APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lady Smith Lady Dorrian	[2011] HCJAC 17 Appeal No: XC664/10 OPINION OF THE COURT delivered by LORD HARDIE in CROWN NOTE OF APPEAL UNDER SECTION 74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by HER MAJESTY'S ADVOCATE Appellant. against GARETH KERR Respondent. _______

Appellant: A. Miller, Solicitor Advocate, A.D.; Crown Agent

Respondent: M. Scott Q.C. et Latif; George Mathers & Co., Aberdeen

24 February 2011

Introduction

[1] The respondent has been indicted at the instance of the appellant. The indictment contains four charges, the only one of relevance for present purposes is in the following terms:

"(3) On 22 March 2009 at Strathmore Drive and Esk Place, both Aberdeen you GARETH KERR did assault Gail McCann, c/o Grampian Police, Queen Street, Aberdeen and did pursue her, brandish a knife at her, seize hold of her, drag her, force her to the ground, repeatedly strike her on the head and body with said knife to her severe injury, permanent disfigurement, permanent impairment and you did attempt to murder her."

[2] The procedural history of the case has been protracted and has involved numerous preliminary hearings, principally to enable parties to investigate the mental state of the respondent. The first preliminary hearing was on 2 February 2010. On 12 April 2010 at a continued preliminary hearing, following upon the receipt of reports from skilled witnesses instructed on behalf of the respondent, the respondent tendered a plea of guilty to charge 3 under deletion of the words "and you did attempt to murder her". That plea was refused by the Crown and the Advocate Depute advised the court that the Crown intended to have the respondent medically examined. Thereafter, in the absence of any opposition by the respondent, several continued preliminary hearings were fixed at the request of the appellant to enable the appellant to obtain psychiatric reports in respect of the respondent. On 30 July 2010 at a continued preliminary hearing the appellant sought and was granted a further continuation until 1 September 2010. On that date the appellant lodged a minute under section 72(6)(b)(ii) of the Criminal Procedure (Scotland) Act 1995 in which the appellant submitted that a plea of diminished responsibility was not available to the respondent in this case because the appellant maintained that such a plea was only available to persons indicted for murder. On 20 September 2010 the temporary judge refused the preliminary issue minute lodged on behalf of the appellant and granted leave to the appellant to appeal. This note of appeal against that decision of the temporary judge is stated to be on the following grounds:

"The judge erred in holding that a plea of diminished responsibility is available to a person facing a charge of attempted murder. A plea of diminished responsibility is only available to a person indicted for murder."

Submissions for the appellant

[3] In his submissions the Advocate Depute repeated the Crown's assertion in the minute, repeated in the note of appeal, to the effect that a plea of diminished responsibility is only available to persons indicted for murder (HMA v Cunningham 1963 J.C. 80; Brennan v HMA 1977 JC 38). The principle behind the doctrine of diminished responsibility was the mitigation of punishment (Galbraith v HMA 2002 JC 1). Mitigation of penalty by reason of the accused's state of mind could be achieved in all cases except where the accused was convicted of murder because the penalty for murder is fixed by law. Accordingly, in the case of murder, where there was evidence of diminished responsibility the only way in which punishment could be mitigated was to reduce the category of the crime from murder to culpable homicide by reason of the accused's diminished responsibility. Although in Galbraith v HMA the court had been referred to HMA v Blake 1986 S.L.T. 661 in which Lord Brand had directed a jury that the effect of diminished responsibility was to reduce a crime of attempted murder to the crime of assault, the court had reserved its opinion about the effect of diminished responsibility on a charge of attempted murder because the court had not been favoured with detailed submissions on that issue. The Advocate Depute submitted that Lord Brand's direction was contrary to principle and should not be followed. There was no indication that such a direction had been given in subsequent cases. The Crown's position was consistent with section 168 of the Criminal Justice and Licensing (Scotland) Act 2010 ("the 2010 Act") which gave effect to the Scottish Law Commission's recommendations in its Report on Insanity and Diminished Responsibility that the plea of diminished responsibility should be retained as a special instance of a plea-in-mitigation in cases of murder and that it should not be extended beyond cases of murder. Moreover, the approach adopted by the Crown is consistent with the approach in England where it is recognised that if an accused has a mental abnormality amounting to diminished responsibility, the appropriate course is to convict him of attempted murder and thereafter to mitigate the sentence to reflect his diminished responsibility (R. v Drinkald (1988) 10 Cr. App. R(S) 380; R. v Nixon (1994) 15 Cr. App. R(S) 492).

Submissions for the respondent

[4] Senior counsel for the respondent submitted that the plea of diminished responsibility was not restricted to cases of murder (John McLean (1876) 3 Coup. 334; Kirkwood v HMA 1939 JC 36). Attempted murder is an inchoate crime. The essential difference between an attempted crime and a completed crime is the actus reus. The mens rea for the crime of murder and the crime of attempted murder is the same. (Cawthorne v HMA 1968 JC 32.) A person who kills in a state of diminished responsibility lacks the necessary wicked intention or wicked recklessness for the crime of murder. In such circumstances he can be convicted neither of murder nor of attempted murder. The case of Galbraith v HMA upon which the Crown placed reliance was a case where the accused had been the victim of sustained sexual and physical abuse. Battered wife syndrome explained her loss of control when she shot her husband. The focus in Galbraith was the scope and extent of the plea of diminished responsibility. There was an overlap between provocation and diminished responsibility. In cases where provocation is alleged the jury could not reach a conclusion about the commission of the crime of murder without considering the question of provocation (Drury v HMA 2001 SCCR 583). A similar approach was appropriate in cases involving allegations of murder or attempted murder where diminished responsibility was in issue.

Discussion

[5] The law is settled that, if established, diminished responsibility based upon an abnormality of mind of an accused at the relevant time justifies a conviction for culpable homicide where the accused would otherwise be convicted of murder (HMA v Dingwall (1867) 5 Irv. 466; HMA v McLean (1876) 3 Coup. 334; HMA v Smith (1893) 1 Adam 34; Galbraith v HMA). In Galbraith v HMA the court reviewed authorities commencing with HMA v Dingwall and culminating with Caldwell v HMA 1946 S.L.T. (Notes) 9 to illustrate that the terminology used by the court was for long unsettled but the term "diminished responsibility" seems to have become established from 1946 (paras. [23] to [25]). Despite the unsettled nature of the terminology, the court acknowledged that

"[i]t was clear enough, from the time when Dingwall came to be accepted, that in certain circumstances the accused's mental state meant that the jury could return a verdict of culpable homicide, even though the nature of the act committed by the accused would otherwise have justified his conviction for murder." (Para. [27])

In Galbraith the court was essentially concerned with clarifying certain elements in the plea of diminished responsibility and providing guidance to trial judges as to the proper approach to be adopted when faced with such a plea in the context of a murder case. The court did not address the question of whether the plea of diminished responsibility was available to an accused in cases other than murder cases. As we have already observed, there is a conflict of opinion on that matter (Kirkwood v HMA; HMA v Cunningham 1963; HMA v Blake; Brennan v HMA). It is neither necessary nor appropriate for us to seek to resolve that conflict, which in any event will be removed when section 171 of the 2010 Act is in force. The issue for our consideration is a narrow one, namely whether in cases of attempted murder the question of diminished responsibility is relevant to the jury's determination of whether the Crown has established that the accused had the mens rea required for murder. We were not favoured with submissions about what will be the effect of sections 168 to 171 of the 2010 Act on this particular issue when they are in force: accordingly we shall reserve our position on that matter.

[6] In support of his submission that the doctrine of diminished responsibility is concerned only with issues of punishment and reduces what would otherwise be murder to culpable homicide to enable the court to reflect the accused's diminished responsibility in the penalty imposed, the Advocate Depute relied upon the following passage from the opinion of the court in Galbraith at paragraph [45]:

"Because the individual is not fully responsible in law for what he does when his mental state is substantially impaired, the law mitigates the punishment which it deems appropriate for his criminal acts. In the case of murder, however, the sentence has always been fixed by law and cannot be varied by the judge according to the circumstances. Formerly the only sentence was death. Now it is life imprisonment. Therefore, to permit the necessary mitigation of punishment in cases where the prisoner killed someone at a time when his state of mind was such that, according to our law, he was not fully responsible for his act, he is to be convicted of culpable homicide, a lesser crime for which the judge may determine the level of punishment."

That passage, it was submitted, confirmed that in all crimes, apart from murder, the issue of diminished responsibility could be reflected in sentence without the necessity of reducing the charge of which the accused was to be convicted. On the other hand, in cases of murder, it was necessary to reduce the crime to culpable homicide to enable the sentencing judge to reflect the accused's state of mind and to mitigate sentence accordingly. While there is a superficial attraction to that submission, it would appear to be inconsistent with the reservation by the court of its opinion concerning attempted murder. Following the passage just quoted, the Lord Justice General, who delivered the opinion of the court, continued:

"We heard no detailed submissions on the matter of attempted murder and therefore go no further than to record that, in HM Advocate v Blake at p. 663C, Lord Brand directed the jury that, if they found diminished responsibility established, their verdict would be 'guilty of assault under deletion of attempted murder on the ground of diminished responsibility'."

Although the court had heard no detailed submissions on the question of whether the crime of attempted murder could be reduced to one of assault by reason of the diminished responsibility of the accused, we consider that the specific reference to Lord Brand's directions in HMA v Blake without disapproval is significant. If it had been the intention to restrict the effect of a successful plea of diminished responsibility to questions of punishment in all cases except cases of murder, including cases of attempted murder, the court would have said so in express terms. Moreover, it would be inconsistent with such a view to make specific reference to Lord Brand's directions without disapproving them. Rather the reservation tends to suggest that, at least as far as attempted murder is concerned, the court considered that there was scope for reducing the charge of which the accused was convicted if diminished responsibility were established. We are reinforced in that view because it is clear from the opinion that the court was concerned with the legal concept of responsibility (Para. [22]). Responsibility for the commission of a crime involves a consideration of the whole circumstances surrounding its commission. These are not confined to the actions of the accused; they include issues concerning his mental state as well as any evidence of provocation.

[7] We accept the submission on behalf of the respondent that the actus reus of murder and attempted murder differs in the sense that in the completed crime of murder the consequence is the death of the victim whereas that is not achieved in the attempted crime. However, it is clear that the mens rea for the crime of murder and attempted murder is identical. As the Lord Justice General (Clyde) observed at page 36 in Cawthorne v HMA.

"In my opinion attempted murder is just the same as murder in the eyes of our law, but for the one vital distinction, that the killing has not been brought off and the victim of the attack has escaped with his life. But there must be in each case the same mens rea, and that mens rea in each case can be proved by evidence of a deliberate intention to kill or by such recklessness as to show that the accused was regardless of the consequences of his act, whatever they may have been. I can find no justification in principle or in authority for the view .... that the mens rea in the case where life is actually taken can be established by evidence of a reckless disregard of the consequences of the act on the part of the accused, but that mens rea cannot be proved in that way where the charge is attempted murder.

Lords Guthrie and Cameron expressed similar views in their opinions in that case. In determining whether an accused has the necessary wicked intention to kill or wicked recklessness required for murder, it is relevant for the jury to consider the mental state of the accused at the time of the commission of the offence. Clearly if an accused suffers from such an abnormality of mind as would affect his responsibility in the sense used by the court in Galbraith, that is of relevance in determining whether the Crown has established the necessary wicked intention or wicked recklessness. In that regard we do not see that any distinction should be made between diminished responsibility and provocation, each of which has the same effect of reducing what would otherwise be a crime of murder to the crime of culpable homicide. The leading case on the law of provocation is Drury v HMA 2001 SCCR 583 which was decided by a full bench, chaired by the Lord Justice General (Rodger) about six months prior to his chairing the full bench in Galbraith v HMA. In Drury v HMA the Lord Justice General also recognised the analogy between diminished responsibility and provocation at paragraph [13] of his opinion where he observed:

"But what the trial judge describes is merely one type of situation that is covered by culpable homicide. As its name suggests, according to the current usage in our law (Burnett, Criminal Law, pp. 26 - 27) the crime of culpable homicide covers the killing of human beings in all circumstances, short of murder, where the criminal law attaches a relevant measure of blame to the person who kills. For instance, it covers cases where a person who is suffering from diminished responsibility intends to kill someone and does so. Even though the killing is intentional, the appropriate verdict is one of culpable homicide. Similarly, where the deceased has provoked the accused and the accused, under the influence of that provocation, kills him, the accused will be guilty of culpable homicide even though he intended to kill the deceased. Hume (i .239) describes these as cases where the accused 'has a mortal purpose, and yet is not in the first degree of guilt as a murderer: Because he is not actuated by wickedness of heart, or hatred of the deceased, but by the sudden impulse of resentment, excited by high and real injuries, and accompanied with terror and agitation of spirits.'

Similarly, Alison (i 92) gives as the first way of committing culpable homicide: 'By the intentional infliction of death, in circumstances which law deems blameable, though not so much as to amount to murder.'"

In cases of provocation the Lord Justice General explained that the evidence relating to the provocation was simply a factor which the jury had to take into account in determining the accused's state of mind at the time when he killed his victim (para. [17]). In cases of attempted murder the Advocate Depute accepted that it was appropriate for the jury to return a verdict of guilty of a lesser crime of assault by reason of provocation in circumstances where a conviction for attempted murder would be appropriate in the absence of such provocation. In these circumstances there is no justification in principle or in practice for distinguishing between someone whose responsibility is diminished by reason of some mental abnormality and someone whose culpability is reduced by reason of provocation. In the former case it is a subjective feature of the accused, namely a mental abnormality, which affects his responsibility for his actions whereas in the latter it is an external factor, namely the provocation which causes the accused to lose control thereby making him less culpable. In both cases the provocation or the diminished responsibility is relevant to the assessment by the jury of whether the Crown has established beyond reasonable doubt that the crime of attempted murder was committed by the accused. That assessment necessarily involves considering whether the wicked intention or the wicked recklessness for murder has been proved. Where evidence of provocation or diminished responsibility is accepted by the jury, the requisite mens rea for murder is absent. In such an eventuality it would not only be illogical to convict the accused of attempted murder when he could not have been convicted of murder if the victim had died; it would be unjust. As in the case of provocation, in a case alleging attempted murder where diminished responsibility is established the appropriate verdict is guilty of assault, with or without aggravations, by reason of diminished responsibility

[8] One consequence of the approach adopted by the Advocate Depute is that if a jury convicted an accused of attempted murder, it would be possible for the accused to lead evidence in mitigation of sentence of his diminished responsibility when he committed the offence. If the trial judge were satisfied that diminished responsibility had been established, the judge would be obliged to sentence the accused on the basis that he lacked the wicked intention or wicked recklessness required for murder, notwithstanding the jury's verdict to the contrary.

[9] We have given consideration to the report of the Scottish Law Commission on insanity and diminished responsibility and to sections 168-171 of the 2010 Act, which are not yet in force, but we do not consider that they are of assistance in determining what the current state of the law is. Nor did we find any assistance in the English cases cited to us.

[10] For the reasons given above, we consider that the direction given by Lord Brand to the jury in HMA v Blake was sound. We respectfully agree with him that in cases of attempted murder where the question of diminished responsibility of the accused is in issue, it is incumbent upon the jury to take into account any evidence in support of the accused's diminished responsibility in assessing whether he had the necessary wicked intention or wicked recklessness required for murder. If he did not, the accused cannot be convicted of attempted murder but only of a lesser charge of assault, with or without aggravations, by reason of diminished responsibility. Accordingly we shall refuse this appeal.