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*319 R. v Stephen Clifford Doughty

Court of Appeal
23 May 1986
(1986) 83 Cr. App. R. 319
(Lord Justice Stocker, Mr. Justice Peter Painand Mr. Justice Gatehouse):
May 22, 23, 1986
MurderDefenceProvocationScope of DefenceBaby Killed by Caring FatherLoss
of Temper in Attempt to Silence ChildWhether ProvocationWhether Defence to
Murder ChargeHomicide Act 1957 (5 & 6 Eliz. 2, c.11), s.3.
By section 3 of the Homicide Act 1957:
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
*320 said or by both together) to lose his 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.

The appellant's wife gave birth to their first child, a son, by Caesarean section on
January 14, 1985. On her discharge from hospital several days later, on medical advice
she remained in bed. The appellant looked after his wife and baby and ran the house. He
was a conscientious father and cared for the baby well, but became fatigued. On January
31, 1985, the appellant's wife found the baby dead. He had severe head injuries which
had caused his death. The appellant admitted responsibility for the death and was
charged with the baby's murder. At his trial he said in evidence that during the night in
question he was very tired. The baby had cried persistently despite being fed, changed
and other attempts made to settle him. As a result the appellant had lost his temper and
had tried to silence the child by covering his head with cushions and kneeling on them.
In consequence the baby had died. The judge refused to allow the defence of
provocation by reason of the baby's persistent crying to be left to the jury. The appellant
was convicted of murder. On appeal, inter alia, whether the issue of provocation ought to
have been left to the july.
Held, that since there was evidence which linked causally the crying of the baby with the
response of the appellant, section 3 of the Homicide Act 1957 was mandatory and
required the judge to leave the issue of the objective test of provocation to the jury.
Thus, there was a misdirection and the conviction for murder would be quashed and one
of manslaughter substituted, the appeal being allowed to that extent. Dictum of Lord
Diplock in Director of Public Prosecutions v. Camplin (1978) 67 Cr.App.R. 14, 19, [1978]
A.C. 705, applied.
Per curiam: Reliance can be placed upon the common sense of juries upon whom the
task of deciding the issue of provocation is imposed by section 3 of the Homicide Act
1957 and that that common sense will ensure that only in cases where the facts fully
justified it would their verdict be likely to be that they would hold that a defendant's act
in killing a crying child would be the response of a reasonable man within the section.
Appeal against conviction.
On October 15, 1985, in the Crown Court at Manchester (Caulfield, J.) the appellant was
convicted of murder and sentenced to life imprisonment.
The facts appear in the judgment.
The main ground of appeal was that the judge had wrongly ruled that the baby's
continuous crying for some hours before his death could not constitute evidence of
provocation within the meaning of section 3 of the Homicide Act 1957.
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The appeal was argued on May 22 and 23, 1985, when the following cases were cited in
argument in addition to the one referred to in the judgment: Cunningham (1981) 73
Cr.App.R. 253; [1981] 3 W.L.R. 223; Brown (1972) 56 Cr.App.R. 564; [1972] 2 Q.B.
229; Davies (1975) 60 Cr.App.R. 253; Hyam v. Director of Public Prosecutions (1974) 59
Cr.App.R. 91; [1975] A.C. 55; Duffy [1949] 1 All E.R. 932n; Gilbert (1978) 66 Cr.App.R.
237; R. v. Hancock and Shankland (1986) 82 Cr.App.R. 264; Lee Chun-Chuen v. R.
[1963] A.C. 220; R. v. Maloney (1985) 81 Cr.App.R. 93; [1985] A.C. 905; and Whitfield
(1976) 63 Cr.App.R. 39.
*321
[For section 3 of the Homicide Act 1957, see Archbold, 42nd ed., para. 20-28.]
J. A. Price, Q.C. and Terence Rigby (assigned by the Registrar of Criminal Appeals) for
the appellant.
R. C. Klevan, Q.C. and Miss G. D. Ruaux for the Crown.
STOCKER L.J.:
On October 15, 1985 in the Crown Court at Manchester in a trial conducted by Caulfield,
J. before a jury, the appellant was convicted of murder and sentenced to life
imprisonment. He now appeals against that conviction, this Court having granted his
application for leave to appeal.
The Crown's case expressed shortly was this, that on January 14, 1985, the appellant's
wife, Alison, gave birth to their first child, a little boy called Stephen Nathan Doughty.
The birth was by Caesarean section. On returning home from hospital, five or six days
after the birth, she followed the medical advice that she had been given by the doctor
that she should remain in bed. The consequence was that the appellant, a young man
aged 26, had to take upon himself the running of the house, looking after his wife and
looking after the baby. He did that task, according to the evidence, conscientiously. A
health visitor who called at the house on several occasions observed on each occasion
that the baby looked well cared for though on one visit she did feel there may have been
some tension in the house and thought the appellant was showing signs of fatigue.
Until the incident giving rise to the death of the baby there is no doubt that it had been
well looked after and it was putting on the appropriate amount of weight for a baby of
that age. Alison, the appellant's wife, said that he was loving and attentive to the baby.
On January 31, 1985, Alison got up and found the baby was missing from his cot. The
baby had been sleeping downstairs with the appellant so that he could look after it and
his wife could have presumably a full night's sleep. She, of course, questioned the
appellant who ultimately directed her to the kitchen and on the table of the kitchen was
the dead body of the baby wrapped in a dustbin liner.
The cause of death was considered in some detail at the trial by a pathologist, Dr. Lawler.
He found bruising to the chest and some damage to the lungs, and in particular
extensive diffuse bruising to the scalp which gave the impression of being one large
bruise. The skull was fractured and the membrane between the brain and the skull
showed generalised haemorrhage. The cause of death in his opinion was intra cranial
haemorrhage and a fractured skull. He took the view that the injuries were consistent
with the baby's head having been crushed for a minimum of 30 seconds whilst the head
was resting on a firm flat surface, such as the floor, and that such squashing would have
required considerable force, but was consistent with somebody kneeling upon the baby
and thus applying the force to the head on the floor.
In the course of police interviews, to part of which we shall refer in greater detail
hereafter, the appellant gave a number of explanations. At first he explained that he had
fed the baby twice during the night (we observed that he kept a careful record of the
feeds), he had changed its nappy and that the baby's continuous crying got on his
nerves. He said he fell asleep and then woke up finding the baby lying underneath him.
In other words, he gave an explanation of accident. When further questioned, he
accepted that he must have inflicted the injuries, but denied responsibility for his
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actions. He gave explanations of blackout and asked to see a doctor. He did say that he
could not really recall what had happened. There was psychiatric evidence to the effect
that the trauma *322 of these events might well perfectly genuinely have wiped out
from his mind, at any rate from time to time, recollection of what the events had been.
He admitted in temper squeezing the baby's chest. Then he admitted that he had
covered the baby with cushions to silence the baby while he changed his nappy and had
knelt on the cushions in order to stop the baby screaming.
He gave evidence to the effect that he was very happy at the birth of his son, that he
had spent the time after his wife had returned from hospital caring and cooking for her,
looking after the baby and generally cleaning the house. He gave an explanation that on
the night in question he had fed the baby and twice changed his nappy. He could not
recall whether he awoke for the next feed, but recalls the baby crying. He first of all
covered the baby's face with his hand, then with a nappy, then with cushions and
pressed them down in order to quieten the baby. He agreed he must have knelt on those
cushions. He denied that he intended to hurt the baby. He said he fell asleep and awoke
on the floor finding the baby beneath him and that in a state of shock he tried to conceal
it in a bag which he put in the kitchen. It was clear from the way he gave evidence, and
from the transcript, that he did appear confused and unclear in his recollection from time
to time. He said that he did not remember killing the baby. He recalled putting his hand
on its mouth and vaguely remembered part of what happened, but he did not intend to
do harm. He said on that particular day he was very tired and knelt on the cushions to
silence the baby.
As has already been observed, there were witnesses who gave evidence to the effect
that the appellant was attentive and hard working for his wife and child after their return
from hospital. As has already been observed, a psychiatrist testified that even without
any attempt at lying people experiencing tragedy could genuinely fail to recall details.
At the close of the defence case, and in the absence of the jury, counsel for the appellant
argued that there was evidence of provocation, that is to say, the crying and restlessness
of the baby over at least a period of some hours prior to his death. We therefore think
that we should shortly refer to some of the answers given during the course of
interrogation by the police and to small parts of the appellant's own evidence as
reflected in the summing-up. The learned judge fairly extensively dealt with the answers
given to the police when the appellant was questioned. At p. 25, he reminds them of this
question and answer: The defendant said, It's all my fault. What is? The baby dying.
What do you mean? I shouldn't have been looking after it. I was too tired. Then the
police intervened, saying, Hang on a minute. Are you saying you killed the baby? The
answer was, Yes, but I didn't intend to. Then he was warned and cautioned and said,
Well, I deserve to be punished for it. It's my fault, but I didn't mean the baby to die. I
can't remember. When I woke up the baby was under me and he was dead. I cleaned his
bum and changed him. I must have fallen asleep on top of him. I've not slept properly
for ages.
A little later on p. 26, All I remember is I gave the baby its first feed at 3.20. I think it
was 3.20. I've got it written down at home. After that feed he kept crying with wind. I
kept going to him to try and wind him. He just seemed to carry on crying. I kept going to
him, then it got time for his second feed. I took him out of his cot and put him on the
mat. I cleaned his bum and changed his nappy. He was getting on my nerves. I just put
my hand over his mouth. It was stupid but I wanted him to stop crying. In a later
passage recorded on p. 29 of the summing-up, he was asked, The officers have told me
you were very distressed. Yes. Quite openly you told them that at some stages you
were annoyed. I may have got a bit annoyed. I was getting aggravated, he was *323
annoying me. A little later on, He was screaming a lot, I tried to stop him by putting
my hand over his mouth. It made him worse. It's only common sense when you think
about it, it's bound to do. On p. 31, he was asked, Did you say you had lost your
rag? Answer, I didn't say it like that, but I did lose my temper. I don't lose it easily.
On p. 33 D, he was asked, You were fed up with looking after it because it wouldn't
keep quiet. Answer, That's what happened. It was building up during the week. I was
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tired but I was blacked out. You hit the nail on the head. I was just getting more and
more tired. I've done it, I know I have. That's what happened.
On p. 34, he was asked, Do you think you were in such a temper that you can't
remember separate actions you did? The answer was, Probably. At letter D, I can
just remember putting them on him and then putting my weight on him. I think I was
trying to wind him. I am not sure. I'd lost my temper. Then at letter F, What did you
do, kneel on him, sit on him, or what? The answer was, My hands I think, I pressed
down on him with my hands and knelt on him as well. Why? Just to keep him quiet
and stop him screaming. Did he go quiet? Slightly, but he still screamed. No matter
how hard I tried he still seemed to scream harder. Then he described what he had done
after that. Then on p. 36, he was asked, Do you think you are trying to forget part of
it? He said, Maybemaybe just in temper. At letter F, I wouldn't use so much
pressure but being in such a bad temper, I just used more than I thought I was doing.
On p. 37, it was put to him, And each act getting progressively worse as you
progressively lost your temper. Yes, Finishing up with you putting one or two
cushions over the baby's head and kneeling on it. Yes. You then tried to explain it
away by saying that you had been lying over it, which was a lie. I was lying over the
baby and that is not a lie. We've missed out what I want to say in my own defence. If my
mind had been working normally, under normal circumstances, there is no way that I
would have done that.
Then in his evidence before the jury, the appellant said,
I was very happy when Stephen was born. Once my wife was at home I was
doing all the work because she had to take things easily. Certainly on the
Saturday before the baby died, when the doctor told her to stay in bed apart
from visiting the bathroom, I really had everything to do. I was looking after
Alison as well. I was cooking for her; I was cleaning; I was dealing with the
baby.

Then on p. 46, he said,

I remember covering his mouth with my hand. I remember covering his
mouth with a terry napkin. I didn't want to disturb my wife when the baby
was crying. I vaguely remember covering him over with cushions and putting
my weight on the cushions. I didn't mean to hurt him. The weight I put on
with my hands. I was trying to quieten him down. I may have put my knees
on the cushions. I must have done; it is the only answer.

At the close of the evidence, counsel for the appellant made a submission to the judge
that he ought to leave the issue of provocation to the jury. The learned judge gave a
reasoned ruling to which reference must be made in some detail. He started his ruling by
correctly stating succinctly the relevant law. He said: *324
It is well-settled law that if on a charge of murder there is any evidence that
the defendant was provoked, the court is bound to leave two questions to
the jury to enable the jury to decide on the facts whether the Crown has
disproved provocation. The two questions the jury has to answer are these:
Has the Crown disproved that the defendant was provoked into acting as he
did? If the Crown has not disproved this subjective element then the second
question has to be answered by the jury. The second question is: Has the
Crown disproved that a reasonable man would have acted in the same way
as the defendant? This is the objective element. If the Crown disproves
either of these questions, the plea of provocation fails, and obviously if the
Crown disproves both, the plea of provocation fails.

Then he turns to consider the alterations in the law made by section 3 of the Homicide
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Act 1957, to which we will later refer. At p. 4, he continued with his directions as follows,
and we consider it appropriate to cite a considerable amount of the direction. The
learned judge said:
This brief review of the law I make to emphasise that the only power vested
in the judge, once provocation is raised by the accused, is to rule whether
there is any evidence at all of provocation. That is the only question on which
the court can give a ruling. Mr. Price submits that there is evidence in this
trial of provocation. Mr. Klevan for the Crown concedes that there is evidence
of provocation on the subjective question. The deceased person at this trial
is a baby boy aged 17 days, the son of the defendant. The operative
provocation is the crying and restlessness of the baby over an imprecise
period between 4.00 a.m. and 9.00 a.m., though not necessarily throughout
that period. I must assume and do assume at this stage that this factual
evidence will be accepted or may be accepted, by the jury. In my judgment
the perfectly natural episodes or events of crying and restlessness by a 17
day old baby does not constitute evidence of provocation in relation to the
first subjective question. Put another way, the crying and restlessness of a
17 day old baby cannot be utilised as being provocative to enable the
defendant to raise the defence of provocation. Though provocation can be
constituted by conduct or words which are not unlawful, provocation cannot
be founded, in my judgment, on the perfectly natural episodes or events
arising in the life of a 17 day old baby. It is notorious that every baby born
cries, that every baby can at times he burdensome. It is notorious that a
baby of 17 days is incapable of sustaining his own life, that he is defenceless
and harmless. These notorious facts are common to every baby who is only
days old. I think that the episodes or events in the life of the baby of 17 days
old could not have been in the mind of Parliament when section 3 became
the law. The words of section 3, I quote: Whether by things done or words
said or by both togetherare not, in my judgment, apposite to embrace the
perfectly ordinary, certain, and natural episodes or events in the life of a 17
day old baby. Further, common law directions cannot be construed as
including these natural and certain episodes that occur in the life of every
baby of days old. Finally, I think civilised society dictates that the natural
episodes occurring in the life of a baby only days old have to be endured and
cannot be utilised as the foundation of subjective provocation to enable his
killer to escape a conviction for murder.

It is not necessary to read the remaining few lines of that direction.

*325
Before turning to the arguments that have been put before this court, it seems to us
appropriate to cite the precise terms of section 3 of the Homicide Act 1957. It reads:
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.

Mr. Price submitted that on the proper construction of that section, the judge was bound
to leave to the jury the question of provocation, particularly in the light of the admission
made by Mr. Klevan for the Crown that there was a causal connection between the crying
of the baby and the appellant's response. Mr. Price submitted that this was a classic case
for leaving the issue to the jury and he referred us to the case of the D.P.P. v. Camplin
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(1978) 67 Cr.App.R. 14; [1978] A.C. 705. The facts need not be recited. It was a case in
which there was an appeal against the direction that a judge gave on the topic of
provocation. Lord Diplock said this at p. 19 and p. 716 respectively:
My Lords, this section was intended to mitigate in some degree the
harshness of the common law of provocation as it had been developed by
recent decisions in this House. It recognises and retains the dual test: the
provocation must not only have caused the accused to lose his self-control
but must also be such as might cause a reasonable man to react to it as the
accused did. Nevertheless it brings about two important changes in the law.
The first is: it abolishes all previous rules of law as to what can or cannot
amount to provocation and in particular the rule of law that, save in the two
exceptional cases I have mentioned, words unaccompanied by violence could
not do so. 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.

Mr. Price also referred us to Professor Glanville Williams' Textbook on Criminal Law, 2nd
ed., 1983, at p. 534. Professor Williams wrote this: The Homicide Act, in allowing insults
as provocation, inevitably alters the position, because an insult uttered in private is
neither a crime nor even a tort. Section 3 contains no restriction to unlawful acts, and
the courts seem to be ready to allow any provocative conduct to be taken into
consideration, even though that conduct was itself provoked by the defendant.
Consequently, there is no longer any reason why the defence should not be available (if
the jury uphold it) to the jilted lover who kills the object of his affections or her new
lover, or the man who kills a constantly crying baby. Even the rule about lawful blows
seems to survive only as a consideration that the jury can take into account when
applying the test of reasonableness.
Mr. Klevan for the Crown reiterated before us that there was no doubt that there was a
causal link between the crying and the response, but submitted that not everything
should be allowed to be considered as evidence upon which provocation could be
founded, and that such acts should be limited to cases *326 where there is some
element of wrongfulness, however slight and referred to the further examples considered
by Professor Glanville Williams on the page to which reference has just been made. He
submitted that the learned judge's direction was correct and that public policy required
that the cries of a baby even if persistent should not found a plea of provocation.
With respect to the learned judge, we are unable to accept those arguments. We
appreciate the reasons which the learned judge gave for reaching the conclusion that he
did, but we are unable to construe section 3 in such a light. The first sentence of section
3 reads: Where on a charge of murder there is evidence on which the jury can find that
the person charged was provoked to lose his self-control. There is no doubt, and it is
not in dispute, that there was here evidence upon which the appellant wasI use the
word loosely provoked to lose his self-control. Part of that evidence has been cited
earlier in this judgment.
The reasoning which the learned judge gave, understandable though it was, involves, in
our view, adding in to section 3 words which are not there, presumably by way of
restriction. It is accepted by Mr. Klevan that there was evidence which linked causally the
crying of the baby with the response of the appellant. Accordingly, in our view, it seems
inevitable that that being so the section is mandatory and requires the learned judge to
leave the issue of the objective test to the jury.
Mr. Klevan also referred us to what might, in shorthand, be called the floodgates
proposition, that if the learned judge's direction was wrong it opens up the possibility
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that in any case in which there is a battered baby allegation and the baby dies, the
argument based on provocation may be raised. We feel that even if that submission was
right it could not be allowed to dissuade us from putting a construction on section 3
which, in our view, its wording plainly constrains. We also feel that reliance can be placed
upon the common sense of juries upon whom the task of deciding the issue is imposed
by section 3 and that that common sense will ensure that only in cases where the facts
fully justified it would their verdict be likely to be that they would hold that a defendant's
act in killing a crying child would be the response of a reasonable man within the section.
That matter is, in our view, imposed by Parliament upon the jury, not upon a judge, and
the common sense of juries can be relied upon not to bring in perverse verdicts where
the facts do not justify the conclusion.
In our view, therefore, though fully understanding his reasons, we are of the view that
the learned judge was wrong in not leaving the issue or provocation to the jury.
The second ground of appeal which is put forward by the appellant is that an error was
made in the direction that the learned judge gave in response to a question raised by the
jury during their retirement to consider their verdict. The question and the answer
appear on p. 51 of the transcript. The question posed by the jury is: If the acts were
committed in anger to stop the baby crying, does this constitute intent to do the baby
serious harm or cause his death? The learned judge directed the jury in these terms: If
the defendant did the unlawful acts to the baby intending to kill the baby or cause him
grievous bodily harm, then even if those acts were done in anger to stop the baby crying
the defendant would be guilty of murder. As a hare statement of law, that direction, in
our view, is clearly impeccable. The complaint about it really is that it does not answer
the question posed by the jury. The question posed by the jury, was: If the acts were
committed in anger, does this constitute intent to do the baby serious harm? Of course,
anger and intent are quite different matters. *327 It is submitted by Mr. Price, for the
appellant, that the learned judge should have refined the answer to the jury to point out
that the question posed in fact hardly made sense and to have so replied to it as to
reflect the answer to the problem which they seemed to be posing. It is not of course for
this court to speculate as to what was in the mind of the jury. But certainly the form of
the question suggests that possibly they had in mind, in some form or another, the very
issue of provocation. However, we do not feel it necessary to consider that ground of
appeal in any greater detail or to give any ruling upon it since, in our view, the appeal
succeeds on the first ground, that there was a misdirection in that the issue of
provocation was not left to the jury.
Accordingly the conviction for murder and the sentence of life imprisonment will be
quashed.
It is not contended that there can be any other verdict than manslaughter. We have
considered very carefully therefore what the appropriate penalty should be. A number of
matters have been urged before us, that the appellant is in some danger himself in
prison, as is so often the case where small children are the victims. It is urged, and
correctly urged, that the facts of this case involved a tragedy, the killing by a man of his
tiny baby towards whom to the moment of the fatal acts he appeared to be affectionate.
It was in the context of an affectionate and loving family situation and not in the context,
as is so often the case, where babies are battered as a course of hostility against the
baby. We take all those matters into consideration, but of course are bound to take the
view that there was here, on the jury's verdict, an intent to cause at least grievous
bodily harm and that the appellant's conduct has deprived a small child of his life. Tragic
though the circumstances were, we consider that the appropriate sentence to be
imposed for manslaughter is one of five years' imprisonment.
Accordingly this appeal succeeds to the extent that we substitute a verdict of
manslaughter for one of murder and a sentence of five years' imprisonment for the
sentence which was mandatory under a verdict of murder.
Representation
 Page 8

1 Solicitors: D. S. Gandy, Manchester for the Crown.

Appeal allowed in part. Conviction for murder quashed. Conviction of manslaughter

substituted. Sentence varied.
2013 Sweet & Maxwell