Dowds v R

The issue in this appeal is whether acute voluntary intoxication is now capable of giving rise to the partial defence of diminished responsibility on an indictment for murder. It is common ground that it could not have done so prior to the amendments to section 2 Homicide Act 1957 which were made by the Coroners and Justice Act 2009 (s 52). The appellant contends that those amendments mean that voluntary and temporary drunkenness may now give rise to diminished responsibility and thus reduce murder to manslaughter. That is because, it is said, acute intoxication is a “recognised medical condition” within section 2(1)(a) of the Homicide Act as amended.

The appellant is a 49 year old college lecturer. He has no previous convictions. Over the weekend of 19/21 November 2010 he killed his partner of about 18 months at the house which they shared. He inflicted approximately 60 knife wounds to her, chiefly stabs and chiefly about the neck, where he severed the carotid artery causing injury from which she would have died within seconds. Both he and she were habitual heavy binge drinkers. There had been a long history of violent episodes between them, some (and on his account nearly all) initiated by her and most, but not all, when one or both was drunk. The indications are that the fatal argument probably took place at about 0119 on the morning of Saturday 20 November, because the deceased made an interrupted 999 call at that hour and not long afterwards the appellant made a number of text or telephone calls to others, including his ex wife and a former girlfriend, from which it might be inferred that the deceased was by then dead. Nearly two days later, at just before 1900 in the evening of Sunday 21 November, the appellant telephoned the police to report that his partner was dead. Then and subsequently, including at trial, he asserted that he had no recollection whatever of the events which had led to the death of the deceased, but he did not dispute that he must have been responsible for her wounds.

Before the jury at trial, the principal issues left to be determined were:

It was common ground that the appellant and the deceased had both been drinking heavily that night, as was their habit at a weekend. They had bought a litre bottle of vodka at about 1700 on Friday afternoon, and the appellant had returned to the off licence to buy another similar bottle at about 2200, that is to say before the killing. The appellant asserted that he had been drunk at the time of the killing, that in consequence he could not form the intention to kill or do serious harm, and that this was the reason he could remember nothing about it. Those latter assertions were disputed by the Crown. Nevertheless, whatever the exact facts of the drinking and asserted loss of memory were, there was clearly every likelihood that the killing had occurred when the appellant was to an extent intoxicated.

It was not contended that the appellant was alcoholic or clinically dependent on drink. He was a heavy but elective drinker. On his own account he did not drink heavily except when he chose to do so, chiefly at weekends. He held down a responsible job which required him to be alert and clear thinking. His drinking was appropriately described by one of the reporting psychiatrists as ‘binge drinking’. The appellant himself told the other reporting psychiatrist:

“I do not have a problem with drink. I have a problem when I drink, I just don’t know when to stop. I just seem to be able to carry on drinking and I don’t have any ill effect in the morning. I get a head on me and want to keep on drinking.”

At the outset of the trial His Honour Judge Wait was invited to rule whether or not simple voluntary and temporary drunkenness was capable of founding the partial defence of diminished responsibility. He ruled that as a matter of law it could not. In consequence, diminished responsibility was not raised before the jury. This appeal challenges that ruling. Whilst the present offence concerns intoxication with alcohol, our conclusion must apply equally to defendants under the influence of other voluntarily-taken drugs.

As amended by section 25 Coroners and Justice Act 2009, this section now reads, so far as material:

“Persons suffering from diminished responsibility

2(1) 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.

(1A) Those things are –

(a)

to understand the nature of D’s conduct;

(b)

to form a rational judgment;

(c)

to exercise self control.

(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.

(2)

On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

(3)

A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.”

Those new provisions of section 2(1) (1A) and (1B) have been substituted for the previous statutory definition of diminished responsibility which read:

“2(1) 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.”

English law (unlike Scots law) knew no concept of diminished responsibility as a partial defence to murder until the passing of the Homicide Act 1957 in the terms set out in paragraph [8] above. As a matter of history, the partial defence was introduced at a time of mounting public concern about the death penalty. There had been a Royal Commission on the death penalty (1949-1953) which, amongst its deliberations, had considered the advantages of a partial defence of diminished responsibility but opted instead for a proposed revision of the law of insanity. There had then been a private member’s bill to abolish the death penalty which, although defeated in the House of Lords, reflected general concern. In the end, the legislative solution adopted was the creation of a partial defence of diminished responsibility rather than any revision of the law of insanity.

It was established in 1975 in R v Fenton (1975) 61 Cr App R 261 that the effect on the mind of voluntary intoxication could not give rise to diminished responsibility. The defendant, who had shot four people in two different locations, had a number of other conditions, including paranoid psychopathy, which did raise the possibility of diminished responsibility, although the jury had rejected that defence. The trial judge had directed the jury to consider those but to leave out of account the defendant’s heavy intoxication. This court held that the judge had been correct. The reasoning of Lord Widgery CJ was brief:

“We recognise that cases may arise hereafter where the accused proves such a craving for drink or drugs as to produce in itself an abnormality of mind but that is not proved in this case. The appellant did not give evidence and we do not see how self-induced intoxication can of itself produce an abnormality of mind due to inherent causes.”

It is perhaps significant that counsel for the defendant had felt able to argue his case only on the basis that a craving for, or an inability to resist the temptations of, drink was a feature of psychopathy, and thus became relevant to diminished responsibility indirectly. No one suggested that simple drunkenness could found a defence of diminished responsibility, and on the facts of the case a craving for, or inability to resist the need of, drink was not shown.

The law as explained in Fenton was never significantly questioned. It was in due course endorsed by the House of Lords in R v Dietschmann [2003] UKHL 10; [2003] 1 AC 1209. That case resolved an uncertainty about how to approach the case of a defendant who both suffered from a mental abnormality and was also intoxicated. The House of Lords held that the correct approach was for the jury to ignore the effects of intoxication and to ask whether, leaving out the drink, the defendant’s other condition(s) of mental abnormality substantially impaired his responsibility for the killing. It was treated as axiomatic that simple voluntary drunkenness was incapable of founding a plea of diminished responsibility.

As foreshadowed in Fenton the courts also had to deal with cases where the defendants’ condition went beyond simple drunkenness into physical or psychological addiction such as, arguably, to amount to a mental abnormality. In dealing with such cases it was once again treated as axiomatic that simple voluntary drunkenness without such additional condition was incapable of founding the plea of diminished responsibility. See, most recently, R v Wood [2008] EWCA Crim 1305; [2008] 2 Cr App R 34 at 507 – in particular paragraph [23] - and R v James Stewart [2009] EWCA Crim 593; [2009] 2 Cr App R 30 at 500 – in particular paragraphs [26] and [29].

This court’s judgment in Wood usefully explains what is very clearly the case. The axiomatic rule that simple voluntary drunkenness, without more, cannot found diminished responsibility is not a rule special to the partial defence. It is but one example of the general approach of English criminal law to voluntary drunkenness. Sir Igor Judge P, as he then was, put it in this way in Wood at [23]:

“Dealing with the point very broadly, the consumption of alcohol before a defendant acts with murderous intent and kills cannot, without more, bring his actions within the concept of diminished responsibility. On its own, voluntary intoxication falls outside the ambit of the defence. This is consistent with the general approach of the law that, save in the context of offences of specific intent and proof of that intent, criminal acts committed under the influence of self induced intoxication are not for that reason excused. Public policy proceeds on the basis that a defendant who voluntarily takes alcohol and behaves in a way in which he might not have behaved when sober is not normally entitled to be excused from the consequences of his actions.”

It is true that in the particular case of diminished responsibility under the original form of section 2 of the Homicide Act, there was an additional reason why simple voluntary drunkenness could not found the defence. That was because it could not readily be brought within the expression “inherent cause” and clearly had none of the other sources listed in the bracketed clause in the section. But there can be no doubt that independently of the particular statutory language, the general principle to which Sir Igor Judge referred in Wood does indeed underlie English criminal law.

The leading case is of course DPP v Majewski [1977] AC 443. In the course of deciding that voluntary drunkenness could be taken into account only in a case categorised as one of specific intent, and only in deciding whether such intent had been present, the House reviewed the historical development of the law, which is also chronicled in Singh 49 LQR 528 (1933). From early times English common law regarded voluntary drunkenness as providing no excuse, indeed as normally amounting to aggravation of the offending rather than any excuse for it. Lord Edmund Davies observed, at 488F that:

“Aristotle, apparently, approved of the double penalisation of intoxicated harm-doers (Ethics Book III ch 5, 1113b, 31) and for a long time judges in this country regarded voluntary drunkenness as aggravating culpability rather than as lessening or eliminating it.”

In 1551 the court of Exchequer Chamber had held in Reniger v Feogossa 75 ER 1; 1 Plowden 1 that:

“If a person that is drunk kills another this shall be felony and he shall be hanged for it, and yet he did it through ignorance for when he was drunk he had no understanding nor memory; but inasmuch as that ignorance was occasioned by his own act and folly, he shall not be privileged thereby”

Similarly, Hooker held (Laws of the Ecclesiastical Polity) in the late sixteenth century that drink was no excuse –

“inasmuch as himself might have chose whether his wits should by that means have been taken away from him”

There are observations to identical effect in Coke (Co Litt 247a), Hale (1 Pleas of the Crown 32), Blackstone (4 Comm 26), Chitty (Criminal law vol iii p 725 (1816)), Russell (Crimes and Misdemeanors vol I p 11 (1819)) and in many other places.

In the nineteenth century, the courts began to relax the law to the extent that drink was recognised as being capable of preventing the formation of specific intent. That development carried through, in the end, to the decision in Majewski. It is perhaps of passing interest that Hale had also anticipated the distinction made in Wood and similar cases, in recognising that his general rule might be different if, instead of “simple phrenzy occasioned immediately by drunkenness” there was “an habitual or fixed phrenzy...though this madness was occasioned by the vice..” (op cit).

Specific intent apart, there is no doubt about the general approach of the law to voluntary drunkenness. The speeches in Majewski make it clear. Both Lord Elwyn-Jones LC (at 471H) and Lord Edmund-Davies (at 494F) approved what Lawton LJ had said in the Court of Appeal:

"Although there was much reforming zeal and activity in the 19^th century, Parliament never once considered whether self-induced intoxication should be a defence generally to a criminal charge. It would have been a strange result if the merciful relaxation of a strict rule of law had ended, without any Parliamentary intervention, by whittling it away to such an extent that the more drunk a man became, provided it stopped short of making him insane, the better chance he had of an acquittal…. The common law rule still applied but there were exceptions to it which Lord Birkenhead LC tried to define by reference to specific intent."

Lord Simon (at 476F) added this:

"One of the primary purposes of the criminal law, with its penal sanctions, is the protection from certain proscribed conduct of persons who are pursuing their lawful lives. Unprovoked violence has from time immemorial been a significant part of such proscribed conduct. To accede to the argument on behalf of the appellant would leave the citizen legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences."

Lord Salmon (at 482E) said this of the distinction between basic and specific intent which the House upheld:

"The answer is that in strict logic this view cannot be justified. But this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic."

This general approach can be seen, for example, in the rule that whilst ordinarily a man is to be judged on the facts as he honestly believed them to be, he is not entitled to rely on a mistake which is the result of voluntary intoxication: see R v O’Grady [1987] 1 QB 995 (self defence) and R v Fotheringham (1988) 88 Cr App R 206 (rape) – cf Jaggard v Dickinson [1981] QB 527 which appears out of line with other cases but depended on the specific words of the statute. The same rule is sometimes specifically recognised in statute. Section 6(5) of the Public Order Act 1986 provides:

“(5)

For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment.”

Likewise, section 76 of the Criminal Justice and Immigration Act 2008 puts the law of self defence into statutory form. It stipulates by subsections 76(3) and (4) that the case is to be judged according to the facts as the defendant believed them to be, but section 75(5) provides:

“(5)

But subsection 4(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.”

On other occasions a statute simply assumes the general approach, in much the same way as it may assume other ordinary principles of the law. The law of rape, as it stood in 1980 under the Sexual Offences (Amendment) Act 1976, provided that the presence or absence of reasonable grounds for a belief in consent was a matter to be considered in deciding whether the defendant believed the woman was consenting. In R v Woods (1981) 74 Cr App R 312 this court confronted the argument that because that meant that actual belief in consent was a defence whether reasonable or not, it also followed that such belief was a defence whether attributable to drink or not. Griffiths LJ dealt with it thus:

“If Parliament had meant to provide in future that a man whose lust was so inflamed by drink that he ravished a woman, should nevertheless be able to pray in aid his drunken state to avoid the consequences we would have expected them to have used the clearest words to express such a surprising result, which we believe would be utterly repugnant to the great majority of people. We are satisfied that Parliament had no such intention”

Thus, actual belief in consent was indeed the test, but there was an exception for a belief attributable to voluntary drunkenness. Parliament had passed the statute against the background of the general principle of the criminal law as to voluntary intoxication. Specific provision in the statute was unnecessary.

The Law Commission reviewed the position in Intoxication and Criminal Liability Law Com No 314 (2009). Its recommendation was for specific statutory enactment of the general rule that voluntary intoxication cannot be relied upon and for the stipulation for particular, and limited, exceptions. That recommendation has not been acted upon, but the extensive consultation process undertaken demonstrated clearly the acceptance of, and justification for, the general approach. The Commission said this at paragraph 1.55 of its report:

“1.55

Given the culpability associated with knowingly and voluntarily becoming intoxicated and the associated increase in the known risk of aggressive behaviour, there is a compelling argument for imposing criminal liability to the extent reflected by that culpability. The imposition of such criminal liability is morally justifiable in principle and warranted by the desirability of ensuring public safety and deterring harmful conduct.”

Similar policy considerations have led to specific rules in some common law countries where the criminal law has been codified, excluding reliance on voluntary intoxication either generally or subject to limited exceptions. See for example the Canadian Criminal Code, section 33, the Australian Commonwealth Criminal Code, Division 8, and the Western Australian Criminal Code (largely duplicated in the Queensland Code) section 28.

As we have said, the concept of diminished responsibility originated in Scots law, and was imported into English law only in the Homicide Act 1957. In Scots law it had been known since the early part of the twentieth century. It was judge-made law rather than of statutory origin. The essence of the plea in Scots law is some form of mental abnormality which substantially impaired the accused’s ability to determine or control his actions. That is substantially reflected in the modern English statutory definition. But a condition brought about by the voluntary consumption of drink or drugs was an exception and could not be relied upon. The court so held in Brennan v HM Advocate 1977 JC 1, as well as holding for the same reason that the same exception applied to insanity. It cited Hume (Crimes vol 1 p45):

“…certain it is that the law of Scotland views this wilful distemper with a quite different eye from the other which is the visitation of Providence; and if it does not consider the man’s intemperance as an aggravation, at least sees very good reasons why it should not be allowed as an excuse to save him from the ordinary pains of his transgression….

…what protection could we have, if this were the law, against the attempts of such who might inflame themselves with liquor on purpose to gain courage to indulge their malice, and an opportunity to do it safely ? Besides, if there were no risk of such contrivances, it is indispensable to guard the safety of the peaceable and decent part of the community who would otherwise be at the discretion of the dissolute and worthless.”

The court concluded that:

“…the defence of diminished responsibility cannot, any more than the special defence of insanity, be established on mere proof of the transitory effects upon the mind of self-induced intoxication.”

Subsequently the Scottish Law Commission reviewed the position in a report published in July 2004 (No 195). It endorsed the exception for voluntary intoxication. Its recommendations were given statutory effect in the Criminal Justice and Licensing (Scotland) Act 2010 of the Scottish Parliament. The common law rule that voluntary intoxication cannot found the plea of diminished responsibility is accordingly now established by statute in Scotland.

It follows that the amendments to section 2 Homicide Act 1957 were made against the background of a clear general approach to voluntary intoxication which was also consistent with the approach adopted in other relevant jurisdictions.

The initial source of the amendments to section 2 lay in a request made in June 2003 by the Home Secretary of the Law Commission to undertake a general review of the partial defences to murder. The result was the Law Commission’s report Law Com No 290 in August 2004. The Commission concluded that the partial defences (provocation and diminished responsibility) ought best to be considered in the context of a wholesale review of the law of homicide generally. It did however make recommendations for changes to the law of provocation, whilst suggesting that any legislation await such general homicide review. So far as diminished responsibility was concerned, it concluded that the existing law was causing no difficulty and stood in no immediate need of amendment. It specifically advised in paragraph 5.85 that the law relating to voluntary intoxication was “clear and satisfactory” as explained in R v Dietschmann ([11] above) and that the only difficulty lay in those cases where there was difficulty in discerning when there was and when there was not alcoholism. This was described as a marginal difficulty capable of resolution by judicial decision (as indeed subsequently occurred in Wood and Stewart). Whilst thus recommending no present change, the Commission did put forward for discussion a possible re-formulation of section 2 on diminished responsibility. That formulation would have provided that the partial defence arose where there was (1) substantial impairment of one of the three functions now listed in the new subsection (1A) ([7] above) and which (2) arose from “an underlying condition” amounting to a pre-existing mental or physiological condition other than of a transitory kind. None of that could possibly have affected the existing law on voluntary intoxication, which, as we have said, the Commission described as “clear and satisfactory”.

The next step was the Commission’s review of homicide generally: Murder, Manslaughter and Infanticide Law Com No 304 (November 2006). The Commission favoured a wholesale reform of homicide involving the creation of two degrees of murder in addition to manslaughter. Under such a proposal, the role of the partial defences would have been to apply only to first degree murder and to reduce it to second degree murder. As is well known, that radical reform did not commend itself to Parliament.

The report contains no further discussion at all of the law relating to voluntary intoxication. We infer that that was because nothing had changed since 2004 when the existing law had been so clearly commended; there had so far as we are aware been no significant discussion about it in any public quarter. The Commission did slightly amend its formulation of diminished responsibility into what was substantially the form adopted by the Coroners and Justice Act 2009. (There was a suggested addition of developmental immaturity which was not adopted by Parliament but that is irrelevant to the present issue.) For present purposes the significant change in formulation was to move from “an abnormality of mental functioning arising from an underlying condition” (2004) to “an abnormality of mental functioning arising from a recognised medical condition” (2006) (our emphasis).

The Commission explained the reasons for this slightly altered formulation in paragraphs 5.114-5.120. They were:

As to the first of those, the Commission quoted at length from, and endorsed, evidence given to it by the Royal College of Psychiatrists. The College was concerned to establish that the partial defence should be grounded in valid medical diagnosis, rather than in imaginative or idiosyncratic fringe opinion. In that context the College had said this:

“It would also encourage reference within expert evidence to diagnosis in terms of one or two of the accepted internationally classificatory systems of mental conditions (WHO ICD-10 and AMA DSM) without explicitly writing those systems into the legislation… Such an approach would also avoid individual doctors offering idiosyncratic ‘diagnoses’…”

It is apparent from this, and from the total silence in the 2006 report on the subject of voluntary intoxication, that the altered formulation owed nothing whatever to any intention in any quarter to alter the law on that topic.

The World Health Organisation (“WHO”) has for many years sponsored the publication of an International Statistical Classification of Diseases and Related Health Problems (“ICD”) of which the current edition is ICD-10. As its full title suggests, it is a general classification of the whole range of medical conditions and health problems; it is in no sense limited to diseases or conditions of the mind. The introduction to the current edition explains that it is the latest in a series which has its origins in work in the 1850s. The first edition, known as the International List of Causes of Death, was adopted by the International Statistical Institute in 1893. WHO adopted in 1967 the WHO Nomenclature Regulations which stipulate the use of ICD for mortality and morbidity statistics by all Member States. It is now described, in the introduction, as “the international standard diagnostic classification for all general epidemiological, many health management purposes and clinical use” (sic). In other words, it is primarily a diagnostic tool for doctors and a statistical tool for public health professionals.

The American Medical Association has for many years sponsored a similar classification under the title “Diagnostic and Statistical Manual” (“DSM”). That part of it which relates to conditions of the mind is now known as DSM-IV, published under the auspices of the American Psychiatric Association. It is a very substantial volume. Like ICD-10, and as its title makes clear, it is a tool for clinical diagnosis and for statistical analysis. Its introduction begins with a statement of its priority aim “to provide a helpful guide to clinical practice”, and refers also to the goal of improving communications between clinicians and researchers and to its usefulness in the collection of clinical information. Its introductory pages contain also a specific caution about forensic use:

“When DSM-IV categories, criteria and textual descriptions are employed for forensic purposes there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a ‘mental disorder’, ‘mental disability’, ‘mental disease’ or ‘mental defect’.”

The particular ‘imperfect fit’ there under consideration is the divergence between the level of impairment which may bring a patient within a DSM-IV classification and the level necessary to have legal impact. But exactly the same considerations apply when the question is whether the doctors’ classification system addresses the legal issue in any particular case. There will inevitably be considerations of legal policy which are irrelevant to the business of medical description, classification, and statistical analysis.

The ‘imperfect fit’ to which the authors of DSM-IV refer is nowhere more clearly demonstrated than in the breadth and kind of conditions which are included in both ICD-10 and DSM-IV. ICD-10 includes, for example, ‘unhappiness’ (R45.2), ‘irritability and anger’ (R45.4) ‘suspiciousness and marked evasiveness’ (R46.5), ‘pyromania’ (F63.1), ‘paedophilia’ (F65.4), ‘sado-masochism’ (F65.5) and ‘kleptomania’ (F63.2). DSM-IV includes similar conditions and also such as ‘exhibitionism’ (569) ‘sexual sadism’ (573) and ‘intermittent explosive disorder’ (663/667). The last of these is defined as ‘discrete episodes of failure to resist aggressive impulses that result in serious assaultive acts or destruction of property, where the degree of aggression is grossly out of proportion to any precipitating psychosocial stressors’. Not all of these are treated by the classification systems as mental disorders, but all are, doubtless, ‘recognised medical conditions’ in the sense that they are perfectly sensibly included in guides for description of patients by doctors. It follows that a great many conditions thus included for medical purposes raise important additional legal questions when one is seeking to invoke them in a forensic context. ‘Intermittent explosive disorder’, for example, may well be a medically useful description of something which underlies the vast majority of violent offending, but any suggestion that it could give rise to a defence, whether because it amounted to an impairment of mental functioning or otherwise, would, to say the least, demand extremely careful attention. In other words, the medical classification begs the question whether the condition is simply a description of (often criminal) behaviour, or is capable of forming a defence to an allegation of such.

The Supreme Court of Canada addressed a similar point in R. v. Bouchard-Lebrun 2011 SCC 58, in ruling that a defendant who was severely intoxicated by voluntarily taken drugs could not rely on the defence of insanity under the Criminal Code. Giving the judgment of the court, Lebel J observed at [61-62] that:

“For the purposes of the Criminal Code, “disease of the mind” is a legal concept with a medical dimension…… the trial judge is not bound by the medical evidence, since medical experts generally take no account of the policy component of the analysis required by s. 16 Cr. C”.

The appellant’s case was put with disarming simplicity by Miss O’Neill QC and runs as follows:

We are here concerned only with intoxication which is (a) voluntary and (b) uncomplicated by any alcoholism or dependence. Whilst we are concerned with alcohol, our conclusions must be the same in relation to the effects of the voluntary ingestion of other drugs or substances.

The deceptively simple argument for the appellant by-passes the very clear general law against the background of which this new amendment to section 2 of the Homicide Act was enacted. For the reasons which we have explained, the exception which prevents a defendant from relying on his voluntary intoxication, save upon the limited question of whether a ‘specific intent’ has been formed, is well entrenched and formed the unspoken backdrop for the new statutory formula. There had been no hint of any dissatisfaction with that rule of law. If Parliament had meant to alter it, or to depart from it, it would undoubtedly have made its intention explicit. Such an intention cannot be inferred from the adoption in the new formulation of the expression “recognised medical condition” because the origins of that were clearly explained by the Law Commission. They explicitly did not include writing the terms of ICD-10 and/or DSM-IV into the legislation, for which purpose those terms are demonstrably unsuited. See [27-28] and [30] above.

Having sought the assistance of counsel on the topic, we have also given consideration to whether Miss O’Neill’s reading of the statute is required by the canon of statutory construction usually labelled the principle against doubtful criminality or doubtful penalisation. This is generally stated to mean that, in the words of Lord Reid in Sweet v Parsley [1970] AC 132:

“it is a universal principle that if a penal provision is reasonably capable of two interpretations that which is most favourable to the accused must be adopted.”

The rationale of that principle has often been stated. It is justified by the requirement to give fair warning to citizens of which conduct may attract punishment. Individuals ought not to be left to guess at what they can or cannot do without infringing the criminal law and subjecting themselves to punishment: see for example Sweet v Parsley per Lord Diplock at 163C, where he referred to it being contrary to principle to assume that Parliament intended to penalise one who has performed his duty as a citizen to ascertain what acts are prohibited by law and has taken all proper care to inform himself of any facts which would make his conduct unlawful. The same basis for decision was relied upon in the context of Article 7 ECHR in Kokkinakas v Greece (1994) 17 EHRR 397.

Miss O'Neill conceded that strict construction of a criminal statute may give way to other principles of interpretation, especially to the clear mischief which the Act was designed to remedy, and indeed is a canon of ‘last resort’. That expression derives from a single remark of Lord Steyn in R (Junttan Oy) v Bristol Magistrates Court [2003] UKHL 55 at [84], citing Cross on Statutory Interpretation, although in that case there were many other grounds for the decision. There are many examples in the books of the mischief rule of construction prevailing, of which R v JTM [2009] 2 Cr App R 13 at 189; [2009] UKHL 20 is a striking example. There it was said to be impossible from the words of the statute alone to determine whether section 34 Crime and Disorder Act 1998 removed the whole concept of doli incapax from children between the ages of 10 and 14 or removed only the rebuttable presumption of it. However, consideration of the mischief and of the pre-legislative consultation and Parliamentary history led to the conclusion that the whole concept was removed. That conclusion was of course the less favourable to defendants of the rival constructions but promoted the power of the court to deal with serious crime committed by the very young.

There is no occasion in this case for a definitive analysis of the circumstances in which the principle of strict construction of penal statutes, which is alive and well even if it may often give way to other canons of construction, will or will not be applied. It is quite clear that there is no occasion for it to be applied in the present case. There is simply no occasion which can be envisaged in which any citizen might order his affairs on the basis of a misunderstanding of the extent of the partial defence of diminished responsibility. The act of killing, with intent either to kill or to do grievous bodily harm and without justification (for example that of self defence), must have taken place before there can be any question of the partial defence arising. That act is a most serious criminal offence, and there is no risk of its legal character being misunderstood. The partial defence provides no more than a mitigation, judged ex post facto by the court with the assistance of expert evidence.

In the present case, Judge Wait relied in refusing to leave diminished responsibility to the jury on the additional factor that the condition of the defendant was a transitory or temporary one. That, he was disposed to hold, was not capable of amounting to a ‘recognised medical condition’ for the purposes of the new section 2 of the Homicide Act. We prefer not to rest our conclusion on this consideration, although it is clearly a relevant factor. We do not think that we should rule out the possibility that there may be genuine mental conditions, in no sense the fault of the defendant and well recognised by doctors, which although temporary may indeed be within the ambit of the Act. Whether concussion, for example, is such a condition is a question which does not arise for decision in this case.

Nor do we attempt to resolve the many questions which may arise as to other conditions listed in either ICD-10 or DSM-IV. It is enough to say that it is quite clear that the re-formulation 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.

If we had concluded that the defence of diminished responsibility ought to have been left to the jury, we should have been unable to accept the Crown’s invitation to hold that it could not have succeeded in any event because of what must have been the findings of the jury. We agree that the jury must have rejected the defendant’s assertion that he had been so drunk as to be unable to form the intention to kill or to do serious bodily harm. We agree that his use of the telephone in the immediate aftermath of the killing tends quite strongly to suggest that he was in much better control of himself than was suggested. We agree that there were good grounds on which it may well be that the jury rejected also his assertion that he had no recollection of events. We agree that the jury rejected the argument that he had lost self-control in circumstances in which a reasonable man might have done as he did. But if it had been the law that voluntary acute intoxication could found diminished responsibility, the level of drunkenness involved would not necessarily have to reach inability to form an intent, nor would the loss of self-control necessarily have to be such as might have led a reasonable man to do as the defendant did. On our very clear conclusions, however, these considerations do not arise. Voluntary acute intoxication, whether from alcohol or other substance, is not capable of founding diminished responsibility.

It follows that this appeal must be dismissed.