Connelly v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 05 June 1990 |
| Date | 05 June 1990 |
| Docket Number | No. 55. |
| Court | High Court of Justiciary |
JC
L.J.-G. Hope, Lords Allanbridge, Brand.
Crime—Murder or culpable homicide—Diminished responsibility—Appellant irresponsible and vulnerable individual due to his immaturity and to personality difficulties but psychiatrist unable to justify view that appellant's responsibility was diminished on psychiatric grounds—Psychiatrist applying term "diminished responsibility" to state of mind of appellant at the time—Whether trial judge correct to withdraw issue of diminished responsibility from jury's consideration—Whether need mental unsoundness bordering on though not amounting to insanity.
The appellant was convicted in the High Court of Justiciary at Glasgow of murder. A psychiatrist, led by the defence, stated in evidence that the appellant had had an emotionally deprived childhood; had severe personality difficulties; and had an immature and inadequate personality. The psychiatrist also found in the appellant symptoms of an early mental illness. Taking all of these matters into account, the psychiatrist was of the opinion that the appellant's responsibility at the time of the offence had been diminished, although he could not satisfy himself that the appellant had been suffering from a mental illness as such. In other words, there was no question of the appellant having suffered from any mental disorder. In these circumstances, the trial judge (Lord Caplan) withdrew from the jury's consideration the issue of diminished responsibility. The appellant appealed against the conviction.
Held (1) that, it was clear that the psychiatrist's evidence fell far short of what had always been required in order to establish diminished responsibility; and, accordingly (2) that, the trial judge was quite correct to withdraw the issue of diminished responsibility from the jury's consideration; and appeal dismissed.
Dicta of Lord Justice-Clerk Alness in H.M. Advocate v. Savage 1923 J.C. 49 at p. 51 applied.
Opinion (per the Lord Justice-General (Hope)) (1) that, the psychiatrist's opinion that the appellant's responsibility had been diminished would have been appropriate for consideration by the jury if he had been able to justify that opinion on psychiatric grounds but that, once the psychiatrist had dissociated himself from any psychiatric basis for expressing his opinion, he had no proper basis whatever for expressing an opinion as a psychiatrist on the very issue which, insofar as it was a question of fact, was ultimately for the jury to decide; and (2) that, that was not to say that the psychiatrist was disabled from giving evidence about such views as he might have formed about the personality of the appellant and his immaturity or vulnerability to stress; but the conclusion as to whether or not this could amount to diminished responsibility within the accepted meaning of that term was one of law for the trial judge and not for him.
Opinion further (per the Lord Justice-General (Hope)) (1) that, the concept of diminished responsibility had been defined in the law in terms which were sufficiently elastic or flexible to avoid the dangers of rigidity while at the same time preserving the doctrine from abuse; (2) that, the question for the expert witness will be whether there is something in the mental condition of the accused which can properly be described as a mental disorder or a mental illness or disease; and (3) that it was hard to see how the criteria for diminished responsibility could ever be met in the absence of evidence to this effect.
Observed (per the Lord Justice-General (Hope) and Lord Allanbridge) that the passage in the charge to the jury of Lord Justice-Clerk Alness in H.M. Advocate v. Savage 1923 J.C. 49 at p. 51 had to be read as a whole, with all its elements, and it must be read together with the remark at the end, that running through all the cases one can see that there must be some form of mental disease, for the presence or absence of that particular characteristic marked the borderline between what was acceptable and what was not.
Peter Connelly was charged on an indictment at the instance of the Rt. Hon. The Lord Fraser of Carmyllie, Q.C., Her Majesty's Advocate, the libel of which set forth, inter alia,that:—"[You did on 24th or 25th April 1989] in the house at 516 Pollockshaws Road, Glasgow assault Walter Stewart Webb, residing there, repeatedly strike him on the head and arm with a hammer or similar instrument and did murder him." The pannel pled not guilty and adhered to a special defence of self-defence and the trial was heard before Lord Caplan and a jury in the High Court of Justiciary at Glasgow between 11th and 14th September 1989. On 14th September 1989 the jury returned a majority verdict of guilty on the murder charge and the pannel was thereafter sentenced by the court to be detained for life in a young offenders' institution. The appellant thereafter appealed to the High Court of Justiciary by way of note of appeal against conviction.
Lord Caplan's charge to the jury was in, inter alia, the following terms:—"I now turn to the next question of diminished responsibility. As you probably understood from the examination of the psychiatric witness, under our law if a person perpetrates an act that would otherwise be regarded as murder then in certain circumstances a jury can reduce a conviction to one of culpable homicide based on diminished responsibility. Now, what can properly be said, in our law, to constitute diminished responsibility is a question not without difficulty and I think you will have noted that even an experienced psychiatrist, when faced with dealing with diminished responsibility, has to struggle to a certain extent. It is my view of the law, and you must accept it from me, that diminished responsibility only arises if it can be shown that the actings of the accused were prompted by a degree of mental illness or a degree of mental impairment bordering insanity. In particular, and this is what is important, where personality disorders are involved such disorders are themselves not a foundation for a finding of diminished responsibility. As I recollect the psychiatric evidence there was no evidence that the accused was suffering from any mental illness or from any mental condition other than what could be described as a disturbed and abnormal personality. So I must direct you, and I do so on my responsibility, that diminished responsibility does not enter into this particular case, and you would not be entitled to reduce a murder verdict if you were inclined to do that to a verdict of culpable homicide merely on the ground of diminished responsibility. By implication I think you would have to consider if the accused killed Mr Webb with wicked intent to kill him or with wicked and reckless indifference and if you thought that there was self-defence or the accused may have been provoked then you would of course not arrive at that conclusion but you would convict him of culpable homicide or acquit him depending on the view you were to come to. However, if you were to conclude that the accused acted in all the circumstances and with all the considerations that I have described with murderous intent then nothing that Dr Antebe or any of the psychiatric witnesses said about his history or personality would affect your verdict. I must make certain matters absolutely clear because I have eliminated diminished responsibility from your consideration. Nothing I have said about that matter is intended to reduce the onus on the Crown to establish the murderous intention before they can secure a conviction of murder and of course in deciding whether the necessary intention has been proved you must consider the whole circumstances as disclosed by the evidence. If these circumstances in your view leave you with a doubt you would acquit of murder. I must also make it clear that what I have said about diminished responsibility does not affect your entitlement to consider a verdict of culpable homicide on bases other than diminished responsibility as I have explained it to you."
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