Robson, R v.

Where diminished responsibility is raised and drink or drugs also contributed to a killing, the jury must decide whether the defendant’s abnormality of mind substantially impaired mental responsibility despite the intoxication. It must not be directed that the defence fails merely because the killing might not have occurred without drink or drugs. That is the correct approach under Homicide Act 1957, following R v Dietschmann [2003] UKHL 10.

A very late appeal may proceed where surrounding material adequately establishes that a now-recognised misdirection was probably given. The appellate court must assess the safety of the conviction, not make a fresh primary assessment of disputed psychiatric evidence.

In 1996, at Newcastle-upon-Tyne Crown Court, Michael Robson was convicted of murdering his friend, Robert Williamson, and wounding his sister with intent. He received life imprisonment for murder and a concurrent five-year sentence for wounding.

More than seven years out of time, he renewed his application for leave to appeal against the murder conviction. He contended that the jury had been misdirected on diminished responsibility because drink and drugs were treated under the pre-Dietschmann approach. No transcript of the summing-up survived, but trial notes, expert evidence and the standard direction then in use remained available.

The court also considered competing fresh psychiatric reports and, after quashing the murder conviction, had to determine the proper substituted verdict and sentence.

1. Appeal allowed. Time was extended and leave granted. Although no transcript of the summing-up survived, the available material adequately supported the inference that the jury received the pre-Dietschmann direction. The trial had occurred when the direction based on the Smith questions was standard, and the cross-examination of the defence psychiatrists was consistent with its anticipated use.
2. The court followed R v Dietschmann [2003] UKHL 10. Under section 2(1) of the Homicide Act 1957, drink cannot itself contribute to the relevant abnormality of mind. However, where both drink and an abnormality played a part, the decisive question is whether the abnormality nevertheless substantially impaired mental responsibility. The Smith questions wrongly required the defendant to establish that he would have killed, and would have had diminished responsibility, without drink.
3. The court applied R v Hendy [2006] EWCA Crim 819. Dietschmann restated the law rather than changing it. The misdirection could therefore found a late appeal. The conviction was unsafe because a correctly directed jury might well have accepted the defence psychiatric evidence and found substantial impairment despite drink or drugs.
4. The court declined to admit the further psychiatric evidence. Section 23 of the Criminal Appeal Act 1968 could in principle permit Crown evidence supporting a conviction. But the proposed evidence was only a further, retrospective and disputed assessment to be added to the trial evidence. Admitting it would improperly invite the court to second-guess the jury as the primary fact-finder, contrary to the approach in R v Pendleton [2001] UKHL 66.
5. The murder conviction was quashed and a verdict of manslaughter by reason of diminished responsibility substituted. No retrial was sought. A discretionary life sentence remained necessary because of the gravity of the offending and the unresolved risk of further grave violent harm. The notional determinate sentence was sixteen years. Applying the usual one-half approach, the relevant part was eight years less remand time, namely six years and 258 days. As that period had already been served, the appellant became immediately eligible for Parole Board consideration.

• Court of Appeal (Criminal Division) — extended time, granted leave, allowed the appeal, quashed the murder conviction, substituted manslaughter by reason of diminished responsibility, and resentenced the appellant: [2006] EWCA Crim 2749.
• Newcastle-upon-Tyne Crown Court — in October 1996, Harrison J and a jury convicted the appellant of murder and wounding with intent. He received life imprisonment for murder and a concurrent five-year sentence for wounding. No lower-court citation was stated.