Khan, R v

Where diminished responsibility is contested, the question whether mental responsibility was substantially impaired is ordinarily for the jury. The jury must assess the whole of the medical and factual evidence. It may consider the accused’s conduct before, during and after the killing, together with the quality and weight of the expert evidence.

A judge may theoretically withdraw murder from the jury at the close of the evidence, but only in a very rare case. The evidence must be such that no properly directed reasonable jury could find that the defendant had failed to establish the statutory defence on the balance of probabilities.

The appellant was convicted at Bradford Crown Court of murdering a man with whom he lived. He relied on alibi and, alternatively, diminished responsibility under section 2(1) of the Homicide Act 1957. It was accepted that he had schizophrenia or schizo-affective disorder and therefore an abnormality of mind induced by disease.

Expert evidence supported diminished responsibility, but there was factual evidence concerning the appellant’s conduct around the killing. The trial judge refused to withdraw murder from the jury. The appellant contended that the judge should have done so, or that the jury’s rejection of diminished responsibility made the murder conviction unsafe.

1. Appeal dismissed. The trial judge correctly left diminished responsibility to the jury, and the murder conviction was safe.

2. The court accepted that a judge has power, in a very exceptional case, to withdraw murder from the jury where diminished responsibility is raised and contested. The power can be exercised only if no properly directed reasonable jury could find that the defendant had failed, on the balance of probabilities, to prove both an abnormality of mind arising from a cause specified in section 2(1) of the Homicide Act 1957 and substantial impairment of mental responsibility. Such circumstances will be very rare where the Crown actively challenges the defence.

3. Whether an admitted abnormality of mind substantially impaired responsibility is a factual question of degree for the jury. Applying the approach in R v Byrne [1960] 2 QB 396 and Walton v The Queen [1978] AC 788, the jury had to evaluate all relevant medical and factual evidence in a broad, common-sense way. It had to assess both the appellant’s comprehension of his acts and his capacity to control them. Expert evidence was important but was not conclusive.

4. There was evidence consistent with a schizophrenic state. There was also evidence from which the jury could infer comprehension and control, including conduct after the attack, efforts to leave the area, telephone calls to relatives, and an explanation that he had argued with a friend. The jury was entitled to weigh that material against the psychiatric evidence and find that substantial impairment had not been proved.

• Court of Appeal (Criminal Division): Appeal from conviction dismissed.

• Bradford Crown Court: On 23 May 2008 the appellant was convicted of murder. On 30 June 2008 he was sentenced to life imprisonment with a recommended minimum term of 10 years, less time on remand.