Case No: 20000/6295 W5
Neutral Citation No [2002] EWCA Crim 1945
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
(Mr Justice Glidewell)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 1st August 2002
Before :

LORD JUSTICE MAY
MR JUSTICE CRESSWELL
and 
 SIR RICHARD ROUGIER

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Between :

	R 

-v-

DENNIS FRANCIS HAYES	Respondent

Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Helena Kennedy QC & Siza Agha (instructed by Trevor Smyth & Co) for the Appellant
Bruce Houlder QC instructed  for the Crown

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice May:

1.	In November 1983, the appellant, Dennis Hayes, and his brother, Anthony Hayes, appeared in the Crown Court at Leeds before Glidewell J, as he then was, and a jury charged on an indictment containing two counts.  Count 1 charged them jointly with the murder of John Henry Greaves on 7th February 1983.  Count 2 charged them jointly with robbery of Mr Greaves on the same occasion.  They each pleaded guilty to the robbery charge and to manslaughter as an alternative to count 1.  This alternative was not acceptable and so the trial proceeded on the murder charge alone.  After a trial lasting four days, on 8th November 1983 the jury unanimously convicted the appellant of murder.  They acquitted his brother of murder, but convicted him of manslaughter.  The judge sentenced the appellant to life imprisonment on count 1 and 8 years imprisonment concurrent on count 2.  He sentenced the appellant’s brother to 12 years imprisonment for the alternative offence of manslaughter.

2.	The appellant applied for leave to appeal against his conviction.  He applied for an extension of time and renewed his application, after refusal by the single judge.  On 15th October 1984, this court refused both applications.  The appellant has been in prison ever since.  We are told that the Secretary of State fixed a minimum tariff for him of 17 years, the Lord Chief Justice having recommended 15 years.  An application to the Parole Board has been delayed, since he is in prison in Northern Ireland, pending the outcome of the present appeal.  An application for parole may also be affected by the fact that he maintains that he was not guilty of the offence for which he was sentenced to life imprisonment.

3.	John Henry Greaves was an elderly man of 73 at the date of his death.  He lived alone in what the judge described in his summing up as desperately poor circumstances at 17 Gelder Terrace in Huddersfield.  He was not very strong, but was not suffering from any natural disease which would have led to his death.  The appellant was aged 21 at the date of his trial.  His brother, Anthony Hayes, was five or six years older.  They were two of the eleven children of Mr Thomas Hayes, who also used to live in Gelder Terrace.  He had left there in January 1983, a few weeks before Mr Greaves died.  The appellant and his brother used to stay with their father at his home in Gelder Terrace.

4.	On 7th February 1983, the two defendants, their father and their brother, Eugene, spent three hours or more around lunchtime in a public house called the College Arms.  They were drinking beer.  When the pub reopened at or soon after 5.30 p.m., all four started drinking again.  Between 7.30 p.m. and 8 p.m., the appellant, with his brother Anthony, left the College Arms, the appellant saying words to the effect that he was running short of money and would go to get some.  They returned at about 8.45 p.m., when the appellant had money which included at least two five pound notes.  Thereafter he paid for some further drinks.  

5.	On the following morning, 8th February 1983, Mr Greaves’ dead body was found on the floor at his home.  The judge in his summing up described the scene as follows:

“It was at once clear to those who examined him – and fortunately the people who first found him had the good sense not to attempt to examine him – it was at once clear that he had received the most terrible injuries.  As we can all see from the photograph and as we have heard described, both his wrists and his ankles were tightly bound.  He had those terrible, severe wounds on his forehead, on his face and across his nose twice which of course had extensively bled.  He had bruises around his face and on other parts of his body.  Most importantly he had the J cloth thrust down his throat which had itself closed off the air passages from the nose and had forced his false teeth right down so the little flap that closes across the windpipe had also been closed so there was a double seal, as it were, preventing him breathing.  On top of that he had the gag and then, less importantly, he had a number of broken ribs and he had bruises to both sides of his body.

You heard unchallenged evidence as to the cause of death.  The cause of death was firstly suffocation.  As I have said, the false teeth had closed the little flap called the epiglottis and the J cloth had closed off the air passages, so there was literally no way in which from the moment a J cloth was pushed in, air could reach his lungs or, of course, be expelled.  And the evidence is from the time that that cloth was pushed to the back of his throat death would have come about within fractions of a minute – perhaps as soon as 5 seconds was the evidence – and a subsidiary cause on the evidence was the loss of blood from the cuts.”

6.	The appellant was interviewed by the police.  In his first interview on 9th February 1983, he denied that he had anything to do with the offence.  In his second interview on the following morning, he again denied the offence and blamed the robbery on his brothers, Anthony and Eugene.  In his third interview on the afternoon of 10th February, he admitted taking part in the robbery but denied killing Mr Greaves.  He admitted tying his hands and feet and punching him, but said that it was his brother Anthony who had slashed him.  He also denied gagging Mr Greaves or seeing a gag.  After this interview, the appellant made the first of two voluntary statements.  He said that he had tied Mr Greaves’ hands and legs, but that he had carried on shouting.  The appellant told him to be quiet.  When he continued to shout, he punched him a number of times to the body and ribs.  He denied that he had slashed his face.  He admitted that he had taken money and two watches.  In a fourth interview on 11th February, he admitted that Mr Greaves was gagged.  When he was asked why he had not said this earlier, he said, “It can be serious, stuffing a piece of rag into an old man’s mouth.  It could choke him, couldn’t it?  I’m not admitting to that because it wasn’t me.”  He then said that Anthony had told him to get something to shut the man up.  He handed him a cloth, and Anthony pushed it in his mouth and tied some cloth round his face.  When he was asked why he had not said this before, the appellant replied, “’cos he did it and I knew he’d say it was me.”  On 12th February, the appellant made a second voluntary statement in which he admitted for the first time that it was he who cut the victim’s face.  He did not admit that he had gagged the victim or put anything into his mouth.  He said that it was Anthony who did this.

7.	The appellant gave evidence at his trial.  He said that both he and Anthony went together to rob John Greaves.  They knew that he lived alone and knew that he kept money in his house.  They needed more money for beer and that seemed a simple way of getting it.  He said that Anthony went into the house first.  He seized a cushion and put it over the old man’s face as he was lying on a sofa.  The appellant searched the place and quickly found money, a wrist watch and a fob watch in Mr Greaves’ waistcoat pocket.  Mr Greaves was shouting and the appellant punched him with his fist to the body.  This quietened him for a time but then he started shouting again.  So the appellant slashed his face with a knife.  He could not remember where the knife came from.  He could not remember what he did with the knife afterwards.  Anthony pulled his arm away saying that there was no need for that, and the appellant realised that there was no reason for it.  The appellant then gagged Mr Greaves.  He said that he thought he would tie him up and gag him to keep him quiet.  There was no thought in his mind of killing him or of doing him any serious bodily harm.  He did gag him, but only to keep him quiet.  He did not think that gagging him would do him serious harm.  He did not think about his false teeth.  He did not realise that they were being forced down his mouth and down his throat.  He remembered pushing a cloth in and he felt no obstruction as he did so.  He remembered tying the outer gag around his mouth.  In cross-examination, he said that he had tied Mr Greaves’ feet and hands after he had cut his face and then he gagged him.  When he was asked about the reason for pushing in the cloth and putting on the gag, he said that he had asked him to be quiet and he would not.  So he hit him a couple of times on the body.  That stopped him shouting for a while.  Then he started again.  His intended object was to keep him quiet.  He slashed him across the face because he was just mad at the time.  He accepted that he used a knife and he admitted that he had caused two of the most severe cuts shown on the photographs.  He said he did this because he was riled.  He admitted that he inflicted that wound deliberately.  There was no accident about it.  Slashing him did not stop him struggling, so he tied his hands using a sheet from the bed which he ripped up.  He had already tied his feet with a scarf, but that had not stopped him struggling.  He was still shouting on the floor, so he put a bit of rag in his mouth.  He just put it in.  It did not seem to him that he used much force.  He did not really think about how much force he was using.  He supposed that he did not care how much force he was using as long as it would stop him from getting caught.

8.	Upon this evidence, the only issue in the appellant’s case was whether the appellant had the requisite intent for murder.  The judge's directions to the jury on intent were wholly in accordance with the contemporary understanding of the law.  He also directed them as to their approach to evidence of intoxication.  We will return to the details of this later in this judgment.

9.	Many years after his conviction, the appellant asked the Criminal Cases Review Commission to consider his case.  In his submissions to the Commission, he suggested that it was his brother, Anthony Hayes, who was responsible for gagging Mr Greaves.  He contended that his own evidence at his trial was untrue.  He gave this evidence because he reckoned that both he and his brother would be convicted of murder, if one of them did not seek to explain the cause of Mr Greaves’ death.  His brother was unwilling to do this, so the appellant felt obliged to take the blame.  There was an indication that Anthony would now be willing to give a statement to the effect that he was responsible for Mr Greaves’ death.  The Commission considered these submissions, but concluded that they did not provide material upon which to support a reference to the Court of Appeal under sections 9 to 13 of the Criminal Appeal Act 1995.  The Commission nevertheless concluded that the jury were misdirected in two respects about the law relating to intent.  First, the judge’s main direction on intent, although it was correct in accordance with authority at the time, was incorrect in the light of later authority.  Second, the judge’s direction on intoxication was in part incorrect even at the time.  The Commission considered that the cumulative effect of these directions was to put before the jury a significantly lower test than would now be seen to be appropriate.  The Commission considered that there was a real possibility that the appellant’s conviction would not be upheld, and accordingly the conviction was referred to this court under section 9 of the 1995 Act.  The appeal has been conducted on the basis referred.

10.	The appellant applied under section 23 of the Criminal Appeal Act 1968 for this court to admit fresh evidence of Dr Carson, a consultant forensic pathologist.  If that application were successful, the Crown applied to be permitted to recall Professor Green, the pathologist who attended at 17 Gelder Terrace on 8th February 1983, examined the scene and Mr Greaves’ body and later carried out  a post mortem examination.  Professor Green gave evidence at the appellant’s trial. Dr Carson was first instructed in about October 2001 when he was provided with the two autopsy reports and other written material.  He was later provided with Professor Green’s manuscript notes.  Lady Kennedy Q.C., counsel for the appellant, wished to call Dr Carson mainly to express a deductive opinion from the written material as to the amount of force with which the J cloth may have been pushed into Mr Greaves’ mouth – this in support of a submission that (a) the amount of force may not have been great; (b) there was no basis for the jury to reject the appellant’s evidence that he did not think about the false teeth and did not realise that they were being forced down Mr Greaves' throat; and (c) the judge unfairly used emotive language in saying that the J cloth was “rammed” or “thrust” down the throat.

11.	The justification for seeking to admit the evidence of Dr Carson by reference to the matters in section 23(2) of the 1968 was threadbare.  In particular, the appellant had available at his trial Dr Dossett, a consultant pathologist who carried out a second autopsy on 2nd March 1983.   Dr Carson’s evidence was capable of being as relevant in the state of the law in 1983 as it would be today.  Nevertheless we decided, exceptionally, to admit the evidence of both pathologists on the basis that it was necessary and expedient in the interests of justice.  Although we have the witness statements and the judge’s summing up, there are no transcripts of the evidence as it was given and we were in the event helped by the oral evidence in a general understanding of the post mortem evidence and of evidence, including photographs, associated with it.  We emphasise that this was a decision particular to this appeal which should not be taken as enlarging the well-understood scope of section 23.

12.	Dr Carson relied mainly on his understanding of Professor Green’s notes, which did not contain some material which later appeared in Professor Green’s witness statement.  Dr Carson agreed that the cause of death was suffocation by the gag and the upper denture.  The notes did not indicate that the cloth obstructed the airway.  It was said to obstruct the mouth, although some doctors might mean the throat when they used the expression “oral cavity”.  His interpretation was that the J cloth was pushed into the mouth dislodging both dentures which went into the throat first.  The effect of the gag could only have been to push the cloth and dentures further down the mouth.  He looked in the notes for evidence of force.  There was no great bruising and the colour of the epiglottis could have been caused by the denture being there for some time, rather than by initial force.  It would not take much force to dislodge the dentures of an old man with shrunken gums.  Dr Carson agreed with Professor Green in many respects and had no difficulty with his findings, but he could find no evidence that the J cloth had been rammed down the throat.  He was cross-examined by reference to other injuries and their severity.  He agreed that Mr Greaves’ could have died from heart failure before he was suffocated, since the second pathologist had found evidence of heart disease.  Heart failure was certainly a possibility, although death from suffocation would have been very rapid once the airways were blocked.  He was asked to look at photographs showing the gag.  He did not agree that putting on the gag required a great deal of force.

13.	Professor Green remembered some of the circumstances of this case quite well.  He explained that his manuscript notes were made during the autopsy when he had gloves on.  They were necessarily brief.  His practice was to dictate a first draft of his eventual statement in his car or on his return to Leeds, so that it would have been dictated by midnight on the day in question, when the facts were fresh in his recollection.  He took the throat structures back to Leeds and examined them next morning – hence the bruising of the tongue appeared in his statement, although it was not in his brief notes.  He could see bruising by microscopic examination.  He recalled that his own evidence in cross-examination had been that the J cloth and been pushed to the back of the throat by the gag round the mouth.  He said that the gag was jolly tight.  It had to be cut off with scissors.  Photograph 21 shows it holding the mouth open and forcing the tongue out.  The gag was tied once at the back and was then taken round the front again and tied three times at the back.  He stood by the expression “driven deep into the throat” which appears in his witness statement as the composite effect of the cloth and the gag on the dentures.  The witness statement also has it that the J cloth had been “thrust” into the mouth as a gag.  Mr Greaves lived long enough for some blood from his slashed nose to reach his lungs, but there was not much of this and there were minimal classical signs of asphyxia, indicating that he died quickly.  After his ribs were broken he would have found breathing difficult.  After the cloth was pushed down, he would have found speaking or making a noise difficult.  He would not have struggled much.  A person pushing the cloth in might not have noticed that his teeth were dislodged.  The J cloth alone could have pushed the teeth into the position in which he found them.  The extra gag made sure and was the likely cause of putting them in their final position.  Professor Green confirmed that the judge correctly summarised his evidence in saying, in the passage from his summing up which we quoted at the outset of this judgment, that the J cloth itself closed off the air passages from the nose.  Thus, at the very least, the J cloth and the gag alone, without the false teeth, would have made breathing difficult.

14.	The judge’s basic direction on murder was as follows:

“If a person commits a deliberate unlawful act which causes the death of another and at the time that he does the act he intends either to kill or to cause really serious bodily harm that is murder.”

15.	His first direction as to intent was:

“… I must say something about intention in law.  Perfectly ordinary English word.  But it has been the subject of, as you can imagine, a good deal of consideration by the courts.  A man in law intends the consequences of his act either if he wishes that consequence to happen or, even if he does not wish it, if he foresees that that consequence probably will happen and goes on and does the act nevertheless.  So, in other words, if a man uses violence to another and whether or not he actively wishes to cause the death of that other, if he foresees that his act probably will cause the other’s death then that is an intention to kill.  If he foresees that it probably will cause really serious harm then that is an intention to cause really serious harm, if he foresees it and nevertheless goes on and does the act.  You are not to infer that either of these defendants had the necessary intention simply because it is the natural and reasonable result, you may think, of the thing that happened.  You must decide in relation to each of them whether he had the necessary intention by reference to all the evidence, drawing the proper inferences from the evidence and relying upon your common sense and your experience.”

16.	The leading relevant authority at the time was Hyam v. Director of Public Prosecutions [1975] AC 55, in which the majority of the House of Lords held that a person who, without intending to endanger life, did an act knowing that it was probable that grievous, in the sense of serious, bodily harm would result was guilty of murder if death resulted.  This decision was the subject of criticism among practitioners and academics.  Lady Kennedy traced the development of the law which started shortly after the appellant was convicted.  The main authorities are R v. Moloney [1985] AC 905; R v. Hancock and Shankland [1986] AC 455; R v. Nedrick [1986] 1 WLR 1025; and R v. Woollin [1999] 1 AC 82.  In Nedrick, Lord Lane CJ, giving the judgment of this court, considered Moloney and Hancock.  He then said at page 1028F:

“Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of a defendant’s actions and that the defendant appreciated that such was the case.

Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen.  The decision is one for the jury to be reached upon a consideration of all the evidence.”

17.	In Woollin, Lord Steyn and Lord Hope of Craighead gave judgments with which the other three members of the appellate committee agreed.  Having considered the authorities and academic writings, Lord Steyn was satisfied that the Nedrick test, which was squarely based on the decision of the House in Moloney, was pitched at the right level of foresight.  He said that it may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act.  He and Lord Hope both considered that the first of the two paragraphs from Nedrick which we have quoted constituted a clear model direction with the substitute of the word “find” for “infer”.

18.	The second limb of the grounds of appeal is that the judge gave a material misdirection on the issue of intoxication.  His main direction was as follows:

“In relation to intention intoxication can be relevant and I must say a little about that.  Necessary because you know that on the evidence of prosecution witnesses, father and brother, never mind Dennis Hayes, it is quite clear that both these young men had had a good deal to drink.  If a drunken man is so drunk that his mind is not controlling his actions at all, he literally does not know what he is doing, then it may well be that he is incapable of forming any intention at all, thus incapable of forming the necessary intention to kill or to do really serious harm but, short of that state, the fact that a defendant as a result of drink acts as he would not  normally act had he taken no drink at all or less is totally irrelevant.  If, in other words, despite having taken drink he is still capable of forming an intention, of forming an intention to kill or to do really serious harm, then the fact he has taken drink ceases to be of any relevance at all.  Put it another way.  A drunken intention is just as effective for this purpose as a sober intention and the question you have to decide is despite the fact of drink, which I will remind you of in a little more detail, are you sure on the evidence in relation to each defendant that he did form the intention either to kill or to do really serious injury.” (Our emphasis for purposes later in this judgment)

19.	Then, later in his summing up, after he had reminded the jury of the evidence, the judge said:

“Now, as to the effect of drink on Dennis, there is no doubt, you may think, that he had had a great deal to drink for a young man of 21, or anybody, at the time when he and his brother entered Mr Greaves’ house.  But he is able to remember most of what went on in that house because he has given in the witness box an account of it which, whether you accept every word of it or not, is certainly a coherent account, you may think.  And you will remember the point made by Mr Lawton that immediately afterwards he was clear thinking enough to get rid of his brother Anthony’s jacket because he saw blood on it.  Can it possibly be said, you will ask yourselves, can it possible be sensibly said that he was so drunk he was incapable of forming the necessary intention.  If despite his drink he could form that necessary intention, then drink ceases to have any relevance at all.” (Again, our emphasis for later purposes)

20.	Lady Kennedy submits that these were misdirections according to the authorities at the time.  The essential point is that, when intoxication is or may be relevant to the question whether a defendant had the necessary intent, the issue is not whether he was capable of forming the intent, but whether he did do so.  A drunken intent is an intent, but the jury must be sure that, despite drink, the defendant had the requisite intent.  Lady Kennedy refers, among other authorities, to R. v. Sheehan and Moore [1974] 60 C.A.R. 308 and R. v. Garlick [1981] 72 C.A.R. 291.  She submits that the judge only directed the jury as to whether the appellant was capable of forming the necessary intention, not whether he did intend to kill or cause really serious bodily harm.  When the question of intoxication is put together with the Nedrick model direction, drink is relevant to the question whether the defendant appreciated that his actions were virtually certain to result in death or really serious bodily harm.

21.	Mr Bruce Houlder QC, counsel for the prosecution, necessarily accepted that the judge’s first direction on intent in the present case was not a Nedrick model direction, but was less stringent.  But he draws attention to other passages in the summing up which, he submits, represent, or at least move closer towards a full modern direction.  A Nedrick direction is not, of course, required in every murder case where intent is in issue.  It is generally sufficient to give a straightforward direction on intent.  This might have been sufficient in the present case.  The judge clearly decided to give the then contemporary version of a more elaborate direction, because it was the appellant’s case that, in pushing the cloth into his mouth and gagging him, he had no thought of killing him or doing him any serious bodily harm.  He only did it to keep him quiet.  

22.	After the judge had summarised the evidence in the case of the appellant, he defined the issues for the jury as follows:

“Now, what are the issues you have to determine?  First of all, as to Dennis Hayes, he now admits that he not only slashed Mr Greaves’ face but inserted the J cloth and tied the gag behind it, the J cloth being the cause of death.  And so the first issue, and the sole issue you have to decide in relation to Dennis Hayes is when he did so, that is when he pushed that cloth in, did he have the intention to kill or cause really serious bodily harm.  If the answer to that question is yes, then Dennis Hayes is guilty of murder.  If the answer to that question is not sure, then not guilty of murder, guilty of manslaughter.”

23.	The judge then gave a straightforward direction when he said:

“So far as Dennis Hayes’ intention is concerned you have to decide what his intention was from his actions and from what he has since said and, indeed, from what he said immediately afterwards insofar as you have heard evidence about it.  He has denied having any intention of killing Mr Greaves or of causing him any really serious harm and you will consider his evidence and weigh it, decide whether you believe it or not or whether it causes you to have doubt.”

24.	This passage was shortly before the second of the two passages to which we have referred relating to drink.  The judge then referred to the slashing and raised the question of intent to cause really serious bodily harm in that regard as being relevant to the jury’s consideration of intent in relation to the J cloth and the gag.  He referred to questions raised by defence counsel and posed the question why should he be gagged at all.  Did the appellant intend to kill Mr Greaves when he put the cloth down his throat and gagged him?  The judge then said:

“The prosecution case in essence, I suggest, is this.  That even if there was no intention to kill, Dennis must have realised, did realise, you should be satisfied that he realised, that to thrust a J cloth down the throat of a frail old man who was already tied up and injured would inevitably cause him really serious bodily harm.  And thus the prosecution invite you to say that clearly was Dennis’s intention …” 

25.	Mr Houlder  emphasises the word “inevitably” as the equivalent of a virtual certainty.  Lady Kennedy submits that this, and the previous passages, should not be seen as safely effecting a correction of the original misdirection.  It was expressed, not as the judge’s direction, but as the prosecution submission.  The misdirection was the judge’s structured direction of law in the part of the summing up dealing with the law.  The jury were more likely to take note of it then.  The subsequent passages were not expressed to be in substitution for the original passage.  We accept these submissions.  The judge did not correct what is now to be seen as a misdirection.  The subsequent passages can be no more than a small part of the material from which this court has to judge in the round whether the conviction is safe.

26.	As to the judge’s directions on intoxication, Mr Houlder  submits that there was no misdirection.  His main submission is that the sentences which we have emphasised in the first passage relied on by Lady Kennedy are a correct and sufficient direction that the jury have to decide on all the evidence, including that relating to drink, whether the appellant had the requisite intent.  Mr Houlder  accepted that the use of the word “could”, which we have emphasised in the second passage, was not quite correct.  It would have been a completely correct direction, if the word used had been “did”.

27.	The appellant’s conviction was more than 19 years ago.  The relevant approach of this court in deciding an appeal against conviction many years ago is that laid down in  R .v. Bentley [2001] 1 C.A.R. 307 and R. v. Johnson [2001] 1 C.A.R. 408.  In Bentley, Lord Bingham C.J. said at page 310:

“Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier.  In undertaking that task we conclude:

(1)	We must apply the substantive law of murder as, applicable at the time, …
(2)	…
(3)	The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
(4)	We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.

Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time.  This could cause difficulty in some cases but not, we conclude, in this.  Where however, this Court exercises its power to receive new evidence, it inevitably reviews a case different from that presented to the judge and jury at the trial.”

28.	In Johnson, Lord Woolf C.J. at page 413 quoted this passage from Bentley, referred to R. v. Gerald [1999] Crim. L. R. 315, and then said at 414:

“The decision of this Court in Bentley was commented on by a distinguished academic (Professor Sir John Smith) who suggested [in [1999] Crim. L.R. 331] that if the approach indicated by Lord Bingham C.J. was followed, then this Court could be swamped with applications from many years past suggesting that convictions were unsafe when at the time they were perfectly proper.  We consider that those comments were unnecessarily pessimistic.  There has been no such flood of cases before this Court.

We do not regard the approach of the Court in Gerald as watering down what was said by Lord Bingham C.J. in Bentley.  The Act makes it clear that today we are only concerned with the question of whether a conviction is safe or not.  However, in determining whether a conviction is safe, regard has to be had to the procedures which were followed at the trial and to irregularities which took place at the trial.  Account has to be taken of whether there has been a proper direction to the jury on the law and on the evidence and the Court has to take into account the consequences of any unfairness which may have occurred.

The test which this Court is required to apply is to approach the issues in the round.  In doing so, it can only apply the standards which this Court adopts today.  No one can be criticised for applying standards which were current at the time of any trial.  If, however, as a consequence of doing that the trial is properly regarded by this Court as unsafe, this Court must intervene.”

29.	We apply those passages to the present appeal.  We apply present standards of fairness.  The judge’s directions to the jury must be judged by reference to a significant subsequent change in the common law, that is by reference to the Nedrick model direction, even though that direction could not reasonably have been given at the time.  As we have said, the directions as to intoxication are relevant to the application of the Nedrick direction.

30.	As to the judge’s directions of law, we conclude that there was by modern standards a misdirection as to intent, in that the judge did not give a Nedrick model direction; that there was a proper direction as to drink taken by itself in the first relevant passage, which was nevertheless obscured by the antecedent direction that, if the appellant was capable of forming the necessary intent, drink was totally irrelevant; that the direction as to drink was also obscured by the reference in the second relevant passage to capability and by the use of the word “could” rather than “did”; and that the judge did not, as the modern law requires, put the question of intoxication together with the Nedrick model direction, to the effect that drink is relevant to the question whether the defendant appreciated that his actions were virtually certain to result in death or really serious bodily harm.  The question then is whether, looking at the case in the round, the conviction is nevertheless safe.

31.	Lady Kennedy submits that the conviction is not safe.  The difference between a Hyam misdirection and a Nedrick model direction is substantial.  There was no basis for rejecting the appellant’s evidence that he had no thought or perception that the J cloth was dislodging the false teeth.  It was the teeth which closed the windpipe and caused the death.  It is not safe to conclude that the jury would have felt sure that death or serious bodily injury was a virtual certainty as a result of the appellant’s actions and that he appreciated that such was the case.  He could not on the facts have so appreciated, if he did not realise what was happening with the false teeth.  In addition, the judge repeatedly used inappropriately emotive language in describing the pushing of the J cloth into Mr Greaves’ mouth.  The cumulative effect of the misdirections renders the conviction unsafe.

32.	Mr Houlder  submits that the prosecution case as to the appellant’s intention was extremely strong and was further strengthened by the appellant’s own evidence at the trial.  He submits that the conviction remains safe.  Academically the difference between Hyam and Nedrick is significant, but the facts will often show, as here, that the result would surely be the same.

33.	We stand back and look at the case, as Johnson requires, in the round.  We think that the appellant’s case as presented does not do so.  It necessarily concentrates on the precise cause of Mr Greaves’ death and relies on the submission that the jury, properly directed in modern terms, could not surely have rejected the appellant’s evidence that he did not think about the false teeth.  He only thought to keep Mr Greaves quiet.  But pushing the cloth into Mr Greaves’ mouth and gagging him have to be seen in its evidential context.

34.	Mr Greaves was an elderly man living alone in desperately poor circumstances.  The appellant and his brother were intent on robbing him in his home and they admittedly did so.  The appellant admitted that he:

(a)	punched Mr Greaves with his fist to the body;
(b)	slashed his forehead, face and nose with a knife, causing two of the most severe cuts seen in the photographs;
(c)	tied him by the hands and feet;
(d)		pushed the J cloth into his mouth and gagged him in the way described by Professor Green and as shown in photograph 21.
(e)	left him on the floor in that state, when he and his brother left the house to return to the pub to buy themselves more drink.

35.	We agree with Mr Houlder  that it is necessary to visualise what was going on.  Mr Greaves was bleeding extensively and he had a number of broken ribs and bruises to both sides of his body.  The appellant admitted that he deliberately slashed Mr Greaves across the face because he was riled.  It was no accident.  In that respect he admittedly intended to cause him really serious bodily harm.  Photograph 21 graphically illustrates the gag and the force used to thrust the J cloth down Mr Greaves’ throat.  It was not a lightly tied gag over the lips.  It was firmly tied over the tongue so as to pull back the sides of the mouth.  It was tied three times behind his head on its second loop.  The appellant admitted in his evidence that he did not care how much force he was using as long as it would stop him getting caught.  We reject Lady Kennedy’s submission that the judge unfairly used emotive language in describing what had been done with the J cloth.  Professor Green’s evidence satisfied us that the composite effect of the J cloth and the gag was that the J cloth was thrust into the throat and that, as a matter of fact, the dentures were, as Professor Green said in his witness statement for the trial, “driven deep into the throat”.  The judge was entitled on the evidence to express himself as he did.

36.	Mr Greaves' in fact died very quickly – probably before the appellant and his brother had left the house.  But what if he had not?  As perhaps if, as the appellant would seek to persuade us, the false teeth should be left out of account.  Mr Greaves was obviously in extreme distress.  He was left alone in his home; tied hand and foot and unable to move; with broken ribs, bruised and with a slashed face that was badly bleeding; with a J cloth thrust down his throat and held firmly in place with a tightly tied gag so that he could not call for help and so that his breathing must at the very least have been impeded.  In these circumstances, it is, in our judgment, quite obvious that at least really serious bodily injury was a virtual certainty as a result of the appellant’s actions in pushing the J cloth down his throat and gagging him and that the appellant must have appreciated this.  In addition to it being quite obvious, the appellant had admitted in his fourth interview that “It can be serious, stuffing a piece of rag into an old man’s mouth.  It could choke him, couldn’t it?”  But significantly at that stage he was not admitting that it was he who had done this.  We consider that there was a very strong case upon which the jury might, as they clearly did, surely reject the appellant’s case that his only intention was to keep Mr Greaves quiet and find the necessary intention proved.

37.	In reaching this conclusion, we take fully into account the criticisms of the judge’s directions about intoxication.  We understand from counsel that it was no part of the appellant’s defence that he did not have the requisite intention by reason of drink, but that nevertheless the judge felt obliged to give directions on that subject.  He was on the evidence clearly right to do so.  But, as he pointed out, the appellant was able to remember most of what went on in the house and give a coherent account of it.   He did in fact on his own admission form an intention to cause really serious bodily harm in the matter of slashing Mr Greaves’ face.  Although it is possible to articulate the academic possibility that the jury may have reached the verdict which they did on the directions they received because the judge had told them to leave drink out of account if they judged the appellant capable of forming the intention on which he directed them, we do not consider that the facts sustain so fine a distinction.  On the evidence, the appellant was fully capable of forming an intent to cause really serious bodily harm and did on his own admission form such an intent.  We are satisfied that on the evidence he also did so in relation to the J cloth and the gag, and that the jury would surely have so concluded upon proper modern directions.

38.	For these reasons, in our judgment the appellant’s conviction of murder is safe, and the appeal is dismissed.