England and Wales Court of Appeal (Criminal Division) Decisions

 

Neutral Citation Number: [2016] EWCA Crim 1940

No: 201501763 B1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

 

Tuesday, 1st November 2016

B e f o r e :

 

VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

LADY JUSTICE HALLETT DBE

MR JUSTICE WILLIAM DAVIS

MR JUSTICE LAVENDER

R E G I N A

 

v

 

MALACHI NOEL MICHAEL LINDO

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Mr J Higgs QC & Mr P Walker appeared on behalf of the Appellant

Mr A Orchard QC appeared on behalf of the Crown

 

J U D G M E N T

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THE VICE PRESIDENT:

1. Introduction
2. On 12th March 2015, at the Central Criminal Court, the appellant was convicted of the offence of murder by a majority of ten to one. He had earlier pleaded guilty to an offence of manslaughter, He appeals against conviction with leave on the basis of criticisms of the judge's directions and fresh evidence in the form of an up‑to‑date medical evidence that may throw new light on his medical condition.
3. Factual Background
4. On 4 September 2014 the appellant attacked and killed Mr Philip Steels, a complete stranger, with a brick. He smashed Mr Steels' face so that it was unrecognisable. His behaviour that day and at the scene was described as bizarre. He told an officer that he had taken "cocaine, MDMA and weed". When the appellant was arrested for murder, repeatedly protested: "I'm not going to kill anyone else". He had a rucksack with him containing drugs paraphernalia and a quantity of herbal cannabis ready for sale.
5. The appellant later explained that he had bought drugs, cannabis and what he thought was MDMA; he had not known that it was ethylone. Having taken the drugs, he described bizarre feelings and acting strangely.
6. A toxicologist found no alcohol in samples taken from the appellant but did find traces of ethylone and cannabis. It was not possible to perform any back calculation to calculate the amount of drugs taken. Ethylone is a new psychoactive synthetic drug, chemically similar to ecstasy, cathinone and MDMA. Its adverse effects include sweating, headache, nausea, agitation, increased heart rate, palpitations and possibly hallucinations. Similar substances have been reported to lead to unusual and strange behaviour. The effects of cannabis are known to vary. They can include euphoria and relaxation, distortion of space and time, disturbance of memory and judgement, and difficulties in processing large amounts of information. It can lead to irritability and a deterioration in co‑ordination. It normally acts as a relaxant and is unlikely to cause hyperactivity, but it can lead to anxiety or panic, and psychoses have been reported. The toxicologist concluded that the presence of ethylone alone and or the combination of ethylone and cannabis may explain the appellant's unusual behaviour.
7. Medical background
8. The appellant's mother gave a family history of mental problems, including schizophrenia. The appellant himself described first taking drugs at the age of 15 or 16. He started smoking cannabis on a more regular basis at about the age of 20. In the six months leading up to the killing he admitted smoking cannabis about twice a week on average. He asserted that cannabis had never caused him to lose touch with reality, although he described some slightly unusual feelings of being "spacey" in the days leading up to the killing.
9. His medical records revealed a history of depression and many attempts by various agencies to help him with his mental health problems. Unfortunately, they also revealed a failure on the appellant's part to engage with those agencies. His difficulties led to his dropping out of university and a law degree.
10. The psychiatric evidence came from Dr Cumming and Dr Latham, both acknowledged experts in their field.
11. Dr Cumming was of the view that at the time of the incident the appellant was suffering from either a paranoid schizophrenic illness or a drug‑induced psychosis, both of which fulfil the criteria of a recognised medical condition. In his opinion it was more likely the latter: a drug induced psychosis. He did not consider that at that time the appellant matched the profile of a paranoid schizophrenic because his symptoms did not last as long as he would have expected. A drug‑induced psychosis can last weeks or even months. In the appellant's case the psychosis was over in a matter of days. However, he was in a prodromal state ie at risk of developing schizophrenia.
12. Dr Cumming concluded that the appellant was suffering from an abnormality of mental function which impaired his ability to understand the nature of his conduct, form a rational judgment or exercise self‑control. If he had not been psychotic, the killing would not have occurred. In cross‑examination he accepted that if the appellant had not taken drugs the killing would not have occurred.
13. Dr Latham, for the prosecution, did not disagree with Dr Cumming, save in one important respect. Dr Latham was doubtful that the abnormality of mental functioning arose from a recognised medical condition. He accepted that the appellant suffered from depression and that the psychotic disorder was induced by drugs. He did not agree that Mr Lindo had experienced symptoms that indicated a diagnosis of paranoid schizophrenia, but accepted that the appellant should be considered to have been in an at risk, or prodromal, state with evidence of transient symptoms. His prodromal state meant that he was more vulnerable to the effect of the drugs he willingly consumed. One of the most significant factors that can cause escalation of symptoms is substance abuse.
14. Ruling
15. It was accepted by trial counsel, the late Mr Ian Glen QC, that the appellant's consumption of drugs was voluntary and that he was responsible for the effect of his intoxication, but he wished to argue that the appellant was suffering from an abnormality of mental functioning and a recognised medical condition, namely a drug‑induced psychotic episode, that substantially impaired his responsibility for his actions.
16. On the basis of reservations expressed by Dr Latham that drug induced psychosis could amount to a recognised medical condition in law, Mr Orchard QC for the Crown attempted to persuade the judge that the partial defence of diminished responsibility should not be left to the jury.
17. The judge ruled that it was open to the jury to conclude that, even though the appellant voluntarily took illicit drugs, his responsibility was diminished in that he was in a prodromal state and was suffering from a drug‑induced psychosis. The judge distinguished this from psychosis induced by simple intoxication.

 

18. Steps to verdict
19. The judge left the jury two issues to decide: intent and the partial defence of diminished responsibility. On intent the judge gave the jury the standard direction that the prosecution must prove the appellant intended to kill or cause really serious bodily harm and did not elaborate. He left the issue of diminished responsibility to the jury in this way:
20. "Have the defence proved on a balance of probabilities that at the time of the killing:

i.                     the D was suffering from an abnormality of mental functioning by reason of a drug induced psychosis?

ii.                   that abnormality of mental functioning arises from a recognised medical condition and not just from voluntary consumption of illicit drugs?

iii.                 that abnormality substantially impaired his ability to understand the nature of his conduct or form a rational judgment or exercise self‑control?

iv.                  that abnormality provides an explanation for D's conduct?

21. If the answer to all these question is 'yes', your verdict is Not Guilty of Murder but Guilty of Manslaughter.
22. If the answer to any question is 'no', then your verdict is Guilty of Murder."

 

23. The legal framework
24. The original definition of the partial defence of diminished responsibility was provided by section 2 of the Homicide Act 1957. Section 2(1) unamended read:
25. "Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."

 

26. The leading authority on section 2(1) in its original form and the relevance of voluntary intoxication was R v Dietschmann [2003] UKHL 10. Dietschmann killed his victim when heavily intoxicated and also suffered from an abnormality of mind described as an adjustment disorder. The House of Lords held that to establish the defence under section 2(1) it was not necessary to prove that the abnormality of mind was the sole cause of a defendant's act. Even if a jury was satisfied that a defendant would not have killed if he had not taken drink, the causative effect of the drink did not necessarily prevent an abnormality of mind from substantially impairing his mental responsibility. A judge should direct a jury that if they were satisfied that drink and the mental abnormality both played a part in the killing, the jury must decide whether they were also satisfied that, despite the drink, the abnormality of mind substantially diminished the defendant's responsibility for his actions. Their Lordships approved R v Gittens [1984] 79 Cr App R 2727 and R v Fenton [1975] 61 Cr App R 261.
27. Section 2(1) was amended by section 52(1) of the Coroners and Justice Act 2009 section 52(1). It now reads:
28. "A person ('D') who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which ‑

(a)    arose from a recognised medical condition,

(b)    substantially impaired D's ability to do one or more of the things mentioned in subsection 1A, and

(c)     provides an explanation for D's acts and omissions in doing or being a party to the killing.

29. (1A) Those things are ‑

(a)    to understand the nature of D's conduct;

(b)    to form a rational judgment;

(c)     to exercise self‑control.

30. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct."

 

31. The burden of proof remains the same: the defendant must establish the partial defence on the balance of probabilities.
32. The issue of whether acute voluntarily intoxication is capable of giving rise to the partial defence of diminished responsibility in its amended form was addressed in terms in R v Dowds [2012] EWCA Crim 281. Dowds was described as a 'heavy elective drinker' who was in a state of acute intoxication at the time he killed. The defence argued that acute intoxication is a recognised medical condition because it appears in the International Classification of Diseases and the DSM‑IV. The trial judge refused to allow the issue of diminished responsibility to be left to the jury. This court, having considered the history of the legislation, the legal principles and the policy behind not allowing offenders to rely upon their voluntarily induced state of intoxication to escape responsibility for their drunken actions, stated at paragraph 40:
33. "It is enough to say that it is quite clear that the reformulation of the statutory conditions for diminished responsibility was not intended to reverse the well established rule that voluntary acute intoxication is not capable of being relied upon to found diminished responsibility. That remains the law. The presence of a 'recognised medical condition' is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility."

 

34. Grounds of Appeal
35. The grounds of appeal as advanced by Mr Jonathan Higgs QC, who now represents the appellant, are three‑fold.
36. Ground 1: Directions on intent
37. First, he argues that the judge failed adequately to direct the jury on the issue of intent. It is said that the judge should have directed the jury in express terms that the question of intent was in issue. The judge should have gone further than simply directing the jury that the prosecution had to prove intent. He should have spelled it out in greater detail.
38. Mr Higgs further complains that at paragraph 4 of the judge's written directions he directed the jury that "the [prosecution] must make you sure that the defendant deliberately and unlawfully killed the victim". Mr Higgs suggested the judge wrongly directed the jury: "That is not in dispute". The deliberate, as in intentional, nature of the attack was in dispute. The distinction between something being a deliberate as opposed to accidental may be obvious to a lawyer but to a jury the distinction between deliberate and intentional may not be so clear, particularly where, as here, a defendant was acting in a psychotic state.
39. Furthermore, he complains that in the steps to verdict there was no mention of intent. This would have reinforced the suggestion that intent was not a real issue when in fact it was.
40. We can dispose of this point swiftly. The judge's directions in his summing‑up and in the written directions were full and fair and they were correct on the facts and issues as presented to the jury. There was no issue in relation to the deliberate nature of the blows in the sense that they were not accidental. The issue was the appellant's intent. This would have been obvious to the jury. The summing‑up began with a clear direction on intent. Immediately following the passage to which Mr Higgs took exception, the judge expressly reminded the jury that the prosecution must prove the issue of intent. When he introduced the subject of diminished responsibility he again directed the jury that they could only move to the defence of diminished responsibility if they found the elements of murder proved, and these included the issue of intent. It is true that the steps to verdict did not expressly include intent, but this was something that Mr Orchard noticed and pointed it out to the judge. The judge directed the jury in these terms:
41. "The defendant denies that he had the intention to cause death or really serious harm to Mr Steels. Although I've not set it out in the Steps to Verdict for you, of course, if you are not sure he had such intent then you will find him not guilty because he will not be guilty of murder unless you are sure that he had that intent when he repeatedly used that brick on the face of Mr Steels. If you are sure that he intended to kill or, at the very least, to cause really serious harm to Mr Steels then you will go on to go through the questions set out in the Steps to Verdict part of the document that I've given to you."

 

42. Finally, we note that in the written directions there was a lengthy paragraph directing the jury on how they should approach the question of intent. In those circumstances, this ground is totally unarguable.
43. Ground 2: Fresh evidence
44. Following the appellant's conviction and sentence, the appellant suffered another significant psychotic episode between March and May 2015. He was transferred to hospital with a possible diagnosis of paranoid schizophrenia. He was given a small dose of anti‑psychotic drugs for a few weeks. In July he was diagnosed with stress‑induced psychosis. After that he remained stable, without drugs and was discharged from hospital back to prison in January 2016. There remains no diagnosis from his treating doctors of schizophrenia and there has been no recurrence of his symptoms.
45. However, the recurrence of symptoms in 2015 led the defence to seek an up‑to‑date report from Dr Cumming. Dr Cumming, in a report dated 28th January 2016, said that the symptoms the appellant had displayed during the previous six months confirmed his opinion that he did suffer from psychosis so that he gave much less weight to the presence of drug‑induced symptoms at the time of the offence. He expressed the view that the appellant has now developed a schizophrenic illness.
46. Dr Latham was also asked to reconsider his opinion. He provided a report dated April 2016. He observed:
47. "In summary, whilst there is increasing evidence that Mr Lindo might meet the threshold necessary to make a diagnosis of schizophrenia this diagnosis has not been made yet and even if it were, his state at the time of the offence would be considered the prodrome of that illness. I maintain my opinion that the most important factor in his abnormal mental functioning at the time of the offence was his use of drugs. If the susceptibility to or at‑risk of psychosis state is sufficient to reach the threshold for recognised medical condition the partial defence of diminished responsibility might apply."

 

48. He also noted that the appellant had admitted using illegal drugs in prison before the second psychotic episode.
49. Mr Higgs seeks to rely on the opinion of Dr Cumming as fresh evidence, arguing it was not available at trial, it is credible, affords a ground of appeal and it is necessary or expedient in the interests of justice for us to receive it.
50. We heard from Dr Cumming de bene esse this morning. We shall not rehearse what he told us in any detail. Suffice it to say that we have two principal difficulties with his conclusions. First, his current opinion was premised on the assumption that the psychotic symptoms had continued or recurred whilst the appellant was in prison and therefore drug‑free. It ignored the appellant's admissions of drug taking in prison and Dr Cumming's own observation that the appellant is prone to minimise his drug habit. Second, it ignored the timing of the recurrence of the psychotic symptoms namely soon after conviction and sentence and the fact that after a short period of drug treatment there has been no reported recurrence of the symptoms. Further, his treating doctors have not diagnosed schizophrenia,
51. We were also concerned that Dr Cumming misremembered what he told the jury. He believed that he had diagnosed the appellant as suffering from schizophrenia at the time of the offence and trial and given evidence to that effect. He had not and he did not. He raised the possibility that the appellant suffered from paranoid schizophrenia, but in his report and in his evidence he stated it was more likely that the appellant was in a prodromal state, i.e. he was at risk of developing schizophrenia. Before us, Dr Cumming conceded that if there have been no symptoms and no treatment since January 2016, he may have to "abandon" the diagnosis of paranoid schizophrenia, but he would have to see the appellant in consultation before he could reach a final conclusion.
52. Having considered the medical evidence with care, the most likely diagnosis, in our view, is that the appellant suffered either a stress‑related or drug and stress related episode in prison and has since recovered. He may develop schizophrenia in the future, but there is no evidence that he has yet developed it. Most importantly, there is no evidence that he suffered from it at the time of the killing. Even if we were to accept that the appellant does now suffer from schizophrenia, the fact remains that the consensus of medical opinion was clear: at the time of the killing he had not developed schizophrenia but was at risk of developing schizophrenia. Had there been a sound basis for a diagnosis of schizophrenia at the time of the killing, we might have been prepared to receive and consider Dr Cumming's evidence, but there is not, and we decline to receive it. As it seems to us, it adds nothing to the material presented to the jury and would not have affected their verdict.
53. Ground 3: Directions on diminished responsibility
54. On a number of occasions during his summing‑up the judge set out the full statutory ingredients of the partial defence of diminished responsibility, as well as the correct burden of proof. He defined the abnormality of mental functioning upon which reliance was placed as a 'drug‑induced psychosis'. Mr Higgs complains that this was wrong: the abnormality of mental functioning relied upon was psychosis. The fact that the psychosis was induced by drugs was a relevant consideration but at the next stage when the jury considered whether a psychosis induced by drugs was a recognised medical condition.
55. The judge continued by directing the jury that, in considering whether the appellant was suffering from an abnormality of mental functioning and whether that abnormality substantially impaired his mental responsibility, the effect of voluntarily taking illicit drugs was irrelevant. Mr Higgs described this direction as flawed. Under the amended section the issue for the jury is substantial impairment of his ability to understand the nature of his conduct, form a rational judgment or exercise self‑control not of substantial impairment of his responsibility for his actions. Mr Higgs conceded that elsewhere in the summing up the judge set out the elements of the offence, as he would have it, correctly but argued this was not sufficient to remedy the defect.
56. On the issue of whether drug‑induced psychosis is a recognised medical condition, Mr Higgs complains that the judge simply directed the jury that a drug‑induced psychosis was capable of being a recognised mental condition in law and reminded them that both experts had said it was a recognised medical condition. Mr Higgs maintains that the judge should have directed the jury that he, the judge, had concluded that drug induced psychosis is a recognised medical condition. We pressed Mr Higgs on what exactly the judge should have added. He suggested something along these lines: "It is for you, the jury, to decide as a matter of fact whether or not the medical condition in play in this case should be recognised by law" adding that the condition appears in the diagnosis manuals and is recognised throughout the world. Unfortunately, as was pointed out in the course of argument, the same can be said of voluntary intoxication.
57. Mr Higgs conceded that when a man voluntarily intoxicates himself he cannot be absolved fully from criminal liability for his actions, but reminded the court that a conviction for manslaughter is nonetheless a conviction for a serious offence of homicide and all sentencing options remain open. On that basis, he insists that there is no public policy reason to restrict the application of diminished responsibility and no reason to struggle to distinguish between actual schizophrenia and the prodromal state.
58. Finally, Mr Higgs took us to a question asked by the jury in retirement. They wanted more help on "whether a drug‑induced psychosis is a recognised medical condition in law". The judge's answer was described by Mr Higgs as not helpful in that he essentially repeated his previous direction.
59. First, we note that Dr Cumming called a prodromal state a concept rather than a diagnosis. It is a state of being at risk, as opposed to a diagnosed medical condition. We have our doubts therefore as to whether there was evidence of a recognised medical condition fit to be left to the jury. Drug‑induced psychosis standing alone would not suffice and a drug induced psychosis combined with a prodromal state does not seem to us to be sufficient to trigger the operation of the section.
60. There is nothing harsh about such an approach. We endorse a passage from the judgment in Woods [2008] EWCA Crim 1305, cited by Hughes LJ in Dowds, to the effect that public policy proceeds on the basis that an offender who voluntarily takes alcohol or drugs and behaves a way in which he would not have behaved when sober is not normally excused responsibility. People who take drugs run the risk of suffering side effects such as psychosis. Others like Mr Steels then suffer the consequences. In any event, this particular appellant was well aware of the risks. He is an intelligent young man. He knows the extent of his problems but has refused to address them and accept the help on offer. He knows about drugs and their possible side effects, not just from his taking and dealing in them, but from researching them on the open and on the dark web. With that knowledge, he chose to become a habitual drugs user and drugs dealer. In our judgment it would be wrong to allow him to escape full responsibility for his actions simply on the basis that he took drugs at a time when he was at risk of developing a mental illness.
61. With those observations in mind, we turn to the judge's directions on diminished responsibility. It is important to focus on the issues as presented to the jury. It was common ground that the appellant was in a prodromal or at risk state for paranoid schizophrenia, he was in a state of psychosis, and the state of psychosis was drug‑induced. It was in dispute whether the abnormality of functioning arose from a recognised medical condition. The only candidate for a recognised medical condition left to the jury was drug‑induced psychosis in the context of an underlying prodromal, state. In that context, in our view, the judge's directions taken as a whole left the issue of diminished responsibility to the jury in as fair and generous a way possible.
62. The judge took the precaution of discussing all the directions he intended to give with trial counsel and he circulated a copy of Professor David Ormerod's helpful paper on the amended section 2(1). His draft directions were agreed by very experienced trial counsel. The judge could not have done more to ensure the appellant had a fair trial; indeed, had he provided any greater assistance on what might constitute a recognised medical condition it may not have assisted the appellant.
63. For those reasons we reject the criticisms made of the judge's directions and decline to receive the fresh evidence. As indebted as we are to both counsel, the appeal must be dismissed.