Hussain, R v

Where diminished responsibility is supported by uncontradicted psychiatric evidence, the prosecution may invite its rejection only on a rational evidential basis. The ultimate issues, including substantial impairment and whether the abnormality explains the killing, remain for the jury.

Withdrawal of murder from the jury is exceptional. A judge should ensure that the Crown identifies a proper basis for challenging expert evidence and should ordinarily caution jurors against acting as amateur psychiatrists. A summing-up is nevertheless adequate if, viewed as a whole, it fairly explains the importance of the medical evidence, the competing evidential case, and the jury’s proper role.

The applicant was convicted at Manchester Crown Court of the murder of a stranger whom he stabbed after driving from Coventry to Manchester. His defence was diminished responsibility under section 2 of the Homicide Act 1957. Two psychiatrists called at trial agreed that he had paranoid schizophrenia which substantially impaired his responsibility. The Crown contended that the diagnosis was false or, alternatively, did not explain the killing or substantially impair responsibility.

Almost five years later, the applicant sought an extension of time and leave to appeal. He argued that there was no rational evidential basis to reject the psychiatric evidence and that the jury directions were inadequate in light of later appellate guidance.

1. Extension of time and leave to appeal were refused. The later decisions relied upon did not change the law. They applied or clarified existing principles. The exceptional change-of-law approach was therefore inapplicable, and the applicant had to establish compelling merits sufficient to justify an exceptional, very lengthy extension.

2. The court applied the guidance in R v Golds [2016] UKSC 61. Where uncontradicted expert evidence supports diminished responsibility, the Crown must identify a rational evidential basis upon which the jury could reject it. The jury nonetheless decides whether the statutory requirements are proved. It must determine, in particular, whether the abnormality substantially impaired a relevant ability and provided an explanation for the killing.

3. A judge should be cautious before withdrawing murder from the jury. Such a course is rare where the Crown does not accept diminished responsibility. The defence bears the burden of proving each statutory requirement on the balance of probabilities. Unanimous psychiatric evidence, and the absence of Crown psychiatric evidence, do not by themselves require withdrawal.

4. There was a rational basis to challenge the psychiatric evidence in this case. The applicant initially denied symptoms, was assessed soon after the killing without overt signs of psychosis, gave inconsistent accounts, and engaged in conduct capable of supporting the Crown’s case on planning and avoidance of detection. Those matters had been considered by the psychiatrists, but they remained matters which the Crown could test and the jury could evaluate.

5. The summing-up was fair and adequate. Although the judge did not use the later suggested words warning against amateur psychiatry, he stressed the expertise of the doctors, identified the importance of their evidence, set out the competing contentions, and made clear that the jury had to assess all the evidence. The safeguards required by Golds were therefore sufficiently present.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 666, refused an extension of time of nearly five years and refused leave to appeal against conviction.
• Crown Court at Manchester: On 11 July 2013, convicted the applicant of murder. On the following day, imposed life imprisonment with a minimum term of 23 years.