Wood, R v [2008] EWCA Crim 1305

[2008] EWCA Crim 1305Case No 200605752 C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOLVERHAMPTON CROWN COURT
MR JUSTICE MITTING
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/06/2008
Before
THE PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE AIKENSMRS JUSTICE SWIFT
Between
RRespondentClive WoodAppellant
Mr Malcolm Bishop QC for AppellantMr Roger Smith QC for ProsecutionHearing Hearing dates : 30 th April 2008
Judgment
[1]This is an appeal by Clive Wood against his conviction for murder before Mitting J and a jury at Wolverhampton Crown Court on 11 October 2006.[2]In the early hours of 21 July the appellant mounted a frenzied attack on Francis Ryan with murderous intent. The deceased was struck 37 times with a meat cleaver and a lump hammer was also used in the attack. It was agreed between the Crown and the defence that at the time of the killing the appellant suffered from alcohol dependency syndrome. The single issue in this appeal concerns the accuracy, or otherwise, of the judge’s directions on diminished responsibility in the context of the appellant’s undoubted alcoholism.[3]The appellant began drinking to excess after he separated from his second wife. By 2005 he was regularly drinking 4-5 litre bottles of strong cider daily. His drinking was out of control, and his life was, effectively, in ruins. He could not hold down a job, and he took to living rough and wandering about the canal system around Walsall. In his evidence the appellant said that whenever he had any money, he would automatically buy drink. Drink was the first thing he thought about when waking, he sought it throughout the day, and it was the last thing he thought about before falling asleep. He had a strong craving for drink throughout his waking life, and if alcohol was available, he would drink it until it was finished.[4]On 19th July 2005 he came across a group of alcoholics who were described as the “breakfast club”. The appellant joined them and spent the rest of the day drinking with them. He was offered whisky, and he drank some cans of Stella, as well as two bottles of White Storm cider. Eventually all the others went home, and the appellant, having nowhere else to go spent the night in a derelict building.[5]On 20th July, on waking, the appellant started to drink and then walked back to the place where he had encountered the “breakfast club” on the previous day. He drank heavily throughout that day. His own estimate in evidence was that he drank 2/3 litres of White Storm cider, several cans of Stella, brandy and vodka, and except for breakfast at about 10am, without eating any food. In the afternoon he asked one of the members of the club if he could have a shower at her flat. He was invited to have a bath, and provided with some clean clothes. After washing and changing, he began to drink vodka. The drinking continued throughout the night. Huge amounts of alcohol were available, and by the end of the evening he was extremely drunk.[6]At about midnight, the party started to wind down. The appellant had nowhere to spend the night. He was invited to the home of the deceased, who was openly gay. The appellant went to his flat, “out of it”.[7]In his evidence the appellant described how he eventually fell asleep on the sofa in Ryan’s flat. He was woken by the deceased, who unzipped his trousers and lowered them, trying to get hold of the appellant’s penis and attempting to have oral sex with the appellant. Having been woken up to find the deceased on top of him, acting in this way, the appellant lost his self control and struck him repeatedly with the meat cleaver. Thereafter, according to his evidence, his mind simply went blank, and the next thing he remembered was trying to look for alcohol and waking up, covered in blood, by the side of the canal.[8]The appellant was found that day, sitting on a bench by the side of the canal drinking from a bottle of cider, and arrested. He was taken to the police station and interviewed. His accounts in interview were consistent with the evidence he was later to give at trial. In the context of the defence of provocation which was advanced to and rejected by the jury, the appellant spoke of a disturbed, abused childhood, and how, when he was woken by the deceased, he had flashbacks of unpleasant incidents of sexual abuse which occurred during childhood when he was living at an assessment centre. No further attention to this aspect of the case is necessary.[9]It was agreed between the four psychiatrists, two called on behalf of the Crown, and two for the appellant, that he displayed at least six of the elements required to justify the diagnosis of alcohol dependency syndrome. These were, a strong desire to drink, difficulties in controlling when and how much to drink, using drink to relieve or avoid withdrawal symptoms, tolerance of an increased amount of alcohol and neglect of alternative pleasures and interests. The syndrome is nowadays recognised as a true psychiatric condition.[10]Addressing the issue of alcohol intoxication, in his written report, Dr Rajesh Moholkar reported that his understanding of the legal concept of diminished responsibility in the context of alcohol consumption was that “voluntary intoxication does not provide a basis for a defence of diminished responsibility. The intoxicated state of mind is not considered as arising from “inherent” causes. If alcohol causes brain disease like dementia or mental illness like psychosis, then it can constitute an abnormality of mind. There is no evidence that Mr Wood has suffered from brain damage or any mental illness as a result of the drink. The amount of alcohol he consumed on the day of the alleged offence was far in excess of what he usually drank and he drank to excess voluntarily”.[11]Dr Moholkar’s evidence at trial is summarised in the grounds of appeal. He accepted that the appellant’s consumption of alcohol at the start of the day was involuntary until he reached his ordinary daily quota, but he contended that the alcohol consumed in excess of that quota was voluntary. He also accepted that the appellant had difficulty in controlling the intake of alcohol and the amounts he consumed. As a result of his condition the appellant would drink in excess, if drink was available, but notwithstanding his difficulty in controlling his intake, Dr Moholkar believed that he still had a choice whether to do so or not.[12]In his written report Dr Rafiq Memon described a clear history of “chronic alcoholism (alcohol dependency syndrome). The appellant had difficulty controlling his alcohol taking behaviour, suffered from withdrawal symptoms, used alcohol to relieve such symptoms, required increasing amounts of alcohol over time, neglected other activities and persisted with alcohol use despite harmful consequences such as punching someone”. In relation to diminished responsibility Dr Memon said that although the appellant was a “chronic alcoholic”, he was voluntarily intoxicated at the time of the killing and that this was not an abnormality of mind. In his evidence he explained that such an abnormality should manifest itself either in brain damage or psychosis. He did however accept that there was more to the incident than “simple voluntary intoxication”. He agreed that the appellant could have suffered changes to his brain below what was described as the “macroscopic level”. Alcohol does kill brain cells, but in his view such subtle changes were not sufficient to be labelled “abnormality of the mind”.[13]Dr Van Woerkum reported that the appellant was a “dependent chronic alcoholic”, who was “having to drink continuously, due to chronic alcohol dependency”. This constituted a disease of the mind. In his evidence he accepted that his conclusion that an abnormality of mind was present required some evidence of damage to the brain, but he said that such damage would not necessarily be evident on the macroscopic scale. Subtle sub-macroscopic changes, which impair mental function, take place in the brain after years of excessive drinking. Such changes could be diagnosed clinically, and in his opinion the mental functioning of the appellant indicated subtle brain damage.[14]Dr M Al-Uzri provided a rather less detailed report on the issue of diminished responsibility, but he expressed the view that the appellant was “under the influence of a significant amount of alcohol, which clearly can cause impaired judgment [and] would jeopardise his ability to control his behaviour”. In his evidence he observed that subtle, sub-macroscopic levels of damage could only be detected by clinical diagnosis. In his view the appellant’s level of mental functioning suggested that he had indeed suffered such brain damage.[15]Both Dr Moholkar and Dr Memon attempted to address head on some of the underlying difficulties of explaining how a true alcoholic may, on any particular occasion, be drinking voluntarily, and on another may be acting under the compulsion caused by his condition. Just as it was common ground between the psychiatrists that the appellant was properly to be diagnosed as suffering from alcohol dependency syndrome, they were agreed that there was no evidence of psychosis. The significant area of difference on medical grounds (as opposed to the legal consequences of their medical expertise) was that the Crown’s psychiatrists could find no evidence of damage to the brain, whereas the defence psychiatrists concluded from clinical evidence that such changes had indeed occurred. Accordingly the Crown’s psychiatrists believed that the appellant’s mental responsibility for the killing was not capable of being diminished, whereas the defence psychiatrists concluded that the appellant suffered from mental abnormality capable of providing support for their conclusion that his responsibility for the killing was diminished. In the context of alcohol or drug ingestion, the task of the psychiatric experts is not eased by the compartmentalisation of some of the defences to murder, and in particular provocation and diminished responsibility, and the need to fit psychiatric concepts within legal definitions.[16]Mitting J accurately directed the jury about the conditions necessary to establish diminished responsibility. He continued:
“It is common ground that the defendant was suffering from alcohol dependency syndrome. That is not the same as drunkenness. Except where drunkenness is produced by the involuntary consumption of alcohol, the law requires you to disregard it in assessing a man’s mental responsibility for killing. What would otherwise be murder is not reduced to manslaughter by reason of bad judgment or loss of self-control caused only by drunkenness”
. Pausing there, no complaint is made by Mr Malcolm Bishop QC on behalf of the appellant about the impact of this direction on the issue of drink and intent. At this stage in the summing up Mitting J was plainly directing the jury in the context of drunkenness and diminished responsibility. He continued:
“it is accepted by all four psychiatrists that alcohol dependency syndrome can produce changes in the brain which may impair judgment or cause loss of self control …If you are satisfied that it was more likely than not, by reason of alcohol dependency syndrome and its effect on this defendant’s brain, he was suffering from an abnormality of mind and that in consequence his mental responsibility for killing Francis Ryan was substantially reduced, your verdict would be …guilty of manslaughter.”
[17]This direction addressed the possible relevance of brain damage consequent on alcoholism, and the judge later summarised the differences of opinion between the psychiatrists on the question whether there were changes in the brain which would have impaired the appellant’s judgment. We shall describe this as the first limb of the direction.[18]Mitting J then continued, in a passage which has been subjected to analysis in the course of the submissions before us:
“Where a man becomes so drunk that he suffers, temporarily, from an abnormality of mind, he may also be acquitted of murder but convicted of manslaughter by reason of diminished responsibility applying the same tests that I have outlined, but that verdict would only be open to you if you found it more likely than not that his consumption of alcohol was truly involuntary. A man’s act is involuntary if, and only if, he could not have acted otherwise. Giving in to a craving is not an involuntary act, even if it is very difficult to do otherwise. An alcoholic not suffering from severe withdrawal symptoms, who tops up his overnight level or who later chooses to accept a drink after he’s reached his normal quota, is not drinking involuntarily.”
This will be described as the second limb of the direction.[19]Mr Bishop submits that this passage contains a misdirection. He suggests that it was wrong to direct the jury that the defendant who succumbs to a craving was, by that fact alone, acting voluntarily. Whether he was so acting would depend on the strength of the craving, and the defendant’s capacity to address and overcome it. The trial judge had posed a false dichotomy to the jury. An alcoholic who succumbs to a craving caused by his condition does so because of the very strength of that craving. Without it he would abstain from alcohol, but because of it he cannot do so. In support of his argument he referred us to Dietschmann [2003] 2 CAR 54 in the House of Lords.[20]Mr Roger Smith QC submitted that the directions were unimpeachable and entirely consistent with well established authority, such as Fenton [1975] 61 CAR 261 and Tandy [1988] 87 CAR 45. He suggested that, contrary to Mr Bishop’s submissions, these authorities were reinforced by Dietschmann. Properly examined, Dietschmann was not concerned with and did not address alcohol dependency syndrome in the context of diminished responsibility.[21]A distinct submission was also advanced by Mr Bishop. He suggested that the directions given to the jury, and the subsequent summary of the psychiatric evidence, left the jury with the impression that without some evidence of physical damage to the brain a defence of diminished responsibility based on the consumption of alcohol would not be available. We disagree. The two limbed structure of these directions was deliberate. The purpose of the second limb was to address the possibility of a verdict of diminished responsibility in the context of alcoholism which had not caused identifiable brain damage: hence the use of the word “also” early in this direction. Properly read, in context, the first limb of the direction and the summary of the evidence relating to it followed well established authority. The concern in this appeal is the accuracy of the second limb direction, on which we shall now focus.[22]Section 2(1) of the Homicide Act 1957 provides:
“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.”
[23]Dealing with the point very broadly, the consumption of alcohol before a defendant acts with murderous intent and kills cannot, without more, bring his actions within the concept of diminished responsibility. On its own, voluntary intoxication falls outside the ambit of the defence. This is consistent with the general approach of the law that, save in the context of offences of specific intent, and proof of that intent, criminal acts committed under the influence of self induced intoxication are not for that reason excused. Public policy proceeds on the basis that a defendant who voluntarily takes alcohol and behaves in a way which he might not have behaved when sober is not normally entitled to be excused from the consequences of his actions. (See, for example, Law Commission Legislating the criminal code: intoxication and criminal liability: No 220 [1995]).[24]In the context of diminished responsibility, alcoholism has now been recognised as a disease which may fall within the ambit of section 2 of the 1957 Act. The principle was summarised in the Court of Appeal in Dietschmann by Rose LJ [2001] EWCA Crim 2052:
“The general rule that drink does not give rise to an abnormality of mind due to inherent causes was authoritatively established in R v Fenton [1975] 61 CAR 261 and confirmed in R v Gittens [1984] 79 CAR 272 [1984] QB 698. In line with those authorities, R v Tandy [1989] 1 All ER 267 established that drink is only capable of giving rise to a defence under section 2 if it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary.”
It seems clear that Mitting J had this passage in mind when he was structuring his directions to the jury. In order to analyse Mr Bishop’s submissions, we must attempt to establish the basis for Rose LJ’s summary, noting that in Dietschmann, in the House of Lords, the issue of its correctness or otherwise did not arise for consideration.[25]In Fenton it was agreed by five medical witnesses that the defendant was suffering from abnormality of mind. He was either a psychopath or had a psychopathic personality. In reply to a question from the judge, the jury explained their unanimous view that the killings for which Fenton was responsible would not have occurred if he had not drunk so much. The judge ruled that the effect of the defendant’s alcohol consumption should be ignored by the jury, because the effect of alcohol consumption did not amount to an abnormality of mind due to inherent causes. This ruling was challenged on the basis that a craving for and inability to resist such temptations as drink was a characteristic of psychopaths. When the defendant succumbed to the temptation of drink, he was succumbing to an abnormality of mind.[26]The Court of Appeal (at page 263) recognised:
“…that cases may arise hereafter where the accused proves such a craving for drink or drugs as to produce in itself an abnormality of mind; but that is not proved in this case…we do not see how self-induced intoxication can of itself produce an abnormality of mind due to inherent causes.”
[27]In Gittens the three doctors for the defence agreed that the appellant was suffering from an abnormality of mind due to inherent causes and that his mental responsibility for his actions was substantially impaired. The psychiatrist called by the prosecution agreed that the appellant was suffering from abnormality of mind at the time of the killing, but he believed that the abnormality was brought about by the consumption of drink and drugs and was not inherent nor the result of illness. In relation to the alcohol consumed by the appellant, Lord Lane CJ suggested that the appropriate direction was that the jury should “disregard what, in their view, the effect of the alcohol…. was, since abnormality of mind induced by alcohol… is not (generally speaking) due to inherent causes and is not therefore within the section. Then the jury should 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”. Gittens did not directly address alcoholism or alcohol dependency syndrome, and indeed it was decided at a time when a respectable body of psychiatric opinion did not recognise the existence of the syndrome.[28]It is noteworthy that as long ago as 1975 the court recognised the possibility that it might one day be acknowledged that a craving for drink might be productive of an abnormality of mind for the purposes of diminished responsibility. Equally, neither Fenton nor Gittens directly addressed alcoholism or alcohol dependency syndrome in the context of abnormality of mind induced by disease or illness: the focus was on inherent causes.[29]Tandy was an alcoholic. She had consumed alcohol before she strangled her daughter. The psychiatrist called by the Crown did not consider that chronic alcoholism was a disease, an opinion which would not have been supported by any of the psychiatrists who gave evidence in the present case. However, like them, the psychiatrists called on Tandy’s behalf believed that alcohol dependency syndrome was a disease. The Crown suggested that irrespective of the question whether chronic alcoholism was a disease, and although the psychiatrists were agreed that the defendant’s judgment and emotional responses were grossly impaired, the evidence did not establish a condition which amounted to an “irresistible craving for alcohol”. The basis for this submission was that Tandy herself gave evidence that she might well have had nothing to drink at all on the day before the killing, and that on the day of the killing itself she chose to drink vodka, which was stronger than her customary drink. Moreover, on that evening, she was able to stop drinking although her own supply of alcohol was “not exhausted”. In summary, the defendant’s own evidence indicated that she was “able to exercise some control even after she had taken the first drink of the day”. This led the judge to direct the jury that “if the taking of the first drink was not involuntary, then none of the drinking on the day should be regarded as involuntary”.[30]Tandy established that for the purposes of section 2 “chronic alcoholism” could amount to an abnormality of mind, but it simultaneously imposed very strict limits indeed on the circumstances in which the defence might be available to those suffering from the condition. Either the “repeated insult from intoxicants” must have physically damaged the defendant’s brain thus leading to “gross impairment” of her judgment and emotional responses, or if the brain was not so damaged, her alcoholism should have reached the stage where her drinking had become “involuntary”. To be regarded as “involuntary” for this purpose, the defendant should have “no immediate control over the consumption of alcohol”. This analysis therefore encompassed the defendant who could not resist the impulse to drink but did not extend to the defendant who could have resisted it, but “simply” chose not to do so. Thus even in the context of an established “craving” for alcohol, the craving had to be of such a nature that the defendant’s drinking was rendered “involuntary”, but this rather begged the question whether, and when a “craving” was properly to be described as irresistible. The court’s determination to control the possible extension of defences based on self induced intoxication as a defence is evident not only in Tandy but in subsequent decisions such as Atkinson [1985] Crim LR 314, and Egan [1992] 95 CAR 278.[31]In Inseal [1992] CLR 36 a cautious diagnosis of alcohol dependency syndrome was made. The caution was occasioned by two specific clinical features, first, that when examined two days after the killing the appellant’s blood was free of alcohol, and, second, he was not observed to suffer any symptoms of alcohol withdrawal. His appeal against conviction for murder was rejected on the basis, first, that the appellant could, if he wished, have resisted taking both the first and subsequent drinks on the evening of the killing, and, second, that if there was any abnormality of mind, it was not induced by alcoholism. The case was said to fall within “the difficult area where a course must be steered between the person who kills because he has by taking alcohol become disinhibited, and so less able to control himself, and the person who by reason of chronic alcoholism has reached a state of mind which can properly be described as abnormal, whether through damage to the brain or through what had been described as the disease of alcohol dependence syndrome”.[32]In his commentary on Inseal the late Professor Sir John Smith observed that both Tandy and Inseal demonstrated that the rule that a defence of diminished responsibility cannot be based on a state of mind brought about by the voluntary consumption of alcohol is modified in the context of alcoholism. Although the reasoning in part of his commentary is not sustainable in the light of Dietschmann, his suggestion that alcoholism “causes brain damage and can be categorised both as “disease” and “injury”” was not called into question.[33]We note the article by Jonathan Goodliffe “R v Tandyand the concept of alcoholism as a disease” where his thesis is summarised in his first words:
“The decision … in Tandy illustrates the inability of most lawyers and judges to understand the concept of alcoholism as a disease….the Court of Appeal …were able to accept the adoption of diminished responsibility as it applies to alcoholism only in terms of black and white, rather than shades of grey: either the defendant was wholly incapable of resisting the impulse to drink or she was responsible for her actions and should be convicted of murder.”
He continued: “Most alcoholics do not spend the whole of the day and night drinking incessantly. They drink increasingly heavily in order to achieve the same effect. Their loss of control over their drinking is progressive as are the other symptom of their illness. Many other mental illnesses involve a similar reduction in the patient’s responsibility and control over his actions. Few mental patients, even those in locked wards of psychiatric institutions, have no control over their actions at all. The decision in Byrne recognises that reason and logic are irrelevant when it comes to compulsive obsessional conditions”.[34]In Byrne [1960] QB 396, the appellant had strangled a young girl and mutilated her dead body. He asserted diminished responsibility. It was suggested that the girl was killed when the appellant was acting under an abnormal sexual impulse or urge so strong that he found it difficult or impossible to resist. It was agreed that he was a sexual psychopath, suffering from abnormality of mind, which arose from arrested or retarded development of the mind or inherent causes. According to the medical evidence a sexual psychopath suffers from violent perverted sexual desires which “he finds it difficult or impossible to control”. Otherwise he was normal. The judge directed the jury “that difficulty or even inability of an accused person to exercise willpower to control his physical acts could not amount to such abnormality of mind as substantially impairs his mental responsibility”. The court concluded that this was an incorrect direction. Lord Parker CJ explained (at page 404):
“…in a case where the abnormality of mind is one which affects the accused’s self control, the step between He did not resist his impulse and He could not resist his impulse is, …one which is incapable of scientific proof. …inability to exercise will power to control physical acts, provided that it is due to abnormality of mind from one of the causes specified in the parenthesis in the subsection is, in our view, sufficient to entitle the accused to the benefit of the section; difficulty in controlling his physical acts depending on the degree of difficulty, may be. It is for the jury to decide…whether such inability or difficulty has, not as a matter of scientific certainty but on the balance of probabilities, been established and, in the case of difficulty, whether the difficulty is so great as to amount in their view to a substantial impairment to the accused’s mental responsibility for his acts.”
[35]In a further valuable commentary entitled Alcoholism and Criminal Liability (2001) MLR 688, Julia Tolmie of the University of Auckland observed that in relation to diminished responsibility Tandy appears “to have required that the defendant, to benefit from the defence, conform to a model of alcoholism that even the most hardened alcoholic would find it difficult to meet…even if the alcoholic in question does not have choice about whether or not they will drink, they will often have an apparent choice about when and where they commence drinking. Furthermore the court focussed on only one aspect of the model – the loss of control over drinking – without placing that phenomenon in the context of the other symptoms and mental processes described by the disease model”. In the light of Byrne, she suggested that Tandy failed sufficiently to address the structure of section 2 of the 1957 Act because of its focus on total or absolute rather than partial impairment of will and contended that in practical terms Tandy effectively removed diminished responsibility arising from the defendant’s alcoholism as a possible defence to murder.[36]The present appeal illustrates something of the problems created by the literal application of Tandy. Assuming that the jury rejected a defence arising out of the first limb of the direction (identifiable brain damage caused by alcoholism) the second limb arose for consideration in a case in which, to put it neutrally, the unanimous view of the experts was that the appellant suffered from a condition which encompassed very serious problems with drink control. One of the Crown’s experts, whose evidence was otherwise adverse to the appellant, accepted that he could not resist the compulsion to take the first drink of the day, but the expert rejected diminished responsibility on the basis that the appellant had a choice over the amount of alcohol he took later in the day, that is, at the end of a lengthy drinking session. The jury in the present case had to address a further complication, which was that when the killing occurred the appellant had stopped drinking and fallen asleep, and then woke up to find the deceased making unwanted sexual advances.[37]As a matter of practical reality the bar the defendant is required to surmount before diminished responsibility can be established in the context of chronic addiction to alcohol may have been set too high. In our judgment neither Tandy nor Inseal establishes that it is a pre-requisite to the availability of diminished responsibility to a defendant suffering from alcohol dependency syndrome that he never does anything other than drink alcohol. Even a true alcoholic stops drinking sometimes. He will get dressed, or wash, or perform everyday functions without necessarily keeping a glass or bottle to his lips. He will stop drinking and go to bed. In one sense these actions all represent a deliberate choice not to drink, and if so, that implies that the defendant makes a further choice about when he will resume drinking. Yet the defence does not require proof that the alcohol dependent defendant is subject to or acting under some form of automatism, either when he is drinking or when he is behaving violently. That might provide a different defence. The issue of automatism was not addressed at any stage in the evidence in the present case, nor indeed on the appeal, and it would be inappropriate for us to seek to address it now.[38]We do however emphasise that nothing in section 2 itself suggests that alcohol dependency syndrome is excluded from consideration as a possible source of abnormality of mind. Indeed, as we come to Dietschmann in the House of Lords, it is perhaps important to highlight Lord Hutton’s observation that in the context of diminished responsibility, as a defence to murder, (rather than any other defence based on intoxication) and addressing the asserted public policy of the law to maintain close limits on the consumption of alcohol as a defence, “the policy of the criminal law in respect of persons suffering from mental abnormality is to be found in the words of s2”.[39]Dietschmann was concerned with a defendant suffering from an abnormality of mind other than alcohol dependency syndrome, who had voluntarily taken alcohol at the time of the killing. The question addressed by the House of Lords was :
“..Does a defendant seeking to prove a defence of diminished responsibility…in a case where he had taken drink prior to killing the victim, have to show that if he had not taken drink (a) he would have killed as he in fact did; and (b) he would have been under diminished responsibility when he did so ?..”
The answer was negative. Diminished responsibility could be established if the defendant satisfied the jury that notwithstanding the consumption of alcohol and its effects, his “… abnormality of mind substantially impaired his mental responsibility…in referring to substantial impairment of mental responsibility the subsection does not require the abnormality of mind to be the sole cause of the defendant’s acts in doing the killing. In my opinion, even if the defendant would not have killed if he had not taken drink, the causative effect of the drink does not necessarily prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for his fatal acts.” (per Lord Hutton in the only reasoned speech) The observations in a number of earlier decisions such as Egan [1992] 95 CAR 278, which in effect suggested that the defendant’s voluntary consumption of alcohol closed the door to the diminished responsibility defence were overruled. (a) he would have killed as he in fact did; and (b) he would have been under diminished responsibility when he did so ?..”[40]Dietschmann did not to alter the principle that, on its own, the voluntary consumption of alcohol, however excessive, does not constitute an abnormality of mind. It did however establish that, the defence of diminished responsibility within section 2 is not precluded by the mere fact that the defendant consumed alcohol voluntarily before committing the fatal act. Therefore the question which arises is whether Dietschmann produced some dilution in the rigid principles laid down in Tandy, at any rate, where they are applied in shorthand form, or whether, what Lord Lane in Gittens and Rose LJ in Dietschmann explained was the “general rule”, (ie that alcohol consumption does not give rise to an abnormality of mind due to inherent causes) may not have been applied over-prescriptively in the context of current understanding of alcoholism and alcohol dependency syndrome.[41]In our judgment Dietschmann requires a re-assessment of the way in which Tandy is applied in the context of alcohol dependency syndrome where observable brain damage has not occurred. The sharp effect of the distinction drawn in Tandy between cases where brain damage has occurred as a result of alcohol dependency syndrome and those where it has not, is no longer appropriate. Naturally, where brain damage has occurred the jury may be more likely to conclude that the defendant suffers from an abnormality of mind induced by disease or illness, but whether it has occurred or not, logically consistent with Dietschmann, the same question (i.e. whether it has been established that the defendant’s syndrome is of such an extent and nature that it constitutes an abnormality of mind induced by disease or illness) arises for decision. That is for the jury. If the syndrome does not constitute such an abnormality of mind, diminished responsibility based on the consumption of alcohol will fail. If, on the other hand, it does, the jury must then be directed to address the question whether the defendant’s mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. In deciding that question the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily. Assuming that the jury has decided that the syndrome constitutes an abnormality of mind induced by disease or illness, its possible impact and significance in the individual case must be addressed. The resolution of this issue embraces questions such as whether the defendant’s craving for alcohol was or was not irresistible, and whether his consumption of alcohol in the period leading up to the killing was voluntary (and if so, to what extent) or was not voluntary, and leads to the ultimate decision, which is whether the defendant’s mental responsibility for his actions when killing the deceased was substantially impaired as a result of the alcohol consumed under the baneful influence of the syndrome.[42]The problem with Mitting J’s second limb direction is that whether the appellant was suffering from alcohol induced brain damage or not, the experts agreed that the alcohol was consumed by a man suffering from alcohol dependency syndrome. When he directed the jury that “giving in to a craving is not an involuntary act, even if it is very difficult to do otherwise”, he was implying that there was no such thing as an irresistible craving and the observation might well have been regarded as a direction to conclude that any consumption of alcohol by the appellant as a result of a craving did not or could not give rise to the defence. When Mitting J added that a defendant “later choosing to accept a drink after he has reached his normal quota, is not drinking involuntarily”, he was in effect directing the jury to accept that such a choice was voluntary even when made by an alcoholic. Taken together, these observations implied that unless every drink consumed that day by the appellant was involuntary, his alcohol dependency syndrome was to be disregarded. In our judgment they are inconsistent with the analysis of the relevant principles consequent on the decision of the House of Lords in Dietschmann as we have endeavoured to explain them.[43]In our judgment this appeal must be allowed and the conviction for murder quashed. We shall invite submissions whether a new trial should be ordered, or whether a conviction for manslaughter on the grounds of diminished responsibility should be entered.

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