R v Clive Wood
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 02 April 2009 |
| Neutral Citation | [2008] EWCA Crim 1305,[2009] EWCA Crim 651 |
| Docket Number | Case No: 2006/05752/C1,Case No: 200605752 C1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 April 2009 |
[2008] EWCA Crim 1305
The President of The Queen's Bench Division
Mr Justice Aikens and
Mrs Justice Swift
Case No: 200605752 C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOLVERHAMPTON CROWN COURT
MR JUSTICE MITTING
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Malcolm Bishop QC for the Appellant
Mr Roger Smith QC for the Prosecution
Hearing dates : 30 th April 2008
President of the Queen's Bench Division
This is an appeal by Clive Wood against his conviction for murder before Mitting J and a jury at Wolverhampton Crown Court on 11 October 2006.
In the early hours of 21 July the appellant mounted a frenzied attack on Francis Ryan with murderous intent. The deceased was struck 37 times with a meat cleaver and a lump hammer was also used in the attack. It was agreed between the Crown and the defence that at the time of the killing the appellant suffered from alcohol dependency syndrome. The single issue in this appeal concerns the accuracy, or otherwise, of the judge's directions on diminished responsibility in the context of the appellant's undoubted alcoholism.
The appellant began drinking to excess after he separated from his second wife. By 2005 he was regularly drinking 4–5 litre bottles of strong cider daily. His drinking was out of control, and his life was, effectively, in ruins. He could not hold down a job, and he took to living rough and wandering about the canal system around Walsall. In his evidence the appellant said that whenever he had any money, he would automatically buy drink. Drink was the first thing he thought about when waking, he sought it throughout the day, and it was the last thing he thought about before falling asleep. He had a strong craving for drink throughout his waking life, and if alcohol was available, he would drink it until it was finished.
On 19 th July 2005 he came across a group of alcoholics who were described as the “breakfast club”. The appellant joined them and spent the rest of the day drinking with them. He was offered whisky, and he drank some cans of Stella, as well as two bottles of White Storm cider. Eventually all the others went home, and the appellant, having nowhere else to go spent the night in a derelict building.
On 20 th July, on waking, the appellant started to drink and then walked back to the place where he had encountered the “breakfast club” on the previous day. He drank heavily throughout that day. His own estimate in evidence was that he drank 2/3 litres of White Storm cider, several cans of Stella, brandy and vodka, and except for breakfast at about 10am, without eating any food. In the afternoon he asked one of the members of the club if he could have a shower at her flat. He was invited to have a bath, and provided with some clean clothes. After washing and changing, he began to drink vodka. The drinking continued throughout the night. Huge amounts of alcohol were available, and by the end of the evening he was extremely drunk.
At about midnight, the party started to wind down. The appellant had nowhere to spend the night. He was invited to the home of the deceased, who was openly gay. The appellant went to his flat, “out of it”.
In his evidence the appellant described how he eventually fell asleep on the sofa in Ryan's flat. He was woken by the deceased, who unzipped his trousers and lowered them, trying to get hold of the appellant's penis and attempting to have oral sex with the appellant. Having been woken up to find the deceased on top of him, acting in this way, the appellant lost his self control and struck him repeatedly with the meat cleaver. Thereafter, according to his evidence, his mind simply went blank, and the next thing he remembered was trying to look for alcohol and waking up, covered in blood, by the side of the canal.
The appellant was found that day, sitting on a bench by the side of the canal drinking from a bottle of cider, and arrested. He was taken to the police station and interviewed. His accounts in interview were consistent with the evidence he was later to give at trial. In the context of the defence of provocation which was advanced to and rejected by the jury, the appellant spoke of a disturbed, abused childhood, and how, when he was woken by the deceased, he had flashbacks of unpleasant incidents of sexual abuse which occurred during childhood when he was living at an assessment centre. No further attention to this aspect of the case is necessary.
It was agreed between the four psychiatrists, two called on behalf of the Crown, and two for the appellant, that he displayed at least six of the elements required to justify the diagnosis of alcohol dependency syndrome. These were, a strong desire to drink, difficulties in controlling when and how much to drink, using drink to relieve or avoid withdrawal symptoms, tolerance of an increased amount of alcohol and neglect of alternative pleasures and interests. The syndrome is nowadays recognised as a true psychiatric condition.
Addressing the issue of alcohol intoxication, in his written report, Dr Rajesh Moholkar reported that his understanding of the legal concept of diminished responsibility in the context of alcohol consumption was that “voluntary intoxication does not provide a basis for a defence of diminished responsibility. The intoxicated state of mind is not considered as arising from “inherent” causes. If alcohol causes brain disease like dementia or mental illness like psychosis, then it can constitute an abnormality of mind. There is no evidence that Mr Wood has suffered from brain damage or any mental illness as a result of the drink. The amount of alcohol he consumed on the day of the alleged offence was far in excess of what he usually drank and he drank to excess voluntarily”.
Dr Moholkar's evidence at trial is summarised in the grounds of appeal. He accepted that the appellant's consumption of alcohol at the start of the day was involuntary until he reached his ordinary daily quota, but he contended that the alcohol consumed in excess of that quota was voluntary. He also accepted that the appellant had difficulty in controlling the intake of alcohol and the amounts he consumed. As a result of his condition the appellant would drink in excess, if drink was available, but notwithstanding his difficulty in controlling his intake, Dr Moholkar believed that he still had a choice whether to do so or not.
In his written report Dr Rafiq Memon described a clear history of “chronic alcoholism (alcohol dependency syndrome). The appellant had difficulty controlling his alcohol taking behaviour, suffered from withdrawal symptoms, used alcohol to relieve such symptoms, required increasing amounts of alcohol over time, neglected other activities and persisted with alcohol use despite harmful consequences such as punching someone”. In relation to diminished responsibility Dr Memon said that although the appellant was a “chronic alcoholic”, he was voluntarily intoxicated at the time of the killing and that this was not an abnormality of mind. In his evidence he explained that such an abnormality should manifest itself either in brain damage or psychosis. He did however accept that there was more to the incident than “simple voluntary intoxication”. He agreed that the appellant could have suffered changes to his brain below what was described as the “macroscopic level”. Alcohol does kill brain cells, but in his view such subtle changes were not sufficient to be labelled “abnormality of the mind”.
Dr Van Woerkum reported that the appellant was a “dependent chronic alcoholic”, who was “having to drink continuously, due to chronic alcohol dependency”. This constituted a disease of the mind. In his evidence he accepted that his conclusion that an abnormality of mind was present required some evidence of damage to the brain, but he said that such damage would not necessarily be evident on the macroscopic scale. Subtle sub-macroscopic changes, which impair mental function, take place in the brain after years of excessive drinking. Such changes could be diagnosed clinically, and in his opinion the mental functioning of the appellant indicated subtle brain damage.
Dr M Al-Uzri provided a rather less detailed report on the issue of diminished responsibility, but he expressed the view that the appellant was “under the influence of a significant amount of alcohol, which clearly can cause impaired judgment [and] would jeopardise his ability to control his behaviour”. In his evidence he observed that subtle, sub-macroscopic levels of damage could only be detected by clinical diagnosis. In his view the appellant's level of mental functioning suggested that he had indeed suffered such brain damage.
Both Dr Moholkar and Dr Memon attempted to address head on some of the underlying difficulties of explaining how a true alcoholic may, on any particular occasion, be drinking voluntarily, and on another may be acting under the compulsion caused by his condition. Just as it was common ground between the psychiatrists that the appellant was properly to be diagnosed as suffering from alcohol dependency syndrome, they were agreed that there was no evidence of psychosis. The significant area of difference on medical grounds (as opposed to the legal consequences of their medical expertise) was that the Crown's psychiatrists could find no evidence of damage to the brain, whereas the defence psychiatrists concluded from clinical evidence that such changes had indeed occurred. Accordingly the...
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