D, R v [2006] EWCA Crim 1139

[2006] EWCA Crim 1139Case No 2006/1170/B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Central Criminal Court
His Honour Judge Roberts QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/05/2006
Before
THE PRESIDENT OF THE QUEENS BENCH DIVISIONMR JUSTICE HENRIQUESMR JUSTICE FULFORD
Between
RCrownDDefendant
Miss S. Howes QC, Mr M.J. Gadsden and Miss S Giddens for CrownMr S. Batten QC and Mr M Butler for DHearing Hearing dates : 26 th April 2006
JudgmentPRESIDENT OF THE QUEEN'S BENCH DIVISION:
[1]On the evening of 22 February 2005, D’s wife committed suicide by hanging herself in an outhouse at the back of the matrimonial home. D was indicted with manslaughter of his wife, and inflicting grievous bodily harm on her. On 7 March 2006, at the Central Criminal Court, His Honour Judge Roberts QC ruled that the case should not proceed to trial. There was no basis on which a reasonable jury, properly directed in law, could convict D of either offence. This is an application by the prosecution under section 58 of the Criminal Justice Act 2003 for leave to appeal this terminating ruling.[2]The relevant facts are fully summarised in the meticulous judgment of Judge Roberts. We shall gratefully adopt his analysis.[3]After Mrs Ds death, evidence emerged which suggested that over a period of years she was subjected to various forms of abuse (mainly psychological, but including occasional physical assaults) by her husband.[4]The sources from which that evidence came were: i) A diary kept by Mrs D during the last five months of her life. (This diary recorded two incidents of physical assault during this period, one involving her husband spitting at her, and the other, slapping her face.) ii) Statements made by several of her close relatives. iii) A statement made by Mrs D herself in March 1999, in proceedings which she had instituted against her husband in the Brentford County Court, seeking a non-molestation order, and an occupation order (the parties were subsequently recognised). iv) Police records relating to incidents in April 1998, March 1999, August 1999, May 2002 and May 2003, in some of which Mrs D made allegations against her husband of assault or threatening behaviour (but declined to make formal complaints). v) Medical records relating to alleged assaults in July 1994, April 1998 and March 1999.[5]It also transpired that, in August 2004, Mrs D was admitted to hospital, after consuming a large quantity of alcohol, and trying to slit her wrists. She cited “family problems” as the reason for what had happened.[6]On the evening on which she committed suicide there was an argument between Mr and Mrs D, in the course of which, as he admitted later, he struck her on the forehead. The bangle he was wearing at the time cut her skin at the point where his blow landed. It seems likely that this assault operated as the immediate trigger which precipitated her suicide. Psychiatric evidence suggested that the “overwhelming primary cause” for the suicide “was the experience of being physically abused by her husband in the context of experiencing many such episodes over a very prolonged period of time”.[7]In the context of this assault, Judge Roberts suggested that, where “a decision to commit suicide has been triggered by a physical assault which represents the culmination of a course of abusive conduct,” it would be possible for the Crown “to argue that that final assault played a significant part in causing the victim’s death”. That, however, was an argument which the prosecution expressly “disavowed” before him. He went on, “they preferred the section 20 route, I suspect because they felt it presented less difficulty when it came to the question of causation. But I do not see any reason in principle why the final assault which triggered the suicide should be looked at in isolation. If a defendant by his previous conduct has reduced the victim to a psychological state in which the ‘last straw which broke the camel’s back’ is liable to tip her (or him) over the edge, I would have thought there was some force in the argument that the ‘last straw’ played a significant part in causing the death.”[8]The Crown maintained the same position before us. We were not invited to consider the correctness, or otherwise, of the views expressed on this subject by Judge Roberts. We should however record that, subject to evidence and argument on the critical issue of causation, unlawful violence on an individual with a fragile and vulnerable personality, which is proved to be a material cause of death (even if the result of suicide) would at least arguably, be capable of amounting to manslaughter.[9]We shall return to the narrative. The history revealed by police investigations, and in particular whether a causal connection could be established between Mr D’s alleged behaviour to his wife and her suicide, was carefully considered.[10]In the result, the prosecution obtained the evidence from three experts. They first consulted Dr Roxanne Agnew-Davies, a clinical psychologist, with particular expertise in the field of the psychological effects on women of “domestic violence” by their partners. This expression covers not only direct physical assault, but includes various forms of psychological abuse, including intimidation, emotional abuse, verbal bullying and belittling, and using the victim’s isolation, her children, coercion and threats, and similar and related unpleasant conduct. Dr Agnew-Davies was asked to consider whether or not the deceased “had sustained a psychological injury as a result of the way she was treated in her marriage, and what level of assault…she suffered”. Dr Agnew-Davies herself appreciated that she should consider also whether the physical and/or psychological abuse which Mrs D had suffered contributed significantly to her suicide.[11]We have read the witness statement of Dr Agnew-Davies. She considered such evidence as there was of physical abuse, sexual abuse (there was none) and psychological abuse. On the basis of the diary entries, Dr Agnew-Davies concluded that Mrs D experienced “domestic violence” perpetrated by her husband, and lived in fear of direct physical violence.[12]She concluded that at the time of her death the deceased was “experiencing psychological symptoms consequent on her protracted experience of domestic violence”. Nevertheless, she was unable to make a “psychiatric diagnosis”. She recognised that conduct of the kind attributed to Mr D could produce “depression, anxiety, panic attacks, post-traumatic stress disorder, self-harm and attempted suicide”. She identified two possible psychiatric conditions, depression and post-traumatic stress disorder. However, notwithstanding that “some features of depression” were recorded in the diary, she did not believe that Mrs D was suffering from clinical depression. Again, although there were indications in the diary which would have been consistent with the diagnosis of post-traumatic stress disorder, she did not believe that there was “sufficient evidence…to prove that the post-traumatic symptoms of the deceased meet clinical status”. She therefore concluded that the deceased had sustained “psychological injury”, characterised by features of depression and post-traumatic stress disorder.[13]After D was charged, the Crown sought further expert assistance from Dr Gillian Mezey and Dr L.P.Chesterman, distinguished consultant psychiatrists. Again, we have read their full reports. They were provided with rather greater material than Dr Agnew-Davies, but, like her, they were attempting to form an opinion about Mrs D’s condition when, inevitably, they had not been able to speak with or interview her.[14]Dr Mezey concluded that there was “sufficient evidence” to support a diagnosis of depressive disorder, and psychiatric illness. For present purposes, that unequivocal conclusion needs no elaboration.[15]By contrast, Dr Chesterman was unable to make a diagnosis of any “identifiable psychiatric illness”. He did, however, believe that Mrs D’s experiences at the hands of her husband would have impacted on her “psychological functioning”. The “psychological impact of the assault perpetrated by her husband on the day of her suicide is likely to have been greatly magnified by the number of such experiences over many years”. We have already referred to a different passage in this report in paragraph 7.[16]On the basis of these reports, the Crown conceded, and the case proceeded before Judge Roberts, and us, on the basis that no reasonable jury could be satisfied, to the criminal standard, that Mrs D suffered from any recognised psychiatric illness. The Crown’s position was that the diagnosis made by Dr Mezey was contradicted by the views of Dr Chesterman and Dr Agnew-Davies, and the jury could not be satisfied that she was right, and that they were wrong. So, without abandoning Dr Mezey, the Crown feel obliged to rely on the reports of Dr Chesterman and Dr Agnew-Davies.[17]Judge Roberts recorded that the Crown’s case therefore depended on the submission that “psychological injury, without any recognised psychiatric illness, is capable of being ‘bodily harm’” within sections 18, 20 and 47 of the Offences Against the Person Act 1861.[18]Having analysed the authorities, Judge Roberts concluded that there was no evidence on which a “reasonable jury could be satisfied that Mr D inflicted grievous bodily harm on his wife”. In reaching his conclusion he drew a distinction, or derived from the authorities a distinction, between psychological and psychiatric harm. The issue before us, as summarised by Miss Howes, is whether, for the purposes of the relevant sections of the 1861 Act, psychological injury, not amounting to an identified or recognised psychiatric condition, could and did amount to bodily harm. She argued that, if psychiatric injury amounted to bodily harm, then it was artificial to limit it or confine it to recognisable psychiatric harm. Psychological injury, as Miss Sally Howes QC explained it to Judge Roberts, meant “impairment of a person’s mental functioning”. Mr Stephen Batten QC did not dissent, on the basis that Dr Chesterman had referred to “emotional, cognitive and behavioural deficits”, but he urged that, in the absence of any direct evidence on the point from medical experts in the field, we, as non-experts, should approach the issue with great caution. In any event, however, he argued that, in the absence of identifiable psychiatric illness, psychological damage was an illusive concept, potentially unspecific, which did not amount to bodily harm for the purpose of the 1861 Act.[19]The short question in this appeal is whether the psychological condition described by the medical experts, Dr Chesterman and Dr Agnew-Davies, expressly said not to amount to recognisable or identifiable psychiatric illness, is capable of amounting to actual or grievous bodily harm for the purposes of the 1861 Act.[20]In the context of the criminal law, this issue was first addressed in R v Chan-Fook [1994] 99 CAR 147. Hobhouse LJ began his analysis of principle by referring to the position established in civil law. He pointed out that the matter was summarised by Lord Wilberforce in McLoughlin v O’Brian [1983] 1 AC 410, 418:
“Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact.”
Hobhouse LJ then considered the observations in Attia v British Gas [1988] QB 304 and Alcock v the Chief Constable of South Yorkshire Police [1992] 1 AC 310, observing that in Attia, “The Court of Appeal discussed whether the borderline should be drawn between on the one hand the emotions of distress and grief, and on the other hand some actual psychiatric illness such as anxiety neurosis or a reactive depression. The authorities recognise that there is a line to be drawn and whether any given case falls on one side or the other is a matter for expert evidence. …”[21]We should perhaps underline that the passage in Lord Wilberforce’s speech has been consistently adopted. The principles have been considered on a number of occasions, both in the Court of Appeal, and the House of Lords. In McLoughlin v O’Brian itself, Lord Bridge, consistently with the observations of Lord Wilberforce, said:
“Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms…A plaintiff claiming damages of the kind in question must…establish that he is suffering…a positive psychiatric illness.”
Returning to Attia v British Gas plc [1988] QB 304, Bingham LJ (as he then was), referred to mental or emotional trauma “which precipitated the plaintiff’s psychiatric damage”, and in his own word, he defined psychiatric evidence as “comprehending all relevant forms of mental illness, neuroses and personality change”.[22]In Page v Smith (1996) AC 155, decided after Chan-Fook was heard in the Court of Appeal Criminal Division, but before its correctness was subsequently considered in the House of Lords in R v Ireland; R v Burstow (1998) AC 147, the House of Lords considered a claim for damages for personal injury which took the form of a recrudescence of myalgic encephalomyelitis (or chronic fatigue syndrome). Lord Lloyd of Berwick observed:
“There is no justification for regarding physical and psychiatric injury as different “kinds of damage”….a defendant who is under a duty of care to the plaintiff…is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness ”
In the context of the recovery of damages for personal injuries, the distinction between emotional suffering and psychiatric illness has been maintained. Thus, in Frost v Chief Constable of South Yorkshire (1999) 2 AC 455 Lord Griffiths commented that “Bereavement and grief are a part of the common condition of mankind which we will all ensure at some time in our lives. It can be an appalling experience but it is different in kind from psychiatric illness and the law has never recognised this as a head of damage.” Lord Steyn considered that mental suffering could be divided into two categories, the second of which amounted to “a recognisable psychiatric illness”, adding “Only recognisable psychiatric harm ranks for consideration. Where the line is to be drawn is a matter for expert psychiatric evidence. This distinction serves to demonstrate how the law cannot compensate for all emotional suffering even if it is acute and truly debilitating”. We note, but need not refer further to the reasoning in W v Essex County Council (2001) 2 AC 592 and Wainwright v The Home Office (2004) 2AC 406, nor indeed to the very recent case of Corr v IBC Vehicles (2006) EWCA Civ 331, where the successful claim for damages resulting from the deceased suicide was based on the identification of a recognisable psychiatric condition. The principles are clear.[23]We can now return to Hobhouse LJ’s conclusion in Chan-Fook. The principle he extracted from the authorities was that, “…the phrase ‘actual bodily harm’ is capable of including psychiatric injury, but it does not include mere emotions…nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition. The phrase ‘state of mind’ is not a scientific one and should be avoided in considering whether or not a psychiatric injury has been caused…”[24]Miss Howes submitted that the question of psychological harm was not under consideration in Chan-Fook, and that accordingly, it should not be treated as authority for the proposition that psychological harm could not amount to grievous or actual bodily harm. Indeed, she suggested that there was no authority to this effect. The victim in Chan-Fook, Mr Martin, was terrorised and beaten. Nevertheless, on analysis of the judgment, the appellant’s counsel argued that there was “no evidence of any psychological injury which was capable of supporting the allegation of actual bodily harm”. And indeed there was no expert evidence to that effect. However, given the argument, we rather doubt whether it can be said that the issue of psychological damage was not under consideration, but in any event, and more important, the court plainly distinguished between “states of mind” and psychiatric injury resulting from an identified psychiatric condition, by expressly excluding the former from the ambit of “bodily harm”.[25]The correctness, or otherwise, of the decision in Chan-Fook was directly addressed in the House of Lords in R v Ireland: R v Burstow [1998] AC 147. It is useful to reflect first on the issues as they appeared in this court. In Ireland [1996] 2 CAR 426, the critical issue was whether the repeated, but silent, telephone calls made to the victims constituted assaults. The conclusion was that they were as capable of causing terror and apprehension of violence to the victims as actual threats of violence. What were regarded as “psychological symptoms” included palpitations, breathing difficulties, cold sweats, anxiety, inability to sleep, tearfulness, headaches, stress and a nervous skin condition”. Significantly, as Swinton Thomas LJ observed, “There was abundance evidence that the victims had suffered psychiatric damage, and this was conceded…by the appellant.”[26]In Burstow [1997] 1 CAR 144, the question was whether an offence contrary to section 20 of the 1861 Act could be committed in the absence of physical violence applied directly or indirectly to the body of the victim. The court concluded that it could. The consequences of the appellant’s treatment of the victim were that she suffered from “severe endogenous depression, with marked features of anxiety…grievous harm of a psychiatric nature”. It was accepted on both sides that the psychiatric injury suffered by the victim could amount to grievous bodily harm.[27]When these appeals were considered in the House of Lords, the common question identified by Lord Steyn was:
“Can psychiatric illness amount to bodily harm?”
The problem he addressed was the development in the victims of neurotic disorders, taking the form of anxiety and depressive disorders. “Neuroses must be distinguished from simple states of fear, or problems in coping with everyday life. … For present purposes it is important to note that modern psychiatry treats neuroses as recognisable psychiatric illnesses.” He continued that it was essential “to bear in mind that neurotic illnesses affect the central nervous system of the body, because emotions such as fear and anxiety are brain functions”.[28]After analysis of the developments of the civil law, Lord Steyn concluded that the decisions in civil law suggested “a possible principled approach to the question whether psychiatric injury may amount to bodily harm”. He then examined the decision in Chan-Fook. The 1861 Act was a statute of the “always speaking” type, to be interpreted “in the light of the best current scientific appreciation of the link between the body and psychiatric injury”. The challenge to the correctness of Chan-Fook was expressly rejected. The decision was “based on principled and cogent reasoning”, and the distinction between “states of mind that are not themselves evidence of some identifiable clinical condition”, and bodily injury was endorsed. For the purposes of the 1861 Act, recognisable psychiatric injury could amount to bodily harm, but of themselves, “states of mind” could not.[29]Miss Howes suggested that there was no difference between a medically diagnosed psychological condition and a medically diagnosed psychiatric condition brought about by psychological factors. Ireland and Burstow were not intended to and did not limit mental harm for the purposes of the 1861 Act to recognised psychiatric conditions, to the exclusion of any other type of mental harm. What they made clear was that expert psychiatric evidence was needed to sustain an allegation based on psychological or mental harm. She drew attention to DPP v Smith (Michael Ross) (2006) 2 All ER 16, in support of her contention. The question under consideration was whether the physically painless, forced cutting of the victim’s hair could amount to actual bodily harm. In the present context we derive no assistance from the decision. In the written submissions, attention was drawn to Article 2 of the European Convention on Human Rights, the right to life, but Miss Howes, rightly in our view, showed no enthusiasm for pursuing this principle in support of her argument in the present case. More helpful to her argument, Miss Howes drew attention to the definition of violent offence in section 31(3) of the Criminal Justice Act 1991, as repeated in section 161(4) of the Powers of Criminal Courts (Sentencing) 2000. References in both Acts to conviction of a violent offence, and protecting the public from serious harm from an offender convicted of a violent offence, include the protection of members of the public from serious harm in the form of personal injury, “whether physical or psychological”. “Psychological injury” is not further defined. The submission, as we understood it, was that this statutory approach threw light on the “always speaking” 1861 Act, indeed, as we suggested in argument, so far as the 1991 Act was concerned, before the subsequent development of this area of the criminal law in Chan-Fook. The problem with the argument is that, although for the purposes of the sentencing provisions, personal injury includes physical or psychological injury, treating them as two separate types of injury, the 1861 Act identified offences in the context not of “personal injury”, but “bodily harm”. As we now know, this extends to injury caused to the parts of the body responsible for a victim’s mental faculties, provided that they result from an identifiable clinical condition. The difficulty remains that, unlike Dr Mezey, neither Dr Agnew-Davies nor Dr Chesterman felt able to support, but rejected a diagnosis of an identifiable psychiatric illness or clinical condition.[30]This provided the focus for Mr Batten’s submission. He suggested that every psychiatric illness involved psychological damage, but that not all psychological damage amounted to a psychiatric illness. Physical illness and psychological harm were simply not interchangeable. He quoted the reference by Lord Steyn in Irelandand Burstow to the Law Commission consultation paper No 137 (995) Part III, Liability for Psychiatric Injury, and suggested that we should focus on the subsequent Law Commission Report, Liability for Psychiatric Illness, No 249 (1998) HC525. He drew particular attention to the difficulties of drawing a distinction between mental distress and symptoms amounting to a recognisable psychiatric illness. As the Law Commission reports, the distinction “is not clear”, quoting one medical consultee who suggested that the “overlap between mental health and illness is so large a grey area that it is not suitable for the legal purpose to which the diagnosis is being put”. The classifications in DSM-IV and ICD-10 were not themselves always sufficient “to distinguish those with the greatest impairment of functioning”, and several of the consultees commented that it would be unjust to rely on the criteria in these classifications to distinguish psychiatric illness from “mere mental distress”. It was suggested that some did not “reflect the complexities of the psychological impact of trauma”, and the current categorisation might exclude some diagnoses which were generally acceptable. Observations like these confirm that current understanding of the workings of the mind is less than complete.[31]Our conclusion can be briefly expressed. The problem which we have to address is whether psychological injury, not amounting to recognisable psychiatric illness, falls within the ambit of bodily harm for the purposes of the 1861 Act. Chan-Fook drew a clear distinction between such identifiable injury and other states of mind. It did so consistently with authority in the civil law. The line identified in Chan-Fook was applied by the House of Lords to the criminal law, and has been consistently applied in claims for damages for personal injury. The logical conclusion of the argument for the Crown is that we should now permit or support a blurring of that line, or perhaps introduce a degree of elasticity into it. Although easy enough in theory, to do so would go beyond the well-understood principles by which the common law develops incrementally and logically. In our judgment the limits have been addressed in the House of Lords, in both the criminal and civil contexts, and provide authority binding on us. In any event, however, the extension sought by the prosecution would introduce a significant element of uncertainty about the true ambit of the relevant legal principles to which the concept of “bodily harm” in the 1861 Act applies, which would be compounded by the inevitable problems of conflicting medical opinion in this constantly developing area of expertise. By adhering to the principle of recognisable psychiatric illness, although some medical experts may be concerned with the way in which the definitions are arrived at, the issue which requires to be addressed can be clearly understood and those responsible for advising the prosecution and defendants can approach their cases with an appropriate degree of certainty.[32]We can perhaps illustrate these observations very simply. If the Crown had advanced the case against the defendant exclusively on the basis of the conclusions reached by Dr Mezey alone, (without reference to the expert evidence that the deceased did not suffer from a recognised psychiatric condition) then in our judgment, and subject of course to Mr Batten’s reserved position on the difficult and interesting causation issue, this case would have proceeded. It is already established law that psychiatric illness in the form described by Dr Mezey can amount to grievous or actual bodily harm. As to manslaughter, in summary, as a matter of law, the prosecution of a spouse, or partner, or indeed any other individual whose unlawful conduct causes recognisable psychiatric illness, such as, for example, post-traumatic stress disorder, or battered wife syndrome, or reactive depression, with resulting suicide, subject always to issues of causation, is not excluded from the ambit of this offence.[33]For these reasons we agree with Judge Roberts’ decision. We confirm his ruling. The respondent will be acquitted.

Cited in 2 later judgments