Coonan (Formerly Sutcliffe), R v

In a minimum-term assessment under Schedule 22 to the Criminal Justice Act 2003, the court remains bound by the jury’s verdict. It cannot use sentencing to give effect to a defence which failed at trial. However, a failed defence of diminished responsibility does not automatically exclude mitigation under paragraph 11(c) of Schedule 21. The court must decide whether a mental disorder or disability in fact lowered culpability and assess its weight in the whole evidential context.

Personal mitigation is ordinarily evaluated by the sentencing court. The prosecution need not disprove it to the criminal standard. Where the offending is exceptionally serious, a whole-life starting point may remain proportionate despite some mental disturbance.

The appellant had been convicted in 1981 of 13 murders and had pleaded guilty to seven attempted murders. The jury rejected his partial defence of diminished responsibility, which depended upon his account that he had acted under a divinely inspired mission.

In 2010, following a reference under Schedule 22 to the Criminal Justice Act 2003, Mitting J imposed a whole-life minimum term. The appellant contended that fresh psychiatric evidence should have been admitted and that his mental disorder reduced his culpability under paragraph 11(c) of Schedule 21.

The central issue was whether the rejected defence nevertheless left scope for mitigation, and whether the evidence established a mental disorder or disability which in fact lowered culpability.

1. Appeal dismissed. The whole-life minimum term was proportionate to the exceptional seriousness of the offending.
2. A court fixing a minimum term under Schedule 22 to the Criminal Justice Act 2003 must accept the jury’s verdict. It cannot reassess the conviction, give sentencing effect to a defence which the jury rejected, or substitute its own view on matters determined by the verdict. The later assessment must be made from the available material, including the trial directions, summing up and verdicts.
3. The court accepted that a failure to establish diminished responsibility did not inevitably foreclose mitigation under paragraph 11(c) of Schedule 21. That provision permits mitigation where an offender suffered from a mental disorder or disability which, although falling short of the statutory partial defence, actually lowered culpability. The issue is one of evaluation in the context of the evidence and all aggravating features.
4. The Crown did not bear a general criminal-standard burden to disprove personal matters advanced in mitigation. The prosecution must prove statutory facts which trigger a heavier sentencing regime. But personal mitigation, including a claimed mental condition dependent on the offender’s truthfulness, is assessed for the weight it properly carries.
5. Here, the psychiatric opinion relied on the same account of divine instruction that the jury had rejected. No new and independent mental condition capable of reducing culpability had been identified. Even allowing for mental disturbance, the number, brutality, planning and sexual or sadistic features of the offences placed them beyond the statutory criteria for a whole-life order. Nothing less was a proportionate punishment.

• Court of Appeal (Criminal Division) — in [2011] EWCA Crim 5, granted leave and dismissed the appeal against the whole-life minimum term.
• High Court — on 16 July 2010, Mitting J imposed a whole-life minimum term under Schedule 22 to the Criminal Justice Act 2003.
• Court of Appeal (Criminal Division) — in earlier proceedings dated 24 May 1982, rejected an application based on further psychiatric evidence because it depended on the appellant’s truthfulness.
• Central Criminal Court — on 22 May 1981, convicted the appellant of 13 murders after the jury rejected diminished responsibility; he had pleaded guilty to seven attempted murders.