Court of Appeal

DOI10.1350/jcla.2011.75.1.677
Published date01 February 2011
Date01 February 2011
Court of Appeal
Substantial Confusion within Diminished Responsibility?
R vRamchurn [2010] EWCA Crim 194
Keywords Diminished responsibility; Jury directions; Manslaughter;
Murder; Substantially impaired
On 2 April 2005, the appellant (R) met with the victim and killed him
by strangulation. R then 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 victim.
After having been arrested, R 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.
After being charged with murder, R pleaded guilty to manslaughter
by reason of diminished responsibility under s. 2(1) of the Homicide Act
1957. A successful pleading of the partial defence requires the following:
at the time of the killing the defendant must have been suffering from an
abnormality of the mind; the abnormality of the mind must have arisen
from a condition of arrested or retarded development of the mind or any
inherent causes or must have been induced by disease or injury; and the
abnormality of the mind must have substantially impaired the defend-
ant’s mental responsibility for his acts or omissions in the commission of
the fatal offence.
R was convicted of murder before Ipswich Crown Court after the jury
rejected the concessionary defence of diminished responsibility. R ap-
pealed after the trial judge provided two directions as to the meaning of
‘substantially’ within ‘substantially impaired’. In the summing-up, the
judge had provided the jury with specimen directions as advocated by
the Judicial Studies Board. The relevant passage for the present purpose
reads:
‘Substantially impaired’ means just that. You must conclude that his
abnormality of the mind was a 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.
(at [13])
Having retired to consider its verdict, the jury sought further assistance
from the trial judge regarding the difference between ‘trivial’ and ‘sub-
stantial’. In answering the request the judge gave a further direction. He
said:
. . . ‘Substantial’ does not mean ‘total’. That is to say the mental responsibil-
ity need not be totally impaired, so to speak, destroyed altogether.
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 sub-
stantially impaired?
12 The Journal of Criminal Law (2011) 75 JCL 12–28
doi:10.1350/jcla.2011.75.1.677
The word substantial means more than some trivial degree of impairment
which does not make any appreciable difference to a persons ability to
control himself but it means less than total impairment. (at [14])
R appealed arguing that in each direction the trial judge had provided a
different denition. R contended that the judge had either erred in law
or that s. 2(1) of the Homicide Act 1957 lacked the necessary certainty to
comply with Article 7 of the European Convention on Human Rights.
H
ELD
,
DISMISSING THE APPEAL
, provided the language the trial judge
uses does not exaggerate the burden on the defendant, or improvise
some extra-statutory additional obligation on the meaning of sub-
stantially impaired, no valid ground for complaint would exist. The
main issue before the court concerned the correctness of the directions
of law given by the judge regarding the term substantially impaired.
The trial judge directed the jury in conventional terms in relation to the
partial defence when he advised that the jury is entitled and indeed
bound to consider not only the medical evidence, but the evidence on
the whole facts and circumstances of the case.
The court rejected the suggestion that the second direction may have
had the effect of undermining the earlier direction in the summing-up,
referring to R vLloyd (1966) 50 Cr App R 61, where it was accepted that
there were different ways of explaining the same concept, and if neces-
sary explaining its relevance to the jury. In the circumstances of this trial
(with the jury requiring further elucidation of the concept of sub-
stantial in the context of impairment) mere repetition of the trial judges
earlier directions would not have helped.
The court was of the view that the trial judges directions were
sufcient to enable the court to say with certainty that the jury was not
satised that Rs mental responsibility for his actions at the time of the
killing was substantially impaired.
C
OMMENTARY
The present case is another in a surfeit of authorities highlighting the
problems associated with s. 2 of the Homicide Act 1957. The s. 2
provisions have been subject to attack recently as having insuperable
denitional problems. In 2003, the Home Secretary requested the Law
Commission to consider and report on whether there should continue to
be partial defences to murder and, if so, whether they should remain
separate partial defences or should be subsumed within a single partial
defence: Law Commission, Partial Defences to Murder, Law Com. Report
No. 290 (2004). The Law Commission drew attention to Buxton LJs
contemptuous criticism that s. 2 of the 1957 Act denition is disastrous
and beyond redemption (Law Com. Report No. 290 (2004) para. 5.43).
It has been suggested that s. 2 encourages role confusion between jury,
judge and psychiatrists. As a consequence of this poor wording and
resultant role confusion, it is possible to adopt both narrow and wide
interpretations of the provision. This often results in a gross abuse of
the partial defence (ibid. at para. 5.43).
Notwithstanding the pervasive difculties associated with s. 2(1), the
issue raised in the present case concerning the interpretation of the term
Substantial Confusion within Diminished Responsibility?
13

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