R v Golds
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lord Neuberger,Lady Hale,Lord Kerr,Lord Reed,Lord Toulson,Lord Thomas |
| Judgment Date | 30 November 2016 |
| Neutral Citation | [2016] UKSC 61 |
| Date | 30 November 2016 |
| Court | Supreme Court |
[2016] UKSC 61
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Hughes
Lord Toulson
Lord Thomas
Appellant
David Etherington QC Stephen Rose (Instructed by Taylor Haldane & Barlex)
Respondent
David Perry QC Tom Little (Instructed by Crown Prosecution Service Appeals and Review Unit)
(with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Reed, Lord Toulson and Lord Thomas agree)
The appellant Mark Golds was convicted by a jury of the murder of his partner. He had admitted in court that he had killed her, and the sole issue at his trial had been whether he had made out the partial defence of diminished responsibility, and so fell to be convicted of manslaughter rather than of murder. The law to be applied was section 2 of the Homicide Act 1957 after its recent revision by the Coroners and Justice Act 2009. The issue is the correct approach to the statutory test of whether his abilities were in specified respects "substantially impaired": see section 2(1)(b).
The appellant had attacked his partner with a knife at their home in front of her young children after a running argument which had taken place on and off throughout much of the day. He had inflicted some 22 knife wounds together with blunt impact internal injuries. He had a history of mental disorder leading to outpatient treatment and medication. Two consultant forensic psychiatrists gave evidence that there was an abnormality of mental functioning arising from a recognised medical condition, although they disagreed what that condition was. There was no contradictory psychiatric evidence. The judge correctly identified the questions which the jury needed to address (see para 8 below) and helpfully provided a written summary of the ingredients of diminished responsibility. He also provided a crystal clear written "route to verdict" document. On the issue of substantial impairment of ability he told the jury:
"Mr Rose [counsel for the defence] did suggest to you in his closing address that you would get some further help from me when giving you directions in law as to what the word substantially means, where it says substantially impaired his ability to exercise those qualities. I am not going to give you any help on the meaning of the word substantially, because unless it creates real difficulty and you require further elucidation, the general principle of English law is that where an everyday word is used, don't tell juries what it means. They are bright enough and sensible enough to work it out for themselves, so I am not going to paraphrase substantially. Substantially is the word that is in the Act of Parliament and that's the word that you have to work with. If it becomes a stumbling block in some way, well at the end of the day, you can send me a note and in those circumstances, I am permitted to offer you a little more help, but not at this stage of proceedings."
In the Court of Appeal (Criminal Division), amongst other grounds of appeal which have not survived, the appellant contended (a) that the judge had been wrong not to direct the jury as to what "substantially impaired" meant and (b) that the jury might in the absence of such direction have applied a more stringent test than it ought to have done. It was contended on his behalf that so long as the impairment was more than merely trivial, the test of "substantially impaired" was met.
The Court of Appeal dismissed the appellant's appeal ( [2015] 1 WLR 1030) but certified in relation to this ground that the following two questions of law of general public importance were involved:
1. Where a defendant, being tried for murder, seeks to establish that he is not guilty of murder by reason of diminished responsibility, is the Court required to direct the jury as to the definition of the word "substantial" as in the phrase "substantially impaired" found in section 2(1)(b) of the Homicide Act 1957 as amended by section 52 of the Coroners and Justice Act 2009?
2. If the answer to the first question is in the affirmative, or if for some other reason the judge chooses to direct the jury on the meaning of the word "substantial", is it to be defined as "something more than merely trivial", or alternatively in a way that connotes more than this, such as "something whilst short of total impairment that is nevertheless significant and appreciable"?
The Court of Appeal's answers to these questions were (1) that the judge was not, on authority, required to give greater definition than he did and (2) that if he had done so the appropriate formulation would have been that it was not enough that there was some impairment; the jury had to ask if it was substantial. It would, the court held, be wrong to direct the jury that it sufficed that the impairment was more than merely trivial.
As now amended, section 2 Homicide Act 1957 provides a complete definition of diminished responsibility. The material parts of it are as follows:
"Persons suffering from diminished responsibility
2(1) A person ('D') who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which —
(a) arose from a recognised medical condition,
(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.
(1A) Those things are —
(a) to understand the nature of D's conduct;
(b) to form a rational judgment;
(c) to exercise self control.
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.
(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."
This differs from the previous formulation of the partial defence. As originally enacted, section 2(1) provided:
"(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 causes 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."
It follows that the expression "substantially impaired" has been carried forward from the old Act into its new form. But whereas previously it governed a single question of "mental responsibility", now it governs the ability to do one or more of three specific things, to understand the nature of one's acts, to form a rational judgment and to exercise self-control. Those abilities were frequently the focus of trials before the re-formulation of the law. But previously, the question for the jury as to "mental responsibility" was a global one, partly a matter of capacity and partly a matter of moral culpability, both including, additionally, consideration of the extent of any causal link between the condition and the killing. Now, although there is a single verdict, the process is more explicitly structured. The jury needs to address successive specific questions about (1) impairment of particular abilities and (2) cause of behaviour in killing. Both are of course relevant to moral culpability, but the jury is not left the same general "mental responsibility" question that previously it was. The word used to describe the level of impairment is, however, the same.
The effect of the new statutory formulation is that the following four questions will normally arise in a case where diminished responsibility is advanced.
(1) Did the accused suffer from an abnormality of mental functioning?
(2) If so, did it arise from a recognised medical condition?
(3) If yes to (1) and (2), did it substantially impair one or more of the abilities listed in section 1A?
(4) If yes to (1), (2) and (3), did it cause or significantly contribute to his killing the deceased?
Of course, in some cases one or more of these may be common ground. The function of the judge is to focus the jury's attention on what is at issue and to explain why the issue(s) are relevant, as the judge did in the present case. It is not to read the jury a general statement of the law.
The concept of diminished responsibility was developed (with, at first, varying terminology) by the common law in Scotland in the late 19th and early 20th centuries as a means of mitigating, in an appropriate case, the mandatory sentence of death attendant on murder: see Lord Justice-General Rodger's helpful historical survey in Galbraith v HM Advocate 2002 JC 1 (paras 23 to 27), together with the report of the Scottish Law Commission SLC 195 (2004) at para 3.1. It operates by reducing the offence of murder to that of culpable homicide. It was adopted by English law via the Homicide Act 1957 for the same reason, and using the same mechanism of partial defence, at a time when the abolition of capital punishment was under debate but there was no Parliamentary majority for that greater step.
Soon after its introduction, the new partial defence was considered by the Court of Criminal Appeal in R v Matheson [1958] 1 WLR 474, R v Spriggs [1958] 1 QB 270 and R v Byrne [1960] 2 QB 396. In the first case there was no occasion for discussion of the meaning of...
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