R v Campbell (Colin)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 25 October 1996 |
| Neutral Citation | [1986] EWCA Crim J1031-1 |
| Judgment citation (vLex) | [1996] EWCA Crim J1025-6 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 95/4772/Z4,No. 4940/B/85 |
| Date | 25 October 1996 |
[1986] EWCA Crim J1031-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Kennedy
and
Mr. Justice Owen
No. 4940/B/85
MR. M. BURTON, Q.C. and MR. R. SLOWE appeared on behalf of the Appellant.
MR. P. BOWSHER, Q.C. and MR. W. POWELL appeared on behalf of the Crown.
On 26th July 1985 in the Crown Court at Reading this appellant was convicted of murder and was sentenced to life imprisonment.
He now appeals against conviction by leave of the single Judge.
The prosecution arose out of the death of a young woman named Deidre Sainsbury. At the trial it was accepted that it was the appellant who killed her. He pleaded guilty to manslaughter by reason of provocation, but that plea was not acceptable to the prosecution and so he was tried.
During the trial the jury heard how the deceased met her death. That information came largely from admissions made by the appellant which were not contested. The jury also heard uncontested evidence from a pathologist as to the cause of death. They also heard a consultant psychiatrist, Dr. MacKeith, who was called by the defence to give evidence as to the state of mind of the appellant which, it was submitted, could assist the jury on the issue of provocation.
Before us it is submitted by counsel, who did not appear at the trial, that in the light of what was said by Dr. MacKeith, the Judge should have directed the jury to consider not only provocation but also diminished responsibility, even though the issue of diminished responsibility was never raised by experienced leading counsel who appeared for the appellant at the trial. Leading counsel told the Judge in terms, before Dr. MacKeith was called to give evidence, that that evidence was not directed to diminished responsibility.
It is therefore necessary to consider: (1) what in law amounts to diminished responsibility; (2) whether there was at the conclusion of the evidence given by Dr. MacKeith, who happened to be the last witness, prima facie evidence of diminished responsibility, and if so, (3) what, if anything, ought to have been done to bring that issue before the jury. What is Diminished Responsibility?
Section 2 of the Homicide Act 1957 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 cause 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."
So diminished responsibility is something which the defence has to prove on a balance of probabilities. Where, as here, the killing is admitted, what the defence has to prove is that the accused was suffering from such abnormality of mind of the relevant type as substantially impaired his mental responsibility for his acts and omissions in doing the killing. So it is necessary first to identify those acts and omissions, then to consider what evidence there is to suggest that: (a) the accused was suffering from an abnormality of mind (arising in the way envisaged by the statute), and (b) the abnormality was such as substantially to impair his mental responsibility for his acts and omissions in doing the killing How did the girl come to die?
On 22nd December 1984 she was hitch-hiking in London seeking a lift to Oxford. The appellant, who had been playing hockey, stopped and picked her up. According to his account to the police he drove his car for a little way, then stopped it in Osterley Lane, and made advances towards her. She struck him across the eye with her hand. He then punched her. He thought that the punch must have hit her in the throat, because she began gurgling and blood poured from her mouth.
The appellant later told the police that she then passed out and collapsed straight forwards. He put the seat belt onto her. He did not throw her out of the car because he had already told her his name and he thought she might report him. Then he drove off. Asked where he went, he said "I don't remember, she came to as I was driving around. She was gurgling and blood was coming out of her mouth. I was frightened. I wasn't thinking clearly. I tried to strangle her." A little later he said, "I don't know how many times I kept doing that." The police officer asked "Doing what?", to which the appellant replied, "Trying to strangle her. It seemed like an eternity, there was blood everywhere."
He was asked to explain how he strangled her, and he said, "She struggled a couple of times, I hit her and she passed out and I strangled her with my hands. Everything that happened got worse. It was something that I did not intend." He was asked, "At what stage did you know you had killed her?" and he replied, "When I left her. She was still making a noise. I pushed her in the back and threw some things on top of her. She was too badly hurt to help. I hit her with the hockey stick across the throat. I think I knew she was dead then. I just wanted to get rid of her." The officer said, 'For some reason you went berserk and attacked her?" The appellant replied, "The first time I hit her I didn tan to, it was spontaneous, but after that, yes, I went berserk with panic." A little later on the police officer said to the appellant, "So basically you strangled her to cover up for the injury you had caused by hitting her in the throat?" The appellant replied, "Yes." The officer asked, "Can you offer any explanation as to why you killed that girl?" and the appellant replied, "Plain blind panic."
When giving evidence at his trial the appellant described his response to the blow with which the deceased attempted to reject his advances as follows: "As soon as I was hit, I hit back with my fist. I think I shouted 'witch' or 'bitch'. I did not expect to be hit, at worst I expected her to say 'no'. I can only assume that I must have hit her in the throat. She was gurgling and choking. I had never heard anything like it before. Blood was gushing everywhere. I think I tried to help her. I gave up and ended up killing her. I strangled her. Between my shaking and strangling her, I ended up pulling her into the back of the car. 1 strangled her because 1 wanted to cover up the damage I had done. 1 did not stop and think. I did not reason anything out. I did not intend it should end the way it did."
For present purposes it is unnecessary to consider his evidence as to what he did to the girl after he believed her to be dead. Suffice it to say that he mutilated her body appallingly in the hope that anyone who found it would believe that she had been the victim of a frenzied attack. Having done that he dumped the body in a ditch. What is significant is that he does not suggest that the girl died as the result of a single blow, or even as the result of a brief attempt at strangulation. He describes a heavy blow to the throat, which, if he is right, clearly caused her serious injury but not death, followed, after quite an interval during which he was driving the ear, by prolonged attempts at strangulation, during which she was struggling.
The evidence of the pathologist, Dr. Cordner, was not disputed, and it tended to confirm the accused's account of the attack on the girl. Death, said the pathologist, was due to compression of the neck and aspiration of blood. There was evidence of a severe blow to the Adam's Apple, and his conclusion was that both the blow and the strangulation caused the death. Abnormality of mind;
Turning now to the state of mind of the appellant, there was clear evidence from Dr. MacKeith of an abnormality of mind in the form of epilepsy. On electroencephalogram examination structural abnormality of the brain was discerned.
Dr. MacKeith said: "Whether in an individual case the condition of epilepsy with brain damage is related to a person's aggressive tendencies is a complex matter difficult to study, because it depends not only on direct physical or physiological effects of the brain damage in the epileptic process, but all things like social attitudes, the epileptis's or individual's node of adjustment to it….. in my opinion it is highly possible that a man with a condition like Mr. Campbeell's could as a result be vulnerable to an impulsive tendency and therefore occasional impulsive acts, some of which may be aggressive."
The doctor then referred to occasions in the past when it appeared that the appellant had been violent, and said: "It is certainly possible that it is his brain damage and associated epileptic condition as well as the effects of that on his development of relationships with others which could explain it."
Substantially impairing responsibility:
That was the full extent of the evidence given by Dr. MacKeith, and in our judgment it is clear that the doctor never even addressed himself in his evidence to the final matter which would have to be proved by the defence in order to establish diminished responsibility, namely that the abnormality was such as substantially to impair the mental responsibility of the appellant for his acts and omissions in doing the killing.
The abnormality...
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