he was arrested.

When he was interviewed under caution he gave an account to the police officers which was basically similar to that which he gave in evidence. He stated particularly that he wanted to make it clear that when he fired his gun he genuinely thought that his life was in danger. He asserted that he had never got to the bottom of the stairs and had gone no further than was necessary to see into the hallway; that was about as far as he dared to go.

He was cross-examined on the basis that his evidence and the account he had given in interview was untrue; that he had heard the two men approaching the house and had readied himself so that by the time they entered the breakfast room he was downstairs, lying in wait in the hall with his gun already loaded; and that he had stepped out into the breakfast room and fired three times with the intention of killing. Mr Martin denied this version; although he acknowledged the effect of the expert evidence about two of the shots at any rate, he insisted that he himself never got below halfway down the stairs, and that when he was interviewed he was clear as to where he had been

THE FORENSIC EVIDENCE

Dr Arnold, a forensic scientist in the Forensic Science Service, visited Bleak House on 22 and 26 August 1999. He found three freshly fired 12-bore shotgun cartridges which were lying between the fireplace in the breakfast room where the two men were shot and the doorway to the hall at the bottom of the stairs. Microscopic examination has established that all three shotgun cartridges had been fired in the Winchester shotgun. After firing, the spent cartridge is only ejected from the shotgun when the mechanism is “racked” so as to eject the spent cartridge from a port on the side of the gun and, in the same action, to pump a fresh cartridge into the breech. Dr Arnold found on experimentation that cartridges were ejected forwards and to the right of the firer to an average distance of 60 centimetres forward and 76 centimetres to the right. The spent cartridge cases were found lying fairly close together, and the nearest of them (JE6) appears from the scale plans placed before the jury to have been lying a little less than 4 metres from the newel post at the foot of the stairs. It was Dr Arnold’s opinion, with which Dr Renshaw, the expert instructed on behalf of the defence, agreed, that at least three shots had been fired. It follows from this evidence that, wherever the first shot may have been fired, Mr Martin ejected the first cartridge and fired two further shots and ejected those cartridges from a position inside the room to the right of the bottom of the stairs.

Two areas of shot damage were found on the far wall of the breakfast room from the door at the foot of the stairs, one below the window out of which the two men exited, and one to its right in a door. All the experts agreed that these two areas of damage were not in the direct line of sight of a person standing anywhere on the stairs, so that the shots that caused that damage could therefore not have been fired from the stairs.

The main injury to Barras’s back was attributable, thought Dr Arnold, to the whole or virtually the whole load of one cartridge. The lesser injury to Barras’s leg and the two areas of injury to the legs of Fearon could, thought Dr Arnold, have been caused by only two further shots, having regard to the possible spread of shot after it had left the gun. That spread enabled Dr Arnold to estimate the range at which the shots that caused the various injuries had been fired. He estimated muzzle to target distances as follows:-

i) Barras’ back wound 3 to 4.1 metres (9.75 to 13.5 feet)

ii) Barras’ main leg injury 4 to 5.4 metres (13 to 17.7 feet)

iii) Fearon’s main leg injury 3.8 to 5.3 metres (12.5 to 17.4 feet)

The upper end of the estimate for the fatal shot (4.1 metres), if measured from the bottom-most surviving stair tread, only just reaches the doorway from the hall into the breakfast room. According to Fearon, and as he demonstrated on the video, when he heard the shots he was in the middle of the breakfast room almost in front of the exterior door slightly towards the kitchen end of the room. From the plan, this point would be at least four metres further on from the doorway at the foot of the stairs. He told the police that he thought Barras was following closely behind him. A holdall which the men had brought with them, which was found to contain silver articles belonging to Mr Martin and which it was suggested that Barras had been putting into that holdall (JE2) was also found a similar distance away from the internal doorway. The passage of shot inside Barras’s body was angled at about 45 degrees upwards from the point of entry. It was suggested that this was explicable on the basis that he was bending down to put something in the bag when he was shot.

Dr Renshaw on behalf of the defendant did not give evidence on any of these matters, but leading counsel put the salient points of his report to Dr Arnold, who broadly agreed with them. The main point was that the place where the spent cartridges were found was consistent with Mr Martin having been near the opening between the breakfast room and the hall when he fired the three shots. A scenario from Dr Renshaw’s report was put to Dr Arnold by leading counsel for Mr Martin as follows:

“Mr Martin was standing just inside the breakfast room, close to the opening to the hall, and Mr Fearon shone the torch into his face. Mr Martin aimed and fired the shotgun below the torch and the discharge struck Mr Barras in the back. Mr Fearon and Mr Barras moved towards the window side of the room from the position close to the opening the hall and the breakfast room. Mr Martin fired a further two shots aiming in the downward direction. The first of the shots struck Mr Fearon causing a major wound to his left leg. The dispersed shot from this wound struck Mr Barras on the inner aspect of his right thigh and the wall beneath the window. The second struck Mr Barras in the outer aspect of his right leg, and the pellets ricocheting from the wound struck Mr Fearon in the right thigh and also the door to the left of the window. In the above scenario it would not have been possible for Mr Martin to have caused the observed injuries and damage if he had fired the gun from a position on the stairs.”

Dr Arnold agreed that this scenario and the positions suggested would accord with the injuries and the damage. It was further put to him that it was difficult to say that the shots had come from the stairs and he responded:

“Well, two couldn’t have been, and you have three cartridge cases close together, with the implication being that they were fired close together.”

It should be noted that in his report Dr Renshaw, who was supported by another expert, Major Mead, (the defence experts) stressed that this was only one of a number of possible scenarios which fitted the available evidence. He put forward a total of six, depending largely on the number of shots fired; none of them placed Mr Martin anywhere on the stairs. However, Dr Renshaw always accepted that the first shot, the fatal shot, could have been fired from the staircase.

Dr Renshaw, in the further evidence that he gave to this court, said that if the person firing was standing on the bottom surviving tread of the stairs the gap through which the shot would have had to pass was about ten inches wide. At that range the spread of shot from the muzzle of the gun would be about five inches. If the firer moved back to the halfway point on the stairs the gap would reduce to about seven-and-a-half inches and the spread of shot would be slightly greater. No pellet damage was found on the wall either side of the opening. He said that the presence of a light in the breakfast room made it possible to aim carefully at the gap, but that such a shot would have had to have been very accurately aimed (or very lucky) if it went through the gap. If the light was blinding Mr Martin, as he suggests, then the shot would have to have been even luckier.

In his evidence to this court, Dr Renshaw insisted that in consultation with the defence team he had always made it plain that, on the basis purely of the available line of sight, the first shot (which it is now accepted must have been the fatal shot) could have been fired from the stairs. The basis for his opinion that it had not been fired from the stairs was one of range, based on Fearon’s evidence as to where he and Barras were when the first shot was fired. To put the matter another way, if the fatal shot was fired from the stairs, Barras would have had to have been either in the hallway or at best in the doorway to the breakfast room when he was hit. This evidence could have been elicited at the trial. The fact that it was not elicited was the decision of the defence lawyers who were acting on behalf of Mr Martin at the trial.

The other forensic evidence presented to this court was that of Dr Lloyd, a forensic scientist expert in the examination and evaluation of chemical and physical trace evidence, including firearms’ discharge residue evidence. The evidence available at trial was that swabs had been taken by a scenes of crime officer from the staircase wall, the banister handrail and the newel post of the stairs from positions where firearms residue might have been expected to be present if Mr Martin’s account was correct. A single particle of primer residue was found in the swab from the wall which both the Crown expert (Mr Blunt) and Dr Renshaw considered to be of no evidential value. Dr Lloyd, who was instructed by the defence after trial, decided to re-examine the swabs on updated and more sensitive instrumentation at the Forensic Science Service Metropolitan Laboratory and, at the same time, to analyse samples taken from the three relevant cartridge cases. Five further indicative particles were found on the banister handrail and newel post and they were found to correspond in composition to the primer particles present in cartridges JE/6 and JE/7. This evidence would support a suggestion that the source of these particles was cartridge case JE/6. While he accepted that there were other possible explanations, his view, now shared by Mr Blunt, is that “the presence of five primer residue particles on the banister and banister post lends some support to the contention that a shotgun may have been fired from the stairway area”.

THE SUMMING-UP

No criticism is made of the learned judge’s directions on the law of self-defence. When dealing with forensic evidence, the judge reminded the jury, in our view correctly, that the shots that had struck the wall and the door on the far side of the breakfast room from the stairs could not have been fired from the stairs as these two areas of damage were out of the line of sight. He also reminded the jury of Dr Arnold’s evidence about the distance that there appeared to have been from the muzzle of the gun to the point of impact on the injured people and pointed out that those measurements, if correct, were indicative that the shots were fired from a point “not as far away as the staircase”.

THE APPEAL

GROUNDS 1 AND 2

Ground 1The preparation and presentation of the defence case denied Mr Martin a fair trial.

Ground 2 There is compelling fresh evidence to support self-defence.

These two grounds of appeal overlap to a significant degree, and it is convenient to examine them together.

The essential thrust of Mr Wolkind’s argument is that in order to achieve the maximum support for Mr Martin’s defence of self-defence, and to defeat the prosecution’s suggestion that he was already downstairs lying in wait for the two burglars, it was crucial to establish if at all possible that Mr Martin fired the shots, or at least the first shot, from a position on the stairs. But while Mr Martin gave evidence to that effect, and maintained his position throughout cross-examination, it is complained that leading counsel failed to challenge Fearon about his evidence as to where Martin was when he saw him in the flashes from the gun, and in particular failed to cross-examine upon the version he had given in his interviews and witness statements given to the police before he revisited the farm. A further complaint is that leading counsel effectively put to Dr Arnold Dr Renshaw’s first scenario, which placed Mr Martin just inside the breakfast room when he fired, as being the effect of the appellant’s expert evidence, and did not make it clear that it was Dr Renshaw’s view (as indeed it was Dr Arnold’s) that it was physically possible for the first shot to have been fired into the breakfast room from a position on the stairs. Indeed, Mr Wolkind suggests that Mr Martin’s defence team simply misunderstood the effect of their own scientific evidence.

We have closely examined the contents of the various experts’ reports and the transcripts of the evidence by those experts at trial. This last suggestion cannot be justified. It was always plain that Dr Renshaw and Dr Arnold were agreeing that the impossibility of shots from the stairs into the breakfast room only applied to the second and third shots and not the first. That this position was clearly understood by everybody at trial seems to us to be established.

Mr Wolkind suggests that it should have been well within the powers of experienced leading counsel to cross-examine Fearon into changing his mind as to where Barras was at the moment he was fatally shot; we accept this is possible, but such cross-examination could have been damaging to Mr Martin’s case and such evidence as there was tended to suggest that Fearon was right.

Criticism about the presentation of the defence generally ignores what was plainly a very difficult dilemma which faced the defence team. Mr Martin was asserting that he had fired all shots from the stairs and had never descended to the ground floor at all. The expert evidence was at one in concluding that that account was untrue. If counsel, in presenting his client’s case had emulated Mr Martin in sticking doggedly to that account, there was the high probability that the jury would not accept that Mr Martin had fired the first shot from the stairs in self-defence, since after doing so he would have had to climb over the gap at the bottom of the stairs, moved into the breakfast room, reloaded and fired twice more. Such a scenario, with its implication of pursuit of the burglars, would have been destructive of the defence of self-defence, and highly suggestive that Mr Martin was bent on revenge. Accordingly, it seems to us, counsel was entirely justified in seeking to gloss over the difficulties caused by his client’s own evidence and to accept, as the prosecution were prepared to do, that the indications were that all three shots had been fired from the ground floor. Such an approach would eliminate the element of pursuit, and so support the defence of self- defence.

This is precisely the explanation given by junior counsel for the approach adopted by the defence at the trial. Leading counsel for the defence in his letter to the court does not make the position as clear, but once it is appreciated that he was referring to three shots and not a single shot, it is apparent that this must also be his explanation.

Dr Renshaw in his statement dated 28 August 2001 refers to the fact that he had three conferences prior to the trial when Mr Martin was present. He states that it was common ground that all three shots could not have been fired from the stairs (although one shot could have been). He explained this to Mr Martin, but although Mr Martin acknowledged what he said to him he continued to say that, as far as he was concerned, he was on the stairs for all shots.

It is clear, and the contrary was not argued on this appeal, that Mr Martin was aware that the strategy which would be adopted at the trial by the defence team was that, while he was under the impression he was on the stairs when the shots were fired it was accepted that this could not be the case. It is plain that Mr Martin had been fully consulted about the matter, and was aware of the difficulties presented by the forensic evidence.

In this situation the fresh forensic evidence is not strictly admissible on this appeal. The other forensic expert evidence merely supports evidence which Dr Renshaw could have given at the trial which the defence decided not to adduce. It is clear on the authorities that Mr Martin is not entitled now to resile from the agreed position for the purpose of his appeal.

The legal position is made clear by the case of R v Ullah [2000] 1 Cr App R 351. In that case the appellant was charged with an indecent assault upon a female. During the course of the trial, after the complainant had given evidence, tape recordings were taken of telephone conversations between herself and other persons. Transcripts of the recordings were made available to defence counsel, but he did not seek to make any use of them at trial. The appellant was convicted, and it was submitted on appeal that the transcripts ought to have been brought to the attention of the jury because they showed that the complainant was trying to suborn other prosecution witnesses who had yet to give evidence, and if the jury had known of these conversations their verdict might well have been different. In allowing the appeal this court held that although the ultimate issue for the Court of Appeal was whether a conviction was safe, ineptitude by counsel was a necessary prerequisite to any challenge to the safety of a conviction based on counsel’s conduct. The lack of safety in a conviction could not be based on a decision by counsel merely because other counsel might not have made the same decision. Only significant fault could found a challenge to the safety of a jury’s verdict. In the case under appeal the failure to use the tapes was a matter of very serious misjudgment.

At page 357, the Vice President (Rose LJ) referred with approval to a passage in the judgment of Rougier J in Clinton (1993) Cr App R 320 at 326 where he said, referring to the earlier authorities of Gautam [1988] Crim LR 109 and Wellings [Dec 20, 1991]:

“The court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments and where appropriate after due discussion with his client such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory .... Conversely and, we stress, exceptionally where it is show that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate court to set aside the verdict by reason of the terms of section 2 (1)(a) of the Act.”

The Vice President also, at page 358, referred to the observations of Beldam LJ in Ram (The Times, Dec 7 1995) where it was observed:

“The court could not countenance a case in which the defendant was serving a prison sentence for no other reason than a mistake on counsel's part, but equally, where counsel's judgment had been reasonable, there was a strong public interest that the legal process should not be indefinitely prolonged on the ground, for example that a defendant's case advanced within a different framework might have stood a greater chance of success.”

Having considered the authorities, the Vice President concluded:

“For present purposes, it seems to this court that whatever the precise language which is used to describe it, Mr Cowan is correct in saying that it is only significant fault on the part of trial counsel, or indeed solicitors, which confound a challenge to the safety of a jury's verdict. It may be, although we express no final and concluded view on this aspect of the case, that it is a proper and convenient approach a Wednesbury test to the decision which is contained, i.e. was it one that no reasonable counsel or solicitor could have reached?”

Mr Wolkind referred us to a very recent decision of the Privy Council in Boodram v The State [10 April 2001]. That was a case in which counsel appearing for a defendant on a charge of murder was apparently unaware of the fact that he was engaged in a retrial until nearly the end of the proceedings. When he became aware of this he did not try to obtain any transcripts of the first trial in order to assess what could be done to redress any prejudice or potential prejudice to the defendant. Lord Steyn, who delivered the judgment of the Privy Council, observed that it was the worst case of the failure of counsel to carry out his duties in a criminal case that their Lordships had come across. His remark that general principle requires the court to focus on the impact of the faulty conduct must be understood in this context. There may be cases where misconduct has become so extreme as to result in a denial of due process, and the Privy Council considered that was the situation that applied in that case. Their Lordships were not indicating that where a decision has been made not to rely on evidence for good reason at the trial, it is possible to adopt the opposite tactics on appeal and then suggest that the conviction is unsafe.

In the present case, for the reasons that have already been analysed, we consider that defence counsel had an exceptionally difficult line to tread. We find it quite impossible to say that the tactics that were adopted by leading counsel on behalf of Mr Martin at the trial were inappropriate. On the contrary, in the circumstances they were fully justified.

However, even if we cast aside questions as to the admissibility of the fresh evidence, we are satisfied that the additional evidence of Dr Renshaw, Dr Lloyd and Major Mead would not have affected the outcome in the circumstances to which we are referred. We accordingly, reject the first two grounds of appeal in so far as they depend on the forensic scientific evidence and the default of the defence team. The remaining issues turn almost exclusively on the new psychiatric evidence relied on by Mr Martin.

PSYCHIATRIC ISSUES

Mr Martin's original solicitors instructed a consultant psychiatrist, Professor Maden, to examine and report on Mr Martin. Mr Wolkind has criticised the terms of the instructions given by the original solicitors to Professor Maden. However, Professor Maden produced a comprehensive report. Professor Maden found no evidence that Mr Martin was then suffering from depression and no evidence of mental illness. His opinion was that:

a)while, Mr Martin would be regarded by many people as eccentric and a loner he did not suffer from a personality disorder.

b)Mr Martin described occasional periods of depression in the past, one of which may have been severe enough to warrant a psychiatric diagnosis at the time, but after such a long period with no contemporaneous accounts of the episode it was impossible to be certain. If he was depressed then, he recovered without treatment and there was no suggestion that he was depressed at the time of the alleged offence.

c)Mr Martin was not suffering from any form of mental disorder nor is there anything to suggest that he was suffering from mental disorder at the time of the alleged offence.

d)the feelings which he describes when he realised that there were people in the house are consistent with severe anxiety and may be considered a normal reaction to grossly abnormal circumstances.

e)in the absence of any form of psychiatric disorder Mr Martin did not have a medical defence to the charges he faced. He was fit to plead and stand trial according to the usual criteria.

Given the terms of that report from a distinguished Professor of Psychiatry, it is no surprise that no attempt was made either to obtain further medical evidence or to advance a defence of diminished responsibility. There was no evidential basis for so doing. Accordingly no valid criticism can be made of the original defence team for accepting and acting on Professor Maden's opinion which coincided with the opinion of Mr Martin himself. It should also be noted that having been fully advised, Mr Martin instructed his lawyers that provocation should not be advanced as an alternative defence to the murder charge.

After Mr Martin’s trial and conviction the new defence team instructed another distinguished psychiatrist, Dr Joseph, to see Mr Martin and prepare a report. He conducted two lengthy interviews with Mr Martin. He found that Mr Martin suffers from, and was suffering from at the time of the offence, a long-standing paranoid personality disorder which can be classified as an abnormality of the mind arising from inherent causes within the terms of section 2 of the Homicide Act 1957. It was and remains the opinion of Dr Joseph that if Mr Martin intended to kill or to cause grievous bodily harm when he actually killed Barras, then his mental responsibility was substantially diminished.

Dr Joseph also found that Mr Martin had suffered from recurrent bouts of depression throughout his adult life and was suffering from depression at the time of the killing. This condition was a disease of the mind which exacerbated his paranoid personality disorder.

The Defence also instructed Miss Craissati, a chartered forensic and clinical psychologist, to examine Mr Martin. Her findings mirrored those of Dr Joseph.

The Prosecution responded to Dr Joseph’s report by instructing Dr Mackeith to report on Mr Martin and by commissioning a further report from Professor Maden. Professor Maden maintained the opinion expressed in his first report. Dr Mackeith found no sufficient evidence to support a diagnosis of paranoid personality disorder nor any evidence of depressive illness. He did find that Mr Martin suffered from psychological problems.

We heard oral evidence from each of these distinguished experts who confirmed the opinions set out in their reports, summarised above. It is unnecessary for the purposes of this judgment to go into further detail of their evidence. This court is not required to choose between their respective opinions on the issue of diminished responsibility. The question is whether the evidence of Dr Joseph and Miss Craissati is credible. Plainly it is. The Crown do not seek to argue otherwise. Their evidence was not available at trial. There is a reasonable explanation for it not being called, namely the negative terms of Professor Maden's report. Accordingly, Mr Martin is entitled to rely on the evidence of Dr Joseph and Miss Craissati.

Dr Joseph made two further findings which are said to be significant. Under the heading of self-defence, Dr Joseph reported:

a)Taking into account Mr Martin's mental characteristics at the time of the killing, Mr Martin would have perceived a much greater danger to his physical safety than the average person. Dr Joseph considered that Mr Martin honestly thought that he was in an extremely perilous situation and that he needed to take immediate defensive action to counter the attack he was under.

b)It is well recognised that at times of extreme emotional arousal, similar to that described by Mr Martin prior to the killing, memory can be impaired. Mr Martin was suffering from depression as well as being in a state of extreme emotional arousal at the time of the killing. He therefore had those characteristics which are most closely associated with amnesia. Dr Joseph, because of this, believed Mr Martin may have suffered from a genuine period of amnesia when he was standing on the stairs and he may have walked further down the stairs without being aware of doing so.

Mr Wolkind argues that the evidence of Dr Joseph and Miss Craissati establishes that Mr Martin's convictions are unsafe. The first hurdle he has to surmount is that the evidence was relevant and would have been admissible at the trial. This is plainly expert opinion evidence. Whether such evidence is admissible depends upon the purpose for which it is being relied upon. In some situations and for some purposes it will be relevant and admissible, in others it will not. Here, Mr Wolkind relied upon his medical evidence for different purposes:

a)to establish that the breaking into his house would be perceived by Mr Martin as being a greater threat to his safety then it would in the case of a normal person. If the jury accepted the expert evidence as to this, this would have made the jury more willing to accept Mr Martin's evidence. It could also have influenced the jury's decision as to whether Mr Martin was acting reasonably in firing the gun as he did;

b)to establish that Mr Martin may have suffered from amnesia as to what happened and this could have explained why his evidence was not accurate;

c)to establish that Mr Martin at the time when he fired the shot which was to prove fatal was suffering from diminished responsibility.

In the case of Turner [1975] QB 834 Lawton LJ described the purposes for which expert evidence of this character could properly be deployed in terms which have subsequently frequently been followed. He said:

“The first question on both these issues is whether the psychiatrist's opinion was relevant. A man's personality and mental make-up do have a bearing upon his conduct. A quick-tempered man will react more aggressively to an unpleasing situation than a placid one. Anyone having a florid imagination or a tendency to exaggerate is less likely to be a reliable witness than one who is precise and careful. These are matters of ordinary human experience. Opinions from knowledgeable persons about a man's personality and make-up play a part in many human judgments. In our judgment, the psychiatrist's opinion was relevant. Relevance does not result in the evidence being admissible: it is a condition precedent to admissibility. Our law excludes evidence of many matters which in life outside the Courts sensible people take into consideration when making decisions. Two broad heads of exclusion are hearsay and opinion .... the psychiatrist's report contained a lot of hearsay which is inadmissible. A ruling on this ground, however would merely have trimmed the psychiatrist's evidence: it would not have excluded it altogether. Was it inadmissible because of the rules relating to opinion evidence.... An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge and jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case, if it is given dressed up in scientific jargon, it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than does that of the jurors themselves; but there is a danger they may think it does.”

While this formulation has been accepted both by the Courts and by academics, (see Cross and Tapper on Evidence 9th Ed.), it is important to note that the case of Turner involved the defence of provocation and not self-defence. Provocation reduces murder to manslaughter; unlike self-defence it does not result in a defendant being acquitted.

Mr Wolkind relied of the recent decision of the House of Lords in R v Smith [2001] 1 Cr App R 31. This was also a provocation case that Mr Wolkind contended could be applied to the similar issues which arise when a defendant relies on self-defence. In that case Smith was relying upon evidence that he suffered from clinical depression. There was no dispute that the evidence was admissible and relevant on the issue as to whether he was provoked, the subjective issue. The problem was as to whether the evidence was admissible as being relevant on the objective issue of loss of self-control. As to this the majority of their Lordships came to the conclusion that the jury were entitled to take into account some characteristic, whether temporary or permanent, which affected the degree of control which society could reasonably expect of a defendant and which it would be unjust not to take into account.

Is the same approach appropriate in the case of self-defence? There are policy reasons for distinguishing provocation from self-defence. Provocation only applies to murder but self-defence applies to all assaults. In addition, provocation does not provide a complete defence; it only reduces the offence from murder to manslaughter. There is also the undoubted fact that self defence is raised in a great many cases resulting from minor assaults and it would be wholly disproportionate to encourage medical disputes in cases of that sort. Lord Hobhouse in his dissenting speech in Smith recognised that in relation to self-defence too generous an approach as to what is reasonable could result in an “exorbitant defence” (p. 93 para 186). Lord Hoffman also appeared conscious of this. As a matter of principle we would reject the suggestion that the approach of the majority in Smith in relation to provocation should be applied directly to the different issue of self-defence.

We would accept that the jury are entitled to take into account in relation to self-defence the physical characteristics of the defendant. However, we would not agree that it is appropriate, except in exceptional circumstances which would make the evidence especially probative, in deciding whether excessive force has been used to take into account whether the defendant is suffering from some psychiatric condition.

The only other issue, as to which the medical evidence could possibly be relevant so far as self-defence is concerned, is as to what Mr Martin believed the situation to be when he fired the shots. However, he himself gave evidence as to this and it was for the jury to decide the extent to which they could act on his evidence.

Dr Joseph's diagnosis was based almost entirely upon the history given to him by Mr Martin. It is apparent that Dr Joseph accepted that Mr Martin was a truthful witness. He said so in terms:

“I believe he honestly thought that he was in an extremely perilous situation and that he needed to take immediate defensive action to counter the attack he was under.”

However, this was the very issue which the jury had to decide and Dr Joseph's evidence that he thought Mr Martin's account was honest would have been irrelevant at the trial in relation to self-defence.

It is plain that whilst eccentricity and extremes of eccentricity are likely to be within the experience of a judge or jury a specific diagnosis of paranoid personality disorder and the possible consequences thereof is scientific information which is likely to be outside that range. But in this case the distinction between the doctors is only one of degree, since Professor Maden accepts that Mr Martin's feelings were consistent with severe anxiety although he would not describe this as a paranoid personality disorder. In this case, as will be the position in most cases where self-defence is raised, it is what the defendant believed was his situation which is important and not the scientific jargon which is most appropriate to describe his mental state. In our judgment, if the medical issues had been deployed at the trial, far from assisting the jury it would have tended to confuse them and would have distracted them from their task.

While we recognise Dr Joseph's evidence could be said to fall within the admissibility test set out by Lawton LJ in Turner (above) on the issue of self-defence, in this case we do not consider it would have advanced the defence of self-defence. While it is true that the jury were unaware of Dr Joseph's diagnosis that Mr Martin suffered from a paranoid personality disorder and so consequently might have perceived a greater danger to his physical safety than the average person in his situation, they did have the evidence of Mr Martin himself (on which Dr Joseph based his diagnosis), including that Mr Martin was terrified for his life. They knew that Mr Martin was a very eccentric man indeed and that he was obsessed with the security of his home. A large part of the summing-up was spent dealing with this evidence, with the judge making clear the undoubted relevance of what Mr Martin believed the situation to be. The jury could have been in no doubt but that their judgment of Mr Martin's actions had to be made by placing themselves in Mr Martin's shoes. In our judgment had that part of Dr Joseph's opinion on this aspect of the case been before the jury it would not have affected their decision and its omission does not render his conviction unsafe.

Mr Wolkind also argues that if the jury had been aware of Dr Joseph's opinion as to the possibility of Mr Martin suffering from amnesia they may have considered that this explained his failure to recall ever leaving the stairs and might well have affected their approach to Mr Martin's credibility. The Crown suggested to Mr Martin in cross-examination that he had been deliberately lying when he told the police that he had fired all the shots from the stairs. However, Dr Joseph emphasised in evidence that he was not saying that Mr Martin had suffered from a period of amnesia, only that it was a possibility. That possibility has to be seen in context. Mr Martin's account was that he fired all the shots from the stairs. That is what he told the police. That is what he told his solicitor and counsel. He confirmed that account to the firearms expert, Dr Renshaw. At his trial Mr Martin was questioned about this aspect of his account and he adhered to what he said previously. All that Mr Martin claimed not to remember was the number of shots he fired. As the case proceeded on the basis of the three shots he undoubtedly did fire, the question of amnesia is of no significance.

For these reasons the fresh medical evidence has no bearing on the jury's rejection of Mr Martin's contention that he was entitled to be acquitted on the grounds that he was acting in self-defence. The position as to the fresh evidence relating to diminished responsibility is different. Here the evidence is admissible and relevant. The jury did not have the opportunity of considering this issue. Although the issue was never raised at the trial this was because the evidence was not then available to Mr Martin. Mr Martin is entitled to rely on the evidence for the purposes of his appeal. (R v Weekes [1999] Crim LR 907) The conviction for murder must therefore be quashed.

It is also contended that the judge having given a perfectly satisfactory direction as to the relevance of Mr Martin's good character, the judge undermined that direction because he made a remark during his summing-up debunking the reliance placed by the defence on the fact that Mr Martin was kind to children. There is nothing in this contention and we do not give leave in connection with the fifth ground of appeal.

The final ground of appeal with which we have to deal is ground C of the original notice of appeal. Mr Wolkind did not advance any oral argument in support of this ground but left it to speak for itself. The complaint in this ground is that while the judge gave the jury written directions as to the offence of wounding with intent, he never provided any written direction for the jury as to the alternative offence of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861.

This failure, if it was a failure (which we doubt), is of no significance since if the jury rejected the defence of self-defence, a verdict of wounding with intent was inevitable. We therefore reject this ground of appeal.

Having dismissed Mr Martin's other grounds of appeal, the question arises as to whether we should order a fresh trial on the issue of diminished responsibility. We have no doubt that we should not do so. Section 3 of the Criminal Appeal Act 1968 allows us to substitute a conviction of the alternative offence of guilty of manslaughter by reason of diminished responsibility. We are entitled to do this since it appears to us that “the jury must have been satisfied of facts which proved him guilty of the other offence”, namely manslaughter by reason of diminished responsibility. We therefore so find Mr Martin guilty of manslaughter.

SENTENCE

As the conflict as to the medical evidence has not been resolved by a decision of the jury, in approaching the question of sentence we have to assume the opinion expressed by Dr Joseph supported by Miss Craissati is correct. It however remains the position that Mr Martin used a firearm which he knew he was not entitled to have in a manner which was wholly unjustified. There can be no excuse for this, though we treat his responsibility as being reduced for the reasons explained by Dr Joseph.

There is also no doubt that the two men who broke into Mr Martin's house were intent on committing burglary. Mr Martin was entitled to use reasonable force to protect himself and his home, but the jury were surely correct in coming to their judgment that Mr Martin was not acting reasonably in shooting one of the intruders, who happened to be 16, dead and seriously injuring the other.

Any shortcomings on the part of the police could not justify Mr Martin taking the law into his own hands. We understand how frustrated Mr Martin may have been and in deciding what sentence is appropriate we take into account not only the evidence of his medical witnesses, but also the conduct to which he had been subjected. We also take into account that we must make it clear that an extremely dangerous weapon cannot be used in the manner in which it was used by Mr Martin that night.

The conclusion to which we have come is that the minimum sentences which we feel it would be proper to impose are: for manslaughter, five years' imprisonment; for wounding with intent the sentence shall be reduced to three years' imprisonment; and the sentence of 12 months imprisonment for the possession of the uncertified shot gun should remain unaltered. All the sentences shall be concurrent. In view of the time Mr Martin has already spent in custody, within about a year he will be eligible for consideration for parole.

MR WOLKIND: The appeal having substantially succeeded, I ask for costs from central funds. The defence have been privately funded throughout.

THE LORD CHIEF JUSTICE: Thank you. Any other application?

MR WOLKIND: My Lord, yes. One other matter I raise today, my birthday.

THE LORD CHIEF JUSTICE: Many happy returns!

MR WOLKIND: Thank you very much. I have drafted a point for consideration by the House of Lords. At this stage I have an application for leave to appeal to the House of Lords. The court will understand that we continue to fight, and Mr Martin will seek elsewhere to quash his convictions. But we invite my Lords to certify that the point I have drafted is one of general public importance, and, not only to certify it, but we also invite this court to grant leave to appeal. This is a point, in my submission, that should be considered and decided.

THE LORD CHIEF JUSTICE: Mr Wolkind, you have kindly provided us with a copy you want certifying. We are inclined to think that, as drawn, it is too wide. Basing ourselves on your draft, would it be sufficient for your purposes if we certified:

“Whether expert psychiatric evidence is admissible on the issue of a defendant's perception of the danger he faced?”

MR WOLKIND: My Lord, yes.

THE LORD CHIEF JUSTICE: We will hear from Miss Horwood-Smart on both those submissions.

MISS HORWOOD-SMART: My Lord, having heard your words, we have no observations.

THE LORD CHIEF JUSTICE: And about costs?

MISS HORWOOD-SMART: Central funds, my Lord, I believe.

THE LORD CHIEF JUSTICE: Thank you very much. Mr Wolkind, as far as costs are concerned, we grant your application. We certify the point, but we do not give leave. You will have to ask their Lordships for leave.


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