Neutral Citation Number: [2007] EWCA Crim 481
Case No: 200506067B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE HAWKINS QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 March 2007
Before :

LORD JUSTICE PILL
MR JUSTICE HENRIQUES
and
SIR RICHARD CURTIS
- - - - - - - - - - - - - - - - - - - - -
Between :

	R	Respondent	
	- and -		
	GARY OSBOURNE	Appellant	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

MR M DENNIS QC for the Respondent
LORD CARLILE QC & MS A LEVITT for the Appellant

Hearing date : 30 January 2007
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Pill: 
1.	On 4 October 2005 at the Central Criminal Court before His Honour Judge Hawkins QC and a jury Gary Ozzie Osbourne was convicted of murder.  He was sentenced to life imprisonment with a minimum term of 15 years, less 225 days served on remand.  Osbourne appeals against conviction by leave of the full court.  The judgment was sent to the parties in draft on 27 February but circumstances have not permitted its pronouncement until today.
The Facts
2.	On 24 January 2005, Gary Hunt was fatally stabbed in his flat.  His body was discovered on the following day by a workman who had entered the flat to carry out pre-arranged repair work.  The door to the flat was unlocked and there was no sign of forced entry.  Drugs were found in the flat and £800 in cash.
3.	The appellant had been friendly with Gary Hunt for many years.  The prosecution case was that he was the murderer.  On 24 January he made separate confessions, considered later, that he had murdered the deceased, to Karen Impey and Tony McMillan.
4.	In interview, the appellant denied that he had been at the flat on 24 January.  It was submitted on his behalf that the jury should not rely on the evidence of Impey and McMillan of confessions to them. At a later stage, the appellant admitted that he had been at the flat on 24 January 2005.  He claimed that, by the time he arrived, the deceased was already dead.  He panicked and did not tell the police what he had found.  
5.	The prosecution alleged, relying on telephone and computer evidence, that the murder was committed on 24 January, and within a period of 36 minutes between 18:50hours and 19:26hours.  It was established that the appellant was in the immediate vicinity of the deceased’s home at 18:44hours and only a comparatively short distance away at 19:43hours, and between 19:45hours and 20:00hours.  Evidence was given by witnesses who had visited the deceased in the early evening and by another witness who had no reply to telephone calls beginning soon after 19:30hours.
6.	The prosecution submitted that the absence of forced entry and the absence of evidence of robbery or theft, or disturbance at the flat, suggested that the deceased was murdered by someone whom he knew and whom he had allowed into his home.  There was evidence that the deceased was attacked when sitting in his armchair in the living room.  He was attacked from the front and immediately overwhelmed by repeated blows from a knife.  He would appear to have offered no resistance to the attack.  
7.	The appellant was known to visit the deceased’s flat in order to purchase drugs from him.  He had a history of drug abuse.  There was no evidence of any other known acquaintance of the deceased being in the vicinity of his home at the material time.  Reliance was also placed on lies told by the appellant in interview a month after the murder, including a claim that he had been at McMillan’s address from about 18:40hours onwards, and that he did not know of the murder until the following day.  Initially, he denied that he had been to the deceased’s flat on the night of the murder.  There was evidence that the appellant had not returned to his home that night.  He arrived at Raymond Impey’s address after midnight, having been drinking, and left in the morning without mentioning events of the previous evening.  In interview, the appellant said that he and the deceased had been “inseparable” and had been “like brothers”, and yet the appellant failed to contact the parents of the deceased at any stage.
8.	The appellant did not give evidence.  In his defence statement, dated 11 August 2005, he admitted going to the deceased’s home on the night of the murder in order to buy cannabis from him.   When he entered, he discovered the body of the deceased.  He told Karen Impey and Tony McMillan of the death but denied that he had said to either of them that he had been responsible for it.  It is submitted on his behalf that, as a drug dealer, the deceased would have had many callers and may have had enemies.  A number of witnesses gave evidence as to other people who might have been candidates for killing the deceased.  Detective Inspector Hill gave evidence that each of those named had been investigated by the police and eliminated from their enquiries.
9.	Of the two persons to whom confessions are alleged to have been made on the night of the murder Karen Impey was the former partner of the appellant and Anthony McMillan a close friend of both the appellant and the deceased.  Impey said that the appellant had called him on the telephone on the evening of 24 January and told her he had killed the deceased.  He told her he had stabbed the deceased upwards in the stomach area and twice in the chest.  The deceased had coughed up blood and blood had come from his ears.  She did not tell anyone at first as she was frightened of what the appellant might do to her.  On the following day, he told her that if she told anyone he would kill her.  That account was fully challenged in cross-examination.  
10.	McMillan said that, on 24 January, the appellant came to his home at about 19:30hours.  They drank beer together.   The appellant told him two or three times that he had murdered the deceased.  Two days later, the two men met and the appellant told him that he and the deceased had argued and that he had stabbed the deceased five times, once in the heart and four times in the stomach.  
11.	Challenged in cross-examination, McMillan said that he did not tell the police about the confession because of his mixed feelings.  It would have depended on whether the deceased’s mother wanted the appellant locked up; he was willing to do it either way for her.  At first he thought that the confession was a sick joke.
12.	The prosecution submitted that the confessions to Impey and McMillan, made to unconnected people on separate occasions, were reliable and consistent with other evidence.  Both witnesses were close to the appellant.  Neither of them had any motive to invent such a confession.  Neither witness went to the police straight away.  Initially, neither of them wanted to believe the confession.  It was a combination of loyalty and fear that led them to withhold the information from the police for a time.  
The Issue
13.	The appeal arises out of a ruling made by the judge in the course of the trial.  The judge admitted evidence of statements of the appellant to the doctor who examined him on 22 February, following his arrest on that day.  
The doctor stated:
“He gave his name as Gary Ozzie Osbourne.  He said he’d been suffering from paranoid schizophrenia for many years and he referred to tablets he was taking – two a day for about two years; and the last time that he had taken it was eight months ago.  He also said he refused to see a psychiatrist.  Medication was given to him by his GP”.
14.	The judge also allowed evidence to be given by Karen Impey, who had said in her written statement that the appellant had been diagnosed to be suffering from schizophrenia and put on medication.  The statement continued:
“If he did not take his medication, he was liable to snap at any time.  He would be very aggressive for no reason at all – both to me and Shane; shouting at us.  But he was never violent”.
The appellant had stayed with her over Christmas and was not seen to take any medication.  The appellant and Miss Impey were on friendly terms at that time. 
15.	The judge concluded:
“I come to the conclusion that it is important explanatory evidence; that without it the jury would find it difficult properly to understand, in other words, and evaluate the other evidence in the case and that its value for understanding the case as a whole is substantial”.
The judge also rejected a submission that the evidence should be excluded under Section 78 of the Police and Criminal Evidence Act 1984 (“the 1984 Act”)
16.	Thus the judge’s finding was that the disputed evidence was of the appellant’s bad character and admissible as important explanatory evidence under Section 101(1)(c) of the Criminal Justice Act 2003 (“the 2003 Act”).  On the appellant’s behalf, Lord Carlile QC, who did not appear at the trial, submits that the evidence was not in law evidence of bad character and was not admissible.  It was not “reprehensible behaviour”, as defined.  Neither was it admissible under any other rule of evidence.  Even if it was, it should have been excluded under Section 78 of the 1984 Act.  There was a real possibility that the jury might have used the evidence that the appellant suffered from a mental illness in order to provide an explanation for an otherwise inexplicable murder.  The jury heard no expert evidence as to any connection between the symptoms of that illness and the act of killing, or as to the effect of the appellant not taking medication.  
The Law
17.	The expression “bad character” is defined in Section 112 of the 2003 Act:
“References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –
(a)   has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.”
Section 112, an interpretation section, provides:
“ “Misconduct” means the commission of an offence or other reprehensible behaviour”.
18.	Lord Carlile submits that the conduct relied on was not “reprehensible behaviour”.  Even if it was, the behaviour was irrelevant on this charge of murder.
19.	Important explanatory evidence is defined in Section 102 of the Act:
“For the purposes of section 101(1)(c) evidence is important explanatory evidence if –
(a)  without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.”
20.	In the course of his ruling, the judge referred to the prosecution submission, repeated in this court, that they were not concerned with the appellant’s mental illness but simply with Miss Impey’s “practical observation of the defendant’s behaviour when not taking his pills”.  The prosecution had submitted that, once the appellant had relied on his friendship with the deceased, an issue arose and: “Miss Impey’s evidence as to how he behaved when not controlled by medication – in other words, out of character – is highly relevant in that context”.  
21.	Before this court, Mr Dennis QC, for the prosecution, submits that it is not suggested, and was not suggested at the trial, that any perceived mental illness was itself relevant to the issues before the jury.  The evidence of mental illness, which came from the appellant himself in interview, had to be admitted to explain the relevance of Miss Impey’s evidence.  What was admissible was evidence of Miss Impey’s first-hand experience of the appellant’s conduct when not taking his pills.  That conduct was “reprehensible behaviour” within the meaning of Section 112 of the 2003 Act.  It was “important explanatory evidence” within the meaning of Section 101(1)(c) and it would have been artificial to exclude it.  It was open to the appellant to call the psychiatric and psychological evidence available to him,  had his advisors seen fit to do so.  
22.	The prosecution rely, in the alternative, on the principle stated in R v Pettman, unreported May 2 1985, by Purchas LJ.  Background evidence is admissible:
“Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the  jury would be incomplete or incomprehensible”.
23.	That reflects the statement of Lord Atkinson, in the course of argument, in R v Ball [1911] AC 47, 68.  
“Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show his estranged feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him.  You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased’s life.”
24.	In R v Fulcher [1995] 2 Cr App R 251, the defendant was charged with murdering his infant son.  There was no direct evidence as to who inflicted the fatal injury.  Giving the judgment of the court, Kennedy LJ stated, at page 257F:
“… medical evidence was adduced to show the severity of the fatal injury and also to show that this very young child had on earlier occasions sustained injuries of a kind which were unlikely  to have been sustained accidentally.  The earlier injuries were also relevant as tending to show that right up to the time of the fatal injury the child would have been in some pain, and so more liable to be fractious than a normal healthy baby.  The prosecution was then, in our judgement, entitled to lead evidence to show how on other occasions the appellant reacted to the crying baby, so that they could invite the jury to infer that on the critical occasion the appellant was so irritated that he resorted to gross violence.  In other words, the evidence now challenged was evidence of motive.  It went to the actus reus and the mans rea.”
25.	In R v Dolan [2002] EWCA Crim 1859 the allegation was also that a father had murdered his infant son.  Evidence was called that the defendant had lost his temper with a fire in the home as it would not light and had damaged it with a hammer or by kicking it; evidence that he had lost his temper with a shower, smashing the shower head and cracking the bath; evidence that he had thrown a remote control at the television and evidence that he had hit the wing of his car with a hammer.  Giving the judgment of the court, Tuckey LJ stated, at paragraph 23:
“Persuasively though these submissions are put, we do not accept them.  We do not doubt the Pettman principle as elaborated in the commentary to which we have referred, but we think it is important to bear in mind the Law Commission’s warning that the label “background evidence” may be a vehicle for smuggling in otherwise inadmissible evidence for less than adequate reasons.  Relevance and necessity are the touchstones of the principle.  The fact that a man who is not shown to have any tendency to lose his temper and react violently towards human beings becomes frustrated with the violent towards inanimate object is, we think, irrelevant.  Those of us who are ham-fisted or over ambitious DIY enthusiasts would be horrified to learn that frustration in this difficult field of endeavour could be used against us.  By the same token it was not necessary for the jury to know about this.  It was prejudicial and could only have diverted their attention from the very serious issue which they had to try.  Nor could it be said that the case was incomplete or incomprehensible without the admission of this evidence.  So we conclude that the judge should not have admitted it at the time he did.”
The Evidence
26.	The relevant evidence given by Miss Impey in evidence-in-chief was as follows:
“[During the 18 months or so together in Derby] he was prescribed something for his head because he was a paranoid schizophrenic, I can’t remember what they were called.  They were sort of like yellow tablets, I can’t remember what the hell they were called … He was supposed to take it like three times a day.
…
I remember there was a couple of times he didn’t.  It was like when he came down to my dad’s.  I never saw him with any of his medication on him when he come down to my dad’s.
Q. How was he when he did not take his medication?
A. Sometimes he would be aggressive and shout, a lot of shouting.
Q. For any reason?
A. Well, just over little things like, if I was saying something to Shane or saying something to Shane that he didn’t like, he say, ‘don’t say that to him’, or just something, you know, small that would annoy him.
Q.  Would that stay at shouting or would he be violent or just shouting?
A. Just shouting, he was never violent.
Q.  When he would go like this, who was it to?  Who would be on the receiving end of this?
A. Sometimes it would (inaudible), most of the time it would be me because if I was like shouting at Shane because I was like tired and that, and he would be like “Don’t be like that with him, he’s only a baby”.  You know because sometimes I would be getting up early in the mornings with Shane and sometimes because I was tired I would shout at him and Gary would be like, “There’s no need to shout at him like that”, and well, you know, its not my fault, I’m tired, because I was bringing him up on my own and I was finding it hard and not sleeping very well anyway.
Q. [Describe] His behaviour, how he would be.
A. I don’t, I can’t describe it, it’s you know.
Q. Can you just try and help us a bit?
A. Sometimes, you know, I don’t know.  Sometimes he was okay, other times he was just, you know, he’d just shout over something, you know what I mean, sometimes he was okay, it’s just sometimes he would like, have a go at me if I said something to Shane when he’d done something he shouldn’t have.  I shouldn’t have done that to him like, you know.”
27.	Evidence in cross-examination was to the same effect.  Miss Impey did say that the appellant had threatened her but her use of that word was then explored in the context of, and given by the witness as a reason for, her delay in reporting the appellant’s alleged confession to her after the killing.  She had not complained of a threat having been made when she first reported the confession to the police.  When summarising Miss Impey’s evidence  as to the appellant’s behaviour, the judge did not use the word threat, and rightly so.
Further Submissions
28.	Lord Carlile submits that it is unfair to people with mental illness readily to admit evidence of it.  There was a danger that the jury, in the case of an unexplained killing, would have used evidence of the appellant’s mental illness as a reason for finding him guilty.  The appellant’s behaviour described by Miss Impey in evidence came within the range of normal domestic behaviour, it is submitted, well within accepted norms.  No expert evidence was called as to the likely effect of the failure to take his medication on the appellant’s behaviour.  In particular, there was no evidence that it might lead to violent behaviour, or to connect the shouting with the killing.
29.	The evidence was that the appellant had not taken his medication for a period of eight months up to the death.  Miss Impey’s evidence underlined the absence of violence.  The behaviour described, it is submitted,  was not reprehensible behaviour within the meaning of Section of 102 and did not begin to offer an explanation for the violence claimed to have been used by the appellant.  Lord Carlile submits that it would be ludicrous to suggest that oral aggression as a result of a mental condition is necessarily indicative of a predisposition to violence.
30.	In his written submissions, Mr Dennis conceded that there are “no medical grounds for suggesting that paranoid schizophrenia equates directly to violence or should be regarded as manifesting itself in violent acts”. It is also conceded that “there was no evidence called in this case to show that the appellant had been seen to manifest his mental illness in acts of physical violence”.  Those concessions are accurate and in our view sound but, in the light of them, it is difficult to understand how the language used by the appellant towards his partner Miss Impey can be relevant to the question whether he murdered one of his best friends.  
31.	It is also suggested that on the appellant’s claim, in interview, that the deceased was a “bloody good mate” and that they were “like brothers” and “inseparable” made the evidence of Miss Impey relevant.
Conclusion on Admissibility
32.	In admitting evidence, the judge may have had regard to Miss Impey’s use of the expression, in her written statement, but not given in evidence, that the appellant was “liable to snap”.  That may have influenced the judge’s decision on admissibility, though the witness did add in the statement that the appellant was “never violent”.
33.	In our judgment, the evidence given by Miss Impey about the appellant’s behaviour was not admissible.  It having been admitted, the jury should have been directed that it was not relevant to the charge before them.  Her evidence of mental illness was admitted only to explain Miss Impey’s evidence.  That evidence established that the appellant was “never violent”.  The appellant would sometimes be “aggressive and shout”.  It usually arose because Miss Impey was shouting at their infant son Shane because she was tired.  The appellant would say that there was no need to shout at the baby.   
34.	In the context of this charge of murder, we do not accept that shouting at a partner in the manner described can amount to reprehensible behaviour within the meaning of Section 102 of the 2003 Act.  Shouting between partners over the care of a very young child is not of course to be commended but in the context of a charge of murdering a close friend, it does not cross the threshold contemplated by the words of the statute.  Further, it is not in our judgment “important explanatory evidence” within the meaning of Section 101(1)(c) or admissible as background history relevant to the offence charged.  
35.	It is common ground that no link is established by the medical evidence.  Shouting at a partner in the manner described is irrelevant to the conduct charged, the brutal killing of a man who was, on the evidence, a good and close friend. Neither does the appellant’s claim of close friendship make this evidence any more relevant to whether the charge is proved.  
36.	The circumstances in Fulcher were quite different in that the evidence was of  bad temper and possibly a disposition and propensity to commit crimes of violence.  It was associated with evidence of earlier injuries to the victim himself.  In Dolan, loss of temper and violence towards inanimate objects was held to be irrelevant to allegations of violence towards human beings.  Shouting at a partner is no more, and probably less, relevant to the killing of a close friend. 

Safety of Conviction
37.	There remains the question whether the wrongful admission of the evidence creates any doubt about the safety of the verdict of guilty.  In his summing up, the judge summarised fairly, and in a way about which there can be no complaint, the evidence of Miss Impey.  
38.	The judge stated:
“I am going to turn to another topic, members of the jury, right of the outset of Karen Impey’s evidence; and this was her evidence as to how the defendant behaved when not taking his pills”
39.	The judge continued:
“Members of the jury, so far as this evidence is concerned, the prosecution say it shows he would be aggressive – that is, to the extent she describes – if not on his pills, and would behave in that way to persons he was close to.  This, the prosecution say, may help to explain other evidence in the case, and the case as a whole.  I should make clear, members of the jury: that is its sole possible relevance in the case.  The medical condition itself is not a matter to take account of.
I have told you what the prosecution say.  What do the defence say?
The defence say it adds nothing to the prosecution’s case.  In the words of counsel in his closing speech, whatever you make of his comments, it simply amounted to shouting, being boisterous and aggressive in words alone; and the witness made clear that it was a response to her.
Members of the jury, whether you find the evidence reliable – because that is a factual matter – and, if you do, how far it helps you in the case (if at all) is entirely a matter for you.  If you accept the defence submission, you should ignore it altogether. But if you do find it reliable and significant evidence and a help in explaining other evidence in the case, there are important matters to bear in mind.  You should not conclude that the defendant is guilty just because of this evidence.  This evidence does not of itself mean that he committed the fatal act; and it is important that you put the evidence in its proper context and assess it in the light of the other evidence in the case.
Having dealt with her evidence, so far as that is concerned, in a separate category, let us look at her evidence generally in the case.”
Consistent with his direction that the medical condition itself was not a matter to take account of, the judge did not mention that condition when summarising the evidence of the doctor about his examination of the appellant following arrest.  The judge correctly directed the jury that they should not take account of the medical condition and we do not doubt that they followed that direction.
40.	Before he summed-up, the judge had consulted counsel about the legal directions he should give.  His direction was agreed by counsel, but of course agreed on behalf of the appellant only on the basis of the judge’s earlier ruling that the disputed evidence was relevant.  
Conclusion
41.	The effect of the direction was plainly to play down the relevance and significance of this evidence of Miss Impey.  Indeed, short of reversing his earlier ruling, the judgment could hardly have watered down the significance to be given to it more than he did.  When addressing this court on the safety of the verdict, Mr Dennis submitted that the evidence was a very small part of the case and that the verbal aggression was neither here nor there.
42.	The prosecution case was a very strong one and had several strands.  In addition to alleged confessions made on separate occasions to separate people, there was strong circumstantial evidence which pointed to the appellant as being the murderer and he lied on important issues in an interview a month after the murder.  He did not give evidence on oath to challenge the prosecution case.
43.	We also keep in mind the conclusion we have reached as to the relevance of the evidence and the reasons for that conclusion.  We have failed to find any relevant or tenable link between the shouting by the appellant in a domestic context, as described, and the brutal killing which in fact occurred.  In considering the safety of the verdict, we must keep in mind the impact the evidence, and the summing-up of the point, would have had on the jury.  We do not consider it to be a real possibility in the present case that, in reaching their verdict, the jury would have regarded the evidence as in anyway supporting the prosecution case.  We do not consider that they would have found any link between the shouting in the home and the killing of the deceased or that the evidence contributed to the conclusion they reached. 
44.	Lord Carlile was realistic in putting his submission no higher than that the possibility that someone else had committed the murder cannot be totally excluded.  The jury did exclude the possibility, as they were entitled to do, and there is not a real possibility that Miss Impey’s references to shouting affected that conclusion.
45.	Having regard to that, and to the strength of the prosecution case generally, our conclusion is that the verdict is safe.  The appeal is dismissed.