Tunstill, R. v [2018] EWCA Crim 1696

[2018] EWCA Crim 1696Case Nos: 2017/3150/B4 AND 2017/3151/B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
THE HONOURABLE MR JUSTICE WILLIAM DAVIS
T20177047
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/07/2018
Before
LORD JUSTICE TREACYMRS JUSTICE YIPHIS HONOUR JUDGE MARSON QCSitting as a Judge of the CACD
Between
ReginaRespondentRachel Julie TunstillAppellant
(Transcript of the Handed Down Judgment.Copies of this transcript are available from:WordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7414 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Louise Blackwell QC (instructed by Crown Prosecution Service) for RespondentMr Simon Kealey QC (instructed by The Registrar of Appeals) for AppellantHearing Hearing date: 10th July, 2018
Judgment As Approved by the Court
[1]On 19 June 2017 in the Crown Court at Preston this appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 20 years, less time spent on remand. She appeals against conviction and sentence with the leave of the single judge.[2]On 14 January 2017 the appellant gave birth to a daughter in the bathroom of her home. Shortly thereafter, she killed the baby, who had been alive at birth. The child was of approximately 37 weeks’ gestation, weighing a little over 3kg, or about 6½ lbs. The child had been killed by 14 separate stab wounds, mainly to the neck and chest, inflicted using a pair of scissors. Having killed the baby, the appellant put her body into a plastic carrier bag, which she then put into a kitchen bin.[3]After the killing, the appellant went to the living-room and sat with her partner who, as was his wont, was engrossed in playing video games. She had been in the bathroom for two or three hours but he noticed nothing amiss. They watched television for a short time and then went to bed. He had thought that she was having some form of miscarriage. On the following day, she appeared pale and weak, although not unusually so. On the day after that, a Monday, the appellant attended hospital, stating that she thought she had suffered a miscarriage. On examination, it became clear that she had recently given birth and the police were contacted.[4]When interviewed, the appellant claimed that she had been suffering a miscarriage on the previous Saturday evening. The baby had been born with no signs of life and she had put the baby in a plastic bag and put the body in the bin. She had believed herself to be about four weeks pregnant. It became apparent that this account was untrue. Moreover, interrogation of the appellant’s iPad showed search items including “late-term miscarriages at home” and “inducing miscarriage” in the days and weeks before the birth. On the evening of the birth, searches included “how to cut umbilical cord” and the location of an early pregnancy unit at a local hospital.[5]The appellant’s case raised the partial defence of diminished responsibility. The Crown’s case was that this was not established and that the appellant had murdered her child by stabbing her. In addition to the fact that the baby had been born alive before being stabbed repeatedly, and her birth and body concealed, the Crown relied on lies told by the appellant. These included whether she had told others of her pregnancy, her account at hospital of having suffered a miscarriage, and lies as to whether she was attending or intending to take a course at university. Reliance was also placed on the appellant’s internet searches in the period preceding the birth.[6]The appellant said that she had no recollection of killing the victim and claimed that by reason of a history of mental illness and her state of mind at the time of the killing, she lacked the requisite intention for murder. In addition, the partial defence of diminished responsibility was put forward.[7]The appellant had suffered a miscarriage in March 2016 and had been upset by that, although her partner said that that had not lasted very long. He had believed she was studying towards a doctorate and there were texts in which she had referred to being at “Uni”. She had made similar comments to her employers. In early December 2016 the appellant told her partner that she was pregnant. There was evidence that in November 2016 she had told her employer that she was around two months pregnant, and later told a colleague that she did not want anyone to know that she was pregnant. Shortly before 14 January she had told her employer that she had an appointment at the early pregnancy unit.[8]When the appellant attended hospital on the Monday she had appeared calm and coherent and gave a full account of a still-birth. When arrested three days later she presented as unusually calm and told the forensic medical examiner that she was not suffering from any mental illness.[9]Three experts, all consultant forensic psychiatrists, gave evidence to the court. Doctors Bashir and Khisty gave evidence for the defence and Dr Barlow gave evidence for the Crown. All agreed that the appellant was fit to plead and that although the appellant had been diagnosed with Asperger’s Syndrome, she had adapted well as an adult and had demonstrated adequate social functioning, enabling her to achieve academically, sustain employment and maintain a long-term relationship. That diagnosis did not contribute to any psychiatric defence.[10]Dr Bashir considered that the appellant was suffering from paranoid schizophrenia. Dr Khisty considered that the appellant was suffering from severe depression with psychotic symptoms at the material time. He considered that there was evidence of social withdrawal in the months prior to the alleged offence and that this provided some objective evidence to support the presence of depressive psychosis. Dr Barlow considered that there was no evidence of psychotic symptoms prior to the offence other than the appellant’s subsequent self-report. All experts agreed that there were no third party accounts of the appellant reporting auditory hallucinations or persecutory ideas prior to the alleged offence.[11]All experts agreed that there were reports of mood problems in the appellant in the period prior to the alleged offence. Dr Khisty considered that the appellant was suffering from a severe depressive episode whilst Dr Bashir considered that there was evidence of depression but that this was secondary to paranoid psychosis. Dr Barlow did not think there was sufficient evidence to make a diagnosis of a depressive episode. They all agreed that the circumstances prior to the alleged offence would have been extremely stressful for the appellant and Dr Bashir considered that she had been suffering from an acute stress reaction at the material time.[12]On the question of diminished responsibility Doctors Khisty and Bashir supported the partial defence of diminished responsibility, whereas Dr Barlow said there was insufficient evidence of it. As to infanticide, Doctors Khisty and Bashir supported a defence on this basis, whereas Dr Barlow rejected it.[13]The judge ruled that there was evidence capable of supporting a defence of diminished responsibility. That issue was left to the jury and its verdict shows that it concluded that that the partial defence to murder was not made out. The burden of proving that defence lay with the appellant. In the case of infanticide, the burden lay with the Crown to negative infanticide as an alternative verdict to murder. It is to be noted that the conditions for demonstrating diminished responsibility and infanticide laid down by statute are in very different terms and include very different approaches to a defendant’s mental state at the relevant time.[14]The defence submitted that the judge should leave infanticide as an alternative verdict for the jury. The judge rejected that submission and referred to the limited ambit of the offence as discussed in R v Kai-Whitewind [2005] 2 Cr App R 31. He held that observations of Judge LJ (as he then was) represented strong persuasive authority and reflected the wording of s.1(1) of the Infanticide Act 1938.[15]At paragraph 134 of Kai-Whitewind

Judge LJ had said in obiter observations:

“Under s.1(2) provision is made for infanticide to be an alternative verdict available to the jury trying a mother for murder of her infant child. It does however require evidence that the ‘balance of her mind was disturbed’ either because the mother has not recovered from giving birth to the child, or the effect of lactation on her. No other circumstances are relevant.”
The judge held that on the evidence the most that could be said was that the balance of the appellant’s mind was disturbed (if it was disturbed at all) by pre-existing mental disorder, exacerbated by the circumstances of the birth. Such pre-existing mental disorder amounted to “other circumstances” as described in Kai-Whitewind. Accordingly, there was no proper basis on which to leave a count of infanticide to the jury, even leaving aside questions as to the evidential adequacy of Dr Bashir’s reasoning.[16]On behalf of the appellant, it is argued that the judge’s refusal to leave infanticide as an alternative verdict renders the conviction for murder unsafe. It was submitted that the basis of the judge’s ruling was that the appellant could not definitively point to the balance of the appellant’s mind being disturbed due to a failure to recover from childbirth, as opposed to any pre-existing mental health problem. The effect of the ruling would place the appellant, who had a pre-existing mental disorder, in a worse position than one who did not. A psychiatrist analysing the situation would not be able to disentangle whether the disturbed balance of the appellant’s mind resulted from a failure to recover from childbirth, a pre-existing condition, or a combination of the two. Dr Khisty’s evidence in particular had addressed the inter-relationship of those features. The Act was silent as to the state of mind of a mother prior to birth, and if there were some pre-existing mental disorder that should be a factor that could be taken into account in assessing whether the balance of a mother’s mind had been disturbed from a failure to recover from childbirth. If the balance of her mind was disturbed by a combination of a pre-existing condition and a failure to recover from childbirth, that was sufficient to raise the evidential issue of infanticide which the prosecution would then have to negative by showing that the balance of the mother’s mind was not disturbed by reason of a failure to recover from childbirth.[17]These arguments were resisted by the Crown, which relied on the observations of Judge LJ, and submitted that a proper interpretation of s.1 (1) permitted of a consideration of no other circumstances than disturbance of the balance of the mind by reason of not having fully recovered from the effect of giving birth. Any pre-existing mental disorder amounted to “other circumstances” which must be disregarded.[18]Section 1(1) of the Infanticide Act 1938 provides:
“1) Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, if the circumstances were such that but for this Act the offence would have amounted to murder or manslaughter, she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.”
Section 1(2) provides that infanticide may be an alternative verdict to a jury trying a mother for murder or manslaughter of her infant child.[19]Kai-Whitewind was decided in May 2005 and at the end of his comments on infanticide at paragraphs 131-140 Judge LJ stated that the law relating to infanticide was unsatisfactory and outdated, and that there was a need for a thorough re-examination. At [139] one of the areas of concern identified was whether infanticide should extend to circumstances subsequent to birth, but connected with it, such as the stresses imposed on a mother in the absence of natural bonding with her baby. The Law Commission considered infanticide in its report Murder, Manslaughter and Infanticide (Law Com. No. 304) published in 2006. Chapter 8 deals with infanticide. In the event, the Law Commission recommended that the offence be retained without amendment. Kai-Whitewind was referred to but the issue raised before us was not.[20]In R v Gore [2007] EWCA Crim 2789 this court rejected submissions directed at the mens rea for the offence of infanticide based on the section as it was then worded. At that time, the words “notwithstanding that” appeared in ss.1 where the word “if” now appears. That was used as the basis for an unsuccessful argument that those words imported into the definition of infanticide a requirement for the mens rea for murder to be proved. That submission was rejected.[21]Subsequent to the decision in Gore Section 57 of the Coroners and Justice Act 2009 amended s.1 of the Infanticide Act into its present form, quoted above. The effect of the amendment is that infanticide (whether as an offence or as an alternative verdict) applies only in cases where the mother could otherwise have been convicted of murder or manslaughter. Thus, since Kai-Whitewind, both the Law Commission and Parliament have considered s.1 and neither has sought to amend the wording as to the circumstances in which the balance of a mother’s mind is disturbed despite Judge LJ’s call for a thorough review.[22]In giving his ruling, the judge analysed the evidence given on the topic of infanticide. Dr Barlow, for the Crown, did not consider that there was any sufficient evidence that the balance of the appellant’s mind was disturbed. She had given no account of what was in her mind when she stabbed the baby, so that there was no evidence that she did what she did because she had not fully recovered from giving birth.[23]Dr Bashir was of the opinion that the appellant’s balance of mind was disturbed, following the birth of her infant, and that that was attributable to the effects of giving birth. The emotional context of giving birth was affected by paranoid persecutory fears and social isolation from not having shared the fact of her pregnancy with her family. The words the appellant had used to describe her feelings suggested a significantly disturbed mental state, such as severe anxiety and distress. He characterised her mental disturbance as amounting to an acute stress reaction, since giving birth in the circumstances described is capable of being perceived as a trauma, and since the appellant’s symptoms as described included distress and dissociative symptoms.[24]Those matters had appeared in Dr Bashir’s report and he repeated in oral evidence that his view was that there was a conjunction of circumstances at the time of the killing, namely, pre-existing mental disorder and acute stress reaction following the birth. In his oral evidence, he had appeared to stress the role of severe depression rather than any schizophrenic illness. In answer to questions from the judge, he said that the depressive illness may have become more influential after the birth, and that the appellant’s feelings and thoughts (whatever they were) resulted directly from the birth, and that giving birth was linked directly to what she then did. The acute stress reaction contributed to her behaviour. Overall, his evidence was that the pre-existing mental disorder was in part the cause of her actions. Without that, the birth would not have had the effect that it did.[25]As to Dr Khisty, the judge analysed matters as follows: his opinion was that the delivery exacerbated the appellant’s mental health problems. It significantly affected the functioning of her mind such that her judgment was impaired. She was severely depressed at the time of giving birth to her daughter. In oral evidence, he confirmed that this meant that the effect of the birth was but a part of the reason for the appellant’s actions. At the risk of over-simplifying what Dr Khisty had said, the essence of his evidence was that it was not possible to disentangle the effect of giving birth simpliciter from the pre-existing abnormality of mental functioning.[26]It was in the light of the fact that it could not be said that the balance of the appellant’s mind was disturbed solely by reason of not having fully recovered from the effects of giving birth that the judge held that there was no basis for an alternative verdict of infanticide. In effect, where a mother’s post-birth condition was not due only to the effects of having given birth, but in part based on a pre-birth mental condition, the conditions for infanticide were not made out.[27]This issue was not confronted directly in Kai-Whitewind and, as we have said, was not addressed by the Law Commission or later by Parliament. Leaving aside the question of lactation, the focus of the sub-section is on whether the balance of a mother’s mind was disturbed as a result of failure to recover fully from the effects of childbirth. It seems to us that there was evidence capable of showing that the balance of this appellant’s mind was, at the time of the killing, disturbed. The evidence of the two psychiatrists relied on by the appellant was to the effect that the appellant’s pre-existing condition, taken together with the effect of having given birth, was the cause of that disturbance of the balance of her mind.[28]Dr Bashir said that the act of giving birth directly caused an acute stress reaction which was a factor that affected the balance of the mother’s mind that was pertinent to what she did in stabbing her infant. Dr Khisty said that delivery exacerbated the appellant’s mental health problems. It significantly affected the functioning of her mind such that her judgment was impaired. He said that there was difficulty in teasing out which symptom is actually pre-existing depression and which is actually worsening of a symptom. In his opinion, the mother’s balance of mind was disturbed and that was contributed to by the fact that she had given birth. The fact of giving birth had substantially affected her mind because she was already depressed. It was exceptionally distressing for her and that had affected her judgement.[29]The evidence given by Dr Bashir was that the birth had triggered an acute stress reaction which, in conjunction with the pre-existing mental disorder, rendered the balance of her mind disturbed at the time of the killing. Dr Khisty’s evidence was to the effect that the balance of the mother’s mind had been disturbed and that was contributed to by the fact that she had given birth. Whilst the effects of birth may not alone have led to the disturbance of the balance of mind, the mother can be viewed as someone who, at the time of the killing, was in a mental state which arose by reason of not having recovered from the effects of childbirth. It would seem anomalous to us that a person who, prior to childbirth, is in a fragile mental state and whose balance of mind is disturbed as a result of a failure to recover from childbirth should be placed in a different and less favourable position from someone affected solely by the experience of childbirth. We do not see that such an approach is required by the observations of Judge LJ in Kai-Whitewind.[30]We are conscious that the purpose of the Infanticide Act was to ameliorate the potential harshness of the law of murder by recognising that in a period after birth a mother’s balance of mind may be affected. Whilst at the time of the introduction of this provision the diminished responsibility provisions introduced by the Homicide Act 1957 did not exist, it is nonetheless clear that the intention behind the legislation was to be merciful. Since the passing of the Homicide Act, Parliament has not withdrawn the infanticide provisions and, as observed above, has extended them to the crime of manslaughter. It seems to us that to interpret Judge LJ’s dictum as to “other circumstances” as applying to a situation such as the present one is unnecessarily harsh and runs counter to the intent of the legislation.[31]The phrase “by reason of” in s.1(1) does not in our judgment necessarily need to be read as if it said “solely by reason of”. It seems to us that as long as a failure to recover from the effects of birth is an operative or substantial cause of the disturbance of balance of mind that should be sufficient, even if there are other underlying mental problems (perhaps falling short of diminished responsibility) which are part of the overall picture.[32]The words “by reason of” import a consideration of causation. As the wording of s.1(1) shows, the relevant causation is that the balance of a mother’s mind is disturbed as a result of not having fully recovered from the effect of giving birth to her child: there is no required causal link between the disturbance of balance of mind and the act or omission causing death. Our law is familiar with the notion that in considering causation a person’s conduct need not be the sole or main cause of the prohibited harm. It is sufficient if a person’s conduct is a contributory cause. In R v Smith [1959] 2 QB 35 in a case of murder Lord Parker CJ said at page 42:
“It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.”
[33]In R v Hughes [2014] 1 Cr App R 6 Lords Hughes and Toulson, giving the judgment of the Supreme Court, said at [22]:
“There are many examples of two or more concurrent causes of an event, all effective causes in law. A road traffic accident is one of the commoner cases, for such events are only too often the result of a combination of acts or omissions on the part of two or more persons. Where there are multiple legally effective causes, whether of a road accident or of any other event, it suffices if the act or omission under consideration is a significant (or substantial) cause, in the sense that it is not de minimis, or minimal. It need not be the only or the principal cause. It must, however, be a cause which is more than de minimis, more than minimal: see R v Hennigan [1971] 55 Cr App R 262.”
[34]In this context, we also note that in R v Deitschmann [2003] 2 Cr App R 4 the House of Lords held that s.2(1) of the Homicide Act did not require the abnormality of mind to be the sole cause of a defendant’s acts in doing the killing. Even if a defendant would not have killed if he had not taken drink, the causative effect of the drink did not necessarily prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for his fatal acts. It was still open to a jury to find the defence of diminished responsibility established. Of course, their Lordships were concerned with differently worded legislation so that the analogy is far from perfect, but subject to that important caveat, it provides a sort of parallel to our reasoning.[35]This was a case where the child was killed soon after birth so that this case can be distinguished from the situation where mental ill health, usually post-partum psychosis, develops over a period of time. Nonetheless, there was evidence from Dr Bashir and Dr Khisty which showed that notwithstanding the existence of the appellant’s pre-birth mental disorder, the effects of giving birth had led to a further condition, characterised by Dr Bashir as an acute stress reaction which was a causative factor in disturbing the balance of the appellant’s mind. The issue of causation is a matter of fact for a jury after appropriate direction from a judge as to what can constitute a legally effective cause. For the reasons given, we consider that the effects of birth are not required by s.1(1) to be the sole cause of a disturbance of balance of the mind.[36]In the circumstances, we are persuaded that the judge should not have withdrawn infanticide from the jury. There was evidence fit for the jury’s consideration. It is not for this court to assess the likelihood of its success. Dr Barlow’s evidence was to the contrary, but the issue for us is whether a jury should have had this alternative option to consider. We think it should have had that opportunity. In the circumstances, therefore, the conviction for murder is unsafe and the verdict is quashed. In our judgment, the interests of justice require a re-trial and we so order.