R, R. v [2010] EWCA Crim 194

Case No 2008/05498/B2[2010] EWCA Crim 194
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 2 February 2010
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE IRWIN
Between
R E G I N ACrown- v -
Between
RCrown
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)
Mr I Glen QC and Mr M Dacey appeared for AppellantMr N M Peters QC and Mr S Rose appeared for Crown
J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an appeal, with the leave of the full court, by R against his conviction on 9 September 2008 by a jury in the Crown Court at Ipswich before His Honour Judge Devaux of the murder of Dharan Roy Luckhee. On the following day he was sentenced to life imprisonment. The minimum term was assessed at twelve years.[2]The single issue at the second trial was whether the appellant's responsibility for his actions in killing Luckhee was substantially impaired so as to enable the jury to return a verdict of manslaughter on the grounds of diminished responsibility. At the first trial no reference was made to the diminished responsibility defence.[3]The essential facts can be briefly summarised. The deceased and the appellant were cousins. The appellant offered his cousin a home. The deceased began a sexual relationship with the appellant's wife. To begin with the relationship took place in the matrimonial home, but when the affair was discovered in 2004 the deceased moved out of the house. However, the affair continued elsewhere. The appellant planned to kill the deceased. He threatened to do so and he asserted to a number of different individuals that he intended to do so.[4]The appellant sought to procure duplicate keys to the deceased's home, but when that failed so that he had no access to it he arranged a meeting between the two of them. The meeting took place on 2 April 2005. The appellant drove to the scene and there he killed the deceased by strangling him with a ligature. No defence injuries were found on the deceased. Having killed the deceased, the appellant removed him from the scene where the killing had taken place to a roadside ditch some distance away from where the meeting had been arranged.[5]After the killing, the appellant told his wife that he had kept gloves and a rope in his car and that he had used the rope from the car to kill the deceased.[6]After his arrest the appellant gave a number of false accounts, including a false alibi, and then sought to persuade a number of witnesses to give false evidence, or change their statements, in an endeavour to escape conviction. In the end, however, he pleaded guilty to manslaughter on the ground of diminished responsibility. He offered no evidence at trial to contradict any of the contemporaneous facts. It was not suggested at trial that his mental state was such that he lacked any memory for events leading up to, or at the time of, or after the killing, or that his mental state was such that he would have any difficulty in dealing with these matters. Effectively they were undisputed.[7]The appellant called medical evidence at trial that at the time of the killing he was suffering from an abnormality of mind which substantially impaired his mental responsibility. The prosecution also called medical evidence. This expert agreed that the appellant was indeed suffering from abnormality of mind at the relevant time, but he disagreed that the abnormality substantially impaired the appellant's mental responsibility for his acts.[8]Dr Hamilton, who was called on behalf of the appellant, spoke of him being in a state of "emotional turmoil". He was a man in a "tortured" frame of mind "severely depressed at the time and that the entirely uncharacteristic eruption of violence by him against the victim that day arose in that abnormal emotional context". This was a "prevailing abnormal mood state" and "in the tumultuous final moments which resulted in the death of the victim the abnormality of mind induced by disease would have been a degree which substantially impaired his mental responsibility for his acts".[9]In his summing up of the evidence to the jury, the judge recorded that Dr Hamilton thought "that the defendant was suffering from depression severe enough to amount to an abnormality of mind and, in his judgment, the killing would not have happened if the defendant's mind had been normal".[10]The Crown called an equally distinguished psychiatric witness, Dr Dunn. In summing up his evidence to the jury, the judge said that "there is a reasonable amount of evidence to confirm that Mr R was suffering from the same diagnosis of a depressive disorder in the months leading up to the killing", that this diagnosis was sufficient to constitute an abnormality of mind for the purposes of section 2 of the Homicide Act 1957. His initial view was that at the time of the killing the appellant was suffering from a depressive episode constituting a mental illness under the Mental Health Act, but this depressive state of mind had played no part in the killing and was not of sufficient severity substantially to impair his mental responsibility for his actions. In cross-examination by Mr Ian Glen QC, who represented the appellant at trial and before us today, Dr Dunn made a number of concessions to which our attention was drawn. The following exchange took place:
"Q. With this disease, everything he saw, felt and experienced in his mind, he was experiencing with a diseased mind, was he not? A. That's true, yes. Q. So, it must have played some part in his mental process when he killed Roy Luckhee, must it not? A. I think that's fair if you follow that argument. Some part. Q. Some part. The difference between you and Dr Hamilton is how much? A. That's right, yes. Q. And it comes down to this question, whether it is substantial or not? A. Yes, that's correct. Q. But you agree with me, do you not, that the part that it played was more than trivial? A. More than trivial."
In re-examination Mr Nigel Peters QC asked: 11. "Q. The question is, in your opinion, did it substantially impair h is responsibility for the actions of killing? A. I've already said that my view is that it didn't."

In re-examination Mr Nigel Peters QC asked:

[11]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."
[12]The appeal against conviction arises from the way in which the judge directed the jury on the issue of "substantially impaired". It is submitted by Mr Glen that the judge failed to give the jury sufficient assistance about the legal meaning of the words in their context and, as we shall examine, because he offered them in effect two distinct meanings for their consideration, the second meaning, different from the first, and indeed different from the intended directions on which Mr Glen had prepared and founded his submissions to the jury. Moreover, Mr Glen submits, if there are indeed two meanings, the effect is a degree of imprecision and ambiguity, which means that the statute lacks the necessary legal certainty to comply with article 7 of the European Convention on Human Rights; alternatively, that the way in which the judge measured his directions to the jury meant that the necessary legal certainty was absent.[13]After discussions with counsel, and having referred to the then current Judicial Studies Board material, the judge directed the jury in conventional terms in relation to diminished responsibility as a whole. He directed the jury that they should reach their decision on the basis of the whole of the evidence they had heard rather than focusing exclusively on the medical evidence. He encapsulated his directions in a text which was handed to the jury. The relevant passage for present purposes reads:
"'Substantially impaired' means just that. You must conclude that his abnormality of mind was a [our emphasis] 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." 16. "
'Substantially impaired" means just that. You must conclude that his abnormality of mind was the [our emphasis] real cause of his conduct. The defendant does not have to 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, and you should approach all of these questions in a broad common sense way." As far as we can gather, no one took any point about the way in which that direction was formulated, although, looking back at it now, the word "the" before "real" in that text was inappropriate. The verbal direction to the jury should have reflected the written suggested direction by the Judicial Studies Board and "the" should have been replaced by "a". In the context of this case there is nothing in the distinction.[14]Having retired to consider their verdict, the jury sought further assistance from the trial judge.

The judge received a note (the times and date are not relevant) which reads in these terms:

"In legal terms can you advise the difference between trivial and substantial. _____________ The defence say that 'of substance' = substantial. Is this correct?" 18. "
The following direction has been approved at a senior level and it is this; the direction on the words 'substantially impaired'. 19. 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. 20. 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 word 'substantial' means 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." It is said that the second direction to the jury is inconsistent with the first direction and gives rise to the uncertainty to which we have referred. The later direction in answer to the jury question may have had the effect, it is suggested, of undermining the earlier direction in the summing-up; it demonstrates the absence of necessary certainty.[15]To address the submissions advanced by Mr Glen, we must start at the beginning. "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.[16]The statute creating the defence requires that the defendant's mental responsibility for his actions was substantially impaired. It has been applied in literally hundreds of murder trials for over fifty years and is probably the least difficult aspect of what can sometimes be a very difficult defence to convey to a jury.[17]Mr Glen has drawn on a number of authorities to demonstrate the lack of certainty about the true meaning of the words "substantially impaired" in the statute, and to support his contention that judicial interpretations have provided inconsistent meanings.[18]The starting point must be R v Byrne (1960) 44 Cr App R 246, where Lord Parker CJ addressed a number of different issues about the then newly created defence of diminished responsibility. In the context of the present appeal he identified the crucial question as:
".... 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 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."
It is perhaps worth noticing that Lord Parker did not feel it necessary to explain the meaning of "substantial".[19]In R v Lloyd [1967] 1 QB 175 the Court of Criminal Appeal considered directions given in two separate cases: R v Simcox (The Times, 25 February 1964) and in R v Lloyd. In Simcox Finnemore J directed the jury to look at the issue "in a broad common-sense way and ask yourselves, having heard what the doctors have said, .... knowing the whole story, 'Do we think, looking at it broadly as common-sense people, there was a substantial impairment of his mental responsibility in what he did?' .... If the answer is 'no', there may be some impairment, but we do not think it was substantial, we do not think it was something that 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 ...." 27. "I am not going to try to find a parallel for the word 'substantial'. You are the judge, 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?"[20]This direction was criticised in the Court of Criminal Appeal on the basis that it was misleading because "substantially" can mean either that the impairment was "real and not illusory" or that it was of a "considerable amount". Accordingly, the jury should have been directed that the word "substantially" meant "real or really impaired". However, faced with that contention, the court pointed out to leading counsel for the appellant that the word "substantially" need not appear at all if he was correct. So counsel's submission was modified to "substantially, meaning something more than trivial".[21]Pausing there for a moment, there is a similar series of contentions in this case. When the two directions given by Judge Devaux are analysed, first in his summing-up and then in answer to the questions raised by the jury after their retirement, it will be seen that there is very little difference between the issues canvassed in Lloyd and the way in which Judge Devaux dealt with the matter.[22]The Court of Appeal rejected the submission in Lloyd. Like the court in Simcox, which could see no ground for criticising the judge's direction in that case, there were no grounds for criticising the judge in this. It was accepted that the words used by the different judges in the two directions they had given to the jury were not identical, but the substance of the directions in both cases seemed to be "for all substantial purposes indistinguishable one from the other".[23]That presented Mr Glen's argument with a significant problem. However, he drew our attention to some observations in R v Egan (1992) 95 Cr App R 278. That case is better known for its analysis of the impact of drunkenness on the defence of diminished responsibility, which has now been overruled on that point. However, at the very end of the judgment the court referred to the issue of "substantial impairment" and expressly advised 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 Lloyd." Mr Glen naturally focused on this observation, identifying two possible meanings for the word "substantial" as the essence of his argument demonstrating the ambiguity and uncertainty of which he complained. There is no doubt about the language used in the judgment. Mr Glen is entitled to rely on that language. 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.[24]The only other authority to which our attention was drawn in this context is R v Mitchell [1995] Crim LR 506 (otherwise unreported, 14 November 1994). In this case the judge gave no specific direction about the meaning of "substantial". Criticism of his failure to do so was rejected. The court suggested that Lloyd amounted to authority for saying that the word "substantial" is a word "for which one should not try to find a synonym. It is a word which members of the jury, with their own common sense, can tell what it means." Professor Sir John Smith's commentary notes: 33. "The decision is a welcome departure from the current trend towards requiring the jury to be directed to do what their common sense would naturally lead them to do anyway. In addition to refusing to prescribe the order in which the matters in issue should be dealt with, the court declined to hold that it was necessary for the judge to direct the jury about the meaning of the word 'substantially', 'using one or other of the two meanings in Lloyd ....', as advised by Watkins LJ in Egan.... 'Substantially' does not have two meanings and the two passages do no more than tell the jury in more words that 'substantially' means 'substantially'." The obvious sense of these observations is striking. As far as we are aware, the decision in Mitchell was the last occasion when the issue now before us was addressed and on which the advantage of illuminating commentary by such a distinguished observer as Professor Sir John Smith is available.[25]We can detect no uncertainty or ambiguity in the statutory language. Accordingly, no article 7 issue arises for decision.[26]In our judgment, faced with this problem at a murder trial, it is necessary for the judge to convey to the jury the plain meaning of the statute, no more, no less. Provided in the language he uses he does not exaggerate the burden on the defendant, or improvise some extra statutory additional obligation on the defendant in relation to the meaning of "substantially impaired", no valid ground for complaint exists.[27]We have applied that test to the way in which Judge Devaux dealt with the issue in this case. His first direction in the summing-up accurately conveyed the issue to be addressed by the jury. The jury, taking close account of the submissions advanced to them by Mr Glen, required further assistance on the subject. In the circumstances of this trial, with the jury requiring further elucidation of the concept of "substantial" in the context of impairment, mere repetition of his earlier directions would not have helped. Consequently Judge Devaux rephrased what he had said, without in any way altering or adding to the burden the appellant was required to discharge. These directions enable us to say with certainty that the jury was not satisfied that the appellant's mental responsibility for his actions at the time of the killing was substantially impaired.[28]We can deal briefly with Mr Glen's contention that he had not had a sufficient (or any) opportunity to address the jury about the terms in which they were directed in answer to the question which they had asked. Having considered that submission, our conclusion is that we cannot discern any possible difference of substance in the submissions that Mr Glen might have been able to make to the jury. The issue was stark and simple. The second question asked by the jury demonstrates that they had understood Mr Glen's submission that the level of the appellant's impairment at the material time was substantial. The appeal against conviction is therefore dismissed.[29]There are two further features to this judgment. One relates to the Judicial Studies Board directions. For many years now, and in different forms, the Judicial Studies Board has offered assistance to trial judges which takes the form of a collection of specimen directions. They are invaluable. They are frequently repeated, directly and verbatim, by trial judges when summing up. Generations of judges are indebted to the Judicial Studies Board for accepting the huge burden of producing the specimen directions and regularly updating them in the light of legal developments. However eminent and distinguished those who have prepared the specimen directions over the years, the Judicial Studies Board has never asserted, and would have been wrong if it had chosen to assert, that these specimen directions constituted authority binding on trial judges. On occasions this court has approved or adopted a specimen direction or part of a specimen direction. When that happens, it is vested with the authority of the court. But until then, helpful, valuable, indeed indispensable as the Judicial Studies Board specimen directions may be in practice, and however likely it is that if the question arose for decision the court would approve a particular direction, the situation is unchanged. The specimen directions provide guidance for trial judges, not authority binding them or for that matter binding this court.[30]The final matter is the appellant's renewed application for leave to appeal against sentence. The issue is the minimum term. Judge Devaux correctly took 15 years as the starting point for a case which did not fall within the ambit of either paragraph 4(1) or paragraph 5(1) of Schedule 21 to the Criminal Justice Act 2003. He then reflected on the element of premeditation and planning as an aggravating feature, and, allied to that, an intention to kill. He then discounted the sentence to allow for the combined effect of the provocation (in the non-legal sense) and undoubted stress caused to the appellant by the circumstances in which his marriage had been undermined by his cousin to whom he had offered a home. He also reflected the element of reduced mental responsibility which did not amount to the defence of diminished responsibility consequent on the events which had caused such a dramatic change to the appellant's home life. Those were all balanced, sensible considerations which had to be reflected in the sentencing decision.[31]The issue which we were invited to address arises from the fact that at the first trial there was no evidence in support of diminished responsibility. The single issue at trial was provocation. The trial judge, allowing for provocation, ordered that the minimum term should be twelve years. The retrial revealed an element of reduced mental responsibility. On that basis it is suggested that, as the provocation was no less than it was before, the sentence should be lower to reflect the additional element of reduced responsibility.[32]We disagree. The stress element and the reduction in mental acuity arise from the same basic source and provide mitigation as a matter of collective relevance. We doubt very much that if the issue had been before him at the first trial, the judge would have made any further reduction below the minimum period of twelve years. The mental difficulties faced by the appellant were entirely connected with the stress and provocation to which he had been subjected. In any event, the question which we must decide is whether the minimum term as assessed by Judge Devaux was manifestly excessive or wrong in principle.

Professor Sir John Smith's commentary notes:

[33]In our judgment the sentence ordered by Judge Devaux as the minimum term was entirely appropriate in this case. It properly reflected the aggravating and mitigating features to we have referred. In those circumstances the renewed application for leave to appeal against sentence is refused. MR GLEN: My Lord, I have one application. About three weeks ago we had the bundles prepared. The Crown granted a junior brief to Mr Rose, and Mr Dacey has helped me. In all the cases on the topic leading counsel has had a junior. Although counsel are not listed in Egan, but Mr Pitchford QC probably had a junior. I wonder if you would grant legal aid for a junior in this case? He has made a very significant contribution.43. (The court conferred) THE LORD CHIEF JUSTICE: Mr Glen, we grant that application.44. ________________________________

Cited in 2 later judgments