R v Lidar
IN THE COURT OF APPEAL
Royal Courts of Justice
London WC2A 2LL
Thursday 11 November 1999
B e f o r e:
LORD JUSTICE EVANS
MR JUSTICE ALLIOTT
MR JUSTICE JACKSON
R E G I N A
- v -
NARINDER SINGH LIDAR
Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4
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MR M BECKMAN QC and MR S TUDWAY appeared on behalf of THE APPELLANT
MR J MILMO QC and MR L SMITH appeared on behalf of THE CROWN
J U D G M E N T
(As Approved by the Court)
Thursday 11 November 1999
LORD JUSTICE EVANS:
In December 1998 the appellant Narinder Singh Lidar was charged with murder
before Scott Baker J and a jury at the Leicester Crown Court. He was acquitted
of murder but convicted of manslaughter by a unanimous verdict. He was sentenced
to five years' imprisonment. He now appeals against conviction by leave of the
The victim was Kulwinder Singh Soor, who was known as Kully and who worked as a doorman at the Dove Public House at Downing Drive, Leicester. The appellant was at the public house with three others, including his brother Surdhal, known as "Sid", on the evening of 7 February 1998. They were joined by two others, one of whom was Balbir Singh Atwal ("Mr Atwal"). A dispute arose involving other members of the group, but not the appellant. The deceased Kully intervened and the situation became tense. The group was ejected from the public house but the dispute between them, though not the appellant, and the deceased continued there. Mr Stephen Bacon, who was the bar supervisor, and another doorman intervened and they told the group to leave the car park. Their vehicle was a Range Rover and the appellant got into the driver's seat. The others were slow to join him, and he got out of the vehicle in order to help Mr Bacon, as it was put, to get the others into it. This was achieved, and the appellant's brother Sid was sitting in the front passenger seat. In the rear seat, Mr Atwal was behind the front passenger seat, and Lakhber Singh Hoffey was in the centre position.
A clear account of what followed was given by Mr Bacon, whose evidence is relied upon by Mr Michael Beckman QC, counsel for the appellant. Kully and another person were standing in front of the vehicle. The appellant revved up the engine and moved it forward a couple of feet, but then stopped. This was clearly intended to get them to move out of the way and they did so. Then,
"A. The gentleman in the passenger seat shouted something to Kully which I couldn't hear.
Q. Did Kully do anything at that point?
A. He went to the side of the vehicle, the passenger side.
Q. And what did he do when he got to the passenger side?
A. Started arguing.
A. Then Kully approached the vehicle and put his arms through the open window.
Q. When you saw him putting his arms through the open window what impression
did you get of what he was doing?
Q. How much of Kully got into the car at that stage, how much of his body?
A. He was like half through the window.
Q. What was the next thing that happened?
A. The car started to pull away."
Mr Bacon's evidence continued that the car moved towards the exit from the car park and onto the main road. "It didn't pull very fast out of the car park until it got to the main road but it turned left". Kully was "Still halfway in the window" and the car "sped up the road". The tragic consequence was that Kully was carried about 225 metres when his feet caught in the near side rear wheel and he fell to the ground and was run over, suffering severe crush injuries to his chest. He was pronounced dead about two hours later. Post mortem evidence showed that he had received a number of slash injuries to the face, caused by a sharp instrument but not necessarily by a knife, but there was no suggestion that the appellant was responsible for inflicting those wounds.
Evidence of what happened inside the vehicle was given by Mr Atwal, whom Mr
Beckman described as the "star witness" for the defence. He confirmed
Mr Bacon's evidence and, in particular, that Sid in the passenger seat shouted
something to Kully. Then "Kully just jumped in with a punch towards Sid
through the window". He was unclear whether the vehicle was still
stationary when this occurred -
"Q. Where was the car when these words were said? A.It was still in the same place and they were about to move off, well I think it was moving at the time ..... I think it was slightly moving at the time".
Later, he said: "The car started to move first and Kully jumped in with
Mr Atwal's evidence was that he said "Kully leave it, Kully leave it" but that Sid, the passenger, "said to the driver, drive, I don't know if he said he was scared or what, but he said drive, [the passenger and] the driver drove the car .... I think he said drive, you know, come on, let's go ..... I said: slow down, I said stop". At this point, the car was moving and "Kully was sort of running with the car right, and his hands were in the passenger seat. Either he was hanging on or he was sort of punching back at Sid".
"Q. Kully was running with the car?
A. Yes, more or less, sort of hanging out, you know .... I couldn't see because the seat was right in front of me but they were either holding each other or punching each other, you know".
Then he said:
"A. They were about to move off and I said slow down, you know, and I
think he said "No, drive". Right. And then the driver turned on and I
kept saying "Stop, Stop" you know and then when I did say that he sort
of slowed down a bit when he slowed down and Kully fell off".
Mr Atwal's evidence also included:
".... I was just sort of looking that way at the driver telling him to slow down and looking at Kully outside ..... I told the driver to slow down and stop .... they was going fast, I don't think Kully kept up with the running, you know, I couldn't actually say how fast but Kully wasn't running at the car this time, he was hanging on .... His head was sort of in the, his arms were all in the thing, he must have been holding on to either the driver or the seat ..... I think the front passenger he was either holding on to him .... It [the vehicle] turned left, went on, and Kully was still with the, hanging out, you know, hanging on to it, and then when I said slow down, he slowed down, either Kully let go and fell down ....",
and later --
"Q. So we're on Downing Drive, the passenger has said: drive faster.
What has the driver done?
A. He drove fast and I said: slow down, slow down, stop and then he ..... slowed down and then Kully fell down, fell out".
Asked "How quickly did the car accelerate?" He answered:
" He put his foot down and he went, what do you mean, how quick ..... Well, it was obvious that he was going to get, Kully was hanging out, you know, I was worried about him .....
Q. So what was obvious to you?
A. That he was going to get hurt .... because the car was going fast". He said that he looked back, saw Kully on the ground and he asked them to stop the car, but they, meaning the appellant and Sid, insisted on driving on."
There was also evidence, which the appellant does not challenge, that the centre rear seat passenger leant forward between the two front seats and joined in the fighting. It was also accepted that either he or Sid inflicted the slashing injuries, with whatever weapon, but it was not alleged that the appellant was aware of this. There was also evidence that the vehicle reached a speed of about 30/ 40 mph and that the time taken to travel along the road was less than 15 seconds. It may also have weaved or swerved slightly from side to side.
The murder charge
The prosecution alleged that the appellant as the driver of the vehicle intended to kill or at least to cause serious injury to Kully. In this context, the defence relied upon Mr Bacon's evidence that the appellant had the opportunity of injuring or even killing Kully when he was standing in front of the vehicle before it moved off. Instead, the appellant had revved up the engine and moved forward only a short distance, in order to make Kully move aside. The appellant's evidence was that he knew the deceased and had no reason to injure him. There was confusion in the car park and people were telling him to get away. After he started to move off, he realised the deceased was at the window, grappling with Sid. He just wanted to get away and drove in a straight line. Somebody came through the back seat, but he did not know what they were doing. He did not know when the deceased fell off. There was a lot of noise in the car, then everyone was quiet. He saw the deceased and Sid fighting and he thought that if he drove off the deceased would get off the car. The deceased was being aggressive and the appellant just wanted to get away.
The submission of no case to answer at the close of the prosecution case as to murder or manslaughter was rejected by the judge. Later, before counsel addressed the jury, the judge heard submissions with regard to the issues that should be dealt with in the summing-up and specifically whether there was evidence to support defences of lawful self-defence and duress or necessity. This has been the main ground of appeal argued by Mr Beckman before us. The judge ruled that neither defence should be raised. He quoted from the judgment of Stephenson LJ in Bonnick (1977) 66 Cr App R 266 at 269:
"When is evidence sufficient to raise an issue, for example of self-defence for it to be left to a jury? The question is one for the trial judge to answer by applying common-sense to the evidence in a particular case. We do not think it right to go further in this case than to state in our view that self-defence should be left to the jury when there is evidence sufficiently strong to raise a prima facie case of self-defence if it is accepted. To invite the jury to consider self-defence upon evidence which does not reach this standard would be to invite speculation. It is plain that there may be evidence of self-defence even though a defendant asserts that he was not present and, insofar as the judge told the jury the contrary, he was in error. But in the nature of things it would be fairly cogent evidence when the best available witness disables himself by his alibi from supporting it".
The judge continued:
"This is not an alibi case. The defendant accepts that he was there and he accepts that he was driving the car. No one is in a better position than he to raise the defence of self-defence in this case if it, in truth, is a matter which requires to be considered. I ask myself the question: is there any evidence that the defendant believed or may have honestly believed that it was necessary to defend himself or his brother and therefore drove the vehicle in the manner he did over the distance that he did?
In my judgment, the question of self-defence in this case comes into the speculative category referred to by Stephenson LJ in the case of Bonnick. It would do no advantage to the defendant to leave self-defence in this case. It would, in my judgment, simply confuse the jury and be liable to deflect them from consideration of the true issues in the case".
"it seems to me that once I am satisfied that no question of self-defence arises in this case, the question of a defence of necessity likewise falls away. Because I cannot see there is any way in which it could add in the circumstances of this case to self-defence were that properly to arise".
The relevant direction of law as regards manslaughter was this:
"In order for manslaughter to be proved in this case, the Crown have to prove that the defendant acted recklessly. Recklessly in this context means that the defendant foresaw that some physical harm, however slight, might result to Kully from driving the car as he did and yet ignoring that risk he nevertheless went on to drive as he did. Mere inadvertence is not enough. The defendant must have been proved to have been indifferent to an obvious risk of injury to health or actually to have foreseen the risk but to have determined nevertheless to run it. If you are sure that the defendant acted recklessly you find him guilty of manslaughter. If you are not sure you find him not guilty".
Two other passages, which are the subject of criticism by Mr Beckman, should also be quoted:
"Next, a general word about the evidence and your approach to it before we come to consider it in detail. You may think that the critical period in this case begins once the car was out of the car park and in the road. There is no evidence that anything of great gravity occurred before then and there is certainly no evidence that anybody was hurt. Perhaps most importantly, members of the jury, there is not a shred of evidence that the defendant put a foot wrong or behaved in any way even inappropriately. The early part of the evidence is therefore you may think background."
Later the judge said:
"So, members of the jury, you have here a pretty consistent story, you may think, of what was happening in the early stages with some variations as to detail but you may think it is of value really no more than as background."
Grounds of Appeal
The single judge gave leave limited to the self-defence issue only. Almost all of the other grounds have been renewed before us, but as will appear below we are only prepared to give leave in respect of two of them, the defence of necessity and the criticism of the judge's references to "background" evidence. We give leave on these two further issues, not because we consider that there is any substance in them, but because Mr Beckman's submissions ranged widely over them as well as the self-defence issue. We therefore feel that it is appropriate to consider these three matters within the scope of the appeal.
At the outset of the appeal hearing, and without advance notice, Mr Beckman applied for leave to add a further ground, which is to the effect that the judge ought to have directed the jury that this was a case of "gross negligence" manslaughter which they should approach in accordance with the House of Lords' judgment in Adomako  1 AC 171. Whether the submission was that the "gross negligence" direction should be given in addition to or in substitution for the "recklessness" direction in fact given was not made entirely clear, but there was no complaint about the terms in which the direction was given, if "recklessness" was appropriate. The application to add this ground of appeal was not opposed by Mr Milmo QC for the prosecution, and we gave leave because of the connection which must exist between the proper definition of the offence of manslaughter and the relevance of the suggested defences of self-defence and necessity to it.
We should state that we refuse leave in relation to all other suggested grounds of appeal and we do not find it necessary to specify what they were.
There is no criticism of the judge's decision to apply the principle stated in Bonnick. The submission is that he was wrong to hold that there was no evidence to support the defence in the present case and therefore to regard it as "speculative" here. Nor is there any issue as to what the defence entails.
The judgment given by Lord Morris of Borth-y-Gest in the Privy Council in Palmer v R  AC 814 is quoted both in Archbold (1999) para. 19-41 and in Smith & Hogan (9th ed.) p.263. The passage is too well known to require full quotation here. The concept is one of necessary self-defence. The sentences particularly relied upon are these:
"If there has been an attack so that defence is reasonably necessary, it will be recognised that the person defending himself cannot weigh to a nicety the exact measure of his defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken".
It was common ground that the same principle can apply to the defence of another person and that the appellant was entitled so to act in order to defend his brother Sid, in the circumstances of this case. The question is whether there was evidence to support the defence. The appellant did not suggest that that was the reason for his acting so as to cause the injury and death of Kully, but the alibi cases show that the jury must be directed to consider the defence if there is evidence upon which it can be based.
Mr Beckman submits that there was such evidence here, because the appellant became aware that Kully was attacking his brother through the open passenger window and reasonably, or at least instinctively, drove off in order to bring the violence to an end. It was what a reasonably careful driver might have done, notwith-standing the risk of injury to Kully. The situation in which the appellant found himself might be compared with the driver of a vehicle which is approached by an aggressor when stationary at traffic lights, making the driver fearful for his or her safety from an attack. The driver could reasonably drive off notwithstanding that the aggressor might be caused some injury. In the present case, there was the added factor that the appellant was being urged on all sides, not least by Mr Bacon outside the car and by his brother inside it, to get away from what had become an ugly, violent situation. The appellant's reaction, Mr Beckman submitted, was instinctive, born out of the anguish of the moment, and therefore it could be regarded as lawful self-defence.
These submissions were bound up with the alternative ground of appeal, that the judge should have directed the jury to regard this as a case of "gross negligence" manslaughter. That would require them to consider whether the appellant's standard of driving fell so far short of what was required by the duty to take reasonable care which he owed to Kully that it should be regarded as being subject to the criminal sanction of the offence of manslaughter (Adomako at page 187C).
A preliminary question arises as to whether lawful self-defence could ever be a defence to such a charge, because the defendant can only be guilty of the gross negligence offence if the jury is satisfied that his conduct fell sufficiently far short of what a reasonable man would have done, placed as the defendant was. This question does not arise, however, in the case of "reckless" manslaughter. If the offence was committed because the defendant ignored or was indifferent to an obvious risk of injury or death to the victim, then clearly the defence is available. He can say that he was justified in taking the risk in the circumstances in which he was.
It is convenient, therefore, to consider the additional ground of appeal first.
In Adomako the House of Lords affirmed the characteristics of "gross negligence" manslaughter and further held that there is no distinction in principle between motor manslaughter and other cases where gross negligence is the basis of criminal liability. The House of Lords also held that juries might properly be directed in terms of recklessness although the precise definition derived from Seymour  2 AC 493 should no longer be used (188A). Lord Mackay LC said this:
"I consider it perfectly appropriate that the word "reckless" be used in cases of involuntary manslaughter, but as Lord Atkin put it "in the ordinary connotation of that word." Examples in which this was done, in my mind with complete accuracy are Reg v Stone  QB 354 and Reg v West London Coroner ex parte Gray  QB 467 .... I entirely agree with the view that the circumstances to which a charge of involuntary manslaughter may apply are so various that it is unwise to attempt to categorise or detail specimen directions. For my part I would not wish to go beyond the description of the basis in law which I have already given" (187H-188B).
Nothing here suggests that for the future "recklessness" could no longer be a basis for proving the offence of manslaughter: rather, the opposite. Smith & Hogan records that "For many years the courts have used the terms "recklessness" and "gross negligence" to describe the fault required for involuntary manslaughter .... without any clear definition of either term. It was not clear whether these terms were merely two ways of describing the same thing, or whether they represented two distinct conditions of fault" (page 375). After referring to Adomako, the learned author continues:
"Reckless manslaughter. Gross negligence is a sufficient, but not necessarily the only fault for manslaughter. To some extent manslaughter by overt recklessness, conscious risk-taking still survives" (p.377).
He goes on to ask whether it is necessary for the offence of reckless
manslaughter that the risk foreseen is of serious, rather than non-serious,
In our judgment, the judge was correct in his view that this was a case of "reckless" manslaughter and to direct the jury accordingly. We reject the alternative submission that he was wrong not to direct the jury as to gross negligence manslaughter, whether in place of or in substitution for the direction as to recklessness. Indeed, in a case such as the present, we find it difficult to understand how the point of criminal liability can be reached, where gross negligence is alleged, without identifying the point by reference to the concept of recklessness as it is commonly understood: that is to say, whether the driver of the motor vehicle was aware of the necessary degree of risk of serious injury to the victim and nevertheless chose to disregard it, or was indifferent to it. If the gross negligence direction had been given, the recklessness direction would still have been necessary. The recklessness direction in fact given made the gross negligence direction superfluous and unnecessary.
We return therefore to the suggested defence of lawful self-defence. The jury's verdict, in the light of the direction they received, means that they were satisfied that the appellant was aware, as he drove off in the Range Rover, that the deceased was either half in and half out of the passenger window or was at least holding onto the passenger and being carried along with the vehicle. The speed was such that the deceased could not possibly have been running alongside. The contention which we derive from Mr Beckman's submissions is to the effect that the appellant appreciated that there was a risk of Kully harming the passenger and that reasonably, or instinctively, he drove off as he did in order to protect the passenger from harm or further harm. That was justified, it was submitted, notwithstanding the risk of injuring the attacker in the circumstances of this case.
We can assume in the appellant's favour that he is not debarred from raising this defence, notwithstanding that he made no reference to it in the course of his evidence (nor in the course of his "no comment" interview). This is not identical with the alibi cases, for there was nothing in the evidence which the appellant did give which was inconsistent with him putting forward this explanation, if it was the truth. But that would suggest that the defence was only available to him if he took a conscious decision to drive off, in order to protect his brother, and that, as Mr Beckman submits, might not give due recognition to the fact that the defence is available to a person who acted instinctively rather than as the result of a conscious decision. On the other hand, as Mr Beckman accepts, the instinctive reaction has to be judged against the possible reaction of a reasonable man, placed as the defendant was.
The evidence makes it plain, in our judgment, that no such defence could be raised here. The appellant drove off in response to his brother Sid's urgings that he should. He either did not hear or ignored Mr Atwal's cries that he should slow down and stop until the vehicle had accelerated to 30/40 mph and covered a distance approaching 200 metres along the main road. Making full allowance for the circumstances in which the appellant came to be driving the vehicle away from the ugly situation in the car park of the public house, we do not consider that the jury could properly have found that this was or might have been instinctive and no more than the possible reaction of a reasonable man in the situation in which the appellant found himself that night.
We therefore reject this ground of appeal and uphold the judge's ruling that
it was inappropriate to raise with the jury the suggested defence of lawful
self-defence. Our conclusion is supported also by the consideration that, as was
stated in Bonnick, the question is pre-eminently one for the trial judge to
answer by the application of common sense. We do not see any reason for
differing from the view which he took.
Like the judge, we do not see how this defence could arise if there was no evidence to support lawful self-defence. We were referred to the judgment of this Court in Martin (1989) 88 Cr App R 343, and more recently Cairns  Crim LR 826. A preliminary observation is that these authorities suggest that an objective standard of reasonableness has to be applied in considering whether the defendant acted out of necessity so as to give rise to the defence. But the suggestion that the defence could arise here runs into an earlier, logical difficulty. The only necessity which arose for the defendant to drive off as he did was created by the need, as the appellant saw it, to avoid further trouble at the public house and to safeguard his passengers and himself from possible violence there. But the possibility became actual violence when Kully acted aggressively towards the passenger, Sid, as he did. It therefore was indistinguishable from the circumstances alleged to give rise to the defence of lawful self-defence, and we cannot see any basis upon which it can be argued that in such circumstances the defence of necessity has a wider scope. This submission therefore must be rejected also.
The further ground for which we gave leave is that the judge was in error in directing the jury to consider the earlier events in the public house and car park as mere background when in fact such evidence was highly relevant to possible issues of intent and the state of mind of the appellant. We have already quoted two relevant passages from the summing-up. They make it clear that the judge left it to the jury to form their own view. Even if there was an implied direction they should regard the earlier events as "background" we do not consider that that was a mis-direction in the circumstances of this case. The fact that Kully stood aside when the appellant revved up the engine of the Range Rover and then threatened violence only in response to whatever remark it was that Sid made to him, demonstrates that events moved into a new situation at that time. It was not inappropriate to describe the earlier events as the background to it. Mr Beckman submits that those earlier events remained relevant to the state of mind of the appellant when and after he drove off. But there never was any suggestion that the appellant had behaved other than properly and peaceably up to that moment. This was brought out in the evidence, not least by Mr Beckman's cross-examination of Mr Bacon, and it was not challenged by the prosecution. The jury were reminded of the evidence, and even of the defence submission in relation to the murder charge that, if the appellant was minded to injure Kully, then he could have done so when Kully was standing in front of the vehicle before it moved off. This ground of appeal therefore is rejected also.
The direction given by the judge might be said to be open to criticism for failing to specify, first, that there had to be a high probability of physical harm to Kully, and secondly, that the risk was of serious injury rather than, as the judge put it, "injury to health" and "some physical harm, however slight". This criticism was not advanced as a ground of appeal, but we should nevertheless consider what force there might be in it. In our judgment, there is none, because in the circumstances of this case both requirements undoubtedly were satisfied. The risk of harm to Kully, of which the jury has found that the appellant was aware, was clearly and unarguably a high degree of risk of serious injury to him. In the circumstances, therefore, we are satisfied that the verdict could not be considered unsafe if there was a mis-direction in this respect.
The appeal against conviction must therefore be dismissed. We shall proceed to hear the renewed application for leave to appeal against sentence.
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