McGrory, R. v

Previous domestic strangulations may be admissible as bad-character evidence where they are capable of showing a propensity relevant to whether the accused acted with diminished responsibility or lost self-control. The evidence may retain that relevance although the accused admits the killing and the intent ordinarily required for murder.

Hearsay evidence does not breach article 6 merely because it is capable of supporting a finding adverse to the accused. The critical question is whether it is the sole or decisive basis of conviction. In applying the statutory loss-of-control test, a mental condition which bears only on the accused’s general tolerance or self-restraint is excluded from the objective limb. No prescribed form of words is required for a lawful jury direction if the statutory ingredients are accurately conveyed.

The applicant was convicted at the Crown Court at Reading of murdering his wife and was sentenced to life imprisonment with a minimum term of 14 years. He accepted that he killed her intending to kill or cause grievous bodily harm, but relied on diminished responsibility, loss of control, or both.

At trial, the judge admitted a 2005 statement by the deceased alleging earlier strangulations. The applicant renewed, after refusal by a single judge, his application for leave to appeal against conviction. He challenged the admission of that statement as bad-character and hearsay evidence and challenged the directions on loss of control, mental-health evidence, and the relationship between the two defences.

1. The renewed application for leave to appeal was refused. None of the proposed grounds cast doubt on the safety of the murder conviction.

2. The deceased’s 2005 statement was properly admitted under section 101(1)(d) of the Criminal Justice Act 2003. Evidence that the applicant had previously strangled his wife during arguments could establish a propensity directly relevant to the live issues of diminished responsibility and loss of control. This remained so despite his admission that he killed her with the intent required for murder.

3. The hearsay ground was misconceived. Al-Khawaia v United Kingdom [2012] 54 EHRR 23 identified the article 6 concern where a conviction rests solely, or decisively, on hearsay. Here the conviction rested on numerous features of the evidence. The statement was only one possible evidential feature and could not be sole or decisive evidence of guilt.

4. The trial judge did not misapply section 114 of the Criminal Justice Act 2003. The statement had clear probative value, was the only evidence of the earlier alleged strangulations, was signed as true in contemplation of proceedings, and could be challenged by the applicant’s own evidence. The exclusion of the less precise 2002 report further supported the fairness of the ruling.

5. The direction on loss of control was sound. Under section 54(1)(c) of the Coroners and Justice Act 2009, read with section 54(3), depression-related reduction in general tolerance or self-restraint could not be treated as part of the objective limb. The judge was therefore right not to deploy the psychiatric evidence on that issue. Her explanation of loss of control as something more than anger, and of the statutory objective limb, accurately conveyed the law without reviving the abolished law of provocation.

6. The summing-up accurately stated the differing burdens and standards of proof, clearly summarised the evidence, and gave adequate guidance on both defences.

• Court of Appeal (Criminal Division) — on a renewed application following a single judge’s refusal, leave to appeal against conviction was refused: [2013] EWCA Crim 2336.
• Crown Court at Reading — the applicant was convicted by a jury of murder and sentenced to life imprisonment with a minimum term of 14 years.