Rashford, R v

An initial aggressor, or a person acting from revenge, is not automatically barred from relying on self-defence. The decisive questions remain whether the defendant honestly believed force was necessary and whether the force used was reasonable. A jury direction must allow for the possibility that a victim’s disproportionate retaliation may create a need for self-defence.

A defective direction will not render a murder conviction unsafe where self-defence was not realistically raised by the evidence. In minimum-term sentencing, limited weight may be given to much less serious previous convictions, while youth close to the age threshold and an intention to cause serious harm rather than kill are material mitigating factors.

The appellant was convicted of murder after fatally stabbing Alex Doyle and was sentenced to life imprisonment with a minimum term of 15 years and six months after credit for remand custody.

He appealed against conviction, principally alleging that the judge’s directions wrongly treated revenge or initial aggression as excluding self-defence. He also challenged directions concerning manslaughter and a witness’s evidence. He renewed his application for leave to appeal against sentence.

The central issues were whether the self-defence direction made the conviction unsafe and whether the minimum term properly reflected aggravating and mitigating factors under the Criminal Justice Act 2003.

1. Conviction appeal dismissed. The trial judge’s direction was defective. It conveyed that, if the appellant went to the incident for revenge or was the initial aggressor, self-defence was unavailable. That proposition was too broad. An initial aggressor may still rely on self-defence if the victim’s retaliation is so disproportionate that the defendant honestly believes defensive force is necessary, and the force used is reasonable. The court approved the Scottish formulation in Burns v HM Advocate [1995] SLT 1090.
2. The misdirection did not make the murder conviction unsafe. The appellant’s own case was accident: he denied deliberately stabbing the deceased and said that he waved the knife to create space. Thus self-defence to murder was not realistically in issue. Even on an assumed case of intentional stabbing, the deceased was unarmed, was said only to have thrown non-contact punches, and the appellant was uninjured. There was no realistic basis for finding that lethal or seriously injurious force was necessary or reasonable. The court also relied on the self-defence formulation in R v Browne [1973] NI 96.
3. The complaint concerning the description of manslaughter as a soft option did not undermine the conviction. Although the language was ill-advised, the directions as a whole correctly required the jury to consider murder first, then manslaughter if not sure of murder, and acquittal if not sure of manslaughter. No special warning was required concerning Tracey Bell’s evidence.
4. Sentence appeal allowed. Under Schedule 21 to the Criminal Justice Act 2003, 15 years was the correct starting point. The appellant’s previous convictions could aggravate the offence under section 143(2), but only modestly because they were far less serious than murder. A six-month increase was appropriate.
5. The court reduced the term by two years because the appellant was only shortly over 18, applying Jones and others [2005] EWCA Crim 3115. It made a further 12-month reduction because the appellant intended serious bodily harm rather than to kill, a mitigating factor under paragraph 11(a) of Schedule 21. After credit for six months on remand, the substituted minimum term was 12 years.

• Court of Appeal (Criminal Division) — In [2005] EWCA Crim 3377, dismissed the appeal against conviction and allowed the appeal against sentence, substituting a 12-year minimum term.
• Trial court — On 22 July 2004, convicted the appellant of murder by a majority of 10 to 2 and imposed life imprisonment with a minimum term of 15 years and six months after credit for remand custody. The court is not identified in the judgment.