R v Khan (Dawood)

JurisdictionEngland & Wales
JudgeLord Justice Aikens,LORD JUSTICE AIKENS
Judgment Date27 July 2009
Neutral Citation[2009] EWCA Crim 1569,[2009] EWCA Crim 1687
CourtCourt of Appeal (Criminal Division)
Docket NumberNo. 2008/03469/D1,Case No: 200803469 D1
Date27 July 2009

[2009] EWCA Crim 1569

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM BRADFORD CROWN COURT

Mr Justice Grigson

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Aikens

Mr Justice Holman and

HHJ Bevan QC

Case No: 200803469 D1

T20077483

Between
R
Respondent
and
Dawood Khan
Appellant

Mr Nicholas P Askins for the Appellant

Mr Richard Mansell QC for the Respondent

Hearing date: 15 th July 2009

Lord Justice Aikens
1

On 23 May 2008, before Grigson J and a jury, the appellant was convicted of the murder of a young man called Nazeer Ahmed. The victim was bludgeoned with a cricket bat in the sitting room of a house in Keighley that he shared with the appellant and some other young men. He died soon after. The attack occurred just after 3pm on 31 May 2007.

2

On 30 June 2008, the appellant, who was then aged 21, was sentenced by Grigson J to life imprisonment with a recommendation that he serve a minimum term of 10 years, less time spent on remand.

3

The appellant raised two defences at his trial. The first was that he did not kill Nazeer Ahmed, because he was elsewhere at the time the attack occurred. The appellant's second defence was that if he did attack and thereby cause the death of Nazeer Ahmed, then he did so when suffering from diminished responsibility within the terms of section 2(1) of the Homicide Act 1957, (“ the 1957 Act”), so that he should only be convicted of manslaughter. By its verdict, the jury rejected both defences.

4

At the trial the prosecution led evidence from a large number of witnesses of fact, who dealt with matters both before and after the time of Nazeer Ahmed's death. The only expert evidence for the prosecution on the appellant's mental state at the time of the attack was contained in a statement of a consultant psychiatrist, Dr GP Bray, which was read to the jury. Dr Bray had been responsible for the appellant's care since his arrest on 31 May 2007. Dr Bray's evidence was that the appellant was suffering at the time of the killing from paranoid schizophrenia.

5

The defence called Dr Francesca Harrop, a consultant forensic psychiatrist. Her evidence was that the appellant was suffering at the time of the killing from schizophrenia or schizo – affective disorder. She stated that he was suffering from an abnormality of the mind for the purposes of section 2(1) of the 1957 Act and would meet the criteria for diminished responsibility.

6

At the conclusion of the evidence for the defence, on 20 May 2008, leading counsel for the appellant, Mr Davey QC, made a submission to the trial judge that the charge of murder should be withdrawn from the jury. He made this submission on the assumption that the Crown had proved, to the criminal standard, that the appellant had killed Nazeer Ahmed with the necessary intent to kill or cause grievous bodily harm. Mr Davey's submissions were: (i) that there was uncontradicted evidence that the appellant suffered from an abnormality of mind induced by disease; and (ii) that there was no medical evidence on which a reasonable jury could conclude that the defence had not proved (on a balance of probabilities) that this abnormality of mind had substantially impaired the appellant's mental responsibility for his acts in doing the killing of the victim.

7

Grigson J rejected the application and gave a short judgment. He accepted that there was unchallenged medical evidence that the appellant suffered, at the time of the killing, from an abnormality of mind that was induced by disease. Therefore the issue, on the defence of diminished responsibility, was whether the appellant's “[mental] responsibility was substantially impaired”. The judge said that was a matter of fact “…and it is always a matter for the jury”. He said that he was not familiar with any authority which says that in the present circumstances “…the judge should effectively withdraw an issue of fact from the jury”. He distinguished the case of R v Bailey (1978) 66 Cr App R 31, to which Mr Davey had referred. After speeches he summed up to the jury. No complaint is made of the terms of his summing – up, either on the law or the facts.

8

Subsequently, on 27 June 2008, Grigson J was asked by the defence to certify that the case was fit to appeal, pursuant to section 1(2)(b) of the Criminal Appeal Act 1968. Grigson J did so (noting that the test was only whether the issue was arguable), on the following ground:

“In the absence of any challenge to the expert medical evidence that the appellant's mental responsibility for the killing was (substantially) impaired by his mental illness, should the charge of murder have been withdrawn from the jury?”.

9

Before us, the appellant sought the leave of the full court to argue a second ground of appeal, namely that the jury's verdict, in so far as it related to the issue of diminished responsibility, was unsupported by the evidence and was therefore unsafe. In his helpful Outline Argument which was submitted to the court before the hearing of the appeal, counsel for the Crown, Mr Richard Mansell QC, submitted that the two grounds raised the same question: viz. was there evidence before the jury on which they could safely reject the defence of diminished responsibility and convict of murder. We accept that the two grounds are different ways of examining the same question. Therefore, at the outset of the hearing of the appeal, we gave leave to Mr Askins, who appeared for the appellant, to argue this second ground as well.

10

At the conclusion of the hearing of the appeal, we asked both counsel to send us confirmation in writing of various references to the summing up on which they wished to rely concerning evidence of witnesses of fact to which the judge had referred. We stated that when we had considered those references we would inform them of whether the appeal was to be allowed or dismissed. (This was necessary because if we allowed the appeal and substituted a verdict of manslaughter by reason of diminished responsibility, arrangements would have to be made to hear Dr Bray on the issue of sentence). We duly received the references. On Friday, 17 July 2009 we announced that the appeal would be dismissed for reasons which we would hand down later. These are our reasons.

The Law

11

It was common ground before us that the appeal must be approached on two bases. First, that the Crown had satisfied the jury, to the criminal standard of proof, that the appellant had committed the acts which caused the death of Nazeer Ahmed and that when he did so he intended either to kill him or to do him grievous bodily harm. Secondly, that for the appellant to be able to rely on the defence of diminished responsibility, it was for him to satisfy the jury, on a balance of probabilities, of the matters set out in section 2(1) of the 1957 Act.

12

Section 2(1) of the 1957 Act provides:

“2(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.”

13

In the leading case of R v Byrne [1960] 2 QB 396, the Court of Criminal Appeal considered the correct interpretation of section 2(1) of the 1957 Act. Two aspects of the reserved judgment of Lord Parker CJ in that case are relevant to the present appeal. First, he gave an explanation of the meaning of the words “abnormality of mind” in section 2(1). He said, at page 403, that the phrase “abnormality of mind” was:

“…wide enough to cover the mind's activities all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.”

14

Lord Parker stated, on the same page, that the issue of whether the accused was suffering from any “abnormality of mind” was a question for the jury. Medical evidence on that question would be of importance, but the jury was entitled to take into consideration all the evidence, “…including acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.”

15

However, Lord Parker also stated that the aetiology of the abnormality of the mind would seem to be a matter to be determined on expert evidence.

16

Secondly, he referred to the other key words in section 2(1), viz. “..substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing”. Lord Parker said (at page 403) that this phrase:

“…points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts”.

17

Lord Parker said that the issue of whether the abnormality of mind was such as substantially impaired the mental responsibility of the accused for his acts in doing or being a party to the killing was “…a question of degree and essentially one for the jury.” He continued, at page 404:

“Medical evidence is, of course, relevant, but the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such...

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8 cases
  • R v Alexander Wayne Blackman
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 15 March 2017
    ...justification for doing so. In the light of the judgment in Golds, we see no reason not to follow the broad approach of this court in R v Khan (Dawood) [2009] EWCA Crim 1569, [2010] 1 Cr App R 4, to which reference was made in Brennan, which we would express as follows: it will be a rare ......
  • R v Michael Brennan
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 22 July 2015
    ...circumstances.’ 60. We were referred to the more recent decision of a constitution of this court in the case of R v Khan (Dawood)UNK[2010] 1 CrAppR 4, also a case of diminished responsibility. There too no medical evidence had been adduced by the Crown to contradict the evidence of the defe......
  • R v Imran Hussain
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 2 April 2019
    ...justification for doing so. In the light of the judgment in Golds, we see no reason not to follow the broad approach of this court in R v Khan (Dawood) [2009] EWCA Crim 1569, [2010] 1 Cr App R 4, to which reference was made in Brennan, which we would express as follows: it will be a rare ......
  • Adderley v R
    • Bahamas
    • Court of Appeal (Bahamas)
    • 31 May 2017
    ...No. 79 of 2013 Considered R v Brennan [2014] All ER 18 Distinguished R v. Byrne [1960] 44 Cr.App.R. 246 Applied R v. Dawood Khan [2010] 1 Cr. App. R. 4 Mentioned R v. Derek William Lloyd [1965] 50 Cr. A. R. 61 R v. Dunbar [1957] 41 Cr.App.R. 182 Mentioned R v. Elvan Rose [1961] A.C. 496......
  • Request a trial to view additional results
1 books & journal articles
  • Court of Appeal
    • United Kingdom
    • Journal of Criminal Law, The No. 81-4, August 2017
    • 1 August 2017
    ...upon the whole facts and circumstances of the case’ (Walton vThe Queen[1978] AC 788 p793F; the principle reiterated in RvKhan [2009] EWCA Crim 1569). The questionarising from Blackman is what are those circumstances?On the face of it, marrying the principles of Brennan,Golds and Blackman is......

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