Hendy, R v

Where a defendant has both consumed alcohol and has a qualifying abnormality of mind, the question under Homicide Act 1957 is whether the abnormality nevertheless substantially impaired mental responsibility. The abnormality need not be the sole cause of the killing. A direction requiring the jury to be satisfied that the defendant would have killed without drink is wrong. R v Dietschmann [2003] 2 Cr. App. Rep. 54 restated the existing law rather than creating new law. The Court of Appeal may receive later psychiatric evidence where the interests of justice require it. Having received it, the court must itself decide whether the conviction is unsafe.

The applicant was convicted of murder at Bristol Crown Court in 1993 after killing a stranger. Diminished responsibility was the sole defence. The psychiatric evidence raised issues of personality disorder, possible brain damage, depression and the effect of alcohol.

Eleven years later, the applicant sought an extension of time and leave to appeal. No transcript of the evidence or summing-up survived, but two written questions given to the jury remained. The appeal challenged those questions as a misdirection on diminished responsibility and relied on later psychiatric evidence.

The central issues were whether the direction reflected existing law, whether the fresh evidence should be received, and what disposal should follow if the murder conviction was unsafe.

1. Appeal allowed. Time was extended, leave was granted, and the murder conviction was quashed. The court substituted a verdict of guilty of manslaughter by reason of diminished responsibility.

2. The written questions wrongly required the defence to prove that the applicant would have killed, and would have been under diminished responsibility, if he had not taken drink. Under section 2(1) of the Homicide Act 1957, drink may have contributed to the killing without preventing an abnormality of mind from substantially impairing mental responsibility.

   R v Dietschmann [2003] 2 Cr. App. Rep. 54 held that the jury must decide whether the qualifying abnormality substantially impaired responsibility despite the effect of drink. It did not introduce new law. It restated the law correctly stated in R v Gittens [1984] 74 Cr. App. R. 272. The contrary approval of Professor Smith’s questions in R v Atkinson and R v Egan was erroneous. The misdirection therefore rendered the murder verdict unsafe.

3. The court also received Professor Taylor’s later psychiatric evidence under section 23 of the Criminal Appeal Act 1968. Although diminished responsibility had been fully litigated at trial, this was an exceptional case. The applicant had been under 18 at the killing, diagnosis of personality disorder in a young person was difficult, and Professor Taylor had treated him for several years after conviction. Her retrospective opinion was accordingly sufficiently reliable and its admission was in the interests of justice.

   Having received fresh evidence, the court had to assess its importance against all the evidence and decide for itself whether the conviction was unsafe. The evidence might reasonably have affected the jury’s decision and provided an independent basis for holding the verdict unsafe.

4. A retrial was refused. The applicant had served the ten-year punitive period, and a retrial sought principally to obtain an otherwise unavailable disposal would probably have been an abuse of process. The court had no power to impose a sentence with a section 45A direction. It quashed the life sentence and made a hospital order under section 37 of the Mental Health Act 1983, with an unrestricted restriction order under section 41.

• Court of Appeal (Criminal Division): allowed the appeal, quashed the murder conviction, substituted manslaughter by reason of diminished responsibility, and made orders under sections 37 and 41 of the Mental Health Act 1983.
• Bristol Crown Court: on 1 July 1993 convicted the applicant of murder and ordered detention during Her Majesty’s pleasure. The Home Secretary set a ten-year tariff.