Stephen andrew Dowds v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 22 February 2012 |
| Neutral Citation | [2012] EWCA Crim 281 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201103628 B3 |
| Date | 22 February 2012 |
[2012] EWCA Crim 281
Lord Justice Hughes
Mr Justice Simon
and
Mrs Justice Lang
Case No: 201103628 B3
T20107584, T20207609
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Waite
Wolverhampton Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Sally O'Neill QC (instructed by Stevens Solicitors) for the Appellant
Andrew Lockhart QC (instructed by CPS) for the Respondent
Hearing date: 1st December 2011
The issue in this appeal is whether acute voluntary intoxication is now capable of giving rise to the partial defence of diminished responsibility on an indictment for murder. It is common ground that it could not have done so prior to the amendments to section 2 Homicide Act 1957 which were made by the Coroners and Justice Act 2009 (s 52). The appellant contends that those amendments mean that voluntary and temporary drunkenness may now give rise to diminished responsibility and thus reduce murder to manslaughter. That is because, it is said, acute intoxication is a "recognised medical condition" within section 2(1)(a) of the Homicide Act as amended.
The appellant is a 49 year old college lecturer. He has no previous convictions. Over the weekend of 19/21 November 2010 he killed his partner of about 18 months at the house which they shared. He inflicted approximately 60 knife wounds to her, chiefly stabs and chiefly about the neck, where he severed the carotid artery causing injury from which she would have died within seconds. Both he and she were habitual heavy binge drinkers. There had been a long history of violent episodes between them, some (and on his account nearly all) initiated by her and most, but not all, when one or both was drunk. The indications are that the fatal argument probably took place at about 0119 on the morning of Saturday 20 November, because the deceased made an interrupted 999 call at that hour and not long afterwards the appellant made a number of text or telephone calls to others, including his ex wife and a former girlfriend, from which it might be inferred that the deceased was by then dead. Nearly two days later, at just before 1900 in the evening of Sunday 21 November, the appellant telephoned the police to report that his partner was dead. Then and subsequently, including at trial, he asserted that he had no recollection whatever of the events which had led to the death of the deceased, but he did not dispute that he must have been responsible for her wounds.
Before the jury at trial, the principal issues left to be determined were:
i) intent; had the appellant intended death or serious bodily harm ? and
ii) loss of self control (section 54 Coroners and Justice Act 2009); had the defendant lost his self control as a result of an attack by the deceased causing him to fear serious violence, and then reacted in a manner in which a reasonable person might have done in such circumstances ?
Those issues entailed an examination of the history of the relationship between the appellant and the deceased, the level of drunkenness and the asserted loss of memory. The jury by its verdict found that he had intended serious harm and rejected the partial defence under s 54.
It was common ground that the appellant and the deceased had both been drinking heavily that night, as was their habit at a weekend. They had bought a litre bottle of vodka at about 1700 on Friday afternoon, and the appellant had returned to the off licence to buy another similar bottle at about 2200, that is to say before the killing. The appellant asserted that he had been drunk at the time of the killing, that in consequence he could not form the intention to kill or do serious harm, and that this was the reason he could remember nothing about it. Those latter assertions were disputed by the Crown. Nevertheless, whatever the exact facts of the drinking and asserted loss of memory were, there was clearly every likelihood that the killing had occurred when the appellant was to an extent intoxicated.
It was not contended that the appellant was alcoholic or clinically dependent on drink. He was a heavy but elective drinker. On his own account he did not drink heavily except when he chose to do so, chiefly at weekends. He held down a responsible job which required him to be alert and clear thinking. His drinking was appropriately described by one of the reporting psychiatrists as 'binge drinking'. The appellant himself told the other reporting psychiatrist:
"I do not have a problem with drink. I have a problem when I drink, I just don't know when to stop. I just seem to be able to carry on drinking and I don't have any ill effect in the morning. I get a head on me and want to keep on drinking."
At the outset of the trial His Honour Judge Wait was invited to rule whether or not simple voluntary and temporary drunkenness was capable of founding the partial defence of diminished responsibility. He ruled that as a matter of law it could not. In consequence, diminished responsibility was not raised before the jury. This appeal challenges that ruling. Whilst the present offence concerns intoxication with alcohol, our conclusion must apply equally to defendants under the influence of other voluntarily-taken drugs.
As amended by section 25 Coroners and Justice Act 2009, this section now reads, so far as material:
" 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 accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter."
Those new provisions of section 2(1) (1A) and (1B) have been substituted for the previous statutory definition of diminished responsibility which read:
"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."
The former law
English law (unlike Scots law) knew no concept of diminished responsibility as a partial defence to murder until the passing of the Homicide Act 1957 in the terms set out in paragraph [8] above. As a matter of history, the partial defence was introduced at a time of mounting public concern about the death penalty. There had been a Royal Commission on the death penalty (1949–1953) which, amongst its deliberations, had considered the advantages of a partial defence of diminished responsibility but opted instead for a proposed revision of the law of insanity. There had then been a private member's bill to abolish the death penalty which, although defeated in the House of Lords, reflected general concern. In the end, the legislative solution adopted was the creation of a partial defence of diminished responsibility rather than any revision of the law of insanity.
It was established in 1975 in R v Fenton (1975) 61 Cr App R 261 that the effect on the mind of voluntary intoxication could not give rise to diminished responsibility. The defendant, who had shot four people in two different locations, had a number of other conditions, including paranoid psychopathy, which did raise the possibility of diminished responsibility, although the jury had rejected that defence. The trial judge had directed the jury to consider those but to leave out of account the defendant's heavy intoxication. This court held that the judge had been correct. The reasoning of Lord Widgery CJ was brief:
"We recognise that cases may arise hereafter where the accused proves such a craving for drink or drugs as to produce in itself an abnormality of mind but that is not proved in this case. The appellant did not give evidence and we do not see how self-induced intoxication can of itself produce an abnormality of mind due to inherent causes."
It is perhaps significant that counsel for the defendant had felt able to argue his case only on the basis that a craving for, or an inability to resist the temptations of, drink was a feature of psychopathy, and thus became relevant to diminished responsibility indirectly. No one suggested that simple drunkenness could found a defence of diminished responsibility, and on the facts of the case a craving for, or inability to resist the need of, drink was not shown.
The law as explained in Fenton was never significantly questioned. It was in due course endorsed by the House of Lords in R v Dietschmann [2003] UKHL 10; [2003] 1 AC 1209....
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