Case No: 2003/06956/D1 
Neutral Citation Number: [2005] EWCA Crim 377
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Thursday, 17 February 2005
 
B E F O R E:

LORD JUSTICE GAGE 

MR JUSTICE NELSON 
 
SIR DOUGLAS BROWN 

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R E G I N A 

-v- 

JONATHAN ALAN HATTON
 
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MR A NEWMAN QC appeared on behalf of the APPLICANT 
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J U D G M E N T 

1.	LORD JUSTICE GAGE:  This is an application by Jonathan Alan Hatton for leave to appeal against his conviction of murder for which he was sentenced to life imprisonment.  He was convicted on 11th November 2003 at the Crown Court Sheffield before Holland J.
2.	The sole ground of appeal is based on the question of whether a mistaken belief that any force, or the force in fact used, was necessary for the applicant to defend himself and that the mistake was induced by voluntary intoxication.  
3.	In accordance with the practice since R v O'Grady 85 Cr.App.R 315 and the R v O'Connor [1991] Crim LR 135, the judge ruled that a mistaken belief caused by voluntary intoxication could not form a defence of self-defence.  The decisions in O'Grady and O'Connor have come in for a certain amount of academic criticism.  It is argued, as it has been before this court, that these decisions were obiter and not binding, and in any event are wrong.  They have also by inference been criticised by the Law Commission (see the Law Commission report 177).  
4.	It seems to us that in view of this criticism it is appropriate for this court in a proper case to revisit the question of mistaken belief caused by voluntary intoxication on the defence of self-defence.  Our reservations in this matter have been as to whether or not this was an appropriate case for the matter to be resolved before the Court of Appeal after full argument.  
5.	The deceased was found dead in the applicant's flat, the emergency services having been called by the applicant.  The applicant was convicted on the basis that using a sledgehammer he inflicted at least seven wounds -- three to the head of the deceased and four to his chest -- which caused his death.  On any view it was a savage assault on the deceased.  The pathologist's evidence was that one blow to the head would have caused unconsciousness certainly, and possibly death as well.
6.	The evidence about the deceased was as follows.  He was, in the course of the evening before his death, substantially under the influence of alcohol.  A postmortem investigation showed that he had some 167 milligrams of alcohol per 100 millilitres of blood.  He suffered from manic depression and there was evidence about his eccentric and attention-seeking behaviour on the night.  That included striking martial arts poses and making claims that he had been in the SAS.  
7.	The applicant's defence was that he had drunk approximately 22 pints of assorted drinks during the course of the evening before the incident and that up until about one month before trial he had no recollection of the incident.  The emergency services discovered a samurai type sword underneath the deceased's body.  That was in fact a sword stick which had been fashioned by the applicant himself.
8.	He said in evidence that about one month before the trial he had a vague recollection of an altercation.  He had a vague idea that the deceased had used the stick to beat him.  The judge records him having said in evidence: 
"I think I was hit with that stick.  I believe that Mr Pashley hit me with it.  I must have believed that I was under attack."
9.	On that basis the judge, we think from examining the transcript, somewhat reluctantly agreed to leave the defence of self-defence to the jury.  
10.	The applicant also raised three other defences: first, that it was not he who had killed the deceased; second, a lack of intent based on his drunkenness; and third, diminished responsibility.
11.	The judge refused to direct the jury that a mistaken belief induced by voluntary intoxication was a proper defence which could be raised as part of a defence of self-defence.  His decision was in accordance with the law as understood since R v O'Connor.  There were no defensive injuries found on the applicant.  He did give the conventional direction on self-defence.
12.	In view of the severity of the attack on the deceased and the applicant's somewhat vague recollection of the attack upon him, we entertain some doubts as to whether, even with the direction for which Mr Newman contends, the verdict of the jury would have been any different.  It might have concluded that, even drunk, the applicant could not have believed that it was necessary to use the degree of force which was actually used on the deceased.  
13.	However, Mr Newman has persuaded us that it is a matter which should be ventilated before the court after full argument.  He submits that the judge was prepared to leave self-defence to the jury and, accordingly, there was sufficient evidence for that matter properly to be determined by the jury.  
14.	On the question of whether the applicant's response was proportionate, he submits that it is possible to envisage a scenario with the applicant in his drunken state believing that he was being attacked by a man holding a genuine samurai sword and taking martial arts poses.  In the circumstances, it would have been a matter for the jury to determine whether, in his drunken state, if the law was other than in O'Connor, that was a reasonable response.
15.	As I say, we think that this matter is arguable and, not without a certain amount of hesitation, we grant leave.