B e f o r e :
LORD JUSTICE LAWTON
MR. JUSTICE BINGHAM
and
MR. JUSTICE MCCOWAN
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R E G I N A
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v.
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JAKES DAVID IBRAMS
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IAN DAVID GREGORY
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MR. B. CARTER Q. C., with MR. C. BLOOM for the Appellant Ibrams and
MR. L GOLDSTONE for the Appellant Gregory,
appeared as Counsel on behalf of the Appellants.
MR. B. HYTNER Q. C. and MR. D. POOLE appeared as Counsel on behalf of the crown.
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HTML VERSION OF JUDGMENT
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LORD JUSTICE LAWTON: On 15th May, 1980 in the Crown Court at Manchester, after a trial before Mr. Justice McNeill, these appellants, James David Ibrams, who is now 22 years of age, and Ian David Gregory, who is of the same age, were convicted of murder and sentenced to life imprisonment. The jury recommended Gregory to mercy. They applied for leave to appeal against their convictions and this was refused by Mr. Justice Lawson. Thereupon the two appellants renewed their applications for leave to appeal against conviction to this Court. Gregory was in fact three days out of time, but we have granted an extension of time. A question arose whether in the circumstances of this case the appellants were appealing on a point of law or a point of mixed law and fact. It was accepted in this Court today that the appeals should proceed on the basis of applications for leave to appeal, and the Court has granted that leave. Counsel for the appellants has consented to the hearing being treated as the hearing of the appeals.
The two appellants and a young woman called Laura Andronik, who at the material time was 19 years of age, were charged with the murder of a man called John Monk. Andronik was acquitted of murder, but convicted of manslaughter. She was put on probation for two years and has not applied to this Court for leave to appeal against her conviction.
It was not in dispute at the trial that the deceased man, Monk, had treated the appellant Ibrams and Andronik, and at a later stage Gregory, in a manner which can be accurately described as bullying and terrorising them. The prosecution case was that as a result of being bullied and terrorised they planned to attack Monk and to do him grievous bodily harm. Ibrams in his evidence at the trial said that the plan was to break his arms and legs.
It would not be fair to these two appellants to leave the story there, although in many ways it would be enough for the purpose of dealing with the point which arises in this appeal. The facts out of which the case arises are worrying. At one time in 1978 Ibrams and Andronik had been close intimate friends. They quarrelled, and she started going out with the deceased man, Monk. It became apparent to Ibrams, who was fond of Andronik, that Honk was treating her very badly and violently. Indeed, such was his treatment of her that in order to get away from him she left the country and went to Italy for some time. In October, 1978, after her return to the United Kingdom, Ibrams started going out with her again. At that time Monk was serving a sentence of borstal training. Andronik and Ibrams became so friendly that they set up an establishment together and intended to get married in March, 1979. But at this time Andronik became frightened because of a rumour she heard about what Monk was going to do to her when he got a chance. He was released from borstal on 30th August, 1979, and he went round to the flat where Ibrams and Androaik were living about two or three weeks after his release. He came with two other men whom he described as his "mates". He forced his way in, kicked Ibrams, and started ordering Andronik about. Ibrams was too frightened to resist. Monk and one of his "mates" stayed for the night, and Monk made an attempt to persuade Andronik to sleep with him.
Several days later Monk and one of his "mates" came round to the flat again. At first he was friendly, but later he took over the bedroom and insisted that Andronik spend the night with him. He said that if she did not do so he would "beat hell out of" Ibrams, who felt there was nothing he could do. From this point on Monk came round regularly, once or twice a week. He would stay the night and he terrorised Ibrams and Andronik, One of the results of Ibrams's worries and anxieties about it was that he lost his job. One of those visits gave rise to what became known at the trial as the "kangaroo court" incident, and it is worth recounting what happened. Monk arrived at the flat at about 2 o'clock in the morning. Ibrams would not open the door, so Monk broke it open and came in with a friend. He cut Ibrams across the chest with a kitchen knife, and then held a "kangaroo court. " The accusations were that Ibrams had taken Monk's girl friend and had failed to attend court on one occasion to give evidence for Monk, and had failed to answer the door when Monk arrived. Ibrams was tied up and dressed in one of Andronik's nightgowns. Andronik herself was dragged into the bedroom by Monk and made to spend the night there with him. On another occasion the appellant Gregory was at the flat. As a result of Monk's behaviour, Ibrams started to cut his wrists. Gregory, having tried to stop him, called the police. When the police came, however, Monk told Ibrams to go into the lavatory, which he did, and Gregory, being afraid of Monk, told the police that all was well. Again Andronik had to spend the night with Monk.
Events came to a head in the week beginning Monday, 1st October, 1979. Monks spent the Monday night in the flat and was, to use Ibrams's phrase, "really friendly", but on the Tuesday he reverted to his old behaviour. He kept Andronik awake throughout the night. In the morning he took her into the bedroom and they stayed there until lunch-time. That evening he went out with her and did not return until 7 p. m. the following day. On Thursday, 4th October Andronik, apparently at Monk's behest, went through the motions of telling Ibrams that their relationship was at an end. Ibrams had to spend the night sleeping in his car. On the morning of Friday, 5th October Andronik told Ibrams that she was going to move to her mother's house in Oldham, not far away, and Ibrams agreed to join her there. Gregory was to stay at the flat to look after it. Those arrangements were put into effect.
There were two developments on Sunday, 7th October. The police were contacted, First, Mario Andronik, Laura's sister, called them. An officer came to the house in Oldham, and they afterwards went to the police-station and explained the position to a woman police officer who, according to Ibrams's evidence, merely took some notes. Then at about midnight, after a threatening call from Monk at the house, they telephoned the police again. The second development was that after making this call Monk went to the flat. Arriving at about 2 a. m., he broke in and caused extensive damage, concluding by breaking a framed photograph over Gregory's head. Then he telephoned Andronik, repeating his request that she go out with him.
One of the disturbing features of this story as I have recounted it is that on two occasions the police were contacted. Perhaps it is understandable that on the first occasion they took no act on, as Gregory, in fear of Monk, told them that everything was all right. But it is really rather surprising that on the second occasion, the Sunday, nothing more was done than that the police took a few notes. Had the police acted on the information that they were then given it may well have been that the man Monk would still be alive and these two young men would not be serving life sentences for murder. Mr. Hytner has told us that, as one would expect, he and the prosecution were concerned about this police inactivity, and that he was not in a position to explain it save to say that his understanding was that the police gave Andronik and Ibrams advice as to how they should behave if there was a repetition of this kind of conduct on the part of Monk. It is not for us to criticise the conduct of the police. We were not present when the complaints were made. Suffice it to say that we find it somewhat surprising and most unfortunate in its consequences.
Those consequences seem to have been these: Gregory, Ibrams and Andronik continued to be terrified of Monk. They anticipated that there would be a repetition of the kind of conduct which had taken place on Sunday, 7th October. As apparently the police were not going to protect them they felt that they had to protect themselves. As a result, on the Wednesday they met together and drew up a plan for dealing with Monk. The plan was well thought out. What was to be done was this: Monk was to be enticed into drinking with them on the Friday and he was to have a fair amount to drink. The money was to be provided out of social security payments which Ibrams and Gregory were expecting to get. He was to be encouraged to take Andronik to his bed that night. Before going to bed Andronik would slip the catch on the door of the flat where Monk was living so that someone could get in, and she would so arrange the doormat as to provide an indication to Ibrams and Gregory that Monk was there. She was expecting the pair of them to arrive there promptly at two o'clock in the morning when she would be in bed with Monk. It was arranged that the pair of them, finding the mat in the position indicating that Monk was there, would go into the premises, that she would get out of bed, and that Ibrams and Gregory would attack Monk whilst he was in bed. That was the plan, and it was to be carried out on the Friday night. It was carried out meticulously. Andronik left the catch on the door so that Ibrams and Gregory could get in. She left the mat in a position indicating that Monk was present. Ibrams and Gregory armed themselves with an axe and a Gurkha knife to carry out the attack. They were determined to be punctual. As they arrived in the vicinity a little early, they spent some time in a roadside cafe until the hour of 2 a. m. arrived.
When that hour arrived they went to Monk's residence, found the signal, and went in. Having got inside, Gregory stunned Monk whilst he was asleep in bed, using the flat side of the axe. Ibrams then finished Monk off by inflicting a very large number of wounds, including no fewer than eight in his throat, which was slit from side to side. The pair of them then left. They did not know whether Monk was dead or alive. A few days later they went back and found that he was dead. They removed the body and buried it in a picnic site near Oldham. In interviews with the police Ibrams and Andronik spoke of the plan to kill Monk, but in evidence Ibrams said that this was not strictly true, that all they had intended to do was to cause him really serious injury. As has been said, in the witness box at the trial he said that the plan was to break his arms and legs. That intent was sufficient for a conviction of murder.
Those facts were not in dispute at the trial. Mr. Hytner, who appeared for the Crown, has told us with great frankness and fairness that if the learned Judge had come to the conclusion that there was evidence of provocation to go to the jury he would not in his final speech to the jury have submitted that there was no evidence of provocation within the meaning of s. 3 of the Homicide Act 1957. Further, he has told us in court today that he accepts that right up to the moment when Gregory stunned Monk in bed there was provocation which was acting on the minds of both Ibrams and Gregory. But he has submitted that on the facts as they have been recounted there was no evidence to go to the jury of any loss of self-control.
Mr. Carter, on the other hand, at the trial submitted to Mr. Justice McNeill that there was loss of self-control; that the appalling bullying and terrorising of Ibrams and Andronik, and later of Gregory, which have been recounted were such as to upset the self-control of all three of them; that the provocation went so deeply into them that the loss of self-control continued during the week starting on Sunday, 7th October and was still present when Gregory and Ibrams went into Monk's bedroom and did what has been described. Alternatively he submitted that some of Ibrams's answers in examination-in-chief are enough to show loss of self-control in Monk's bedroom at the time of the killing. He referred specifically to the following evidence:
"Q. Where did you go in the flat? A. I went into the spare bedroom. You know, I had a white cardigan on at the time that Laura got me for my birthday the year before. I took that off. Then I was panicking you see at the time. You know, I went out and just said 'I can't even beat the guy up. ' I was just a bit scared, really scared I was of the guy, but everything was going through my mind as well at the time about what he had done to us, how he had tied me up and what he had done to Laura. I just went in and, you know —
Q. You say those things were going through your mind, you went in and what? A. Gregs said 'I'll hit him for you, Jimmy, I'll hit him over the head first to daze him then being he is on his own but I was still scared, you know. Gregs said, 'I'll daze him or hit him on the head. ' So I said, 'No, it's my fight. ' I was trying to pluck up courage to give the guy a good hiding then. "
Mr. Carter on behalf of the appellants submitted at the trial that all those facts together with the evidence which has just been read amounted to some evidence of provocation and some evidence of loss of self-control, and that in those circumstances it was the Judge's duty to let the matter go to the jury pursuant to the provisions of s. 3 of the Homicide Act 1957, which provides:
"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. "
At an early stage in his submissions Mr. Carter was asked by the Court whether he knew of any case where there had been a substantial interval of time between the last act of provocation and the killing, and he was unable to call our attention to any such case. The nearest he was able to get to such a case was Davies, (1975) 60 Cr. App. E. 253. In that case the provocation had consisted of an adulterous relationship between the defendant's wife and her lover. The wife had been shot on a day when she was meeting her lover to the knowledge of the defendant. The trial judge let the provocation go to the jury, but complaint was made of the trial that he had misdirected them about the effects of the provocation. In the course of the judgment of this Court in Davies's case it was pointed out that letting the provocation go to the jury was perhaps over-lenient towards the defendant. That is the view which we take of that case. There is nothing in the reports comparable to the time-interval which occurred in this case. On the other hand, none of the cases to which we have been referred provides provocation as grave as in this case. Mr. Carter submitted that it followed that in those circumstances the nature of the provocation — the quality of it, so to speak — may lead to a loss of self-control extending over a longish period of time.
There are, it seems to us, three answers to that proposition. The first is to be found in the history of the law relating to provocation which was set out in the speech of Lord Diplock in Camplin, (1978) 67 Cr. App. R. 14. That history shows that, in the past at any rate, provocation and loss of self-control tended to be regarded by the courts as taking place with a very short interval of time between the provocation and the loss of self-control. But Lord Diplock in the course of his speech went a little further with regard to this matter. At p. 19, having reviewed s. 3 of the Homicide Act 1957, he said, referring to the section:
"Secondly it makes it clear that if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law: Whether a reasonable man might have reacted to that provocation as the accused did. "
In our judgment, Lord Diplock clearly thought that the loss of self-control must occur at or about the time of the act of provocation.
Here the last act of provocation was on Sunday, 7th October. It was not in any way suggested that the dead man had provoked anybody on the night of his death. In fact, when Gregory and Ibrams went into the bedroom he was asleep. The first blow he received was inflicted on him by Gregory, and it dazed him but did not knock him unconscious. He was able to sit up in bed, and he was then attacked by Ibrams. Nothing happened on the night of the killing which caused Ibrams to lose his self-control. There having been a plan to kill Monk, his evidence that when he saw him all the past came to his mind does not, in our judgment, provide any evidence of loss of self-control.
In our judgment, the matter is really concluded by the summing-up to the jury of Devlin J. (as he then was) in Duffy, (1949) 1 All E. R. 932, which was approved by the Court of Criminal Appeal. There is a passage in the summing-up so approved which is referred to time and time again in cases and in the textbooks; but, whether we look at the whole of the summing-up or at those parts of it which were approved by the Court of Criminal Appeal, it appears that there was another passage which is directly relevant to the facts of this case. The part which has been referred to many times with approval, and in particular with the approval of this Court in Whitfield, (1976) 63 Cr. App. R. 39 at p. 42, is as follows:
"Provocation is some act or series of acts done by the dead man to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind. "
That passage refers to "a sudden and temporary loss of self-control", which has to be of such a kind as to make the accused for the moment not master of his mind.
Later in the same summing-up, in another passage which was also approved by the Court of Criminal Appeal in Duffy (supra), are these words:
"Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is of the essence of provocation."
Mr. Hytner has pointed out to us that this gross bullying and terrorising had almost certainly impaired the judgment of Ibrams, Gregory and Andronik, but that impairment of judgment is not the same as loss of self-control. Impairment of judgment led them, on the Wednesday following Sunday, 7th October, to plan Monk's death or, if Ibrams's version is right, to do him grievous bodily harm. They carried out the plan. They were masters of their minds when carrying it out, because they worked out the details with considerable skill; and in pursuing the plan as they did on the Friday night they were still masters of their own minds. They were doing what they had planned to do. When they went into Monk's bedroom and Gregory struck the first blow that again was pursuant to the plan which had been worked out, and they were masters of their own minds.
It follows, in our judgment, that Mr. Justice McNeill was right in ruling that there was no evidence of loss of self-control. In those circumstances the appeal will be dismissed.
The Court wishes to say that this case is a most unusual one, and had it not been for the appalling criminal behaviour of the dead man these two appellants would not today be serving sentences of life imprisonment for murder. It is to be hoped that a copy of this judgment will be sent to the appropriate department of the Home Office, and that the parole board will as soon as possible be alerted to the very unusual and very disturbing facts of this case.
MR. HYTNER: My Lords, following on your Lordship's last remarks I wonder if it would be proper for me to say on behalf of the Crown, now that the appeal is disposed of, that the case for the Crown would be that Ibrams, in order to protect his friend Gregory, lied in the witness box, and that in fact Ibrams did not use the axe at all, and that none of the axe-wounds was caused by him. The case for the Crown was that he had suffered by far the greater provocation. The recommendation of mercy by the jury is endorsed by the Crown; nothing is said to go against that. In the view of the Crown it should be extended to Ibrams.
MR. CARTER asked the Court to certify a point of general public importance in the following form:
Whether a loss of self-control in relation to the defence of provocation includes a gross impairment of judgment arising out of fear, but which leaves the appellant capable of formulating and executing a detailed plan to cause serious injury to another.
LORD JUSTICE LAWTON: We are inclined to think that the question answers itself. If a gross impairment enables one to plan it is not a loss of self-control. We have come to the conclusion that this is an unusual case on its own facts, and we do not certify.
