Justifying Reverse Burdens of Proof: A Tale of Diminished Responsibility and a Tangled Knot of Authorities
| Author | Peter Coe |
| DOI | 10.1350/jcla.2013.77.5.860 |
| Published date | 01 October 2013 |
| Date | 01 October 2013 |
| Subject Matter | Court of Appeal |
Court of Appeal
Justifying Reverse Burdens of Proof: A Tale of
Diminished Responsibility and a Tangled Knot
of Authorities
Foye vR [2013] EWCA Crim 475
Keywords Diminished responsibility; Burden of proof; European Con-
vention on Human Rights; Article 6
Foye was serving a life sentence for murder. After conviction, he was
assessed as having a severe personality disorder, which eventually led to
him being transferred to a prison dedicated to psychotherapy.
On 1 August 2010 Foye looked for a fellow prisoner named Coello,
who was not in his cell. Foye returned later and, upon finding Coello,
locked the cell door from the inside and covered the spy hole. Foye
wrestled Coello to the ground and repeatedly stamped on his head. Foye
initially denied any part in the killing, but eventually admitted it.
Before trial, Foye vandalised his cell and severed both ears from his
head. The defence advanced at trial was diminished responsibility. Three
consultant psychiatrists agreed the diagnosis of severe dissocial or
psychopathic personality disorder. Dr Shapero suggested a possible
psychotic element of mental illness, although he was unsure why this
should have developed. He recorded that at the time of severing his ears,
Foye claimed to be hearing voices and harmed himself to stop them.
Another consultant, Dr Joseph, raised the possibility of manipulative
behaviour, as conditions in therapeutic prisons were regarded as more
congenial than other high-security prisons.
If pleaded successfully, the partial defence of diminished responsibil-
ity allows the defendant to be found guilty only of manslaughter, as
opposed to murder. Although the defence has been amended by s. 52 of
the Coroners and Justice Act 2009, only murders committed on or after
4 October 2010 fall within the ambit of the amended defence. Therefore,
the applicable law in the present case was s. 2(1) of the Homicide Act
1957, prior to its amendment. There are three elements to this defence
that must be satisfied for it to apply. Section 2(2), which has not been
amended by the 2009 Act, places a legal burden on the defendant to
satisfy these elements: that he was suffering from an abnormality of
mind at the time of the killing; that abnormality arose from a condition
of arrested or retarded development of mind, or any inherent causes,
or was induced by disease or injury; and his mental responsibility for
the acts constituting the offence was substantially impaired by the
abnormality.
At trial there was consensus that Foye’s personality disorder came
within the expression ‘abnormality of mind’. The issue centred on
whether the personality disorder, or any other ‘specified cause’, ‘sub-
stantially impaired’ Foye’s mental responsibility for killing Coello. The
360 The Journal of Criminal Law (2013) 77 JCL 360–375
doi:10.1350/jcla.2013.77.5.860
To continue reading
Request your trial