Kay, R v

A defendant with schizophrenia is not precluded from relying on diminished responsibility merely because voluntary intoxication triggered psychosis. The defendant must nevertheless prove that an abnormality of mental functioning arose from a recognised medical condition and substantially impaired responsibility. Schizophrenia may suffice independently, or with dependency syndrome and involuntary intoxication. An abnormality arising instead from voluntary intoxication cannot found the partial defence.

The Court confirmed the approach in R v Stewart (James) [2009] EWCA Crim 593. It held that voluntary drug and alcohol use remained material to residual culpability and minimum-term sentencing where the offender knew its likely effect on mental state.

Two criminal appeals were heard together. Kay appealed his murder conviction and sought to challenge his minimum term of 23 years. He had schizophrenia and killed during a psychotic episode after a prolonged period of alcohol and drug use. The trial issue was whether diminished responsibility under Homicide Act 1957 section 2(1) was available.

Joyce had pleaded guilty to manslaughter by reason of diminished responsibility and related violent offences. He received a discretionary life sentence with hospital and limitation directions under Mental Health Act 1983 section 45 A, with a nine-year minimum term. His appeal concerned credit for guilty pleas and the assessment of residual culpability.

1. Kay’s conviction appeal was dismissed and permission to appeal his sentence was refused. Section 2(1) of the Homicide Act 1957 required Kay to prove that his abnormality of mental functioning arose from a recognised medical condition and substantially impaired his responsibility. Schizophrenia did not cease to be a recognised medical condition because intoxication had triggered psychosis. The partial defence remained available if schizophrenia alone substantially impaired responsibility, or if schizophrenia and a dependency syndrome made the intoxication involuntary and together substantially impaired responsibility.

2. However, an abnormality arising from voluntary intoxication, rather than a recognised medical condition, could not found diminished responsibility. The court followed R v Stewart (James) [2009] EWCA Crim 593, which it regarded as consistent with the binding House of Lords authority in Dietschmann [2003] 2 Cr App R 4. A.G’s Reference (No. 34 of 2014) (Jenkin) [2014] EWCA Crim 1394 did not conflict with that approach: it concerned sentence after diminished responsibility had already been established.

3. There was no medical evidence that Kay’s stable schizophrenia, independently of substance abuse, substantially impaired his responsibility. Once the jury rejected dependency syndrome, no further basis existed on which to leave diminished responsibility to it. The 25-year statutory starting point for murder involving a knife taken to the scene, the brutality of the attack, and Kay’s knowing voluntary intoxication justified the sentencing approach. His mental illness had nevertheless received substantial mitigation.

4. Joyce’s sentence appeal was dismissed. Residual responsibility was for the sentencing judge, assisted but not bound by psychiatric evidence. Joyce knew that substances, particularly spice, could aggravate his psychosis; there was no evidence of dependency and evidence that he could refrain from taking them. The judge could therefore find significant residual responsibility. A notional determinate sentence of 27 years, reduced by one third for the timely pleas to 18 years, produced a nine-year minimum term. That term was severe but not excessive.

• Court of Appeal (Criminal Division) In the combined appeals, the court dismissed Kay’s conviction appeal, refused leave to challenge his minimum term, and held that Joyce’s nine-year minimum term was not excessive.

• Crown Court at Preston HHJ Brown convicted Kay of murder and imposed life imprisonment with a 23-year minimum term.

• Oxford & Central Criminal Court HHJ Zoe Smith accepted Joyce’s pleas to manslaughter by diminished responsibility and related offences, and imposed a discretionary life sentence with hospital and limitation directions under Mental Health Act 1983 section 45 A.