Wilcocks, R. v

Homicide Act 1957 section 2(2) validly places on a defendant the legal burden, to the civil standard, of proving diminished responsibility. The amendment to section 2(1), and the fact that loss of control is also raised, do not alter that burden or render it incompatible with Article 6.

Under Coroners and Justice Act 2009 section 54(3), a mental disorder is a relevant circumstance for loss of control only insofar as its relevance goes beyond reduced general tolerance or self-restraint. A jury need not receive a definition of “substantial” impairment. In sentencing, age and mental disorder require assessment on the evidence, but neither necessarily reduces culpability.

The appellant was convicted at a re-trial of murdering his partner by neck compression. His original conviction had been quashed in 2015 and a re-trial ordered. Holroyde J sentenced him to life imprisonment with a minimum term of 16 years.

At the re-trial, the appellant relied on diminished responsibility and loss of control. Expert witnesses agreed that he had an anti-social personality disorder, but disagreed about an additional disorder and whether any condition substantially impaired his mental functioning. He sought leave to appeal his conviction, challenging the reverse burden for diminished responsibility, the directions on loss of control, and the absence of a definition of “substantial”. He also appealed his minimum term.

1. Conviction. The court refused the application for leave to appeal. It was bound by Foye [2013] EWCA Crim 475, which held that the legal burden imposed by section 2(2) of the Homicide Act 1957 on a defendant raising diminished responsibility is compatible with the right to a fair trial. The amended definition in section 2(1) did not alter the statutory allocation of that burden.
2. The burden does not require a defendant to prove any element of murder. It was neither arbitrary nor unreasonable to require a defendant advancing the partial defence to establish it on the balance of probabilities. The court rejected the suggested fact-specific shifting of the statutory burden. It also explained that Asmelash [2014] QB 103 concerned the relevance of voluntary intoxication to the two partial defences, not different burdens of proof.
3. Loss of control. The judge's direction accorded with section 54(3) of the Coroners and Justice Act 2009. A personality disorder could be taken into account where its relevance went beyond reducing the appellant's general capacity for tolerance or self-restraint. The judge had given an appropriate illustration and had not excluded other potentially relevant effects of the disorder.
4. Substantial impairment. No authority required the judge to define “substantial” for the jury. On the facts, such a definition could not have made a difference or assisted the defence.
5. Sentence. The appeal against sentence was dismissed. The sentencing judge was entitled to assess the weight of the expert evidence and to find that the personality disorder played little part in reducing culpability. Age was relevant, but chronological age was not determinative of maturity. The second strangulation after the first assault, together with the other circumstances, justified the conclusion that a 16-year minimum term was not manifestly excessive.

• Court of Appeal (Criminal Division): The court refused leave to appeal against the re-trial conviction and dismissed the appeal against the 16-year minimum term.
• Crown Court: At a re-trial before Holroyde J, the appellant was convicted of murder on 1 December 2015 and sentenced to life imprisonment with a minimum term of 16 years.
• Earlier proceedings: The appellant's original conviction was quashed by the Court of Appeal in 2015 and a re-trial was ordered.