Regina v Golds
 UKSC 61;  WLR (D) 636
2016 June 14; Nov 30
Lord Neuberger of Abbotsbury PSC, Lord Thomas of Cwmgiedd LCJ, Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Hughes, Lord Toulson JJSC
Crime — Homicide — Diminished responsibility — Abnormality of mental functioning — Whether defendant’s ability “substantially” impaired — Whether trial judge wrongly refusing to direct jury on meaning of “substantially” — Homicide Act 1957 (c 11), s 2 (as amended by Coroners and Justice Act 2009 c 25), s 52(1)
The defendant admitted that, following an argument, he had killed his partner by stabbing her 22 times. At his trial for murder his defence was that of diminished responsibility. Three medical experts gave evidence that it was their belief that at the time the defendant had been suffering from a recognised medical condition, namely an abnormality of mental functioning which “substantially impaired” his ability to understand the nature of his conduct or to form a rational judgment, or to exercise self-control, and which provided an explanation for the defendant’s conduct in that it had caused, or had been a significant contributory factor in causing, him to carry out that conduct so that the conditions for establishing diminished responsibility set out in section 2 of the Homicide Act 1957 as amended were satisfied. The judge refused to give the jury any directions as to the meaning of the word “substantial” in connection with the question whether the defendant had been suffering from an abnormality of mental function so as substantially to impair his ability to understand the nature of what he was doing, to form a rational judgment, or to exercise self control. Instead, he directed the jury that “substantially” was an everyday word and that it was not for him to tell them what it meant. The defendant was convicted of murder. He appealed against conviction on two grounds for which permission had been given, and applied for permission to advance the third and fourth grounds, the latter of which was that the judge had wrongly refused to give the jury directions as to the meaning of the word “substantially” in section 2 of the 1957 Act. The Court of Appeal granted the application in respect of the fourth ground but dismissed the appeal and held that the word “substantially” in section 2(1) of the 1957 Act did not have the narrow meaning of “more than trivially or minimally” but had a wider meaning which required juries to determine its meaning by applying common sense in the range from trivial or minimal to total, that a trial judge could properly refuse to provide an explanation for “substantially” but if any explanation were given in response to a jury’s request for help it should be in terms that it meant an impairment which went beyond something which, although it might have made it harder for the defendant to control himself and to refrain from crime, did not really make any great difference.
On the defendant’s appeal —
Held, appeal dismissed. The effect of the statutory formulation of diminished responsibility was that the jury had to decide whether the defendant suffered from an abnormality of mind which arose from a recognised medical and which substantially impaired one or more of the abilities listed in section 2(1A) and whether that impairment had caused or substantially contributed to his killing the deceased. Ordinarily in a murder trial where diminished responsibility was in issue, the judge did not need to direct the jury beyond the terms of the statute and should not attempt to define the meaning of “substantially. The jury should normally be given to understand that “substantially” was an ordinary English word, that it imported a question of degree and that it was for the jury to decide whether in the case before it the defendant’s impairment could be described as “substantial”. If however the jury had been introduced to the question of whether any impairment beyond the merely trivial would suffice or if it had been introduced to the concept of a spectrum between the greater than trivial and the total, or if a risk arose that the jury might misunderstand the import of the expression “substantially impaired”, the judge should explain that whilst the impairment must indeed be more than trivial before it needed to be considered, it was not the law that any impairment beyond the trivial would suffice, and that it must be such as was judged by the jury to be substantial. If the occasion for elucidation did not arise, the judge’s first task would be to convey to the jury, by whatever form of words suited the case before it, that the statute used an ordinary English word and that the jury must avoid substituting a different one for it. The jury must understand that “substantially” involved a matter of degree and that it was for the jury to use the collective good sense of its members to say whether the condition in the case it was trying reached that level or not. The trial judge had correctly left the issue to the jury and had not erred when he refused to direct them on the meaning of “substantially”.
R v Byrne  2 QB 396, CCA; R v Simcox  Crim LR 402, CCA; R v Lloyd  1 QB 175, CCA; R v Seers(1984) 79 Cr App R 261, CA; R v Egan  4 All ER 470, CA and R v Ramchurn  2 Cr App R 18, CA considered.
Per curiam (1) Medical evidence (nearly always forensic psychiatric evidence) has always been a practical necessity where the issue is diminished responsibility. Although it is for the jury, and not for the doctors, to determine whether diminished responsibility is made out, and that important difference of function is well recognised by responsible forensic psychiatrists, it is inevitable that they may express an opinion as to whether the impairment was or was not substantial, and if they do not do so in their reports, as commonly many do, they may be asked about it in oral evidence. It is therefore important that if they use the expression, they do so in the sense in which it is used by the courts.
(2) Where in a diminished responsibility trial the medical evidence supports the plea and is uncontradicted, the judge needs to ensure that the Crown explains the basis on which it is inviting the jury to reject that evidence. He needs to ensure that the basis advanced is one which the jury can properly adopt. If the facts of the case give rise to it, he needs to warn the jury that brutal killings may be the product of disordered minds and that planning, whilst it may be relevant to self control, may well be consistent with disordered thinking. While he needs to make it clear to the jury that, if there is a proper basis for rejecting the expert evidence — the decision is theirs — that trial is by jury and not by expert — it will also ordinarily be wise to advise the jury against attempting to make themselves amateur psychiatrists, and that if there is undisputed expert evidence the jury will probably wish to accept it, unless there is some identified reason for not doing so.
R v Brennan  1 WLR 2060 considered.
Decision of the Court of Appeal  EWCA Civ 748;  1 WLR 1030 affirmed.
David Etherington QC and Stephen Rose (instructed by Taylor Haldane & Barlex) for the defendant.
David Perry QC and Tom Little (instructed by Crown Prosecution Service, Appeals and Review Unit) for the Crown.
Reported by: Shiranika Herbert, Barrister
© 2016. The Incorporated Council of Law Reporting for England and Wales.