Foye v R

Homicide Act 1957 section 2(2), which places on a defendant the legal burden of proving diminished responsibility on the balance of probabilities, is compatible with Article 6(2) of the ECHR. Diminished responsibility is an exceptional partial defence available after the prosecution has proved murder. It concerns the defendant’s internal mental condition and moderates the mandatory sentence otherwise imposed. The reverse burden is therefore justified, including because the prosecution could not fairly and practicably disprove the condition without the defendant’s co-operation.

A jury applies the relevant burden to the evidence as a whole. It does not determine each item of evidence by a separate burden according to which party called the witness.

The appellant, already serving life imprisonment for murder, killed a fellow prisoner at HMP Grendon Underwood. At his trial in the Crown Court at Luton, the only live issue was diminished responsibility. The jury rejected that partial defence and convicted him of murder.

He appealed against conviction on grounds concerning the statutory reverse burden, the jury directions, the treatment of evidence and alleged inaccuracies in the summing up. He also sought leave to appeal a minimum term of 35 years. The central issue was whether the appellant’s severe personality disorder substantially impaired his mental responsibility for the killing.

1. Appeal against conviction dismissed; leave to appeal against sentence refused. The court upheld the jury’s conviction and found that none of the challenged rulings or directions rendered it unsafe.

2. Section 2(2) of the Homicide Act 1957 imposed a legal burden on the defendant to prove diminished responsibility on the balance of probabilities. The court was bound by earlier Court of Appeal authority which had upheld that burden. Independently, it held that the provision was sound.

   Diminished responsibility is not an element of murder which the prosecution must disprove. It is an exceptional partial defence available only after the prosecution has proved an unlawful killing with the required intent. Its purpose is to avoid the mandatory sentence for murder in an appropriate case. The better view was therefore that section 2(2) did not engage the presumption of innocence in Article 6(2) of the ECHR.

3. Even if Article 6(2) were engaged, the reverse burden was proportionate under the Strasbourg approach in Salabiaku v France (1988) 13 EHRR 379. The issue concerns the defendant’s highly personal mental functioning. It would often be practically impossible for the prosecution to disprove diminished responsibility if the defendant declined examination, co-operation, or access to relevant records. The burden was limited to proof on the balance of probabilities and was justified by the exceptional nature of the defence.

4. The trial judge correctly refused to direct the jury that it had to be sure of particular evidence called by the Crown before using it on diminished responsibility. A burden of proof applies to the whole body of evidence, not to separate evidential fragments or according to the party relying on a witness. Once murder is proved to the criminal standard, the jury decides diminished responsibility on all the evidence and on the balance of probabilities.

5. The prison records relating to XY’s possible transfer went only to credit. They were therefore not admissible under section 117 of the Criminal Justice Act 2003. In any event, the point was marginal to the sole live issue and was adequately put before the jury.

6. The alleged errors in the summing up, separately and cumulatively, could not have affected the safety of the conviction. On sentence, paragraph 4(2)(d) of Schedule 21 to the Criminal Justice Act 2003 made a whole-life order the starting point because the appellant had previously been convicted of murder. The judge was entitled to treat the personality disorder, age and limited therapeutic progress as mitigating factors and to reduce the minimum term to 35 years. That term was not manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and refused leave to appeal against the 35-year minimum term.
• Crown Court at Luton: The jury convicted the appellant of murder after rejecting diminished responsibility. The judge imposed a life sentence with a 35-year minimum term.