Brown, R. v

For diminished-responsibility manslaughter, the phrase substantially impaired in section 52(1)(b) of the Coroners and Justice Act 2009 does not impose a test different from the former substantial-impairment test. An impairment must be more than minimal, but a defendant may retain substantial culpability.

When sentencing such an offender, the increased minimum terms for murder under Schedule 21 of the Criminal Justice Act 2003 should inform the assessment. The judge need not undertake an exact arithmetical comparison. The sentence must reflect the jury’s verdict, medical evidence, mitigation and aggravating features, and remains a fact-specific assessment.

The respondent was acquitted of murder by a jury at Reading Crown Court but convicted of manslaughter on the ground of diminished responsibility. He was also convicted of obstructing a coroner. Cooke J imposed 24 years’ imprisonment for manslaughter and a consecutive two-year sentence for obstruction.

The psychiatric evidence accepted by the jury was that an adjustment disorder had substantially impaired the respondent’s ability to exercise self-control when he killed his wife. The judge nevertheless found substantial remaining culpability, having regard to the planned and violent killing, the children’s exposure to its aftermath, and the deliberate concealment of the body.

The appeal against sentence contended that the sentence did not give proper effect to the jury’s verdict of diminished responsibility. It also raised the effect of section 52 of the Coroners and Justice Act 2009 and the proper relationship between murder minimum terms and sentences for manslaughter.

1. Appeal dismissed. The jury’s verdict of manslaughter on the ground of diminished responsibility was binding on both the sentencing judge and the Court of Appeal. The sentence had to respect that verdict, but it did not require the judge to treat the respondent’s culpability as extinguished.

2. Section 52 of the Coroners and Justice Act 2009 did not alter the established meaning of substantial impairment. Parliament was taken to have legislated against the existing interpretation. The direction that impairment had to be more than minimal was sufficient. It was therefore open to the judge to conclude consistently with the verdict that the respondent’s responsibility was diminished but that he retained real and substantial culpability.

3. The court applied the principle illustrated by Wood: increases in minimum terms for murder under Schedule 21 of the Criminal Justice Act 2003 should be reflected in homicide sentences. A sentencing judge need not set out an exact arithmetical calculation of the hypothetical murder sentence. The comparison is a useful means of identifying aggravating and mitigating features and allowing an appropriate reduction for diminished culpability. The ultimate question on appeal is whether the sentence imposed is excessive.

4. The judge was entitled to give great weight to the premeditation, the ferocity of the attack, the children’s direct exposure to its consequences, and the calculated post-killing attempts to avoid detection. There was no loss of self-control in those later acts. Although the court considered that a consecutive sentence for obstruction was probably unnecessary because the manslaughter sentence already allowed for that conduct, the total sentence of 26 years was not excessive.

• Court of Appeal (Criminal Division) — dismissed the respondent’s appeal against sentence.
• Reading Crown Court — Cooke J and a jury acquitted the respondent of murder, convicted him of manslaughter on the ground of diminished responsibility and of obstructing a coroner, and imposed 24 years’ imprisonment plus two years consecutively.