On 23 May 2008, before Grigson J and a jury, the appellant was convicted of the murder of a young man called Nazeer Ahmed. The victim was bludgeoned with a cricket bat in the sitting room of a house in Keighley that he shared with the appellant and some other young men. He died soon after. The attack occurred just after 3pm on 31 May 2007.

On 30 June 2008, the appellant, who was then aged 21, was sentenced by Grigson J to life imprisonment with a recommendation that he serve a minimum term of 10 years, less time spent on remand.

The appellant raised two defences at his trial. The first was that he did not kill Nazeer Ahmed, because he was elsewhere at the time the attack occurred. The appellant’s second defence was that if he did attack and thereby cause the death of Nazeer Ahmed, then he did so when suffering from diminished responsibility within the terms of section 2(1) of the Homicide Act 1957, (“the 1957 Act”), so that he should only be convicted of manslaughter. By its verdict, the jury rejected both defences.

At the trial the prosecution led evidence from a large number of witnesses of fact, who dealt with matters both before and after the time of Nazeer Ahmed’s death. The only expert evidence for the prosecution on the appellant’s mental state at the time of the attack was contained in a statement of a consultant psychiatrist, Dr GP Bray, which was read to the jury. Dr Bray had been responsible for the appellant’s care since his arrest on 31 May 2007. Dr Bray’s evidence was that the appellant was suffering at the time of the killing from paranoid schizophrenia.

The defence called Dr Francesca Harrop, a consultant forensic psychiatrist. Her evidence was that the appellant was suffering at the time of the killing from schizophrenia or schizo – affective disorder. She stated that he was suffering from an abnormality of the mind for the purposes of section 2(1) of the 1957 Act and would meet the criteria for diminished responsibility.

At the conclusion of the evidence for the defence, on 20 May 2008, leading counsel for the appellant, Mr Davey QC, made a submission to the trial judge that the charge of murder should be withdrawn from the jury. He made this submission on the assumption that the Crown had proved, to the criminal standard, that the appellant had killed Nazeer Ahmed with the necessary intent to kill or cause grievous bodily harm. Mr Davey’s submissions were: (i) that there was uncontradicted evidence that the appellant suffered from an abnormality of mind induced by disease; and (ii) that there was no medical evidence on which a reasonable jury could conclude that the defence had not proved (on a balance of probabilities) that this abnormality of mind had substantially impaired the appellant’s mental responsibility for his acts in doing the killing of the victim.

Grigson J rejected the application and gave a short judgment. He accepted that there was unchallenged medical evidence that the appellant suffered, at the time of the killing, from an abnormality of mind that was induced by disease. Therefore the issue, on the defence of diminished responsibility, was whether the appellant’s “[mental] responsibility was substantially impaired”. The judge said that was a matter of fact “...and it is always a matter for the jury”. He said that he was not familiar with any authority which says that in the present circumstances “…the judge should effectively withdraw an issue of fact from the jury”. He distinguished the case of R v Bailey (1978) 66 Cr App R 31, to which Mr Davey had referred. After speeches he summed up to the jury. No complaint is made of the terms of his summing – up, either on the law or the facts.

Subsequently, on 27 June 2008, Grigson J was asked by the defence to certify that the case was fit to appeal, pursuant to section 1(2)(b) of the Criminal Appeal Act 1968. Grigson J did so (noting that the test was only whether the issue was arguable), on the following ground:

Before us, the appellant sought the leave of the full court to argue a second ground of appeal, namely that the jury’s verdict, in so far as it related to the issue of diminished responsibility, was unsupported by the evidence and was therefore unsafe. In his helpful Outline Argument which was submitted to the court before the hearing of the appeal, counsel for the Crown, Mr Richard Mansell QC, submitted that the two grounds raised the same question: viz. was there evidence before the jury on which they could safely reject the defence of diminished responsibility and convict of murder. We accept that the two grounds are different ways of examining the same question. Therefore, at the outset of the hearing of the appeal, we gave leave to Mr Askins, who appeared for the appellant, to argue this second ground as well.

At the conclusion of the hearing of the appeal, we asked both counsel to send us confirmation in writing of various references to the summing up on which they wished to rely concerning evidence of witnesses of fact to which the judge had referred. We stated that when we had considered those references we would inform them of whether the appeal was to be allowed or dismissed. (This was necessary because if we allowed the appeal and substituted a verdict of manslaughter by reason of diminished responsibility, arrangements would have to be made to hear Dr Bray on the issue of sentence). We duly received the references. On Friday, 17 July 2009 we announced that the appeal would be dismissed for reasons which we would hand down later. These are our reasons.

It was common ground before us that the appeal must be approached on two bases. First, that the Crown had satisfied the jury, to the criminal standard of proof, that the appellant had committed the acts which caused the death of Nazeer Ahmed and that when he did so he intended either to kill him or to do him grievous bodily harm. Secondly, that for the appellant to be able to rely on the defence of diminished responsibility, it was for him to satisfy the jury, on a balance of probabilities, of the matters set out in section 2(1) of the 1957 Act.

Section 2(1) of the 1957 Act provides:

In the leading case of R v Byrne [1960] 2 QB 396, the Court of Criminal Appeal considered the correct interpretation of section 2(1) of the 1957 Act. Two aspects of the reserved judgment of Lord Parker CJ in that case are relevant to the present appeal. First, he gave an explanation of the meaning of the words “abnormality of mind” in section 2(1). He said, at page 403, that the phrase “abnormality of mind” was:

Lord Parker stated, on the same page, that the issue of whether the accused was suffering from any “abnormality of mind” was a question for the jury. Medical evidence on that question would be of importance, but the jury was entitled to take into consideration all the evidence, “…including acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.”

However, Lord Parker also stated that the aetiology of the abnormality of the mind would seem to be a matter to be determined on expert evidence.

Secondly, he referred to the other key words in section 2(1), viz. “..substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing”. Lord Parker said (at page 403) that this phrase:

Lord Parker said that the issue of whether the abnormality of mind was such as substantially impaired the mental responsibility of the accused for his acts in doing or being a party to the killing was “…a question of degree and essentially one for the jury.” He continued, at page 404:

As we understand Lord Parker’s statements on the interpretation of the statutory words that we have quoted, which he reinforced on the same page when dealing with the direction of the trial judge in that case, he focused on two things in particular. (They both assume that it is demonstrated that the defendant suffered from an abnormality of mind induced by one of the causes identified in the sub – section). First, the degree to which the defendant comprehended what physical acts he was doing, or what he was omitting to do in relation to the killing. Secondly, the degree to which the defendant had (at that time) any power to exercise control over his actions or omissions in doing or being a party to the killing. Scientific understanding of how the mind works and the extent to which states of mind and physical responses to them have physical or chemical causes have undoubtedly advanced considerably since Lord Parker made those statements. But we venture to suggest that, even today, it is impossible to provide any accurate scientific measurement of the extent to which a particular person who is suffering from an “abnormality of mind” resulting from one of the causes set out in the parentheses in section 2(1) could understand or control his physical impulses on a particular occasion. In other words, there is no simple scientific test of whether a defendant’s “mental responsibility for his acts and omissions in doing or being a party to the killing” is “substantially impaired”. It was not suggested that there was either in evidence at the trial of the present appellant or in argument on this appeal.

In Byrne, the court did not elaborate particularly on the interpretation of the word “substantially” in section 2(1). It was addressed in a number of other cases, but in particular by the Court of Criminal Appeal in R v Lloyd [1967] 1QB 175. Giving the judgment of the court, Edmund Davies J approved the direction of the trial judge, Ashworth J, who had told the jury that 'substantial' did not mean total, ie. the mental responsibility need not be totally impaired, nor did it mean trivial or minimal. It was something in between and Parliament had left it to juries to decide on the evidence, whether the mental responsibility of the defendant was “substantially impaired”.

We must refer to some other decisions on the relationship between medical and other evidence when the defence of diminished responsibility is raised. In R v Matheson [1958] 1 WLR 474, three doctors called for the defence at the trial had stated that the defendant was suffering from an abnormality of mind due to arrested or retarded development and that this abnormality of mind substantially impaired the appellant’s mental responsibility for killing a 15 year old boy. The jury convicted of murder. The argument on appeal was that there was no evidence to contradict that of the doctors. The Court of Criminal Appeal allowed the appeal and substituted a verdict of manslaughter by reason of diminished responsibility. Lord Goddard CJ said, at page 478:

In the case of R v Bailey (1978) 66 Cr App R 31, which was in fact heard by the Court of Criminal Appeal in October 1961, the court followed the decision in Matheson. Mr Askins, for the appellant on the present appeal, relied strongly on this case, as had Mr Davey QC before Grigson J.

Mr Mansell, for the Crown, relied on the Privy Council decision of Walton v The Queen [1978] AC 788. In that case the defendant had shot someone in a car. His defence at the trial in Barbados was diminished responsibility, but the jury found (unanimously) that he was guilty of murder. He was sentenced to death. The Barbadian statute used precisely the same wording as the English Act of 1957. At the trial there had been uncontradicted medical evidence that the defendant suffered from an abnormality of mind which substantially impaired his mental responsibility for his acts. On appeal to the Privy Council, it was argued that this meant that the jury was bound to accept that the defence had been established and that the trial judge should so have directed the jury.

The Advice of the Judicial Committee was given by Lord Keith of Kinkel. He referred to the cases of Matheson, Byrne and Bailey. At page 793 F he said:

Lord Keith said that, in that case, the jury were entitled to regard the medical evidence as “not entirely convincing”. Furthermore, it had before it the evidence of the defendant’s conduct before, during and after the killing. He concluded that the jury was entitled to find that the defence of diminished responsibility had not been established, on a balance of probabilities.

Mr Mansell also relied on the decision of this court in R v Eifinger [2001] EWCA Crim 1855. The defendant had killed a publican, for whom he had worked and who was a friend. The defence of diminished responsibility was rejected by the jury and he was convicted of murder. On appeal there was no complaint about the terms of the summing up, but it was argued that the conviction was unsafe. The Court of Appeal noted that the views of the doctors had been based on statements given to them by the defendant alone and so were not entirely independent. It said that the jury had evidence about the circumstances surrounding the killing and the defendant’s actions afterwards which explained its verdict. The appeal was dismissed.

We have also examined the more recent decisions of R v Dietschmann [2003] 1 AC 1209and R v Wood [2009] 1 WLR 496, which both concerned aspects of the defence of diminished responsibility.They do not, in our view, specifically assist with the issues raised on this appeal.

The appellant, who was from Afghanistan, lived at 32 Rupert Street, Keighley with Rizwan Ali, Gulab Khan (who was the appellant’s cousin), the deceased and Ajay Rajput, who was from India and a cricketer. Rizwan Ali, the deceased and Gulab Khan all had keys to the house although there was some dispute as to whether Gulab Khan had both front and back door keys. Rizwan Ali gave evidence that Gulab Khan and the appellant shared a key. He also said that, some weeks before 31 May 2007, the appellant had gone to London in search of work but when he returned he had seemed a little different.

Gulab Khan’s evidence was that the appellant had mental health problems and he had been in hospital two or three times when he was young and lived in Afghanistan. He gave evidence that the appellant had said to him, after he had returned from searching for work in London, that the police were after him. The appellant had stopped eating and he had said that someone was “doing black magic on him”. Gulab Khan said that he had taken the appellant to be blessed by an Imam in the hope it would help his mental health problems. He said that when he left the house for work on the morning of 31 May 2007 he had left one of his two mobile phones in the bedroom he shared with the appellant. He had also left his front door key for the appellant, who had said he was going in search of work that day. The appellant confirmed in his evidence that he had taken Gulab Khan’s mobile phone, together with some of Gulab Khan’s money; although he said that he had not taken Gulab Khan’s key.

Ajay Rajput, who said he returned to 32 Rupert Street at about 3.30 to 3.45 pm, went to the front door of the house and opened it with his key. That evidence was confirmed by another witness, who lived across the street, Peter Holdsworth, who said that he saw Ajay Rajput unlock the door. It was Ajay Rajput who discovered Nazeer Ahmed, who had been attacked but was still alive at that point.

Another witness, also called Rizwan Ali, described a man, who it was accepted was the appellant, standing by a shop, called Nadeem Foodstore, which was in a nearby street to Rupert Street. He was trying to get a taxi to Cardiff and Rizwan Ali helped him. He also saw the appellant buying a drink in the shop; he failed to take his change. He seemed to be panicky and frightened. The witness asked the appellant if he had relatives in Cardiff and he said he had. Another witness, Azim Nazir, saw the appellant come out of the store and saw him telephoning for a taxi to Cardiff. When a car turned up, the appellant did not have enough money so he offered the driver cash plus a mobile phone. He pleaded with the driver to take him to Cardiff.

Mohammed Umar Hussain gave evidence that he turned up at the foodstore in his car with his friend, Mudasser Mahmood. They told the appellant that they were going to Birmingham and he agreed to go there. Umar’s evidence was that the appellant borrowed his (Umar’s) mobile phone in the car and made some calls. Mudasser Mahmood’s evidence was that he had asked the appellant why he wanted to leave and he answered that he had had an argument with a friend.

Three witnesses gave evidence that they noticed nothing unusual about the behaviour of the appellant on 31 May 2007. However, others gave evidence of odd behaviour, such as walking up and down at the corner of Rupert Street earlier in the afternoon; his state of extreme agitation at Nadeem Stores and evidence of bizarre behaviour in the car journey (including a request for a chapter of the Koran to be read to him) before it ended at a service station where the appellant was arrested by police. Dr Bray said in his statement that the appellant was unfit to be interviewed at the time of his arrest on 31 May as “he was found to be bizarre, very suspicious and out of touch with reality”.

In his evidence, the appellant described his history of mental illness which had started when he was young and lived in Afghanistan. He had been in hospital three times there. His symptoms included agitated behaviour and headaches. He denied that he felt unwell on the day of the killing. However, he also gave evidence that during the journey to the service station he was suffering from mental illness. He denied he had locked the door on leaving the house at 12 noon. He said that when he saw police in Rupert Street he went to Nadeem stores to buy a drink. He did wish to go to Cardiff but also had a friend in Birmingham. He accepted that, in the car, he borrowed the driver’s mobile phone to make calls to his cousin and his cousin’s friend to tell them he was coming and that they should find him a place to stay.

The appellant was cross – examined about violent attacks that he had made on health care workers in the hospital where he had been detained after his arrest. He was ambivalent about what he could remember, but also said that he had no control over this. This evidence had been introduced by the Crown to demonstrate that the appellant was prone to attacking people, even if he had no motive to do so. The Crown appreciated that the introduction of this evidence might assist the jury to conclude that the appellant was suffering from diminished responsibility at the time of the attack, if the jury concluded that the appellant had, indeed, attacked Nazeer Ahmed.

We have already noted that the medical evidence for the Crown was a statement from Dr Bray. He said that the paranoid schizophrenia from which the appellant was suffering was:

The judge summarised the evidence of Dr Harrop, including that which we have already referred to above. He continued, at page 58 of the summing up:

In his short ruling on 20 May 2008, the judge stated that if the jury was satisfied that the appellant was responsible for the injuries that led to the death of Nazeer Ahmed and that the appellant intended to kill or cause grievous bodily harm, it must convict unless convinced by the defence, on a balance of probability that he not only suffered from abnormality of mind induced by disease, but also that his responsibility was substantially impaired. He said that the cases demonstrated that the issue of whether a defendant’s mental responsibility for his actions was substantially impaired was a matter for the jury. He also stated the reverse proposition, ie. that there was no authority which stated that in a case where a defendant put forward a defence of diminished responsibility and argued that no jury properly directed could, on the evidence, convict of murder, a judge should withdraw the count of murder from the jury at the close of the evidence. He therefore ruled that he should not withdraw the charge of murder from the jury.

Mr Askins founded his argument on two elements. First, the fact that it was accepted by the prosecution at the trial that the appellant was suffering from an abnormality of mind which arose from disease, viz. schizophrenia or schizo – affective disorder. Secondly, the uncontradicted evidence of Dr Harrop that the appellant’s mental condition of schizophrenia or schizo-affective disorder “would” substantially affect his mental responsibility for his actions. (Mr Askins submitted that the witness’ use of the conditional reflected the fact that the appellant denied killing the deceased). Mr Askins argued that the general proposition established by R v Galbraith [1981] 1WLR 1039applied equally to the situation in this case. He argued that there was no difference in principle between a trial judge ruling that the prosecution case contained such weaknesses that no jury, properly directed could safely convict and a trial judge ruling that the evidence called by the prosecution could not justify the rejection of uncontradicted expert medical evidence called by the defence which showed that the mental responsibility of the appellant was, at the time of the actions which casued the death of the victim, substantially impaired. He submitted that R v Brown (Davina) [2002] 1 Cr App R 5confirmed that a trial judge is entitled to intervene, even at the end of a defence case, to withdraw a case from the jury where he concludes that no reasonable jury, properly directed, could safely convict the defendant of the charge before them. In that case Longmore LJ reviewed the authorities and held that this power did exist, although it would doubtless be “very sparingly exercised”.

On his second ground, Mr Askins submitted that if it was concluded that the judge had no power to withdraw the case from the jury, then the verdict in this case was unsafe. He argued that the evidence adduced by the Crown could not possibly outweigh the evidence of Dr Harrop.

Mr Mansell accepted that the authorities established the general proposition that where the medical evidence on diminished responsibility was all in favour and there is no other evidence on which a jury could reasonably conclude that the defendant had failed to establish the defence of diminished responsibility, a conviction for murder must be regarded as unsafe. However, he emphasised that the authorities also demonstrate that the jury is entitled to consider the quality and weight of the medical evidence and also all the evidence on the facts and circumstances of the case. He submitted that Dr Harrop’s evidence that the appellant’s abnormality of mind “would” substantially diminish his mental responsibility for the killing was necessarily conditional, given the appellant’s primary defence of alibi and the fact that Dr Harrop was not asked to comment on other evidence, from the defendant and other witnesses, as to his physical and mental state during the day of the killing. On the evidence of both the appellant and other witnesses, there was ample material for a jury to conclude that the appellant had not proved, on a balance of probabilities, that his mental responsibility for killing Nazeer Ahmed was substantially impaired. Therefore, the judge was correct not to withdraw the murder charge from the jury and the verdict was safe.

Ground One. The judge was correct to approach the application to withdraw the murder charge from the jury on the premise that the jury would be satisfied that the appellant had caused the injuries that led to Nazeer Ahmed’s death and that the appellant intended to kill or to cause grievous bodily harm. As Lord Tucker stated in the Advice of the Privy Council in Elvan Rose v The Queen [1961] AC 496 at 508: “A man may know what he is doing and intend to do it and yet suffer from such abnormality of mind as substantially impairs his mental responsibility”. The jury then had to deal with the issue of the defence of diminished responsibility. It had to be satisfied by the defence that the diminished responsibility has been proved on a balance of probabilities.

We would be prepared to accept that there may be very exceptional cases where the defence of diminished responsibility is raised by the defence but contested by the Crown in which a judge would be entitled to withdraw the charge of murder from the jury at the close of the evidence. It seems to us that, on the authorities to which we have referred, there is no legal principle that would prevent a judge from taking such a course if the proper criteria could be met. However, whilst that course is theoretically possible, we think that it would only be in very rare cases that the proper criteria would be satisfied. A trial judge would have to be satisfied that the evidence, both medical and factual, was such that no reasonable jury, properly directed, could conclude that the defendant had failed to prove, on a balance of probabilities, that (i) the defendant suffered from an abnormality of mind which arose from one of the causes set out in section 2(1) of the 1957 Act, and (ii) that this abnormality of mind substantially impaired the defendant’s mental responsibility for his acts (or omissions) in doing, (or being a party to) the killing. In a case where the defence of diminished responsibility was being advanced by a defendant and was being actively challenged by the Crown, it seems to us highly unlikely that a trial judge could reasonably reach such a conclusion.

In the present case we are quite satisfied that the judge ruled correctly that the question of whether the appellant had proved, on a balance of probabilities, the defence of diminished responsibility, should be left to the jury. There were serious issues of fact for the jury to consider, which we will set out in discussing the second ground of appeal.

We dismiss the first ground.

Second Ground. There was uncontradicted evidence that the appellant was suffering from an abnormality of mind induced by disease. The issue for the jury on diminished responsibility was whether the appellant’s mental responsibility was substantially impaired by that abnormality of mind for his acts which led to the killing of the victim. It is clear from the decisions that we have cited above that when a jury has to consider this latter question it must weigh all the relevant evidence, medical and factual. Whilst there was clear evidence from Dr Harrop that the appellant’s abnormality of mind “would” substantially impair his mental responsibility, that is as far as she could reasonably go, because of the appellant’s case that he did not attack Nazeer Ahmed at all.

Once the jury had concluded that the appellant had attacked Nazeer Ahmed with the relevant intent, then, given that it was accepted he had an abnormality of mind induced by disease, the jury had to look at all the evidence to decide whether the mental responsibility of the appellant was substantially impaired in his doing the acts which led to the victim’s death. It had to weigh up the evidence to decide on the extent to which the appellant comprehended the physical acts he did and the degree to which he had the power to exercise control over his physical acts.

We accept that there was evidence, apart from that of Dr Harrop, that the appellant was in a schizophrenic state at the time he attacked the victim. There was the evidence of the appellant’s history of mental illness and his belief that someone was working black magic on him for some weeks before the 31 May 2007. There was evidence from witnesses that he had walked up and down Rupert Street before the killing; that he was in a state of extreme agitation at Nadeem Stores; that his behaviour in the car became increasingly bizarre. There was also his own account to the police in interview that on the day of the killing he was not well and felt dizzy. Dr Bray said that the appellant was unfit to be interviewed on arrest because he was bizarre, very suspicious and out of touch with reality. The appellant gave evidence that he was suffering from mental illness during the car journey.

However, against that evidence the jury had to weigh much other evidence which suggested that, to a greater or lesser extent, the appellant comprehended what physical acts he was doing in attacking the victim and that he had the power to exercise control over his actions. There was the evidence that showed that he had locked the front door after the attack; that he sought out a lift to Cardiff and was prepared to go to Birmingham to get away; that he made calls to relatives in Cardiff to warn them of his arrival; that he said that he was leaving Keighley because he had had an argument with a friend. The appellant also gave evidence at the trial denying that he felt unwell on the day of the killing.

The jury had to decide whether the appellant’s mental responsibility for his acts was substantially impaired by considering all this evidence in a “broad, common sense way”. The jury had to examine both “the medical evidence and the evidence on the whole facts and circumstances of the case”: Walton v The Queen (supra). It took 5 hours and 16 minutes in doing so. In our view there was ample evidence on which the jury could conclude that it was not satisfied, on a balance of probabilities, that the abnormality of the mind of the appellant substantially impaired the mental responsibility of the appellant in doing the acts which it found he did. Its verdict is safe.

Therefore, we must reject the second ground. The appeal is, accordingly, dismissed.