HOUSE OF LORDS
 UKHL 10
from:  EWCA Crim 2052
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
(Appellant) (on appeal from the Court of Appeal (Criminal Division))
THURSDAY 27 FEBRUARY 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Lloyd of Berwick
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Dietschmann (Appellant) (On appeal from the Court of Appeal (Criminal Division))
 UKHL 10
LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the
speech of my noble and learned friend Lord Hutton. For the reasons he gives, with which I agree, I would allow this appeal
and make the order he proposes.
LORD LLOYD OF BERWICK My Lords,
2. I have had the advantage of reading in draft the
speech of my noble and learned friend Lord Hutton. I agree with it and for the reasons which Lord Hutton gives I would allow
3. In the early hours of the morning on 18 July 1999
the appellant, Anthony Dietschmann, killed Nicholas Davies by punching him and kicking him on the head in a savage attack.
At the time of the killing the appellant was heavily intoxicated and he was also suffering from a mental abnormality which
the medical witnesses for the Crown and the defence described as an adjustment disorder, which was a depressed grief reaction
to the death of his aunt, Sarah, with whom he had had a close emotional and physical relationship.
4. The appellant was tried on a count of murder before
Maurice Kay J and a jury at Liverpool Crown Court. At the trial the appellant admitted the killing and the only defence raised
on his behalf was the defence of diminished responsibility under which, if established by him, he would not have been found
guilty of murder but of manslaughter. The defence of diminished responsibility arises under section 2 of the Homicide Act
1957 which provides:
"(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.
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.
A person who but for this
section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted
5. The jury rejected this defence and on 7 April 2000
convicted the appellant of murder and he was sentenced to life imprisonment. The appellant's appeal against conviction was
dismissed by the Court of Appeal on 5 October 2001 and he now appeals to this House against the decision of the Court of Appeal.
The issue which arises on the appeal is the nature of the direction which the trial judge should give to the jury when a defendant,
raising the defence of diminished responsibility, had taken alcohol prior to the killing and was also suffering from a mental
abnormality at the time of the killing. The question (which I have divided into two parts) certified by the Court of Appeal
as a point of law of general importance is as follows:
"(1) Does a defendant
seeking to prove a defence of diminished responsibility under section 2(1) of the Homicide Act 1957 in a case where he had
taken drink prior to killing the victim, have to show that if he had not taken drink
(a) he would have killed as
he in fact did; and
(b) he would have been under
diminished responsibility when he did so?
(2) If not, what
direction ought to be given to a jury as to the approach to be taken to self-induced intoxication which was present at the
material time in conjunction with an abnormality of mind which falls within section 2(1) of the 1957 Act?"
No issue arises on this appeal in relation to the principle stated as follows
by Rose LJ in para 13 of the judgment of the Court of Appeal in the present case:
"The general rule that drink
does not give rise to an abnormality of mind due to inherent causes was authoritatively established in Fenton (1975) 61 Cr App R 261 and confirmed in Gittens  QB 698.
In line with those authorities, Tandy  1 All ER 267 established that drink
is only capable of giving rise to a defence under section 2 if it either causes damage to the brain or produces an irresistible
craving so that consumption is involuntary."
6. The facts relevant to the issue which arises can
be briefly summarised as follows. In July 1998 the appellant began a relationship with his aunt Sarah, who was almost twice
his age and who had a drugs problem. As a result they were ostracized by the rest of the family. They lived together until
he was remanded in custody in November 1998. She visited him in prison and wrote to him almost every day. In May 1999 she
bought him a watch which she gave to him. In June, whilst living alone because of the appellant's remand in custody, she was
burgled and started to take drugs again. She died on 6 June 1999.
7. The appellant believed that she had committed suicide
because she could not cope without him and because he had given her an ultimatum that he would leave her if she did not solve
her drugs problem, and he cut his wrists but without fatal consequences. This belief was, in fact, erroneous, as a post mortem
which took place after the killing of Nicholas Davies revealed that she had died of natural causes. On 15 June, whilst still
in custody, he attended his aunt's funeral.
8. On 2 July the appellant was released from custody.
He began to drink heavily and on 13 July he saw his general practitioner and was prescribed Prozac and sleeping tablets. On
the night of 16 July the appellant went to drink at a club with two young women and another man. He spent the next day at
the house of one of the young women and on the night of 17 July his companions of the previous night were with him in the
house and they were joined by a third man. A bottle of whisky was drunk and the appellant had a couple of pints of cider.
The young women left to go to a club and the appellant and the two men were joined in the house by a third man, Nicholas Davies,
and further alcohol was obtained and drunk.
9. The appellant and Nicholas Davies began dancing in
the living room and the dancing became increasingly frenetic. The appellant's watch became detached from his wrist and he
believed it to have been broken. He accused Davies of breaking it, stating that it was the final gift from Sarah before she
died. He demanded that Davies pay for it and Davies refused. The appellant punched him in the face, but Davies continued to
refuse to pay for the watch. The appellant continued to hit him, accusing him of urinating on Sarah's grave. Davies fell to
the floor and the appellant stamped on his head three or four times and kicked him hard in the face. He then picked him up,
pinned him upright against the chimney breast, pulled him away and slammed him against the wall on the other side of the fireplace.
Davies head moved from side to side and he groaned. The appellant then threw Davies to the floor where he did not move and
made no noise. The appellant stamped on him and kicked his head, side and chest over 30 times repeating that he had urinated
on Sarah's grave and deserved to die. Then he and another of the men rolled Davies' body in a rug and moved it into another
10. Later in the early hours of 18 July the young woman
who owned the house returned and the body was found. The police were called and in due course arrived and Nicholas Davies
was found to be dead. Meanwhile the appellant had left the house. He did not go far, and was found by a police officer sitting
on a bench with his head in his hands. He appeared dishevelled and smelt of alcohol. He was arrested and taken to the police
11. The arresting officer remained with the appellant
at the police station. The appellant told him that his wife had died whilst he was in prison and that on Saturday afternoon
he had visited her grave with a friend. They were both drunk and he was annoyed at his friend who had urinated over his wife's
grave. He had given his mate a "dig" at the time and later when they had both been drinking he had started arguing with his
friend about urinating on the grave. He had given his friend a few "digs", and his friend had retaliated. It had all got out
of hand. He knew it was bad but he did not think he had killed him.
The proceedings at the trial
12. At the trial the central facts relating to the consumption
of alcohol, the dancing, the appellant's belief that his watch had been broken, the allegation that Davies had been urinating
on Sarah's grave and the subsequent violence leading to Davies' death were all admitted. In his evidence the appellant claimed
that he was not badly affected by alcohol at the time when he attacked Davies.
13. Evidence as to the mental condition of the appellant
was given by two psychiatrists. Dr El Azra gave evidence on behalf of the appellant. He had interviewed the appellant once
in March 2000. Dr Palmer gave evidence on behalf of the Crown. She had examined the appellant within three days of the offence
in July 1999. Both psychiatrists agreed that at the time of the killing the appellant was suffering from an abnormality of
mind, arising from an inherent cause or induced by disease, and that this abnormality was an adjustment disorder which was
a depressed grief reaction to the death of his aunt and which was more severe than was usually suffered after a bereavement.
However the psychiatrists differed on the point whether the appellant was suffering from any additional abnormality of mind.
Dr Palmer believed that he was suffering from alcohol dependency syndrome at the time of the killing, but Dr El Azra did not
think that this was a factor. Conversely, he was of the opinion that the appellant had been in a transient psychotic state
at the time of the incident. In his opinion the appellant perceived that the breaking of the watch was an abuse of Sarah's
memory and it took him out of the boundaries of reality. He falsely believed that Nicholas Davies had been urinating on Sarah's
grave. The fact that the appellant was under the influence of alcohol did not explain what had happened. Even if he had been
sober, he would still probably have killed Nicholas Davies. This view was not shared by Dr Palmer. She was not convinced that
he had lost touch with reality. She thought that alcohol had been a significant factor as a disinhibiter which had facilitated
the release of aggression. If he had been sober he would probably have exercised self-control.
14. The psychiatrists also differed as to the effect
of the abnormality of mind from which the appellant had been suffering. Dr El Azra believed that it did substantially impair
his responsibility for the killing. Dr Palmer, on the balance of probability, did not believe this, although she accepted
that it was a difficult question. She also stated that neither the adjustment disorder nor the alcohol dependant syndrome
would have prevented the appellant from forming an intention to kill or cause really serious injury.
The judge's directions to the jury
15. In his careful charge to the jury the judge summarised
the medical evidence and he correctly told the jury:
"As you have been told, diminished
responsibility is not a medical diagnosis, it is a legal concept which ultimately only a jury can decide. All that doctors
can do is to assist you with the benefit of their expertise and experience. As experts they are permitted to express opinions.
But this is trial by jury and you, the jury, must decide whether or not diminished responsibility has been established."
16. In relation to the drink taken by the appellant
the judge directed the jury as follows:
"…. this is an issue
of crucial importance in this case — once you are satisfied that there is an abnormality of mind, whether on the basis
of an adjustment disorder alone or coupled with a transient psychotic state or alcohol dependence syndrome, or however, you
must ask these questions: have the defence satisfied you on a balance of probabilities that if the defendant had not taken
drink (1) he would have killed if, in fact, he did; and (2) he would have been under diminished responsibility when he did
so. If they have satisfied you that the answer to both questions is 'yes', then this is a case of diminished responsibility.
But if the answer to either question is 'no', then it is not."
17. On appeal to the Court of Appeal it was submitted
on behalf of the appellant that this part of the judge's summing up constituted a misdirection on the ground that the defence
of diminished responsibility could be established notwithstanding that the defendant failed to prove that if he had not taken
drink he would have killed. This submission was rejected by the Court of Appeal which followed a number of authorities which
will have to be considered at a later stage in this opinion.
The interpretation of section 2(1) of
the Homicide Act 1957
18. In a case where the defendant suffered from an abnormality
of mind of the nature described in section 2(1) and had also taken alcohol before the killing and where (as the Court of Appeal
held in this case) there was no evidence capable of establishing alcohol dependence syndrome as being an abnormality of mind
within the subsection, the meaning to be given to the subsection would appear on first consideration to be reasonably clear.
I would read the subsection to mean that if the defendant satisfies the jury that, notwithstanding the alcohol he had consumed
and its effect on him, his abnormality of mind substantially impaired his mental responsibility for his acts in doing the
killing, the jury should find him not guilty of murder but (under subsection 3) guilty of manslaughter. I take this view because
I think that in referring to substantial impairment of mental responsibility the subsection does not require the abnormality
of mind to be the sole cause of the defendant's acts in doing the killing. In my opinion, even if the defendant would not
have killed if he had not taken drink, the causative effect of the drink does not necessarily prevent an abnormality of mind
suffered by the defendant from substantially impairing his mental responsibility for his fatal acts.
19. I consider it to be clear that this was the interpretation
given to the subsection by Boreham J, the trial judge, and the Court of Appeal in R
v Fenton (1975) 61 Cr App R 261 and by the Court of Appeal in R v Gittens 
QB 698. In Fenton the defendant had consumed a large quantity of drink in the course
of the day. Later in the evening when his driving attracted the attention of the police a police car followed him into a cul-de-sac.
He drew a revolver and shot and killed the police driver and left the scene driving the police car. Later he went to a club
owned by a man with whom he was on bad terms where he shot and killed three more people. At his trial he pleaded not guilty
to the four counts of murder against him, but at the close of the prosecution case he changed his plea to not guilty of murder
but guilty of manslaughter by reason of diminished responsibility. The jury convicted him of murder on the four counts.
20. The medical witnesses called all agreed that the
appellant was suffering from an abnormality of mind. The medical evidence was that there were four ingredients which had gone
to make up the condition of the appellant when he committed the four killings, and those four ingredients in combination had
brought him to breaking point and caused him to commit the offences. The first ingredient was his mental state which was that
he suffered from a severely abnormal personality in that he was an aggressive psychopath with marked paranoid traits. The
second ingredient was a state of reactive depression produced by various stresses to which he had been subjected. The third
ingredient was an excessive quantity of alcohol with a resulting state of disinhibition and possible confusion. The fourth
ingredient was the last straw phenomenon of the car chase by the police and the final sensation of being trapped. The medical
evidence was that "there were these four factors or four ingredients, and in the absence of any one of them the four killings
would probably never have taken place".
21. In delivering the judgment of the Court of Appeal
Lord Widgery CJ stated, at p 263:
"There is no doubt that alcohol
was regarded as an important ingredient because the jury later disclosed in reply to an observation of the learned judge that
they were unanimously of the view that the killings would not have occurred if the appellant had not had so much to drink.
The judge, however, ruled that the effect of the alcohol consumed by the appellant was to be ignored since the effect of the
alcohol did not amount to an abnormality of mind due to inherent causes. Accordingly the judge directed the jury that they
must convict of murder if satisfied that the combined effect of the factors other than alcohol was insufficient to amount
to a substantial impairment in the mental responsibility of the appellant."
At p 264 Lord Widgery stated that it was argued on behalf of the appellant that:
"…. even if the effect
of alcohol was properly ignored, the effect of the remaining factors which were agreed to be included in abnormality of mind
was sufficient to cause a substantial impairment of mental responsibility. The judge had properly left this issue to the jury,
and Mr Waters's complaint is that in a number of instances the judge's rehearsal of the evidence did not fairly represent
what the witnesses had said.
We have considered this complaint
and the details upon which it is based; we do not conclude that it is made out, and we do not think that the directions of
the judge on this aspect of the matter are open to criticism or capable of amounting to an irregularity at the trial, or capable
of causing the verdict to be unsafe or unsatisfactory."
This was a case where it was clear that the killings would not have taken place
if the appellant had not taken drink, but nevertheless the trial judge left it to the jury to consider if the combined effect
of the factors other than alcohol was sufficient to amount to a substantial impairment of his mental responsibility, and the
Court of Appeal held that the judge had properly left this issue to the jury.
22. In R v Turnbull
(Launcelot) (1977) 65 Cr App R 242 the appellant suffered from an abnormality of mind in that he was a psychopath. He
went out drinking with the deceased and later stabbed him to death in his flat. He relied on the defence of diminished responsibility
but was convicted of murder. On analysis it is apparent that the judge's summing up to the jury contained inconsistent directions.
He said (see p 245):
"Have the defence satisfied
you that it is more probable than not that Turnbull would have acted as he had on this night even had he not taken drink?
You may come to the conclusion, it is a matter for you, that the explanation of Turnbull's conduct on this night is to be
found in a combination of his abnormality of mind, the fact that he is a psychopath, together with the fact that he had on
the evening of December 30 taken a substantial amount of drink. If you come to the conclusion that his responsibility was
impaired by a combination of his being a psychopath and having taken drink, you would have to ask yourselves did the fact
that he was a psychopath substantially impair his responsibility even though he had taken drink?"
The last sentence in this passage accords with the direction which was approved
by the Court of Appeal in Fenton 61 Cr App R 261. But immediately after this direction
the judge made a statement which is inconsistent with it:
"If, on the other hand, you
did take the view which Dr Fitzgerald expressed towards the end of his evidence before you that if he had not had drink this
would not have happened, then the defence would have failed to prove that that abnormality of mind substantially diminished
Turnbull's responsibility for his act in killing."
23. Traces of the same inconsistency are present in
a later part of the summing up referred to by Lord Widgery in delivering the judgment of the Court of Appeal, at p 246:
"There are other references
to the effect of a combination of inherent cause and alcohol in the course of the summing up but at p 24, where the judge
is coming to the point when the jury is about to retire, he goes through the matter again and does so, as we see it, quite
impeccably. Indeed, his first direction at the top of p 24 is not criticised by Mr. Hall. The judge said: 'Do we think it
more probable than not that at that time Turnbull's responsibility was substantially impaired by the fact that he suffers
from a psychopathic disorder? You may think, it is a matter for you, that drink had something to do with this, but what is
the substantial cause of Turnbull's inability to control his behaviour that night? What is the substantial cause of his stabbing
this man in this horrible and savage way.' That is exactly the right test, as has been admitted by counsel for the applicant."
The Court of Appeal continued at p 246:
"Later on, on the same page,
the judge says: 'Have the defence made you feel that the probability of the matter is that his inability to control his conduct
when he killed was due to his psychopathic condition, or do you think on the other hand it was probably due to the fact that
he had too much to drink and not at all substantially to do with the fact that he was a psychopath? That is the question you
have to decide.' That passage is criticised because, I think it is said, the judge there is contemplating a straight comparison
between the force of the inherent defect of mind and the force of the alcohol, but we think, with all deference to Mr. Hall,
that is too subtle an approach to the judge's direction and we can see no reason to suppose that the jury would have been
in any sense misled."
The Court of Appeal concluded their judgment by stating:
"If we felt the jury might
have been led away from the correct path of approach we should, of course, have had to consider it very carefully but for
the reasons which have already been given we can see no reason to suppose that the jury were deflected from their proper approach,
and the ultimate question was properly left to them at the trial. Accordingly, we can see no reason for doubting the correctness
of the verdict and the application for leave to appeal against it is refused."
24. In my opinion in Turnbull(Launcelot) 65 Cr App R 242 the Court of Appeal did not intend to lay down any principle but dismissed
the application for leave to appeal on the ground that whatever criticism might be made of the summing up it did not deflect
the jury from the proper approach.
25. In R v Gittens
 QB 698, in a reserved judgment, the Court of Appeal expressly approved the direction given in Fenton and made it clear that the direction given in Turnbull(Launcelot)
should not be followed in the future. They said, at p 703:
"Even assuming that the direction
approved in Reg v Turnbull (Launcelot) taken as a whole was correct, we consider
that it is not a direction which should in future be copied, for reasons which are apparent."
In Gittens the appellant's marriage
had been unhappy for some time as he suffered from depression for which he had sought and received medical treatment and on
one occasion he had attempted to hang himself. On a visit home from hospital he consumed a quantity of alcohol and also took
some of the pills which had been prescribed for him whilst his wife was out. On her return he and his wife had a violent argument
and he killed her with a hammer. He then hit his step-daughter, raped her and tried to strangle her and she subsequently died.
The reason he gave for the attack on the step-daughter was that he thought that it was his wife he was seeing. He was convicted
on the two counts of murder.
26. The evidence of three doctors called on behalf of
the appellant at his trial was that he suffered from an abnormality of mind due to inherent causes which substantially impaired
his mental responsibility. Two of the doctors considered that the abnormality of mind was due to a depressive illness and
the third considered that the abnormality of mind was due to a disorder of his personality induced by psychological injury.
The doctor called on behalf of the prosecution agreed that the appellant was suffering from an abnormality of mind, but in
his view that abnormality was brought on by drink and drugs and was not inherent and was not the result of an illness.
27. In his directions to the jury the judge stated 
QB 698, 702:
"Of course you have a further
consideration in this case: that drink combined with taking the sleeping tablets certainly may have had something to do with
his acts of killing in this case. I do not think there is any dispute about that on the part of any of the doctors. It may
have played some part in what he did, but what you have to decide here is what was the substantial cause of his conduct. Was
it the abnormality of mind from which he suffered that substantially impaired his mental responsibility, an abnormality of
mind arising, of course, from inherent causes or from disease or injury, not an abnormality of mind arising from the taking
of drink - for that does not help? As I say, you ask yourselves what was the substantial cause of his conduct. If it be substantially
the abnormality of mind arising for those reasons other than drink or drugs, why, then, the defence of diminished responsibility
has been established."