(back to preceding text)
28. In their judgment delivered by Lord Lane CJ the Court of Appeal stated, at p 702:
"Mr. Nicholls criticises that direction as imposing upon the jury the task of deciding what was the substantial or principal cause of the appellant acting in the way that he did. In other words, he contends, the jury are being asked to decide whether it was the inherent causes on the one hand or the drink and pills on the other which were the main factor in causing the appellant to act as he did. This, argues Mr. Nicholls, is not the problem which the jury, upon the words of the statute, truly had to decide. They had to decide whether the abnormality arising from the inherent causes substantially impaired the appellant's responsibility for his actions. It would, he contends, have been open to the jury to conclude that the effect of the inherent causes on the one hand and of the drink coupled with the pills on the other, each amounted to such abnormality of mind as substantially to impair the appellant's mental responsibility. By the direction which the judge gave, that possibility was removed from the jury's consideration.
The passage in the summing up which is criticised is plainly taken from the decision of this court in Reg. v Turnbull (Launcelot) (1977) 65 Cr App R 242."
29. The Court of Appeal then set out a portion of their judgment in R v Turnbull (Launcelot )and stated, at p 703:
"Mr. Michael Hill concedes that it is a misdirection to ask the jury to decide what was the substantial cause of the defendant's actions in any case where the cause of his actions may be a mixture of matters which do and matters which do not fall within the provisions of section 2(1) of the Homicide Act 1957 and to this extent agrees with the submissions of Mr. Nicholls. He asks us to take the view however that this was not such a case: that here the jury had to decide simply whether this was a man abnormal because of drink and/or drugs or a man abnormal because of inherent causes such as clinical depression, and that accordingly the direction was proper.
We beg leave to doubt whether in any circumstances it is proper to invite the jury to decide the question of diminished responsibility solely on the basis of 'What was the substantial cause of the defendant's behaviour?' We do not think that Reg v Turnbull (Launcelot) 65 Cr App R 242, read as a whole, really goes as far as that. However, there is no doubt that the instant case was one par excellence where the jury might, and probably would, conclude that both drink and also inherent causes played their part in the undoubted abnormality of mind. This can be seen from that part of the summing up already cited and also from the précis of the medical evidence which we have given. Consequently, as Mr. Hill concedes, the judge's direction was incorrect.
We should like to add this. Even assuming that the direction approved in Reg. v Turnbull (Launcelot) taken as a whole was correct, we consider that it is not a direction which should in future be copied, for reasons which are apparent.
Where alcohol or drugs are factors to be considered by the jury, the best approach is that adopted by the judge and approved by this court in Reg v Fenton  61 Cr App R 261. The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section. Then the jury should consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendant's mental responsibility within the meaning of 'substantial' set out in Reg v Lloyd  1 QB 175.
. We accordingly allow the appeal and substitute for the verdicts of murder verdicts of manslaughter on the grounds of diminished responsibility."
30. Therefore four points clearly emerge from the judgment of the Court of Appeal in Gittens:
(i) Where a defendant suffers from an abnormality of mind arising from arrested or retarded development of mind or inherent causes or induced by disease or injury and has also taken drink before the killing, the abnormality of mind and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing.
(ii) Therefore the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the defendant's mind, the abnormality of mind arising from a cause specified in subsection 2(1) nevertheless substantially impaired his mental responsibility for his fatal acts.
(iii) Accordingly it is not correct for the judge to direct the jury that unless they are satisfied that if the defendant had not taken drink he would have killed, the defence of diminished responsibility must fail. Such a direction is incorrect because it fails to recognise that the abnormality of mind arising from a cause specified in the subsection and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing.
(iv) The direction given by the judge in R v Turnbull (Launcelot) 65 Cr App R 242 should not be followed.
31. Professor John Smith wrote a commentary on the judgment of the Court of Appeal in Gittens in  Crim LR 554 as follows:
"One of the criticisms made of the trial judge in Turnbull was that he directed the jury in more than one way. The Court of Appeal in that case certainly seems to have approved of the substantial cause test because they quoted the judge's direction, 'You may think, it is a matter for you, that drink had something to do with this, but what is the substantial cause of Turnbull's inability to control his behaviour that night? What is the substantial cause of his stabbing this man
.'and commented, 'That is exactly the right test, as has been admitted by counsel for the applicant.'
It appears that it is not exactly the right test. If the jury are to ignore the effect of drink or drugs they necessarily have to answer a hypothetical question, or perhaps two such questions. If the defendant had not taken drink and had killed would he, because of the inherent causes have been under diminished responsibility? It may be, however, that the jury will be of the opinion that, if the defendant had not taken drink or drugs, he would not have killed at all. In that case, it appears that the defence would not be open. The jury were certainly directed to that effect in Turnbull and the Court of Appeal did not disapprove of that direction: 'Have the defence satisfied you that it is more probable than not that Turnbull would have acted as he had on this night even had he not taken drink?
. you did take the view
. that if he had not had drink this would not have happened, then the defence would have failed to prove that the abnormality of mind substantially diminished Turnbull's responsibility for his act in killing.' This accords with the opinion in Fenton and the present case that the effect of intoxication is to be disregarded. So the two questions for the jury, in logical sequence would seem to be: 'Have the defence satisfied you on the balance of probabilitiesthat, if the defendant had not taken drink
(i) he would have killed as he in fact did? And
(ii) he would have been under diminished responsibility when he did so?' "
32. I consider, with respect, that this commentary placed undue reliance on the direction by the judge and the judgment of the Court of Appeal in Turnbull and did not give sufficient weight to the subsequent judgment of the Court of Appeal in Gittens which makes it clear that the direction in Turnbull should not in future be followed and that the correct approach for a judge to take was that adopted by the judge in Fenton which the Court of Appeal in Gittens  QB, 698, 703 (in a passage which I have already cited but which it is helpful to set out again) stated as follows:
"The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section. Then the jury should consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendant's mental responsibility within the meaning of 'substantial' set out in R v Lloyd  1 QB 175."
Therefore even if the jury answered "No" to the question: "Have the defence satisfied you on the balance of probabilities that, if the defendant had not taken drink, he would have killed as he in fact did?" it is still open to the jury to find the defence of diminished responsibility established.
33. When, in Gittens, the Court of Appeal stated that the jury should be directed "to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was" the court were referring to the effect of the alcohol on his abnormality of mind and were making it clear that in deciding whether the defendant was suffering from an abnormality of mind within the meaning of the section and had impairment of mental responsibility arising from that abnormality, the alcohol was to be left out of account. This is clear because after the words I have set out the court continued "since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section." In other words (as is stated in an article by Mr G R Sullivan on "Intoxicants and Diminished Responsibility"  Crim LR 156, 160) the defendant's drinking is to be left out of account in so far as it exacerbated his abnormality of mind. But, of course, alcohol can have a disinhibiting effect and can lead to violence on the part of a person who does not suffer from an abnormality of mind within the meaning of section 2(1), and the jury can take this into account in deciding whether the defendant's underlying mental abnormality did substantially impair his mental responsibility for the fatal acts, notwithstanding the drink he had taken.
34. This point is well put in Simester and Sullivan, Criminal Law Theory and Doctrine (2000) at p 580 and 581:
"the taking of intoxicants should not disentitle D from successfully pleading diminished responsibility if the abnormality of mind caused by factors internal to [him] is sufficient, of itself, substantially to impair [his] responsibility
. The drink does not supervene over his underlying subnormality. That underlying condition remains, and so does the question whether that condition substantially impaired his responsibility for the killing."
But no doubt in many cases (as in Fenton) if the jury concluded that the defendant would not have killed if he had not taken drink they will also find that his abnormality of mind had not substantially impaired his mental responsibility for his fatal acts.
35. In two subsequent cases, R v Atkinson  Cr LR 314 (1 March 1985) and R v Egan  4 All ER 470 the Court of Appeal approved the two questions stated by Professor Smith in his commentary. In Atkinson the jury returned a verdict of guilty of murder where the defendant, who suffered from mental abnormality, had consumed a quantity of alcohol before killing a householder in the course of a burglary. In the course of his summing up the judge said:
"If you think that drink had something to do with it, you will ask yourselves the next question: was that the substantial cause, the root cause, of his inability to control himself at the time of the killing?"
In an unreserved judgment, Lord Lane quoted the headnote of the judgment of the Court of Appeal in Gittens and stated at p 5 of the transcript:
"The decision in Gittens was the subject of consideration by Professor Smith  Crim LR 553. The learned Professor in the commentary upon that case takes this view, and it may be helpful if we were to read these words from his commentary: 'This accords with the opinion in Fenton and the present case that the effect of intoxication is to be disregarded. So that two questions for the jury, in logical sequence, would seem to be: 'Have the defence satisfied you on the balance of probabilities that if the defendant had not taken drink (i) he would have killed as he in fact did? And (ii) he would have been under diminished responsibility when he did so?' We would like respectfully and gratefully to read that analysis by Professor Smith, which seems to us to put the matter very clearly and in a way which can be understood by all."
Lord Lane then stated at p 6:
"We have been troubled by the case, but we think that in those remarks the learned judge was in effect posing the questions which Professor Smith posed in his commentary, although perhaps he put them the other way round. We think the jury were sufficiently by those words left to decide the problem, namely, if the defendant had not taken drink, would he have killed as he in fact did? The jury were entitled to give the answer which they did to that question."
For the reasons which I have sought to give I consider, with the greatest respect, that the approach taken by the Court of Appeal in Atkinson in applying Professor Smith's two questions was erroneous and that the judgment in that case cannot be reconciled with the judgment in Gittens  QB 698 which, in my opinion, states the law correctly.
36. Before considering R v Egan it is relevant to note that in delivering the judgment in the Court of Appeal in R v Tandy  1 All ER 267, 271j (where the facts are not relevant to the present appeal) Watkins LJ summarised the decision of the Court of Appeal in Gittens as follows:
"The Court of Appeal in R v Gittens  3 All ER 252,  QB 698 said that it was a misdirection to invite the jury to decide whether it was inherent causes on the one hand or drink or pills on the other hand which were the main factor in causing the appellant in that case to act as he did. The correct direction in that case was to tell the jury that they had to decide whether the abnormality arising from the inherent causes substantially impaired the appellant's responsibility for his actions."
In my respectful opinion this was an accurate summary.
37. In R v Egan  4 All ER 470 the jury also returned a verdict of guilty of murder where the defendant, who suffered from mental abnormality, killed a householder in the course of a burglary after having consumed a quantity of alcohol. The judge gave the following direction to the jury (see p 476):
"The second point is this, you must disregard the effects produced by alcohol, you look solely at the evidence which bears upon the abnormality of mind. If you conclude that his responsibility was substantially reduced drink or no drink, then the defence is made out. But if you conclude that the abnormality of mind would not on the balance of probabilities have diminished his responsibility substantially without the drink then the defence is not made out."
The Court of Appeal, in dismissing the appeal, approved this direction and stated at p 479:
"We clearly understand from all the judge said that he was directing this jury's mind to the vital question, namely, was the appellant's abnormality of mind such that he would have been under diminished responsibility, drink or no drink."
In my opinion the judge gave a correct direction to the jury and the Court of Appeal was right to approve it. But, in my respectful opinion, the Court of Appeal made a number of other observations which cannot be reconciled with the principle stated in Gittens  QB 698 and which were erroneous. These observations were made in rejecting an argument by counsel for the appellant (set out at p 475) that it was wrong for the Court of Appeal in Atkinson to have approved Professor Smith's commentary on Gittens and that his suggested questions were irreconcilable with the ratio of Gittens itself.
Watkins LJ stated at p 477:
"We have considered also Mr Pitchford's submission that the court's approval in R v Atkinson already referred to of Professor Smith was obiter, and that the Professor's questions are irreconcilable with the ratio in Gittens. Our conclusion is that this submission is misconceived.
Far from being obiter, the approval by the court of those questions was central to the decision of the court in R v Atkinson, as is clear from what Lord Lane CJ said."
At p 478:
"Further, we cannot accept that, as is implied in the submission, the court in R v Atkinson failed to recognise that they were adopting questions which are, supposing that to be so, irreconcilable with R v Gittens. We do not so regard them ourselves and would find it astonishing if that court did not have the ratio in R v Gittens well in mind, in approving and adopting the questions. They are, in our judgment, most appropriate and ought to be applied generally."
And later at p 478:
"To that he adds the contention that the judge wrongly directed the jury that unless they were satisfied on a balance of probabilities that the killing would have occurred had drink not been taken, the defence of diminished responsibility was not made out. We do not regard that as wrong. It is in accord with R v Atkinson, the criticism of which we have rejected."
In concluding the judgment of the Court of Appeal Watkins LJ stated at p 480:
"we think we should emphasise that the judgments in R v Gittens and R v Atkinson, as we have explained them, should be regarded together as representing, in our opinion, the high authority on this troublesome subject of diminished responsibility where drink is a factor."
For the reasons which I have given I consider that the court was in error in making these observations.
The judgment of the Court of Appeal in the present case
38. In the trial of the present case Maurice Kay J, pursuant to the judgments in Atkinson and Egan, put to the jury the two questions propounded by Professor Smith. On appeal to the Court of Appeal two grounds of appeal were advanced. One ground was that the judge improperly withdrew from the jury's consideration the possible defence of alcohol dependence syndrome. The Court of Appeal rejected this ground because the evidence was not capable of establishing such a syndrome. This ruling was not challenged on the appeal to the House. The second ground of appeal before the Court of Appeal which was advanced by Mr Edis QC was the ground advanced before this House, namely, that the judge had been wrong to put to the jury the questions propounded by Professor Smith and those questions were inconsistent with the judgment of the Court of Appeal in Gittens and created an obstacle, which was not contained in section 2, in the way of the defence of diminished responsibility. This argument was rejected by the Court of Appeal and Rose LJ stated at para 13:
"In our judgment, there are a number of difficulties, as a matter of principle and authority, with Mr Edis's submissions. First, we do not accept that Professor Smith misunderstood the court's judgment in Gittens. In our judgment his questions accurately reflect the substance of one aspect of that decision. If it were otherwise, it is inconceivable that, in Atkinson, the incompatibility of the Smith questions with the decision in Gittens would have escaped the court's attention. On the contrary, the court expressly approved the Smith questions as a correct analysis of Gittens. Secondly, in Egan, not only were the Smith questions again approved but the challenge to their compatibility with the decision in Gittens was firmly rejected. Gittens, Atkinson and Egan are all binding on this court."
39. My Lords, I recognise the force of the point made by the Court of Appeal in both Egan  4 All ER 470 and the present case that in Atkinson  Crim LR 314 the court would have had the ratio of Gittens  QB 698 in mind in approving Professor Smith's questions (Lord Lane having delivered the judgments in both cases). Nevertheless, and with the greatest respect, on a detailed analysis of the cases I am driven to the conclusion, for the reasons which I have sought to give, that the approach taken by the Court of Appeal in Atkinson and Egan in approving Professor Smith's two questions was erroneous and that the judgment in Atkinson cannot be reconciled with the judgments in Fenton 61 Cr App R 261 and Gittens, which, in my opinion, state the law correctly.
40. In his submissions on behalf of the Crown Mr Perry submitted that it was the policy of the criminal law that self-induced intoxication did not constitute a defence to a criminal charge, and that if the appellant's submissions were correct an intoxicated disinhibited killer would be excused. I am unable to accept this argument. The policy of the criminal law in respect of persons suffering from mental abnormality is to be found in the words of section 2, and the section provides that if a person suffers from such abnormality of mind as substantially impairs his mental responsibility, he should not be convicted of murder but of manslaughter. As my noble and learned friend, Lord Rodger of Earlsferry, observed in the course of Mr Perry's submissions, a brain-damaged person who is intoxicated and who commits a killing is not in the same position as a person who is intoxicated, but not brain-damaged, and who commits a killing.
41. Therefore I would answer the first part of the certified question in the negative. As regards the second part of the question, without attempting to lay down a precise form of words as the judge's directions are bound to depend to some extent on the facts of the case before him, I consider that the jury should be directed along the following lines:
"Assuming that the defence have established that the defendant was suffering from mental abnormality as described in section 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant's mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him."
42. The recent death of Professor Sir John Smith is a great loss to the world of legal scholarship, especially in the field of criminal law, and in suggesting the direction set out above I am fortified by the consideration that it would be in general conformity with the direction suggested by him as an alternative approach to the problem in his commentary on the judgment of the Court of Appeal in the present case  Crim LR 132, 136:
"You may think that all of these factors (including his drunkenness) played a part in causing D to act as he did. The only factor which the law recognises as capable of diminishing his mental responsibility is the mental abnormality described by the expert witnesses. If you are satisfied on the balance of probabilities that this abnormality existed and played such a part in his actions as, in your opinion, substantially to diminish his mental responsibility for those acts, you will find him not guilty of murder
43. Accordingly, for the reasons which I have given, I would remit the case to the Court of Appeal for that court to decide whether to allow the appeal and quash the conviction for murder and order a new trial or to substitute a verdict of guilty of manslaughter for the verdict of murder found by the jury and to pass an appropriate sentence for that offence.
LORD HOBHOUSE OF WOODBOROUGH
44. For the reasons given by my noble and learned friend Lord Hutton, I too would make the order he proposes.
LORD RODGER OF EARLSFERRY
45. I have had the privilege of reading the speech of my noble and learned friend Lord Hutton in draft. I agree with it and for the reasons that he gives I too would allow the appeal and make the order which he proposes.