Michaelmas
Term
[2016] UKSC 61
On appeal from: [2014] EWCA Crim 748
JUDGMENT
R v Golds (Appellant)
before
Lord Neuberger, President
Lady Hale, Deputy
President
Lord Kerr
Lord Reed
Lord Hughes
Lord Toulson
Lord Thomas
JUDGMENT GIVEN ON
30 November 2016
Heard on 14 June 2016
|
Appellant
David Etherington
QC
Stephen Rose
(Instructed by
Taylor Haldane & Barlex)
|
|
Respondent
David Perry QC
Tom Little
(Instructed by
Crown Prosecution Service Appeals and Review Unit)
|
LORD HUGHES: (with whom Lord Neuberger, Lady Hale, Lord
Kerr, Lord Reed, Lord Toulson and Lord Thomas agree)
1.
The appellant Mark Golds was convicted by a jury of the murder of his
partner. He had admitted in court that he had killed her, and the sole issue at
his trial had been whether he had made out the partial defence of diminished
responsibility, and so fell to be convicted of manslaughter rather than of
murder. The law to be applied was section 2 of the Homicide Act 1957 after its
recent revision by the Coroners and Justice Act 2009. The issue is the correct
approach to the statutory test of whether his abilities were in specified
respects “substantially impaired”: see section 2(1)(b).
2.
The appellant had attacked his partner with a knife at their home in
front of her young children after a running argument which had taken place on
and off throughout much of the day. He had inflicted some 22 knife wounds
together with blunt impact internal injuries. He had a history of mental
disorder leading to outpatient treatment and medication. Two consultant
forensic psychiatrists gave evidence that there was an abnormality of mental
functioning arising from a recognised medical condition, although they
disagreed what that condition was. There was no contradictory psychiatric
evidence. The judge correctly identified the questions which the jury needed to
address (see para 8 below) and helpfully provided a written summary of the
ingredients of diminished responsibility. He also provided a crystal clear
written “route to verdict” document. On the issue of substantial impairment of
ability he told the jury:
“Mr Rose [counsel for the defence]
did suggest to you in his closing address that you would get some further help
from me when giving you directions in law as to what the word substantially
means, where it says substantially impaired his ability to exercise those
qualities. I am not going to give you any help on the meaning of the word
substantially, because unless it creates real difficulty and you require
further elucidation, the general principle of English law is that where an
everyday word is used, don’t tell juries what it means. They are bright enough
and sensible enough to work it out for themselves, so I am not going to
paraphrase substantially. Substantially is the word that is in the Act of
Parliament and that’s the word that you have to work with. If it becomes a
stumbling block in some way, well at the end of the day, you can send me a note
and in those circumstances, I am permitted to offer you a little more help, but
not at this stage of proceedings.”
The jury did not ask for further help.
3.
In the Court of Appeal (Criminal Division), amongst other grounds of
appeal which have not survived, the appellant contended (a) that the judge had
been wrong not to direct the jury as to what “substantially impaired” meant and
(b) that the jury might in the absence of such direction have applied a more
stringent test than it ought to have done. It was contended on his behalf that
so long as the impairment was more than merely trivial, the test of “substantially
impaired” was met.
4.
The Court of Appeal dismissed the appellant’s appeal ([2015] 1 WLR 1030)
but certified in relation to this ground that the following two questions of law
of general public importance were involved:
1. Where
a defendant, being tried for murder, seeks to establish that he is not guilty
of murder by reason of diminished responsibility, is the Court required to
direct the jury as to the definition of the word “substantial” as in the phrase
“substantially impaired” found in section 2(1)(b) of the Homicide Act 1957 as
amended by section 52 of the Coroners and Justice Act 2009?
2. If
the answer to the first question is in the affirmative, or if for some other
reason the judge chooses to direct the jury on the meaning of the word “substantial”,
is it to be defined as “something more than merely trivial”, or alternatively
in a way that connotes more than this, such as “something whilst short of total
impairment that is nevertheless significant and appreciable”?
The Court of Appeal’s answers to these questions were (1)
that the judge was not, on authority, required to give greater definition than
he did and (2) that if he had done so the appropriate formulation would have
been that it was not enough that there was some impairment; the jury had
to ask if it was substantial. It would, the court held, be wrong to direct the
jury that it sufficed that the impairment was more than merely trivial.
The statute
5.
As now amended, section 2 Homicide Act 1957 provides a complete
definition of diminished responsibility. The material parts of it are as
follows:
“Persons suffering from diminished
responsibility
2(1) A person (‘D’) who kills
or is a party to the killing of another is not to be convicted of murder if D
was suffering from an abnormality of mental functioning which -
(a) arose from a recognised
medical condition,
(b) substantially impaired
D’s ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation
for D’s acts and omissions in doing or being a party to the killing.
(1A) Those things are -
(a) to understand the
nature of D’s conduct;
(b) to form a rational
judgment;
(c) to exercise self
control.
(1B) For the purposes of
subsection (1)(c), an abnormality of mental functioning provides an explanation
for D’s conduct if it causes, or is a significant contributory factor in
causing, D to carry out that conduct.
(2) On a charge of murder,
it shall be for the defence to prove that the person charged is by virtue of
this section not liable to be convicted of murder.
(3) A person who but for
this section would be liable, whether as principal or as accessory, to be
convicted of murder shall be liable instead to be convicted of manslaughter.”
6.
This differs from the previous formulation of the partial defence. As
originally enacted, section 2(1) provided:
“(1) Where a person kills
or is a party to the killing of another, he shall not be convicted of murder if
he was suffering from such abnormality of mind (whether arising from a
condition of arrested or retarded development of mind or any inherent causes or
induced by disease or injury) as substantially impaired his mental
responsibility for his acts and omissions in doing or being a party to the
killing.”
7.
It follows that the expression “substantially impaired” has been carried
forward from the old Act into its new form. But whereas previously it governed
a single question of “mental responsibility”, now it governs the ability to do
one or more of three specific things, to understand the nature of one’s acts,
to form a rational judgment and to exercise self-control. Those abilities were
frequently the focus of trials before the re-formulation of the law. But
previously, the question for the jury as to “mental responsibility” was a
global one, partly a matter of capacity and partly a matter of moral
culpability, both including, additionally, consideration of the extent of any causal
link between the condition and the killing. Now, although there is a single
verdict, the process is more explicitly structured. The jury needs to address
successive specific questions about (1) impairment of particular abilities and
(2) cause of behaviour in killing. Both are of course relevant to moral
culpability, but the jury is not left the same general “mental responsibility”
question that previously it was. The word used to describe the level of
impairment is, however, the same.
8.
The effect of the new statutory formulation is that the following four
questions will normally arise in a case where diminished responsibility is
advanced.
(1)
Did the accused suffer from an abnormality of mental functioning?
(2)
If so, did it arise from a recognised medical condition?
(3)
If yes to (1) and (2), did it substantially impair one or more of the
abilities listed in section 1A?
(4)
If yes to (1), (2) and (3), did it cause or significantly contribute to
his killing the deceased?
Of course, in some cases one or more of these may be
common ground. The function of the judge is to focus the jury’s attention on
what is at issue and to explain why the issue(s) are relevant, as the judge did
in the present case. It is not to read the jury a general statement of the law.
Authority: “substantially impaired”
9.
The concept of diminished responsibility was developed (with, at first,
varying terminology) by the common law in Scotland in the late 19th and early 20th
centuries as a means of mitigating, in an appropriate case, the mandatory
sentence of death attendant on murder: see Lord Justice-General Rodger’s
helpful historical survey in Galbraith v HM Advocate 2002 JC 1 (paras 23
to 27), together with the report of the Scottish Law Commission SLC 195
(2004) [2004] SLC 195 at para 3.1. It operates by reducing the offence of murder to that of
culpable homicide. It was adopted by English law via the Homicide Act 1957 for
the same reason, and using the same mechanism of partial defence, at a time
when the abolition of capital punishment was under debate but there was no
Parliamentary majority for that greater step.
10.
Soon after its introduction, the new partial defence was considered by
the Court of Criminal Appeal in R v Matheson [1958] 1 WLR 474, R v
Spriggs [1958] 1 QB 270 and R v Byrne [1960] 2 QB 396. In the first
case there was no occasion for discussion of the meaning of “substantially
impaired”; the defendant was agreed to be certifiable. In Spriggs, however,
the court considered the then conventional formulations employed in Scotland in
relation to the level of impairment, which included (but were not confined to)
references to the borderline of insanity (see HM Advocate v Savage 1923 JC 49). The court (Lord Goddard CJ, Hilbery and Salmon JJ) concluded that the
correct course for the trial judge was not to attempt synonyms or re-definition
but simply to direct the jury in the terms of section 2.
11.
In Byrne the defendant was a sexual psychopath who had strangled
and mutilated a young woman resident of the YWCA. The case on his behalf was
that he was unable to resist his impulse to gross and sadistic sexual violence.
The judge’s directions had amounted to excluding from abnormality of mind an
inability to control his urges, and this was held to have been wrong. The court
further took the view that on the medical evidence the defendant was so
disturbed that there was no room for doubt that diminished responsibility was
made out. Giving the judgment of the court, however, Lord Parker CJ addressed
the question of substantial impairment. He said this at 403-404:
“Assuming that the jury are
satisfied on the balance of probabilities that the accused was suffering from ‘abnormality
of mind’ from one of the causes specified in the parenthesis of the subsection,
the crucial question nevertheless arises: was the abnormality such as
substantially impaired his mental responsibility for his acts in doing or being
a party to the killing? This is a question of degree and essentially one for
the jury. Medical evidence is, of course, relevant, but the question involves a
decision not merely as to whether there was some impairment of the mental
responsibility of the accused for his acts but whether such impairment can
properly be called ‘substantial’, a matter upon which juries may quite
legitimately differ from doctors.
...
This court has repeatedly approved
directions to the jury which have followed directions given in Scots cases
where the doctrine of diminished responsibility forms part of the common law.
We need not repeat them. They are quoted in Reg v Spriggs. They indicate
that such abnormality as ‘substantially impairs his mental responsibility’
involves a mental state which in popular language (not that of the M’Naughten
Rules) a jury would regard as amounting to partial insanity or being on the
border-line of insanity.”
12.
Both in England and in Scotland it has subsequently been held that it is
not usually helpful to direct juries in terms of the borderline of insanity. That
is demonstrated by considering the case where the mental impairment is
depression, to which (however severe) such a description is inapt. Such a formulation
was later disapproved in R v Seers (1984) 79 Cr App R 261 (a depression
case) and is now more often and wisely avoided even in a case of florid
psychosis. Despite its use in Byrne, it cannot have been the intention
of the court in that case to require any such direction, given the approval of Spriggs
which had commended abstention from elaboration of the words of the
section. Giving the judgment in Seers Griffiths LJ reached the same
conclusion. At 264 he said this:
“It is to be remembered that in Byrne
… all the doctors agreed that Byrne could be described as partially insane;
he was a sexual psychopath who had hideously mutilated a young woman he had
killed. In such a case the evidence justifies inviting a jury to determine the
degree of impairment of mental responsibility by a test of partial insanity.
But it is not a legitimate method of construing an Act of Parliament to
substitute for the words of the Act an entirely different phrase and to say
that it is to apply in all circumstances. We are sure that this was not the
intention of the court in Byrne …, and the phrase was used as one way of
assisting the jury to determine the degree of impairment of mental
responsibility in an appropriate case, and no doubt to point out that
Parliament by the use of the word ‘substantial’ was indicating a serious degree
of impairment of mental responsibility.”
But what is clear is that whilst the question whether the
impairment was or was not substantial was to be left to the jury in the
unimproved words of the statute, the underlying assumption was that
“substantially” in this context meant impairment which was of some importance
or, as it was put in Seers, a serious degree of impairment. The court
cannot have contemplated in any of these cases that it was sufficient that the
impairment merely passed triviality.
13.
R v Simcox The Times 25 February 1964; [1964] Crim LR 402
concerned a man who had previously murdered his second wife and had now sought
out his third wife, with whom he was in dispute, taking with him a rifle with
which he shot her sister when it was her whom he encountered. Some four
psychiatrists agreed that he had an abnormality of mind, namely a paranoid
personality. Each said that it impaired his self-control, but none was prepared
to say that the impairment was substantial; they spoke of “moderate” impairment,
or of his finding it “harder” than others to control himself. The judge left
the question to the jury in the terms of the section, adding only that they
should ask:
“do we think, looking at it
broadly as commonsense people, there was a substantial impairment of his mental
responsibility in what he did? If the answer to that is ‘yes’ then you find him
not guilty of murder but guilty of manslaughter. If the answer to that is ‘no,
there may be some impairment but we do not think it was substantial. We do not
think it was something which really made any great difference although it may
have made it harder to control himself to refrain from crime’, then you would
find him guilty as charged.”
The Court of Appeal, whilst observing that the final
sentence needed the previous focus on the word “substantial” in order that it
should not be thought that the absence of self-control had to be total,
approved this direction. It is to be seen that it was essentially in accordance
with Spriggs, since it repeated and emphasised, but did not attempt to
re-define, the statutory expression “substantially impaired”.
14.
Three years later the Court of Criminal Appeal considered the case of R
v Lloyd [1967] 1 QB 175, which would appear to be the indirect origin of
the submission made in the present case that “substantially impaired” means any
impairment greater than the merely trivial. The defendant had killed his wife.
There was evidence that from time to time he had suffered recurrent episodes of
reactive depression. Two psychiatrists gave evidence that this was a mental abnormality
which to some extent impaired his mental responsibility. Neither was prepared
to say that the impairment was substantial. The first said that the depression
impaired his responsibility “to some extent”. The second said that there was
some effect; he could not say to what degree, but although it was not as low as
minimal it was not substantial. The medical evidence was thus to similar effect
as in Simcox. At trial, Ashworth J had directed the jury in the terms of
the statute, but he had then added:
“Fourthly, this word ‘substantial’,
members of the jury. I am not going to try to find a parallel for the word ‘substantial’.
You are the judges, but your own common sense will tell you what it means. This
far I will go. Substantial does not mean total, that is to say, the mental
responsibility need not be totally impaired, so to speak destroyed altogether. At
the other end of the scale substantial does not mean trivial or minimal. It is
something in between and Parliament has left it to you and other juries to say
on the evidence, was the mental responsibility impaired, and, if so, was it
substantially impaired?” (p 178)
15.
Counsel for the defendant, on appeal, contended that the judge had erred
in not directing the jury that “substantially” meant “really present” or “not
trivial”. That was a submission that it meant no more than that there was some
operating impairment, and thus that any such sufficed, so long as it was
not trivial, and was exactly the same submission which is now made in the
present case. Since the doctors had agreed that the depression was not trivial
in its effect, the defendant was, it was submitted, entitled to be acquitted of
murder. That contention was firmly rejected by the court. Edmund Davies J,
giving the judgment of the court, said this at 180B
“This court is wholly unable to
accept that submission. The word ‘substantially’ obviously is inserted in the
Act with a view to carrying some meaning. It does carry a meaning. This court is
quite unable to see that the direction given to the jury on the meaning of this
word, can validly be criticised, and finds itself in a difficulty of saying
that any distinction can be validly drawn between the direction given in the
instant case and that approved of by this court in Reg v Simcox.”
16.
It is the decision of the Court of Appeal which is the authority. But it
is equally clear that Ashworth J, in saying what he did, had no intention of
telling the jury that any impairment beyond the trivial sufficed. Firstly, if
that had been his intention, it would have followed that the evidence in the
case satisfied the test and a verdict of diminished responsibility ought to
have followed unless the jury disagreed; this the judge would surely have told
the jury. Secondly, such an intention is inconsistent with the judge telling
the jury that he was not going to find a synonym for the word “substantially”. Thirdly,
the judge’s summing up makes clear that he had before him Bryne, with
its references to the borderline of insanity, although (anticipating Seers) he
sensibly did not adopt that expression in a case concerning depression. In
referring to the spectrum of impairment as he did, he may have had in mind the
warning in Simcox (see para 13 above) that it should be made clear that
the impairment did not need to be total. What he was clearly saying was that
before an impairment could be substantial it must of course be greater than the
merely trivial, but that, beyond that, what amounted to substantial impairment
was a matter of degree for the jury.
17.
Over the years since, a reference of this kind to the extremities of
possible impairment has sometimes been thought not simply to be helpful to
juries but also to provide a possible definition of the meaning of
“substantially”. R v Egan [1992] 4 All ER 470 concerned the case where
there is both abnormality of mind and voluntary intoxication. Its principal
decision largely anticipated the test for such a case which was later
adumbrated by the House of Lords in R v Dietschmann [2003] UKHL 10;
[2003] 1 AC 1209, but the court was held by the House to have erred in its
treatment of other prior decisions. No real issue arose in relation to the
meaning of “substantially impaired” except as to how drink was to be
accommodated within it. But one of those prior decisions on drink, R v
Gittens [1984] QB 698, 703, had contained the conclusion of Lord Lane CJ
that the jury should ignore the effect of drink, as later held to be the law in
Dietschmann. Lord Lane had pointed out that voluntary intoxication could
not constitute a mental abnormality arising from disease or inherent cause, so
the jury should ignore it and then go on to
“consider whether the combined
effect of the other matters which do fall within the section amounted to such
abnormality of mind as substantially impaired the defendant’s mental
responsibility within the meaning of ‘substantial’ set out in R v Lloyd.”
In Egan, having cited that passage, Watkins LJ
added in passing:
“In R v Lloyd … directions
as to the word ‘substantial’, to the effect that (1) the jury should approach
the word in a broad commonsense way or (2) the word meant ‘more than some
trivial degree of impairment which does not make any appreciable difference to
a person’s ability to control himself, but it means less than total impairment’
were both approved.”
There was no occasion for analysis of Lloyd in Egan.
But although it was correct that Ashworth J’s direction had been approved, it
would be quite inaccurate to imply that the effect of the case was that
“substantially” meant the same as “more than some trivial degree of
impairment”. It may well be that Watkins LJ meant to say no such thing, rather
than simply to refer to Ashworth J’s formulation as convenient, but if he did,
it was a misreading of Lloyd. The decision in Lloyd, to
which no doubt Lord Lane CJ was referring in Gittens, was precisely the
opposite, viz: that “substantially” was not the same as “more than
trivial” - see para 13 above.
18.
The difficulty for later readers was compounded by the closing words of
the judgment in Egan at 480h:
“Finally, for the avoidance of
doubt, we advise judges that guidance as to the meaning of ‘substantial’ should
be explicitly provided for the jury by using one or other of the two meanings
in R v Lloyd.”
This proposition that Lloyd authorised two
meanings of “substantially” may have achieved some currency since. If it has,
it too is based on a misunderstanding. The most that Lloyd ever said was
that two methods of summing up were unexceptional: the first to tell the jury
simply to use its common sense without further elaboration and the second to
allude to the spectrum between just beyond trivial impairment and total
impairment. The decision of the court was explicitly that impairment beyond “more
than merely trivial” is required; it follows that if the second approach,
referring to the spectrum, is adopted in summing up, this must be made clear. But
the court in Lloyd was not attempting in its (extempore) judgment to
ordain a template for future summings-up. It was dealing with the submission
that the defendant in that case was entitled to have his conviction for murder
set aside because any impairment beyond the merely trivial sufficed, and this
submission it rejected. All that mattered in that case, as in most cases before
an appellate criminal court, was whether the judge had misdirected the jury to
the disadvantage of the defendant.
19.
With or without any implication of two meanings, Ashworth J’s additional
“spectrum” illustration has gained currency. It has figured in successive Crown
Court Benchbooks. For example, the first (2010) edition, published before the
new statutory formula came into operation, carefully avoided dictating the terms
of summing up to judges. However, it cited at p 340 what Ashworth J had said,
and added that the direction was approved by the Court of Criminal Appeal. A
little later it gave one illustration of the kind of summing up which might be
employed. It did so in the context of the more difficult case where diminished
responsibility is complicated by drink and/or by alcohol dependence, but the
example was equally relevant also to non-alcohol cases. One suggested form of
words (at p 347) was:
“This requires you to consider to
what extent the defendant’s state of mind differed from that of the ordinary
person. Was it so abnormal that the defendant’s mental responsibility was
substantially reduced? ‘Substantially’ is an ordinary English word to which you
will bring your own experience. It means less than total and more than trivial.
Where you draw the line is for your own good judgment.”
Subsequent editions, before and after the 2009 Act
amendments, contained similar passages until the decision of the Court of
Appeal in the present case. It will be seen that this formulation does not tell
the jury that any impairment beyond the merely trivial suffices, but
with hindsight it is possible that if one does not go back to the decision in Lloyd,
it might be taken by some to carry that implication.
20.
In R v Ramchurn [2010] EWCA Crim 194; [2010] 2 Cr App R 18 (an
unamended 1957 Act case) the trial judge had understandably adopted these
suggestions. His written direction to the jury was:
“‘Substantially impaired’ means
just that. You must conclude that his abnormality of mind was a real cause of
the defendant’s conduct. The defendant need not prove that his condition was
the sole cause of it, but he must show that it was more than a merely trivial
one which did not make any real or appreciable difference to his ability to
control himself.”
In retirement, the jury asked a specific question: what
was the difference between “trivial” and “substantial”? The judge responded
with the Ashworth formula. He told them:
“The following direction has been
approved at a senior level and it is this; the direction on the words ‘substantially
impaired’. Your own common sense will tell you what it means. ‘Substantial’
does not mean ‘total’. That is to say the mental responsibility need not be
totally impaired, so to speak, destroyed altogether. The other end of the scale,
‘substantial’ does not mean ‘trivial’ or ‘minimal’. It is something in between
and Parliament has left it to you to say on the evidence was the mental
responsibility impaired and if so, was it substantially impaired?”
21.
The defendant in Ramchurn had planned and executed the killing of
his wife’s lover, a cousin to whom he had originally given a home. He had
threatened previously that he would kill him, and had made a number of
preparations to do so, such as trying to get keys to gain access to the
victim’s home, and when that failed arranging a meeting to carry out his plan,
equipping himself with a rope ligature for the purpose. He disposed of the body
some distance away and set up a false alibi. The evidence was that he was
depressed. One doctor described his state as “an emotional turmoil” and a
“tortured frame of mind”, and expressed the opinion that “in the tumultuous
final moments which resulted in the death” the impairment of mental
responsibility would have been substantial. The other agreed that there was an
element of depression, and accepted that it had played some part in the
killing. Carefully cross-examined, he agreed that the impact of the depression
on the defendant’s mental responsibility was more than trivial, but he
disagreed that it was substantial. The jury convicted of murder.
22.
The argument for the defendant on appeal in Ramchurn was that
there were two inconsistent meanings of “substantially” to be derived from Lloyd,
that the judge had in consequence failed to give the jury a clear direction and
moreover that the law was in too uncertain a state to satisfy the requirements
of article 7 of the ECHR. Accordingly, it was contended, the conviction for
murder was unsafe. The Court of Appeal rejected those arguments. At para 23,
Lord Judge CJ addressed specifically the “two meanings” argument, founded then
as now on a combination of Lloyd with Egan. The argument was
rejected:
“It is, however, clear on analysis
that in Lloyd the court rejected the submission that there were two
meanings for the word ‘substantially’. In the judgment in Lloyd the word
‘substantially’ carried ‘some’ meaning or ‘a’ meaning. It was accepted in Lloyd
that there were different ways of illustrating the same concept and, if
necessary, explaining its relevance to the jury. If the court in Egan
had intended to convey that the words ‘substantially impaired’ embraced two
different concepts or levels of impairment, it would have said so not by citing
Lloyd as authority in support, but by distinguishing Lloyd. In
the result, just as the court in Lloyd could see no effective difference
between the directions in Simcox and Lloyd, the Court of Appeal
in Egan could see no difficulty in the deployment of either of the two
methods of explanation found in Lloyd.”
23.
The court recorded that section 2 had been in force for 50 years and
applied in countless murder trials, and observed that in its experience the
test of substantial impairment was probably, in practice, the least difficult
aspect of what can be a difficult defence to convey to a jury. It went on
specifically to endorse the general starting point that the test was in
ordinary English and should be left to the judgment of the jury. In so doing,
it said this at para 15:
“‘Substantially’ is an ordinary
English word which appears in the context of a statutory provision creating a
special defence which, to reflect reduced mental responsibility for what
otherwise would be murderous actions, reduces the crime from murder to
manslaughter. Its presence in the statute is deliberate. It is designed to
ensure that the murderous activity of a defendant should not result in a
conviction for manslaughter rather than murder on account of any impairment of
mental responsibility, however trivial and insignificant; but equally that the
defence should be available without the defendant having to show that his
mental responsibility for his actions was so grossly impaired as to be
extinguished. That is the purpose of this defence and this language. The Concise
Oxford Dictionary offers ‘of real importance’ and ‘having substance’ as suggested
meanings for ‘substantially’. But, in reality, even the Concise Oxford
Dictionary tells us very little more about the ordinary meaning and understanding
to be attached to the word ‘substantially’. The jury must decide for itself
whether the defendant’s mental responsibility for his actions was impaired and,
assuming that they find that it was, whether the impairment was substantial.”
24.
Thus the appeal failed in Ramchurn. The court was plainly not
adopting the submission that “substantially” means any impairment beyond the
merely trivial, for if it had done so, the evidence of both psychiatrists would
have met the test. It is right to remember that the focus on the meaning of
that word in the half dozen cases here reviewed, and in the present case, does
not mean that it is often the occasion of difficulty. But the fact that the
present submission is now made for the third time, despite its failure in both Lloyd
and Ramchurn, does demonstrate that the use of the Ashworth
“spectrum” formula may encourage semantic debate, at least in some cases.
Moreover it is known that in at least one case which reached the Court of
Appeal on sentence, the trial judge had directed the jury that the test of
“substantially impaired” was met by an impairment which was more than minimal: R
v Brown (Robert) [2011] EWCA Crim 2796; [2012] 2 Cr App R(S) 156. Since the
appeal was limited to sentence in that case, the correctness of that direction
did not call for adjudication. But that case is a further illustration of
difficulty. When the defendant was, on that direction, convicted of
manslaughter, the judge concluded when it came to sentence that in fact his
responsibility had nevertheless been “substantial”, and the Court of Appeal decided
that he was indeed entitled so to do, and to impose a very long determinate
sentence (24 years) in consequence.
Scotland
25.
The rejection in the foregoing cases of the contention that any
impairment beyond the merely trivial will suffice is consistent with the way in
which the law of diminished responsibility has evolved in Scotland, where it
originated. The law was reviewed in some depth by a specially convened court of
five in Galbraith v HM Advocate 2002 JC 1. The court held that
the partial defence was not confined to mental illness, strictly so called, and
that other mental abnormalities might also be capable of diminishing the
responsibility of the accused, including in that case a combination of learned
helplessness and post-traumatic stress disorder following alleged persistent
abuse. The decision anticipated the new English section 2(1)(a) by requiring
that there be “some recognised mental abnormality” (paras 53 and 54). As to the
level of impairment, the court held, for reasons essentially the same as had
been given by the English court in Seers, that previous references to
the borderline of insanity were simply examples of what would plainly qualify
rather than a test for inclusion. Lord Justice-General Rodger summarised the
rule in this way at para 54:
“In every case, in colloquial
terms, there must, unfortunately, have been something far wrong with the
accused, which affected the way he acted … While the plea of diminished
responsibility will be available only where the accused’s abnormality of mind
had substantial effects in relation to his act, there is no requirement that
his state of mind should have bordered on insanity.
…
In essence, the jury should be
told that they must be satisfied that, by reason of the abnormality of mind in
question, the ability of the accused, as compared with a normal person, to
determine or control his actings was substantially impaired.”
Thus “substantially impaired” was adopted as the test,
and used in the sense of something “far wrong” with the accused.
26.
There was, then, one difference between Scottish and English law,
because in Scotland Galbraith held that psychopathic personality disorder
was not capable of being a basis for diminished responsibility in the same way
as in both jurisdictions voluntary intoxication cannot by itself found the
plea: see Galbraith at para 54 and, in England, R v Dowds [2012] EWCA (Crim) 281; [2012] 1 WLR 2576. Now, however, that distinction has gone. Following
scrutiny by the Scottish Law Commission the law has been put into statutory
form by section 51B of the Criminal Procedure (Scotland) Act 1995, inserted by
section 168 of the Criminal Justice and Licensing (Scotland) Act 2010, (asp
13). Provision is made by subsection (3) to exclude voluntary intoxication but,
on the Commission’s recommendation, not for a similar exclusion for psychopathic
personality disorder. The new Scottish definition of diminished responsibility
in subsection (1) provides:
“A person who would otherwise be
convicted of murder is instead to be convicted of culpable homicide on grounds
of diminished responsibility if the person’s ability to determine or control
conduct for which the person would otherwise be convicted of murder was, at the
time of the conduct, substantially impaired by reason of abnormality of mind.”
Thus, the Scottish law now expresses, like the English,
the essential feature of abnormality of mind such as impairs the ability to
determine or control conduct, and, like English law, adopts as the test for the
level of impairment the same expression, namely “substantially”. Plainly in
Scotland this expression was used in the knowledge of the meaning
authoritatively given to it by Galbraith, which the Scottish Law
Commission had endorsed: SLC 195, July 2004, paras 3.15-3.17.
Usage of language
27.
The admirably concise submissions of Mr Etherington QC for the appellant
correctly point out that as a matter simply of dictionary definition,
“substantial” is capable of meaning either (1) “present rather than illusory or
fanciful, thus having some substance” or (2) “important or weighty”, as in “a
substantial meal” or “a substantial salary”. The first meaning could fairly be
paraphrased as “having any effect more than the merely trivial”, whereas the
second meaning cannot. It is also clear that either sense may be used in law
making. In the context of disability discrimination, the Equality Act 2010
defines disability in section 6 as an impairment which has a substantial and
long-term effect on day to day activities, and by the interpretation section, section
212, provides that “‘Substantial’ means more than minor or trivial.” It thus
uses the word in the first sense. Conversely, the expression “significant and
substantial” when used to identify which breaches by the police of the Codes of
Practice under the Police and Criminal Evidence Act 1984 will lead to the
exclusion of evidence (see for example R v Absolam (1988) 88 Cr App R
332 and R v Keenan [1990] 2 QB 54) is undoubtedly used in the second
sense. It is to be accepted that the word may take its meaning from its
context. It is not surprising that in the context of triggering a duty to make
reasonable adjustments to assist the disabled, the first sense should be used
by the Equality Act; the extent of adjustments required varies with the level
of disability and a wide spectrum of both is to be expected. Mr Etherington
additionally submits that this usage shows that the first sense does not
entirely strip the word “substantially” of meaning.
Conclusions: “substantially”
28.
The foregoing review of the authorities clearly shows that in the
context of diminished responsibility the expression “substantially” has always
been held, when the issue has been confronted, to be used in the second of the
senses identified above.
29.
True it is that in Lloyd Edmund-Davies J observed that that word
had been put into the 1957 Homicide Act with a view to it carrying some
meaning. If by that he meant that it could have no purpose at all unless it was
used in the second sense above, the Equality Act usage may suggest otherwise,
although even without the word “substantially” it is perhaps open to doubt that
a merely trivial effect would be taken to be included either in “impairment” or
in “disability”. But this does not alter the central thrust of the decision in Lloyd,
which was that in the context of diminished responsibility an impairment of
consequence or weight is what is required to reduce murder to manslaughter, and
not any impairment which is greater than merely trivial.
30.
There is no basis for thinking that when the same expression was carried
forward into the new formulation of diminished responsibility any change of
sense was intended. The adverb “substantially” is applied now, as before, to
the verb “impaired”. In the absence of any indication to the contrary,
Parliament is to be taken to have adopted the established sense in which this
word has been used for 50 years.
31.
The reformulation of the law followed the recommendation of the Law
Commission, except to the irrelevant extent that it did not incorporate
“developmental immaturity” as an extension beyond recognised medical
conditions. The Commission had addressed diminished responsibility in two
reports, each preceded by a detailed consultation paper: Partial Defences to
Murder Law Com 290 (2004) and Murder, Manslaughter and Infanticide
Law Com 304 (2006). Prior to the earlier report, it had consulted upon a number
of possible formulations of the test for diminished responsibility - see Partial
Defences at 5.52 et seq. Most employed the adverb “substantially”.
32.
The Commission was concerned to ensure that a requirement for causation
was explicitly incorporated into the proposed statutory test, as it now has
been, and had consulted on the question whether this test would suffice without
any threshold of substantial impairment - see possible version (6) at 5.52. It
is no doubt true that in many cases the question whether the impairment is
sufficient to establish the partial defence will march alongside the question
whether it was “a significant contributory factor” in causing the killing. But
this will not always be so. Where, for example, the recognised medical
condition is an emotionally unstable personality disorder leading to histrionic
and impulsive behaviour, or where it is depression leading to distorted
thinking, the medical evidence may make it clear that it has had some impact on
behaviour and thus was a significant cause. The jury may be satisfied that if the
defendant’s personality had been different, or if there had not been some
depression, he would not have killed as he did. The real question thus may very
well be whether the condition passes the threshold of substantial impairment,
or does not.
33.
An illustration is afforded by the facts of R v Brown. The
defendant’s marriage had broken down. He was living elsewhere with his
girlfriend. There were acrimonious negotiations over the division of property
between himself and his wife. He felt that she was dishonestly concealing her
assets and cheating him, and that she had unfairly manipulated him into signing
what he saw as a disadvantageous pre-nuptial agreement. He planned to kill her.
He prepared a grave in Windsor Great Park and, when returning the children to
her after a weekend, took with him a hammer hidden in his daughter’s bag and
beat her to death, before dismantling the CCTV equipment which would have
recorded his movements, and disposing of the body in the grave. There was
psychiatric evidence that he had developed an adjustment disorder, a recognised
medical condition, arising from the severe stress of life events. The jury must
have accepted the diagnosis, and that the adjustment disorder was a significant
cause of his killing his wife. On the judge’s direction, that impairment beyond
the merely trivial sufficed, the conviction for manslaughter followed. Whether
or not the jury would have concluded, but for that direction, that the
impairment was substantial, can never be known. But it is clear that such a
conclusion would not follow necessarily from the finding of significant
causation.
34.
After consultation, the Commission’s final conclusion, in the second
report at 1.17, was that although there were some infelicities in the wording
it was not persuaded that any of the alternative formulations canvassed would
sufficiently improve the law to justify interfering with a workable form of
words. It had pointed out in the earlier report at 7.91 that the approach to
the concept was essentially pragmatic, that the leading authority remained Byrne
and that this partial defence had, unlike provocation, troubled the House of
Lords only once in 50 years. The formula now incorporated into the statute was
recommended. The specific requirement for causation was added, but the
threshold of substantial impairment was maintained.
35.
It follows that there is nothing in the change of the formulation of the
test for diminished responsibility to cause a different view to be taken now of
the sense in which the word “substantially” is used in conjunction with
“impairment”.
36.
This use of the expression accords with principle. Diminished
responsibility effects a radical alteration in the offence of which a defendant
is convicted. The context is a homicide. By definition, before any question of
diminished responsibility can arise, the homicide must have been done with
murderous intent, to kill or to do grievous bodily harm, and without either
provocation or self-defence. Whilst it is true that at one end of the scale of
responsibility the sentence in a case of diminished responsibility may be
severe, or indeed an indefinite life sentence owing to the risk which the
defendant presents to the public, the difference between a conviction for
murder and a conviction for manslaughter is of considerable importance both for
the public and for those connected with the deceased. It is just that where a
substantial impairment is demonstrated, the defendant is convicted of the
lesser offence and not of murder. But it is appropriate, as it always has been,
for the reduction to the lesser offence to be occasioned where there is a
weighty reason for it and not merely a reason which just passes the trivial.
Directing juries: good practice
37.
As Mr Perry QC for the Crown rightly submitted, there are many examples
of ordinary English words incorporating questions of degree, which are left to
juries to apply without attempts at further definition. No-one attempts to
define “reasonable” in the many contexts in which it appears. Nor should there
be any further sophistication applied to the standard of proof required, that
the jury be “sure”, at least beyond the comparable expression “leaving no
reasonable doubt”. The same principle of leaving an ordinary word alone was
applied by the House of Lords in Brutus v Cozens [1973] AC 854 to the
expression “insulting”, and would apply equally, no doubt, to its sister
expressions “abusive” and “threatening”. In all these cases the understandable
itch of the lawyer to re-define needs to be resisted. Any attempt to find
synonyms for such ordinary English expressions, although they involve questions
of degree, simply complicates the jury’s exercise, and leads to further
semantic debate about the boundaries of meaning of the synonym.
38.
Where, however, as here, there are two identifiable and different senses
in which the expression in question may be used, the potential for inconsistent
usage may need to be reduced. The existence of the two senses of the word
“substantially” identified above means that the law should, in relation to
diminished responsibility, be clear which sense is being employed. If it is
not, there is, first, a risk of trials being distracted into semantic arguments
between the two. Secondly, there is a risk that different juries may apply
different senses. Thirdly, medical evidence (nearly always forensic psychiatric
evidence) has always been a practical necessity where the issue is diminished
responsibility. If anything, the 2009 changes to the law have emphasised this
necessity by tying the partial defence more clearly to a recognised medical
condition, although in practice this was always required. Although it is for
the jury, and not for the doctors, to determine whether the partial defence is
made out, and this important difference of function is well recognised by
responsible forensic psychiatrists, it is inevitable that they may express an
opinion as to whether the impairment was or was not substantial, and if they do
not do so in their reports, as commonly many do, they may be asked about it in
oral evidence. It is therefore important that if they use the expression, they
do so in the sense in which it is used by the courts. If there is doubt about
the sense in which they have used it, their reports may be misunderstood and
decisions made upon them falsified, and much time at trials is likely to be
taken up unnecessarily by cross examination on the semantic question. The
experience of R v Brown (supra at paras 24 and 33) underlines the need
for clarification.
39.
The sense in which “substantially impaired” is used in relation to
diminished responsibility is, for the reasons set out above, the second of the
two senses. It is not synonymous with “anything more than merely trivial
impairment”.
40.
It does not follow that it is either necessary or wise to attempt a
re-definition of “substantially” for the jury. First, in many cases the debate
here addressed will simply not arise. There will be many cases where the
suggested condition is such that, if the defendant was affected by it at
the time, the impairment could only be substantial, and the issue is whether he
was or was not so affected. Second, if the occasion for elucidation does arise,
the judge’s first task is to convey to the jury, by whatever form of words
suits the case before it, that the statute uses an ordinary English word and
that they must avoid substituting a different one for it. Third, however,
various phrases have been used in the cases to convey the sense in which
“substantially” is understood in this context. The words used by the Court of
Appeal in the second certified question in the present case (“significant and
appreciable”) are one way of putting it, providing that the word “appreciable”
is treated not as being synonymous with merely recognisable but rather with the
connotation of being considerable. Other phrases used have been “a serious
degree of impairment” (Seers), “not total impairment but substantial” (Ramchurn)
or “something far wrong” (Galbraith). These are acceptable ways of
elucidating the sense of the statutory requirement but it is neither necessary
nor appropriate for this court to mandate a particular form of words in
substitution for the language used by Parliament. The jury must understand that
“substantially” involves a matter of degree, and that it is for it to use the
collective good sense of its members to say whether the condition in the case
it is trying reaches that level or not.
41.
It seems likely that the Ashworth “spectrum” illustration will have been
of assistance to juries in some cases, for it helps to explain (a) that the
impairment need not be total to suffice and (b) that “substantially” is a
question of degree. But, as the experience of Lloyd, Ramchurn and the
present case teaches, if it is to be used it needs to be combined with making
it clear that it is not the law that any impairment beyond the merely
trivial will suffice. The impairment must of course pass the merely trivial to
be considered, just as it need not reach the total, but whether, when it has
passed the trivial, it can properly be regarded as substantial, is a matter for
the jury in the individual case, aided as it will be by the experts’ exposition
of the kind of impairment which the condition under consideration may have
generated in the accused. Unless the spectrum illustration has been used by
someone in the case, it is preferable for the judge not to introduce it. If it
has been used, or if, on mature consideration the judge considers that it may
help the jury in the particular case on trial, it needs to be coupled with a
clear statement that it is not enough that the impairment be merely more than
trivial; it must be such as is judged by the jury to be substantial. For the
same reason, if an expert witness, or indeed counsel, should introduce into the
case the expression “more than merely trivial”, the same clear statement should
be made to assist the jury.
42.
Once this usage is understood by all concerned with the trial, there
ought to be no occasion for the jury to be distracted by debate about the
meaning of the word. What matters is what kind of effect the medical condition
was likely to have had on the three relevant capacities of the accused. So long
as the experts understand the sense in which “substantially” is used in the
statute (which should henceforth be clear), and that the decision whether the
threshold is met is for the jury rather than for them, it is a matter for
individual judgment whether they offer their own opinion on whether the
impairment will have been substantial or confine themselves to the kind of
practical effect it would have had. If they do the former, they will be
understood to be using the word in the second sense set out in para 27 above.
43.
It follows that the questions certified by the Court of Appeal should be
answered as follows:
(1)
Ordinarily in a murder trial where diminished responsibility is in issue
the judge need not direct the jury beyond the terms of the statute and should
not attempt to define the meaning of “substantially”. Experience has shown that
the issue of its correct interpretation is unlikely to arise in many cases. The
jury should normally be given to understand that the expression is an ordinary
English word, that it imports a question of degree, and that whether in the
case before it the impairment can properly be described as substantial is for
it to resolve.
(2)
If, however, the jury has been introduced to the question of whether any
impairment beyond the merely trivial will suffice, or if it has been introduced
to the concept of a spectrum between the greater than trivial and the total,
the judge should explain that whilst the impairment must indeed pass the merely
trivial before it need be considered, it is not the law that any impairment
beyond the trivial will suffice. The judge should likewise make this clear if a
risk arises that the jury might misunderstand the import of the expression;
whether this risk arises or not is a judgment to be arrived at by the trial
judge who is charged with overseeing the dynamics of the trial. Diminished
responsibility involves an impairment of one or more of the abilities listed in
the statute to an extent which the jury judges to be substantial, and which it
is satisfied significantly contributed to his committing the offence. Illustrative
expressions of the sense of the word may be employed so long as the jury is
given clearly to understand that no single synonym is to be substituted for the
statutory word: see para 40 above.
R v Brennan
44.
Counsel drew attention to the Court of Appeal decision in R v Brennan
[2014] EWCA Crim 2387; [2015] 1 WLR 2060, decided after both trial and appeal
in the present case.
45.
The defendant in that case (aged 22 at the time of the offence) had a
nine-year history of disturbed childhood, sexual abuse and outpatient mental
health treatment together with one instance when he was sectioned following a
suicide attempt. On the undisputed psychiatric evidence he suffered from a
schizotypal disorder as well as an emotionally unstable personality disorder.
He was obsessed with witchcraft and Satanist killings. He was also depressed.
He had planned and executed the ritualistic killing of a client whom he had
served as a male prostitute. He left notes of what he planned to do, and after
killing the man with one or more knives, had scored his back and painted or
written on the walls symbols such as a pentagram and references to Satan and to
Krishna, before cleaning himself up and going to the police station to report
what he had done. He was treated by the police as needing an appropriate adult
to attend his interviews, and told that person that he had been having thoughts
of killing somebody (apparently anybody) for several weeks. At trial the only
issue was diminished responsibility.
46.
The Court of Appeal held that in that case there was only one possible
outcome. There was simply no basis for a verdict of murder and moreover this
was so clear that the judge ought not to have left it open to the jury. The
court regarded that decision as a straightforward application of R v
Galbraith [1981] 1 WLR 1039; 73 Cr App R 124. It went on to offer some
general observations about the circumstances in which a judge ought to withdraw
murder from the jury where the issue is diminished responsibility and
uncontradicted psychiatric evidence supports the defence case on that topic.
47.
The report suggests that Brennan was a case in which the Crown
expressly did not challenge the diagnosis of the single consultant psychiatrist
called and barely challenged her opinion that the defendant’s condition
substantially impaired his ability to form rational judgments. (There was
perhaps greater challenge to the opinion that his ability to control himself
was also substantially impaired). That was a reasoned decision. The Crown had a
second psychiatric report, disclosed in ordinary course to the defence, which
agreed those conclusions. Counsel for the Crown had then, legitimately, tested
the evidence of the psychiatrist, in particular by drawing attention to the
defendant’s consumption of drink and drugs, and to the clear evidence of
pre-planning. As to the first, the psychiatrist’s answer had, however, been
that the underlying mental condition effected sufficient impairment
independently of any additional disinhibition attributable to intoxication. As
to the second, she had said that a disordered and impaired mind may well be no
less capable of premeditation and detailed planning than a rational one, and
that that was what had happened. Those answers had not been challenged,
presumably because they were not, on the facts, capable of dispute.
48.
It is an important part of the Crown’s function, where the charge is
murder and a case of diminished responsibility is advanced, to assess the
expert evidence - almost invariably obtained on both sides - and its relationship
to any dispute of fact. If it is clear that the defendant was indeed suffering
from a recognised medical condition which substantially impaired him in one of
the material respects, and that this condition was a significant cause of the
killing, the Crown is entitled to, and conventionally frequently does, accept
that the correct verdict is guilty of manslaughter on the grounds of diminished
responsibility and no trial need ensue. In practice quite a large proportion of
verdicts of manslaughter on this ground arise from the Crown taking this
responsible course: see the research undertaken for the Law Commission by
Professor Mackay cited in Partial Defences to Murder Law Com 290 (2004)
at Appendix B, especially paras 6, 20 and 21. Acceptance of a plea to
manslaughter may properly be given either before trial, thus making it
unnecessary, or after testing the evidence if that is required.
49.
Given the answers of the psychiatrist in Brennan and the state of
the evidence, it is clear that the Crown could not properly ask the jury to
convict of murder unless it was to reject one or more parts of the expert
evidence. Certainly a jury is not bound by the expert. In some cases,
pre-planning, especially involving meticulous preparations, may indicate
self-control which gives grounds for rejecting an opinion that self-control was
substantially impaired. In others, there may be legitimate grounds for asking
the jury to disagree about the level of impairment. In yet further cases, it
may be perfectly proper to ask the jury to conclude that it was the drink or
drugs which led to the killing, whilst the underlying mental condition was in
the background. That is not by any means an exhaustive catalogue of questions
which a jury may properly be invited to decide. However, as the Court of Appeal
rightly held, if the jury is to be invited to reject the expert opinion, some
rational basis for doing so must at least be suggested, and none had been at
trial nor was on appeal. It is not open to the Crown in this kind of situation
simply to invite the jury to convict of murder without suggesting why the
expert evidence ought not to be accepted. In particular, it would not have been
a proper basis for rejecting diminished responsibility that the circumstances
of the killing had been particularly violent or sadistic. It is a well-known
factor in such cases that such brutality may (understandably) be taken by a
jury to point away from the partial defence; sometimes it may truly do so, but
not infrequently it is the product of the mental disorder.
50.
It may be agreed that the ordinary principles of R v Galbraith
are capable of being applied in a trial where the sole issue is diminished
responsibility. A court ought, however, to be cautious about doing so, and for
several reasons. First, a murder trial is a particularly sensitive event. If
the issue is diminished responsibility, a killing with murderous intent must,
ex hypothesi, have been carried out. If a trial is contested, it is of
considerable importance that the verdict be that of the jury. Second, the onus
of proof in relation to diminished responsibility lies on the defendant, albeit
on the balance of probabilities rather than to the ordinary criminal standard. The
Galbraith process is generally a conclusion that no jury, properly
directed, could be satisfied that the Crown has proved the relevant offence so
that it is sure. In the context of diminished responsibility, murder can only
be withdrawn from the jury if the judge is satisfied that no jury could fail to
find that the defendant has proved it. Thirdly, a finding of diminished
responsibility is not a single-issue matter; it requires the defendant to prove
that the answer to each of the four questions set out in para 8 above is “yes”.
Whilst the effect of the changes in the law has certainly been to emphasise the
importance of medical evidence, causation (question 4) is essentially a jury
question. So, for the reasons explained above, is question 3: whether the
impairment of relevant ability(ies) was substantial. That the judge may
entertain little doubt about what he thinks the right verdict ought to be is
not sufficient reason in this context, any more than in any other, for
withdrawing from the jury issues which are properly theirs to decide.
51.
Where, however, in a diminished responsibility trial the medical
evidence supports the plea and is uncontradicted, the judge needs to ensure
that the Crown explains the basis on which it is inviting the jury to reject
that evidence. He needs to ensure that the basis advanced is one which the jury
can properly adopt. If the facts of the case give rise to it, he needs to warn
the jury that brutal killings may be the product of disordered minds and that
planning, whilst it may be relevant to self-control, may well be consistent with
disordered thinking. While he needs to make it clear to the jury that, if there
is a proper basis for rejecting the expert evidence, the decision is theirs - that
trial is by jury and not by expert - it will also ordinarily be wise to advise
the jury against attempting to make themselves amateur psychiatrists, and that
if there is undisputed expert evidence the jury will probably wish to accept
it, unless there is some identified reason for not doing so. To this extent,
the approach of the court in Brennan is to be endorsed.
The present case
52.
In the present case the appellant and the deceased had lived together
for around three years before she was killed on a Sunday in July 2012. On that
day she and he, and her two sons aged 13 and eight, had been to a family
barbecue. The couple had rowed at the party, in part because she said that he
had hit her in the past, in part because he demanded that she give him a bank
card which she refused to do, and in part because he wanted to go home and she
did not. After they had returned home, separately, and after her mother had
visited the house, the argument was renewed later in the evening. Outside the
house, the appellant seized the deceased by her face, held her by her hair and
slapped her across the cheek. She insisted that he leave the home. He packed a
bag but refused to leave. Some time later that evening he attacked her. By then
the deceased had a large lump on her face. The several stages of this attack
were witnessed by one or both of her two sons. The older son intervened in the
argument. He stood between them and said that he would not leave them alone. The
appellant then fetched a knife from the kitchen, but the older son took it from
his pocket. The boy told his mother about the knife and the appellant said
“It’s self defence”. She went and sat on the bed but the appellant went after
her and punched her in the head, whereupon she hit him back. He had a small cut
on his eyebrow which the boys said he squeezed to increase the blood flow. Then
he attacked the deceased with a second knife which he produced, kneeling on her
arms as he did so and shouting that he was going to kill her. She was
afterwards found to have some 22 knife wounds, plus internal bleeding injuries
to her abdomen and liver, apparently from a kick or similar blow(s) or contact
with a hard object, which latter injuries were the fatal ones.
53.
When the police arrived the appellant became extremely violent. He was
described as snarling like an animal and appearing as if deranged. At some
stage he said to the police that “She is evil ... The demon’s gone … She had
Satan in her eyes.”
54.
The appellant was 46 years old. Since he was about 23 he had been
referred by his GP for out-patient psychiatric consultations from time to time.
He had never been admitted to hospital but had complained of depression,
paranoid fears and, at times, of hearing voices in his head. He had been
prescribed anti-depressant and anti-psychotic drugs and was still under such
prescription at the time of the offence, although he had told the doctors that
he was not taking his medicine. One consultant psychiatrist diagnosed his
condition as a mixed personality disorder with paranoid, emotionally unstable,
anxious and dependent traits. On the basis largely of what he had said to the
police, the doctor concluded that at the time of the killing he was
additionally in the grip of an acute psychotic episode and was driven by
persecutory beliefs. The second psychiatrist disagreed that there was a
personality disorder, but concluded that the appellant was at the time of the
offence suffering from a paranoid psychotic illness, most likely schizophrenia.
Both expressed the opinion that the different conditions they identified
substantially impaired the relevant statutory abilities, although they were not
at one as to which. The first psychiatrist thought that the ability to form a
rational judgment and to exercise self-control were impaired, but that the
defendant knew what he was doing; the second agreed on the first two counts but
additionally thought that the ability to understand the nature of his conduct
was impaired. The Crown case was that he was simply very angry with his
partner, and had been on and off all day, for unremarkable domestic reasons. There
was some evidence of an ability to control himself on previous occasions when
there had been assaults on her which had not been uncontrolled. The truthfulness
of his assertion that he had seen “Satan” was in issue, and may or may not have
been consistent with asserting self-defence at the time. The renewal of the
attack despite the warning presence of the children and the removal of the
first knife might perhaps be some indicator of self-control and give some
support to the contention that the cause was simple anger rather than distorted
thinking.
55.
That being the state of the evidence, the debate between the two
possible meanings of the expression “substantially” barely arose. If the
appellant was indeed in the grip of a psychotic episode involving persecutory
delusions when he killed his partner, that would, by any ordinary standard,
involve substantial impairment of one or more of the statutory abilities. The
real question appears to have been whether, on the balance of probabilities, he
had been. The judge left the issues squarely to the jury, correctly reminding
them more than once that the doctors were agreed that there was a medical
condition substantially impairing his abilities.
Conclusion
56.
It follows that for the several reasons set out above, this appeal must
be dismissed.
