Court of Appeal
| Date | 01 May 2007 |
| Published date | 01 May 2007 |
| DOI | 10.1350/jcla.2007.71.3.203 |
| Subject Matter | Court of Appeal |
Court of Appeal
Intoxication and Diminished Responsibility
R v Hendy [2006] 2 Cr App R 33
On the night of 25 February 1992 the appellant killed a stranger in an
alleyway in Bristol. The appellant used a sheath knife to stab the victim
18 times in an unprovoked attack. He had consumed whisky, vodka and
sherry at a party not more than two hours before the incident. He
admitted to the killing and raised the defence of diminished responsibil-
ity at his trial under s. 2(1) of the Homicide Act 1957. Three consultant
forensic psychiatrists for the appellant submitted that he was suffering
from a psychopathic disorder. Evidence for the Crown contended that
the appellant simply had behavioural problems, but the question of
whether the appellant’s loss of temper would constitute an abnormal
state of mind or simply an inability to control his behaviour was compli-
cated by the fact that he had taken a considerable quantity of alcohol on
the night of the offence. The trial judge directed the jury by reference to
the following questions which derived from a commentary by the late
Professor Sir John Smith ([1984] Crim LR 554) on R vGittens [1984]
3 All ER 252, and had been approved by the Court of Appeal in R v
Atkinson [1985] Crim LR 314 and R vEgan (1992) 95 Cr App R 278:
Q1. Have the defence satisfied you that it is more likely than not if the
defendant had not taken drink he would have killed as he in fact did? If the
answer is ‘no’, the verdict is ‘guilty of murder’. If the answer is ‘yes’,
proceed to question 2.
Q2. Have the defence satisfied you that it is more likely than not that if the
defendant had not taken drink he would have been under diminished
responsibility when he killed? If the answer is ‘no’, the verdict is ‘guilty
of murder’. If the answer is ‘yes’, the verdict is ‘not guilty of murder, but
guilty of manslaughter by reason of diminished responsibility’. (formatting
added)
The appellant was convicted of murder. On appeal against conviction, he
argued that the trial judge’s directions misstated the law as explained in
R v Dietschmann[2003] 1 All ER 897, (2003) 67 JCL 395, which held that
the questions proposed by Professor Smith did not correspond with the
correct authority of Gittens. The Crown conceded that whilst this was
correct, the directions accorded with the law as it was understood at the
time of the trial when R vAtkinson [1985] Crim LR 314 and R vEgan
(1992) 95 Cr App R 278 considered the questions to be good law, and
thus a misdirection could not avail the defendant.
H
ELD
,
ALLOWING THE APPEAL
,the law had been correctly stated in
Gittens above. Alcohol and drugs were not to be viewed as inherent
causes of an abnormality of mind for the purposes of s. 2(1) of the 1957
Act, and the Court of Appeal in Atkinson and Egan above had wrongly
approved the questions posed by Professor Smith. The law explained in
Dietschmann was not ‘new law’ but merely confirmation that Gittens had
203
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