Regina v Dietschmann (Appellant) (on appeal from the Court of Appeal (Criminal Division)) [2003] UKHL 10

House of Lords

[2003] UKHL 10

Between

ReginaAppellant

DietschmannAppellant

Before

Lord Nicholls of Birkenhead

Lord Lloyd of Berwick

Lord Hutton

Lord Hobhouse of Woodborough

Lord Rodger of Earlsferry

Date 27 February 2003

[1]I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hutton. For the reasons he gives, with which I agree, I would allow this appeal and make the order he proposes. LORD LLOYD OF BERWICK My Lords,

[2]I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hutton. I agree with it and for the reasons which Lord Hutton gives I would allow this appeal. LORD HUTTON My Lords,

[3]In the early hours of the morning on 18 July 1999 the appellant, Anthony Dietschmann, killed Nicholas Davies by punching him and kicking him on the head in a savage attack. At the time of the killing the appellant was heavily intoxicated and he was also suffering from a mental abnormality which the medical witnesses for the Crown and the defence described as an adjustment disorder, which was a depressed grief reaction to the death of his aunt, Sarah, with whom he had had a close emotional and physical relationship.

[4]The appellant was tried on a count of murder before Maurice Kay J and a jury at Liverpool Crown Court. At the trial the appellant admitted the killing and the only defence raised on his behalf was the defence of diminished responsibility under which, if established by him, he would not have been found guilty of murder but of manslaughter. The defence of diminished responsibility arises under section 2 of the Homicide Act 1957 which provides:

"(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. (3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter."

[5]The jury rejected this defence and on 7 April 2000 convicted the appellant of murder and he was sentenced to life imprisonment. The appellant's appeal against conviction was dismissed by the Court of Appeal on 5 October 2001 and he now appeals to this House against the decision of the Court of Appeal. The issue which arises on the appeal is the nature of the direction which the trial judge should give to the jury when a defendant, raising the defence of diminished responsibility, had taken alcohol prior to the killing and was also suffering from a mental abnormality at the time of the killing. The question (which I have divided into two parts) certified by the Court of Appeal as a point of law of general importance is as follows:

"(1) Does a defendant seeking to prove a defence of diminished responsibility under section 2(1) of the Homicide Act 1957 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? (2) If not, what direction ought to be given to a jury as to the approach to be taken to self-induced intoxication which was present at the material time in conjunction with an abnormality of mind which falls within section 2(1) of the 1957 Act?"

No issue arises on this appeal in relation to the principle stated as follows by Rose LJ in para 13 of the judgment of the Court of Appeal in the present case:

"The general rule that drink does not give rise to an abnormality of mind due to inherent causes was authoritatively established in Fenton (1975) 61 Cr App R 261 and confirmed in Gittens [1984] QB 698. In line with those authorities, 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."

The facts

[6]The facts relevant to the issue which arises can be briefly summarised as follows. In July 1998 the appellant began a relationship with his aunt Sarah, who was almost twice his age and who had a drugs problem. As a result they were ostracized by the rest of the family. They lived together until he was remanded in custody in November 1998. She visited him in prison and wrote to him almost every day. In May 1999 she bought him a watch which she gave to him. In June, whilst living alone because of the appellant's remand in custody, she was burgled and started to take drugs again. She died on 6 June 1999.

[7]The appellant believed that she had committed suicide because she could not cope without him and because he had given her an ultimatum that he would leave her if she did not solve her drugs problem, and he cut his wrists but without fatal consequences. This belief was, in fact, erroneous, as a post mortem which took place after the killing of Nicholas Davies revealed that she had died of natural causes. On 15 June, whilst still in custody, he attended his aunt's funeral.

[8]On 2 July the appellant was released from custody. He began to drink heavily and on 13 July he saw his general practitioner and was prescribed Prozac and sleeping tablets. On the night of 16 July the appellant went to drink at a club with two young women and another man. He spent the next day at the house of one of the young women and on the night of 17 July his companions of the previous night were with him in the house and they were joined by a third man. A bottle of whisky was drunk and the appellant had a couple of pints of cider. The young women left to go to a club and the appellant and the two men were joined in the house by a third man, Nicholas Davies, and further alcohol was obtained and drunk.

[9]The appellant and Nicholas Davies began dancing in the living room and the dancing became increasingly frenetic. The appellant's watch became detached from his wrist and he believed it to have been broken. He accused Davies of breaking it, stating that it was the final gift from Sarah before she died. He demanded that Davies pay for it and Davies refused. The appellant punched him in the face, but Davies continued to refuse to pay for the watch. The appellant continued to hit him, accusing him of urinating on Sarah's grave. Davies fell to the floor and the appellant stamped on his head three or four times and kicked him hard in the face. He then picked him up, pinned him upright against the chimney breast, pulled him away and slammed him against the wall on the other side of the fireplace. Davies head moved from side to side and he groaned. The appellant then threw Davies to the floor where he did not move and made no noise. The appellant stamped on him and kicked his head, side and chest over 30 times repeating that he had urinated on Sarah's grave and deserved to die. Then he and another of the men rolled Davies' body in a rug and moved it into another room.

[10]Later in the early hours of 18 July the young woman who owned the house returned and the body was found. The police were called and in due course arrived and Nicholas Davies was found to be dead. Meanwhile the appellant had left the house. He did not go far, and was found by a police officer sitting on a bench with his head in his hands. He appeared dishevelled and smelt of alcohol. He was arrested and taken to the police station.

[11]The arresting officer remained with the appellant at the police station. The appellant told him that his wife had died whilst he was in prison and that on Saturday afternoon he had visited her grave with a friend. They were both drunk and he was annoyed at his friend who had urinated over his wife's grave. He had given his mate a "dig" at the time and later when they had both been drinking he had started arguing with his friend about urinating on the grave. He had given his friend a few "digs", and his friend had retaliated. It had all got out of hand. He knew it was bad but he did not think he had killed him. The proceedings at the trial

[12]At the trial the central facts relating to the consumption of alcohol, the dancing, the appellant's belief that his watch had been broken, the allegation that Davies had been urinating on Sarah's grave and the subsequent violence leading to Davies' death were all admitted. In his evidence the appellant claimed that he was not badly affected by alcohol at the time when he attacked Davies.

[13]Evidence as to the mental condition of the appellant was given by two psychiatrists. Dr El Azra gave evidence on behalf of the appellant. He had interviewed the appellant once in March 2000. Dr Palmer gave evidence on behalf of the Crown. She had examined the appellant within three days of the offence in July 1999. Both psychiatrists agreed that at the time of the killing the appellant was suffering from an abnormality of mind, arising from an inherent cause or induced by disease, and that this abnormality was an adjustment disorder which was a depressed grief reaction to the death of his aunt and which was more severe than was usually suffered after a bereavement. However the psychiatrists differed on the point whether the appellant was suffering from any additional abnormality of mind. Dr Palmer believed that he was suffering from alcohol dependency syndrome at the time of the killing, but Dr El Azra did not think that this was a factor. Conversely, he was of the opinion that the appellant had been in a transient psychotic state at the time of the incident. In his opinion the appellant perceived that the breaking of the watch was an abuse of Sarah's memory and it took him out of the boundaries of reality. He falsely believed that Nicholas Davies had been urinating on Sarah's grave. The fact that the appellant was under the influence of alcohol did not explain what had happened. Even if he had been sober, he would still probably have killed Nicholas Davies. This view was not shared by Dr Palmer. She was not convinced that he had lost touch with reality. She thought that alcohol had been a significant factor as a disinhibiter which had facilitated the release of aggression. If he had been sober he would probably have exercised self-control.

[14]The psychiatrists also differed as to the effect of the abnormality of mind from which the appellant had been suffering. Dr El Azra believed that it did substantially impair his responsibility for the killing. Dr Palmer, on the balance of probability, did not believe this, although she accepted that it was a difficult question. She also stated that neither the adjustment disorder nor the alcohol dependant syndrome would have prevented the appellant from forming an intention to kill or cause really serious injury. The judge's directions to the jury

[15]In his careful charge to the jury

the judge summarised the medical evidence and he correctly told the jury:

"As you have been told, diminished responsibility is not a medical diagnosis, it is a legal concept which ultimately only a jury can decide. All that doctors can do is to assist you with the benefit of their expertise and experience. As experts they are permitted to express opinions. But this is trial by jury and you, the jury, must decide whether or not diminished responsibility has been established."

[16]In relation to the drink taken by the appellant

the judge directed the jury as follows:

"…. this is an issue of crucial importance in this case — once you are satisfied that there is an abnormality of mind, whether on the basis of an adjustment disorder alone or coupled with a transient psychotic state or alcohol dependence syndrome, or however, you must ask these questions: have the defence satisfied you on a balance of probabilities that if the defendant had not taken drink (1) he would have killed if, in fact, he did; and (2) he would have been under diminished responsibility when he did so. If they have satisfied you that the answer to both questions is 'yes', then this is a case of diminished responsibility. But if the answer to either question is 'no', then it is not."

[17]On appeal to the Court of Appeal it was submitted on behalf of the appellant that this part of the judge's summing up constituted a misdirection on the ground that the defence of diminished responsibility could be established notwithstanding that the defendant failed to prove that if he had not taken drink he would have killed. This submission was rejected by the Court of Appeal which followed a number of authorities which will have to be considered at a later stage in this opinion. The interpretation of section 2(1) of the Homicide Act 1957

[18]In a case where the defendant suffered from an abnormality of mind of the nature described in section 2(1) and had also taken alcohol before the killing and where (as the Court of Appeal held in this case) there was no evidence capable of establishing alcohol dependence syndrome as being an abnormality of mind within the subsection, the meaning to be given to the subsection would appear on first consideration to be reasonably clear. I would read the subsection to mean that if the defendant satisfies the jury that, notwithstanding the alcohol he had consumed and its effect on him, his abnormality of mind substantially impaired his mental responsibility for his acts in doing the killing, the jury should find him not guilty of murder but (under subsection 3) guilty of manslaughter. I take this view because I think that 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. The authorities

[19]I consider it to be clear that this was the interpretation given to the subsection by Boreham J, the trial judge, and the Court of Appeal in R v Fenton

(1975) 61 Cr App R 261

and by the Court of Appeal in R v Gittens

[1984] QB 698

. In Fenton the defendant had consumed a large quantity of drink in the course of the day. Later in the evening when his driving attracted the attention of the police a police car followed him into a cul-de-sac. He drew a revolver and shot and killed the police driver and left the scene driving the police car. Later he went to a club owned by a man with whom he was on bad terms where he shot and killed three more people. At his trial he pleaded not guilty to the four counts of murder against him, but at the close of the prosecution case he changed his plea to not guilty of murder but guilty of manslaughter by reason of diminished responsibility. The jury convicted him of murder on the four counts.

[20]The medical witnesses called all agreed that the appellant was suffering from an abnormality of mind. The medical evidence was that there were four ingredients which had gone to make up the condition of the appellant when he committed the four killings, and those four ingredients in combination had brought him to breaking point and caused him to commit the offences. The first ingredient was his mental state which was that he suffered from a severely abnormal personality in that he was an aggressive psychopath with marked paranoid traits. The second ingredient was a state of reactive depression produced by various stresses to which he had been subjected. The third ingredient was an excessive quantity of alcohol with a resulting state of disinhibition and possible confusion. The fourth ingredient was the last straw phenomenon of the car chase by the police and the final sensation of being trapped. The medical evidence was that "there were these four factors or four ingredients, and in the absence of any one of them the four killings would probably never have taken place".

[21]In delivering the judgment of the Court of Appeal Lord Widgery CJ stated, at p 263:

"There is no doubt that alcohol was regarded as an important ingredient because the jury later disclosed in reply to an observation of the learned judge that they were unanimously of the view that the killings would not have occurred if the appellant had not had so much to drink. The judge, however, ruled that the effect of the alcohol consumed by the appellant was to be ignored since the effect of the alcohol did not amount to an abnormality of mind due to inherent causes. Accordingly the judge directed the jury that they must convict of murder if satisfied that the combined effect of the factors other than alcohol was insufficient to amount to a substantial impairment in the mental responsibility of the appellant."

At p 264 Lord Widgery stated that it was argued on behalf of the appellant that:

"…. even if the effect of alcohol was properly ignored, the effect of the remaining factors which were agreed to be included in abnormality of mind was sufficient to cause a substantial impairment of mental responsibility. The judge had properly left this issue to the jury, and Mr Waters's complaint is that in a number of instances the judge's rehearsal of the evidence did not fairly represent what the witnesses had said. We have considered this complaint and the details upon which it is based; we do not conclude that it is made out, and we do not think that the directions of the judge on this aspect of the matter are open to criticism or capable of amounting to an irregularity at the trial, or capable of causing the verdict to be unsafe or unsatisfactory."

This was a case where it was clear that the killings would not have taken place if the appellant had not taken drink, but nevertheless the trial judge left it to the jury to consider if the combined effect of the factors other than alcohol was sufficient to amount to a substantial impairment of his mental responsibility, and the Court of Appeal held that the judge had properly left this issue to the jury.

[22]In R v Turnbull (Launcelot)

(1977) 65 Cr App R 242

the appellant suffered from an abnormality of mind in that he was a psychopath. He went out drinking with the deceased and later stabbed him to death in his flat. He relied on the defence of diminished responsibility but was convicted of murder. On analysis it is apparent that the judge's summing up to the jury contained inconsistent directions. He said (see p 245):

"Have the defence satisfied you that it is more probable than not that Turnbull would have acted as he had on this night even had he not taken drink? You may come to the conclusion, it is a matter for you, that the explanation of Turnbull's conduct on this night is to be found in a combination of his abnormality of mind, the fact that he is a psychopath, together with the fact that he had on the evening of December 30 taken a substantial amount of drink. If you come to the conclusion that his responsibility was impaired by a combination of his being a psychopath and having taken drink, you would have to ask yourselves did the fact that he was a psychopath substantially impair his responsibility even though he had taken drink?"

The last sentence in this passage accords with the direction which was approved by the Court of Appeal in Fenton 61 Cr App R 261. But immediately after this direction

the judge made a statement which is inconsistent with it:

"If, on the other hand, you did take the view which Dr Fitzgerald expressed towards the end of his evidence before you that if he had not had drink this would not have happened, then the defence would have failed to prove that that abnormality of mind substantially diminished Turnbull's responsibility for his act in killing."

[23]Traces of the same inconsistency are present in a later part of the summing up referred to by Lord Widgery in delivering the judgment of the Court of Appeal, at p 246:

"There are other references to the effect of a combination of inherent cause and alcohol in the course of the summing up but at p 24, where the judge is coming to the point when the jury is about to retire, he goes through the matter again and does so, as we see it, quite impeccably. Indeed, his first direction at the top of p 24 is not criticised by Mr. Hall. The judge said: 'Do we think it more probable than not that at that time Turnbull's responsibility was substantially impaired by the fact that he suffers from a psychopathic disorder? You may think, it is a matter for you, that drink had something to do with this, but what is the substantial cause of Turnbull's inability to control his behaviour that night? What is the substantial cause of his stabbing this man in this horrible and savage way.' That is exactly the right test, as has been admitted by counsel for the applicant."

The Court of Appeal continued at p 246:

"Later on, on the same page, the judge says: 'Have the defence made you feel that the probability of the matter is that his inability to control his conduct when he killed was due to his psychopathic condition, or do you think on the other hand it was probably due to the fact that he had too much to drink and not at all substantially to do with the fact that he was a psychopath? That is the question you have to decide.' That passage is criticised because, I think it is said, the judge there is contemplating a straight comparison between the force of the inherent defect of mind and the force of the alcohol, but we think, with all deference to Mr. Hall, that is too subtle an approach to the judge's direction and we can see no reason to suppose that the jury would have been in any sense misled."

The Court of Appeal concluded their judgment by stating:

"If we felt the jury might have been led away from the correct path of approach we should, of course, have had to consider it very carefully but for the reasons which have already been given we can see no reason to suppose that the jury were deflected from their proper approach, and the ultimate question was properly left to them at the trial. Accordingly, we can see no reason for doubting the correctness of the verdict and the application for leave to appeal against it is refused."

[24]In my opinion in Turnbull(Launcelot) 65 Cr App R 242 the Court of Appeal did not intend to lay down any principle but dismissed the application for leave to appeal on the ground that whatever criticism might be made of the summing up it did not deflect the jury from the proper approach.

[25]In R v Gittens

[1984] QB 698

, in a reserved judgment, the Court of Appeal expressly approved the direction given in Fenton and made it clear that the direction given in Turnbull(Launcelot) should not be followed in the future. They said, at p 703:

"Even assuming that the direction approved in Reg v Turnbull (Launcelot) taken as a whole was correct, we consider that it is not a direction which should in future be copied, for reasons which are apparent."

In Gittens the appellant's marriage had been unhappy for some time as he suffered from depression for which he had sought and received medical treatment and on one occasion he had attempted to hang himself. On a visit home from hospital he consumed a quantity of alcohol and also took some of the pills which had been prescribed for him whilst his wife was out. On her return he and his wife had a violent argument and he killed her with a hammer. He then hit his step-daughter, raped her and tried to strangle her and she subsequently died. The reason he gave for the attack on the step-daughter was that he thought that it was his wife he was seeing. He was convicted on the two counts of murder.

[26]The evidence of three doctors called on behalf of the appellant at his trial was that he suffered from an abnormality of mind due to inherent causes which substantially impaired his mental responsibility. Two of the doctors considered that the abnormality of mind was due to a depressive illness and the third considered that the abnormality of mind was due to a disorder of his personality induced by psychological injury. The doctor called on behalf of the prosecution agreed that the appellant was suffering from an abnormality of mind, but in his view that abnormality was brought on by drink and drugs and was not inherent and was not the result of an illness.

[27]In his directions to the jury

the judge stated [1984] QB 698, 702:

"Of course you have a further consideration in this case: that drink combined with taking the sleeping tablets certainly may have had something to do with his acts of killing in this case. I do not think there is any dispute about that on the part of any of the doctors. It may have played some part in what he did, but what you have to decide here is what was the substantial cause of his conduct. Was it the abnormality of mind from which he suffered that substantially impaired his mental responsibility, an abnormality of mind arising, of course, from inherent causes or from disease or injury, not an abnormality of mind arising from the taking of drink - for that does not help? As I say, you ask yourselves what was the substantial cause of his conduct. If it be substantially the abnormality of mind arising for those reasons other than drink or drugs, why, then, the defence of diminished responsibility has been established."

[28]In their judgment delivered by Lord Lane CJ the Court of Appeal stated, at p 702:

"Mr. Nicholls criticises that direction as imposing upon the jury the task of deciding what was the substantial or principal cause of the appellant acting in the way that he did. In other words, he contends, the jury are being asked to decide whether it was the inherent causes on the one hand or the drink and pills on the other which were the main factor in causing the appellant to act as he did. This, argues Mr. Nicholls, is not the problem which the jury, upon the words of the statute, truly had to decide. They had to decide whether the abnormality arising from the inherent causes substantially impaired the appellant's responsibility for his actions. It would, he contends, have been open to the jury to conclude that the effect of the inherent causes on the one hand and of the drink coupled with the pills on the other, each amounted to such abnormality of mind as substantially to impair the appellant's mental responsibility. By the direction which the judge gave, that possibility was removed from the jury's consideration. The passage in the summing up which is criticised is plainly taken from the decision of this court in Reg. v Turnbull (Launcelot) (1977) 65 Cr App R 242 . "

[29]The Court of Appeal then set out a portion of their judgment in R v Turnbull (Launcelot ) and stated, at p 703:

"Mr. Michael Hill concedes that it is a misdirection to ask the jury to decide what was the substantial cause of the defendant's actions in any case where the cause of his actions may be a mixture of matters which do and matters which do not fall within the provisions of section 2(1) of the Homicide Act 1957 and to this extent agrees with the submissions of Mr. Nicholls. He asks us to take the view however that this was not such a case: that here the jury had to decide simply whether this was a man abnormal because of drink and/or drugs or a man abnormal because of inherent causes such as clinical depression, and that accordingly the direction was proper. We beg leave to doubt whether in any circumstances it is proper to invite the jury to decide the question of diminished responsibility solely on the basis of 'What was the substantial cause of the defendant's behaviour?' We do not think that Reg v Turnbull (Launcelot) 65 Cr App R 242, read as a whole, really goes as far as that. However, there is no doubt that the instant case was one par excellence where the jury might, and probably would, conclude that both drink and also inherent causes played their part in the undoubted abnormality of mind. This can be seen from that part of the summing up already cited and also from the précis of the medical evidence which we have given. Consequently, as Mr. Hill concedes, the judge's direction was incorrect. We should like to add this. Even assuming that the direction approved in Reg. v Turnbull (Launcelot) taken as a whole was correct, we consider that it is not a direction which should in future be copied, for reasons which are apparent. Where alcohol or drugs are factors to be considered by the jury, the best approach is that adopted by the judge and approved by this court in Reg v Fenton [1975] 61 Cr App R 261. The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs 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 within the meaning of 'substantial' set out in Reg v Lloyd [1967] 1 QB 175. ……. We accordingly allow the appeal and substitute for the verdicts of murder verdicts of manslaughter on the grounds of diminished responsibility."

[30]Therefore four points clearly emerge from the judgment of the Court of Appeal in Gittens :(i) Where a defendant suffers from an abnormality of mind arising from arrested or retarded development of mind or inherent causes or induced by disease or injury and has also taken drink before the killing, the abnormality of mind and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing.

(ii) Therefore the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the defendant's mind, the abnormality of mind arising from a cause specified in subsection 2(1) nevertheless substantially impaired his mental responsibility for his fatal acts.

(iii) Accordingly it is not correct for the judge to direct the jury that unless they are satisfied that if the defendant had not taken drink he would have killed, the defence of diminished responsibility must fail. Such a direction is incorrect because it fails to recognise that the abnormality of mind arising from a cause specified in the subsection and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing.

(iv) The direction given by the judge in R v Turnbull (Launcelot) 65 Cr App R 242 should not be followed.

[31]Professor John Smith wrote a commentary on the judgment of the Court of Appeal in Gittens in [1984] Crim LR 554 as follows:

"One of the criticisms made of the trial judge in Turnbull was that he directed the jury in more than one way. The Court of Appeal in that case certainly seems to have approved of the substantial cause test because they quoted the judge's direction, 'You may think, it is a matter for you, that drink had something to do with this, but what is the substantial cause of Turnbull's inability to control his behaviour that night? What is the substantial cause of his stabbing this man ….'—and commented, 'That is exactly the right test, as has been admitted by counsel for the applicant.' It appears that it is not exactly the right test. If the jury are to ignore the effect of drink or drugs they necessarily have to answer a hypothetical question, or perhaps two such questions. If the defendant had not taken drink and had killed would he, because of the inherent causes have been under diminished responsibility? It may be, however, that the jury will be of the opinion that, if the defendant had not taken drink or drugs, he would not have killed at all. In that case, it appears that the defence would not be open. The jury were certainly directed to that effect in Turnbull and the Court of Appeal did not disapprove of that direction: 'Have the defence satisfied you that it is more probable than not that Turnbull would have acted as he had on this night even had he not taken drink? …. If, …. you did take the view…. that if he had not had drink this would not have happened, then the defence would have failed to prove that the abnormality of mind substantially diminished Turnbull's responsibility for his act in killing.' This accords with the opinion in Fenton and the present case that the effect of intoxication is to be disregarded. So the two questions for the jury, in logical sequence would seem to be: 'Have the defence satisfied you on the balance of probabilities—that, if the defendant had not taken drink— (i) he would have killed as he in fact did? And (ii) he would have been under diminished responsibility when he did so?' "

[32]I consider, with respect, that this commentary placed undue reliance on the direction by the judge and the judgment of the Court of Appeal in Turnbull and did not give sufficient weight to the subsequent judgment of the Court of Appeal in Gittens which makes it clear that the direction in Turnbull should not in future be followed and that the correct approach for a judge to take was that adopted by the judge in Fenton which the Court of Appeal in Gittens

[1984] QB, 698

, 703 (in a passage which I have already cited but which it is helpful to set out again) stated as follows:

"The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs 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 within the meaning of 'substantial' set out in R v Lloyd [1967] 1 QB 175."

Therefore even if the jury answered "No" to the question: "Have the defence satisfied you on the balance of probabilities that, if the defendant had not taken drink, he would have killed as he in fact did?"— it is still open to the jury to find the defence of diminished responsibility established.

[33]When, in Gittens , the Court of Appeal stated that the jury should be directed "to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was" the court were referring to the effect of the alcohol on his abnormality of mind and were making it clear that in deciding whether the defendant was suffering from an abnormality of mind within the meaning of the section and had impairment of mental responsibility arising from that abnormality, the alcohol was to be left out of account. This is clear because after the words I have set out the court continued "since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section." In other words (as is stated in an article by Mr G R Sullivan on "Intoxicants and Diminished Responsibility" [1994] Crim LR 156, 160) the defendant's drinking is to be left out of account in so far as it exacerbated his abnormality of mind. But, of course, alcohol can have a disinhibiting effect and can lead to violence on the part of a person who does not suffer from an abnormality of mind within the meaning of section 2(1), and the jury can take this into account in deciding whether the defendant's underlying mental abnormality did substantially impair his mental responsibility for the fatal acts, notwithstanding the drink he had taken.

[34]This point is well put in Simester and Sullivan , Criminal Law Theory and Doctrine (2000) at p 580 and 581:

"the taking of intoxicants should not disentitle D from successfully pleading diminished responsibility if the abnormality of mind caused by factors internal to [him] is sufficient, of itself, substantially to impair [his] responsibility…. The drink does not supervene over his underlying subnormality. That underlying condition remains, and so does the question whether that condition substantially impaired his responsibility for the killing."

But no doubt in many cases (as in Fenton ) if the jury concluded that the defendant would not have killed if he had not taken drink they will also find that his abnormality of mind had not substantially impaired his mental responsibility for his fatal acts.

[35]In two subsequent cases, R v Atkinson [1985] Cr LR 314 (1 March 1985) and R v Egan

[1992] 4 All ER 470

the Court of Appeal approved the two questions stated by Professor Smith in his commentary. In Atkinson the jury returned a verdict of guilty of murder where the defendant, who suffered from mental abnormality, had consumed a quantity of alcohol before killing a householder in the course of a burglary. In the course of his summing up

the judge said:

"If you think that drink had something to do with it, you will ask yourselves the next question: was that the substantial cause, the root cause, of his inability to control himself at the time of the killing?"

In an unreserved judgment, Lord Lane quoted the headnote of the judgment of the Court of Appeal in Gittens and stated at p 5 of the transcript:

"The decision in Gittens was the subject of consideration by Professor Smith [1984] Crim LR 553. The learned Professor in the commentary upon that case takes this view, and it may be helpful if we were to read these words from his commentary: 'This accords with the opinion in Fenton and the present case that the effect of intoxication is to be disregarded. So that two questions for the jury, in logical sequence, would seem to be: 'Have the defence satisfied you on the balance of probabilities— that if the defendant had not taken drink— (i) he would have killed as he in fact did? And (ii) he would have been under diminished responsibility when he did so?' We would like respectfully and gratefully to read that analysis by Professor Smith, which seems to us to put the matter very clearly and in a way which can be understood by all."

Lord Lane then stated at p 6:

"We have been troubled by the case, but we think that in those remarks the learned judge was in effect posing the questions which Professor Smith posed in his commentary, although perhaps he put them the other way round. We think the jury were sufficiently by those words left to decide the problem, namely, if the defendant had not taken drink, would he have killed as he in fact did? The jury were entitled to give the answer which they did to that question."

For the reasons which I have sought to give I consider, with the greatest respect, that the approach taken by the Court of Appeal in Atkinson in applying Professor Smith's two questions was erroneous and that the judgment in that case cannot be reconciled with the judgment in Gittens

[1984] QB 698

which, in my opinion, states the law correctly.

[36]Before considering R v Egan it is relevant to note that in delivering the judgment in the Court of Appeal in R v Tandy

[1989] 1 All ER 267

, 271j (where the facts are not relevant to the present appeal) Watkins LJ summarised the decision of the Court of Appeal in Gittens as follows:

"The Court of Appeal in R v Gittens [1984] 3 All ER 252, [1984] QB 698 said that it was a misdirection to invite the jury to decide whether it was inherent causes on the one hand or drink or pills on the other hand which were the main factor in causing the appellant in that case to act as he did. The correct direction in that case was to tell the jury that they had to decide whether the abnormality arising from the inherent causes substantially impaired the appellant's responsibility for his actions."

In my respectful opinion this was an accurate summary.

[37]In R v Egan

[1992] 4 All ER 470

the jury also returned a verdict of guilty of murder where the defendant, who suffered from mental abnormality, killed a householder in the course of a burglary after having consumed a quantity of alcohol.

The judge gave the following direction to the jury (see p 476):

"The second point is this, you must disregard the effects produced by alcohol, you look solely at the evidence which bears upon the abnormality of mind. If you conclude that his responsibility was substantially reduced drink or no drink, then the defence is made out. But if you conclude that the abnormality of mind would not on the balance of probabilities have diminished his responsibility substantially without the drink then the defence is not made out."

The Court of Appeal, in dismissing the appeal, approved this direction and stated at p 479:

"We clearly understand from all the judge said that he was directing this jury's mind to the vital question, namely, was the appellant's abnormality of mind such that he would have been under diminished responsibility, drink or no drink."

In my opinion the judge gave a correct direction to the jury and the Court of Appeal was right to approve it. But, in my respectful opinion, the Court of Appeal made a number of other observations which cannot be reconciled with the principle stated in Gittens

[1984] QB 698

and which were erroneous. These observations were made in rejecting an argument by counsel for the appellant (set out at p 475) that it was wrong for the Court of Appeal in Atkinson to have approved Professor Smith's commentary on Gittens and that his suggested questions were irreconcilable with the ratio of Gittens itself. Watkins LJ stated at p 477:

"We have considered also Mr Pitchford's submission that the court's approval in R v Atkinson already referred to of Professor Smith was obiter, and that the Professor's questions are irreconcilable with the ratio in Gittens . Our conclusion is that this submission is misconceived. Far from being obiter, the approval by the court of those questions was central to the decision of the court in R v Atkinson, as is clear from what Lord Lane CJ said."

At p 478:

"Further, we cannot accept that, as is implied in the submission, the court in R v Atkinson failed to recognise that they were adopting questions which are, supposing that to be so, irreconcilable with R v Gittens . We do not so regard them ourselves and would find it astonishing if that court did not have the ratio in R v Gittens well in mind, in approving and adopting the questions. They are, in our judgment, most appropriate and ought to be applied generally."

And later at p 478: "To that he adds the contention that the judge wrongly directed the jury that unless they were satisfied on a balance of probabilities that the killing would have occurred had drink not been taken, the defence of diminished responsibility was not made out. We do not regard that as wrong. It is in accord with R v Atkinson, the c

[38]In the trial of the present case Maurice Kay J, pursuant to the judgments in Atkinson and Egan , put to the jury the two questions propounded by Professor Smith. On appeal to the Court of Appeal two grounds of appeal were advanced. One ground was that the judge improperly withdrew from the jury's consideration the possible defence of alcohol dependence syndrome. The Court of Appeal rejected this ground because the evidence was not capable of establishing such a syndrome. This ruling was not challenged on the appeal to the House. The second ground of appeal before the Court of Appeal which was advanced by Mr Edis QC was the ground advanced before this House, namely, that the judge had been wrong to put to the jury the questions propounded by Professor Smith and those questions were inconsistent with the judgment of the Court of Appeal in Gittens and created an obstacle, which was not contained in section 2, in the way of the defence of diminished responsibility. This argument was rejected by the Court of Appeal and Rose LJ stated at para 13:

"In our judgment, there are a number of difficulties, as a matter of principle and authority, with Mr Edis's submissions. First, we do not accept that Professor Smith misunderstood the court's judgment in Gittens. In our judgment his questions accurately reflect the substance of one aspect of that decision. If it were otherwise, it is inconceivable that, in Atkinson, the incompatibility of the Smith questions with the decision in Gittens would have escaped the court's attention. On the contrary, the court expressly approved the Smith questions as a correct analysis of Gittens . Secondly, in Egan , not only were the Smith questions again approved but the challenge to their compatibility with the decision in Gittens was firmly rejected. Gittens , Atkinson and Egan are all binding on this court."

[39]My Lords,

[39]I recognise the force of the point made by the Court of Appeal in both Egan

[1992] 4 All ER 470

and the present case that in Atkinson [1985] Crim LR 314 the court would have had the ratio of Gittens

[1984] QB 698

in mind in approving Professor Smith's questions (Lord Lane having delivered the judgments in both cases). Nevertheless, and with the greatest respect, on a detailed analysis of the cases I am driven to the conclusion, for the reasons which I have sought to give, that the approach taken by the Court of Appeal in Atkinson and Egan in approving Professor Smith's two questions was erroneous and that the judgment in Atkinson cannot be reconciled with the judgments in Fenton 61 Cr App R 261 and Gittens, which, in my opinion, state the law correctly.

[40]In his submissions on behalf of the Crown Mr Perry submitted that it was the policy of the criminal law that self-induced intoxication did not constitute a defence to a criminal charge, and that if the appellant's submissions were correct an intoxicated disinhibited killer would be excused. I am unable to accept this argument. The policy of the criminal law in respect of persons suffering from mental abnormality is to be found in the words of section 2, and the section provides that if a person suffers from such abnormality of mind as substantially impairs his mental responsibility, he should not be convicted of murder but of manslaughter. As my noble and learned friend, Lord Rodger of Earlsferry, observed in the course of Mr Perry's submissions, a brain-damaged person who is intoxicated and who commits a killing is not in the same position as a person who is intoxicated, but not brain-damaged, and who commits a killing. Conclusion

[41]Therefore I would answer the first part of the certified question in the negative. As regards the second part of the question, without attempting to lay down a precise form of words as the judge's directions are bound to depend to some extent on the facts of the case before him, I consider that the jury should be directed along the following lines:

"Assuming that the defence have established that the defendant was suffering from mental abnormality as described in section 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant's mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him."

[42]The recent death of Professor Sir John Smith is a great loss to the world of legal scholarship, especially in the field of criminal law, and in suggesting the direction set out above I am fortified by the consideration that it would be in general conformity with the direction suggested by him as an alternative approach to the problem in his commentary on the judgment of the Court of Appeal in the present case [2002] Crim LR 132, 136:

"You may think that all of these factors (including his drunkenness) played a part in causing D to act as he did. The only factor which the law recognises as capable of diminishing his mental responsibility is the mental abnormality described by the expert witnesses. If you are satisfied on the balance of probabilities that this abnormality existed and played such a part in his actions as, in your opinion, substantially to diminish his mental responsibility for those acts, you will find him not guilty of murder …."

[43]Accordingly, for the reasons which I have given, I would remit the case to the Court of Appeal for that court to decide whether to allow the appeal and quash the conviction for murder and order a new trial or to substitute a verdict of guilty of manslaughter for the verdict of murder found by the jury and to pass an appropriate sentence for that offence. LORD HOBHOUSE OF WOODBOROUGH My Lords,

[44]For the reasons given by my noble and learned friend Lord Hutton, I too would make the order he proposes. LORD RODGER OF EARLSFERRY My Lords,

[45]I have had the privilege of reading the speech of my noble and learned friend Lord Hutton in draft. I agree with it and for the reasons that he gives I too would allow the appeal and make the order which he proposes.

Cited in 14 later judgments

and 5 more of the most senior