England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
HIS HONOUR JUDGE BALL QC
T20127132

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/05/2014

Lord Justice Elias:

1. This is an appeal against conviction by leave of the single judge. The appellant was convicted of murder on 11 June 2013 in The Crown Court at Chelmsford before HHJ Ball QC and was sentenced to life imprisonment with a minimum term of 15 years. He had admitted killing his partner on15 July 2012. The only question for the jury was whether it was murder or manslaughter by reason of his diminished responsibility.
2. The circumstances in which the defence of diminished responsibility can be established are set out in section 2 of the Homicide Act 1957. This was amended by section 52 of the Coroners and Justice Act 2009. It is now as follows:

"(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 –

to understand the nature of D's conduct;

to form a rational judgment;

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. There were three expert medical witnesses each of whom believed that the conditions for establishing diminished responsibility were satisfied. Notwithstanding that, the jury rejected the defence. The appeal now is directed at certain rulings and directions of the judge which the appellant submits rendered the trial unfair and the conviction unsafe.
4. Originally there were six grounds of appeal. The single judge gave leave on two and the appellant sought to renew the application for leave on a further two. One of these, concerning the direction given as to the meaning of "substantially impaired" in section 2(1)(b) was resuscitated with the encouragement of the court. We gave both counsel the opportunity to make written submissions on it, which they did.

The background

5. The essential facts were as follows. The deceased, Claire Parish, and her partner, the appellant, went to a barbecue where members of her family were gathered. There was evidence that Claire had been unhappy at the party and had been drinking. She told a number of witnesses, including her brother and sister, that the appellant had been hitting her. There was a mark on her face and she said that the appellant was responsible for it. However, when challenged, he strongly denied using any violence towards her.
6. R, the deceased's thirteen year old son, witnessed an argument at the barbecue between Claire, who wanted to stay, and the appellant, who wanted to leave. R also said that when asked about how Claire had received a particular scar, the appellant denied that he was responsible but did say that he had caused a different one. The ambiguity of his answer left it uncertain whether he was admitting to having caused it accidentally or deliberately.
7. After the appellant and his partner had separately returned home, the argument continued. The next door neighbour heard raised voices and swearing; he investigated and saw the appellant grab the deceased around the face, grab her by the hair and then slap her across the cheek.
8. R gave evidence that thereafter the appellant was trying to patch matters up but his mother would have none of it. She wanted the appellant to leave; he had packed a case but wanted to stay until morning. The children were locked into their room for a while. The appellant and Claire then had a row over a bank card. The appellant went to the kitchen and returned with a knife in his back pocket. R told his mother that the appellant had the knife and the appellant said that he had taken it in self-defence. R took the knife and told his brother, A, to return it to the drawer. The appellant pushed R away and began to attack the deceased with a second knife. R thought that he was on drugs.
9. A gave similar evidence to R about events immediately before the knife attack. He said that he had seen the appellant punching his mother in the forehead and she hit him back. The appellant then crouched over his mother with a knife saying that he would kill her. He and R went to a neighbour's house to get help.
10. The police had been called to the scene at 9.30 pm. They found the deceased's body wedged between the bedroom door and double bed. The appellant was lying motionless with a hand covering his face. On arrest the appellant had become extremely violent and abusive and was described by officers as snarling and appearing deranged, as if on drugs or alcohol. He tried to bite police officers. He was saying, "I love my kids, but she is evil. The demon's gone. I've killed her. The devil's gone. She had Satan in her eyes." As he was led from the house he had tried to head butt the wall and bite his thumb which had been sliced in two. He was taken to hospital and interviewed two days later.
11. The post mortem identified some 32 sites of bruising and abrasion from 22 separate knife wounds. The primary cause of death was the tearing of a major blood vessel in the liver. The deceased's blood alcohol level was twice the legal limit but the appellant had no trace of any drink or drugs, illicit or otherwise.

The Interview

12. The appellant said in interview that the deceased had had too much to drink. He denied that his behaviour had ever been about having to leave. As to the incident, he recalled the deceased hurting him. She had cut his hand with the knife which she had taken from him. He remembered taking the knife from her and that they were hurting each other but not much more.
13. He said that he had a personality disorder for which he was prescribed medication. He had stopped taking it because he thought he could cope without it. He lived in fear of everything and heard voices; people were talking to him saying things like: "you're hateful, you're ugly, you're a cunt, loads of different things."

The Trial

14. Various witnesses gave evidence for the prosecution about what had occurred at the barbecue and the children described the events leading up to the fatal attack itself as already described.
15. There was evidence of bad character which the judge admitted despite opposition from the appellant, from the deceased's daughter, Stevie Allen. She recounted an occasion when she said that the appellant had admitted assaulting her mother. She had visited the deceased's house and found the appellant leaning against his car. He had told her that her mother did not want to be with him anymore. He told Ms Allen that he had slapped Claire a few times and he was to blame. Following that conversation, Ms Allen had met her mother in town but could not see any injuries. She described the couple as being apparently happy. She said that her mother had lived through an abusive relationship and she was not going to interfere if her mother was happy. The deceased had never complained about the appellant hitting her.
16. The appellant did not give evidence at the trial. He had contended that he was not in a fit state to do so and that no adverse inference should be drawn as a consequence. There was a voir dire held to determine that question. Dr Blandford, one of the three experts who had provided a medical report for the trial, gave evidence in which she essentially adopted the conclusions in her report. Her view was that the appellant ought not to give evidence, given his state of suggestibility and compliance. She was also concerned that he might experience a panic attack or a psychotic episode and it would be ethically inappropriate to put him in that situation.
17. The judge agreed in the light of this evidence that no adverse inference should be drawn from the appellant's failure to give evidence and he directed the jury to that effect. However, the appellant wanted Dr Blandford's view of his current mental state adduced before the jury. The judge disagreed. He ruled that the jury had to focus on the appellant's state of mind when he killed his partner; his current state was not material save to the extent that it justified no adverse inference being drawn from his failure to give evidence.
18. The principal evidence on behalf of the defence was given by three specialist medics, two instructed on behalf of the defence and one by the Crown. Each had been given access to the appellant's medical records and had taken a detailed history from him during the course of interviewing him. The appellant had described a history of mental illness. He had been referred to psychiatric services in 1990 and had thereafter been using them on an increasingly regular basis. He was on medication. The appellant said to each of the doctors that he was never violent towards Claire; she would occasionally in drink attack him, but he did not retaliate.
19. The conclusions of these experts were directly relevant to the question whether the appellant had established the defence of diminished responsibility, although that was of course ultimately a matter for the jury. Each of the experts was satisfied that he had.
20. The evidence of the doctors can be summarised as follows. First, there was evidence from Dr Latham, a consultant forensic psychiatrist. He was told by the appellant that his mental health had worsened but his relationship with Claire had got stronger because she was so supportive. Claire had suggested that he stop taking medication because it made him dozy. He had stopped about three to four weeks before the incident although they had told his doctor that he was still taking the medicine. He had been diagnosed with psychosis and depression and was being treated with increasingly strong doses of medication. The deceased had applied to become his carer. He had self harmed in the past and continued to hear voices; he dreaded going out and being around people.
21. The appellant described the circumstances of the killing to Dr Latham. He said that at the barbecue he had felt as if everyone was talking about him and everyone was telling him it would be best if he left. He did not recall how he got home. He recalled putting his son, A, to bed. He had gone to move the deceased to one side and she had punched him in the face. He recalled slapping her and then experiencing her pure rage. He saw what he thought was the devil in her face. His next memory was of being on the floor and the police arriving, He had no recollection of the children being on the scene or of a knife.
22. Dr Latham's opinion was that the appellant fulfilled the diagnostic criteria for a personality disorder. Records also showed that he had depression with psychosis, a particularly severe form of depression. His personality disorder resulted in high levels of sensitivity to rejection or setbacks, and a tendency to be suspicious and to perceive other people as hostile or contemptuous. There were prominent traits of an emotional, unstable, paranoid, anxious, avoidant and dependent personality disorder which meant that the appellant suffered from low self esteem, had a negative self image and a pre-occupation with being criticised.
23. Dr Latham's view was that on the night in question the appellant had entered into a state of disassociation in response to a high level of anxiety and stress; this resulted in a lack of awareness of what he was doing. He was anxious and paranoid because he thought he was being criticised by family members. Stopping taking his medicine was a contributory factor but events might have continued in the same way even if he had been taking it. Dr Latham did not believe that the appellant was feigning memory loss. There was compelling evidence to interpret the psychiatric evidence as indicating diminished responsibility at the time of the offence. The appellant thought that the person he was attacking was a demon; that did not reflect rational judgment. He was delusional and suffered a substantial impairment to his ability to exercise self-control.
24. Dr Latham's evidence was not that the mental disorder caused the killing but that it was highly significant. He accepted that the appellant could have been angry because Claire wanted him to leave; but even if anger was a cause, this would have been influenced by the delusional belief that Claire was a demon.
25. Dr Latham also accepted that the appellant had shown some ability to control his actions. Further, his arming himself with two knifes demonstrated that he was capable of purposeful actions. But that was not the same as self control or rationality. The severity of his psychosis was much greater at the time of the killing than previously. The general trend of his mental health had been downwards.
26. In conclusion, therefore, he considered that the appellant was suffering from an abnormality of mental functioning which substantially impaired his ability to exercise self control and also meant that at the relevant time he was incapable of rational decision making. The difference between this occasion and earlier possible occasions of violence was the presence of persecutory delusions.
27. The second expert witness, Dr Jennifer Blandford, is a clinical psychologist. She carried out tests with the appellant and was satisfied as to his motivation to comply. He recounted his history which was in essence the same as given to Dr Latham. The results of a series of questions designed to identify personality patterns [MCM13] showed that he had an avoidant personality disorder, with dependent and self defeating personality traits. His profile as defined by the tests suggested that he believed that people were mocking him or disapproving of him. He experienced anxiety and dejection and this turned into resentment against others. To contain this resentment he would withdraw, becoming increasingly anxious and depressed. She thought that he was suffering from a major depression. She was satisfied that he was not exaggeratinge expe his problems.
28. Doctor Stamps, a consultant forensic psychiatrist, had been instructed by the Crown but was called by the defence. She too had examined the appellant. Her own assessment was that the appellant suffered from a full blown mental illness. This was supported by the very high doses of anti-psychotic and anti-depressive medication. He had a history of deteriorating mental health since the age of 22. He was delusional. His symptoms represented a paranoid psychotic illness, namely schizophrenia. His auditory hallucinations and delusions in the weeks leading up to the killing appear to have occurred against a background of him having stopped taking his medication. His last memory of the deceased was seeing the devil standing in front of him. This was likely to be a delusional misinterpretation occurring in the context of persecutory beliefs about his life being in danger and her family turning against him. At the time of the killing he was acutely psychotic with clear persecutory delusions.
29. By reference to the criteria required for diminished responsibility, her opinion was that the appellant had been suffering from such an abnormality of the mind that it substantially impaired his ability to understand the nature of his conduct, form a rational judgment, or exercise self control.

The grounds of appeal

30. There were four grounds advanced before us, although as we have said, the single judge had given leave with respect to only two of them.
31. First, the appellant renewed his ground that the judge ought not to have admitted the bad character evidence of Stevie Allen concerning her alleged conversation with the appellant. A related ground, for which permission was granted, is that the judge did not adequately direct the jury with respect to that evidence in the summing up.
32. The third ground, again for which permission was given, is that the judge was wrong to refuse to allow the evidence of Dr Blandford given at the voir dire to go before the jury.
33. Finally, counsel renewed a ground that the judge had wrongly refused to give the jury directions as to the meaning of the word "substantial" so as to assist them as to what constitutes being "substantially impaired" within the meaning of section 2 (1)(b). The effect, it was submitted, is that the jury may have applied a much more stringent standard than they ought when assessing whether the defence of diminished responsibility was made out. Counsel submitted that this might explain the striking feature of this case, namely that the jury rejected the defence of diminished responsibility in the face of the strong and consistent medical evidence to the contrary.

The renewed ground: admission of evidence of Ms Allen

34. Some evidence potentially demonstrating bad character was before the jury without complaint. The defence accepted that a caution for common assault in relation to the appellant's former partner should be admitted, not least because it might counter a view the jury might otherwise have obtained that he was an habitually violent man. The defence also realistically did not object to the evidence of what Claire had said about allegedly prior violent conduct at the barbecue. Although this conduct was denied, the appellant relied upon the allegations as evidence of the stress he was under at the material time.
35. The prosecution sought to have admitted in addition the evidence of Ms Allen on the grounds that it was both important explanatory evidence within the meaning of section 101(c) of the Criminal Justice Act 2003, i.e. evidence without which it would be impossible or difficult for the jury properly to understand other evidence in the case; and because it was evidence of propensity to use violence towards female partners and fell within gateway (d). The Crown had contended that it was part of a body of evidence which contradicted the account given by the appellant to the medical experts that he was never violent towards the deceased; it was potentially material to assessing that evidence.
36. The objection to Stevie Allen's evidence was that it did not constitute either important explanatory evidence for the purpose of gateway (c), nor did it demonstrate propensity to commit the kind of attack which occurred here so as to bring it within (d). Moreover, at the point when the judge gave his ruling it appeared likely that the appellant would not be in a fit state to give evidence (as indeed subsequently proved to be the case) and therefore there could be no effective challenge to Stevie's evidence. In those circumstances it was unfair to admit it; its prejudicial effect outweighed its probative value.
37. The judge considered that the evidence was admissible, though not for all the reasons advanced by the prosecution. He held that it fell into the gateway in section 101(c) of the Criminal Justice Act, being potentially relevant evidence of two matters. First, it had potential relevance to the issue whether or not the appellant was suffering from diminished responsibility at the time of the killing. It could support a conclusion that he was capable of exercising some self control so as to restrict the use of violence towards the deceased despite suffering from a mental condition, even when in a volatile and potentially violent situation. Second, it was also potentially relevant to the reliability of the information that he had given to the medical experts about his relationship with the deceased when he had asserted that it was she, rather than he, who could on occasions be violent. This could be relevant when the jury had to assess the reliability of that medical evidence. The judge did, however, accept in his ruling that this evidence had no relevance at all to propensity; the nature of the violent attack perpetrated on the deceased was of a different character altogether from the slapping to which he had allegedly admitted in this conversation. The judge said that he would so direct the jury, and he did.
38. The appellant submits that the judge was wrong to admit that evidence for a series of reasons which in part repeat the submissions advanced before the judge below. First and fundamentally, it is said that the statutory test in gateway (c) was not satisfied; the prosecution never established that the jury would find it "impossible or difficult properly to understand other evidence in the case", still less that its value for understanding the case as a whole was substantial. The judge appeared to assume that it was enough that the evidence was merely relevant, but that is to dilute the test unjustifiably.
39. Second, the prejudicial effect of this evidence was too great. In particular it is said that there was a real danger that the jury would misuse the evidence as indicating propensity to commit this offence notwithstanding being directed not to do so.
40. Third, it was unfair to admit it given that the appellant could not give evidence to rebut or challenge it.
41. Fourth, the evidence was in any event of limited reliability; the witness said herself that she had never seen the appellant show any violence; and she had not asked her mother about the alleged admission. There was other evidence, principally from what was said at the barbecue by the deceased on the night in question, from which a jury could infer that he was violent. But save for an admission that he had once been cautioned for domestic violence on his ex-wife, there was no undisputed evidence that any violence had occurred.
42. Finally, it was said that it was unfair for the judge to say that there was relevant either to the question whether the applicant was capable of exercising a degree of self control or to the question whether it might cast doubt on the reliability of the expert evidence. As to the latter, the experts had said in terms that they did not believe that the appellant was lying to them; moreover, Dr Blandford had carried out psychometric tests which were consistent with that. But even if there was some history of violence that did not affect their basic clinical conclusions that he was suffering from an acute psychotic episode on the day of the offence.
43. We see some force in the first of these grounds. We doubt whether it could properly be said that without this evidence it was either impossible or difficult to understand the other evidence in the case; nor was it on its own substantial. The medical evidence was perfectly cogent and clear whether or not the appellant was telling the truth about his relationship. But in our view nothing turns on this because we think that in any event the evidence was admissible under gateway (d), notwithstanding that we agree with the judge that it did not go to propensity. In our view, it nonetheless related to an important matter in issue between the prosecution and the defence, namely whether there was a background of violence in this relationship. This was potentially material for the two reasons given by the judge. Further, there was already evidence on this issue before the jury - including the appellant's admission that he had been cautioned following an attack on a former partner - and it would been unsatisfactory for this alleged confession to have been excluded.
44. We do not accept that the evidence would be unfairly prejudicial. First, there is no justification for saying that the jury might have treated this evidence as indicative of propensity to carry out an attack of this nature, both because they were directed not to, and because it is difficult to think that a reasonable jury would treat the evidence in that way. Second, there was already evidence before the jury which put in issue the question whether the appellant had committed acts of domestic violence on earlier occasions. This was simply additional evidence. Indeed, the appellant was happy to have the evidence of the allegations of violence made by the deceased adduced before the jury as evidence of stress that he was under; but in our view he cannot be selective about which evidence goes in.
45. The question whether the evidence was unreliable was a matter for the jury. If they had reached that conclusion, they would have ignored it, as directed by the judge. It was not for the judge to exclude it on the grounds that he did not think it reliable. Nor do we accept that the fact that the appellant could not go into the witness box to rebut this evidence rendered it unfair to admit this evidence, although it was a factor of some relevance in assessing its reliability.
46. Finally, it is no answer to say that the experts had said that even if there was a history of violence it would not have affected their conclusions. It was for the jury to test those conclusions, and one potentially relevant question was whether the experts had carried out an analysis on a correct factual basis. It was ultimately for the jury to decide whether they were satisfied that the experts' analysis could be safely relied upon even if the appellant had misled them as to the nature of the relationship with his wife.
47. For these reasons, therefore, we do not give permission on this ground.

The directions to the jury on this evidence

48. It is said that the judge ought to have told the jury to treat Stevie Allen's evidence with some caution given that the defendant had not been able to give his account of the alleged conversation. We agree that it would have been desirable for the judge to have reminded the jury of that. But the judge had told the jury that they should not hold it against him that he had failed to give evidence, and it was clear that his case was that he had never physically abused Claire. The jury must have appreciated that he would have contradicted Stevie's account had he given evidence. In any event, the evidence was of limited significance since there was other evidence that he had harmed Claire, as well as his own admission that he had been cautioned for domestic violence with a previous partner. We do not accept that this failure to remind the jury that he had not had the chance to combat this evidence was a material error casting any doubt on the safety of the verdict.

Should the evidence of Dr Blandford on the voir dire have been admitted?

49. The judge did not think that this evidence should be given, apparently on the basis that the jury had to concentrate on the question whether he was suffering from diminished responsibility at the date he killed the deceased. The appellant submits that this was an error and perpetrated an unfairness. It was relevant to the question whether the appellant had a mental illness at all, which the prosecution never in fact formally conceded; and it would have revealed a gradual deterioration in his state notwithstanding that he was taking anti-psychotic medicine. In addition, the appellant acted in a strange and distracted way in court during the trial, and an explanation would have helped to ameliorate any prejudicial effect which his appearance may have created in the minds of the jury.
50. We do not accept those submissions. Whatever position was formally being adopted by the prosecution, the evidence that the appellant was suffering from a mental illness was overwhelming, as the judge effectively made plain to the jury in the summing up; and there was little doubt that it was getting worse. In any event, it would not necessarily support his claim that it was all part of a gradually deteriorating mental state; any deterioration in his condition could be explained by the stress of the trial and his remand in custody rather than reflecting some broader pattern. It would not legitimately cast light on his mental state a significant time earlier. The judge was entitled to take the view that this evidence would not materially assist the jury.
51. As to the way in which the defendant presented himself at trial, that was not the reason why he was examined at the voir dire, nor does not seem to have been relied on before the judge as a reason for requiring this evidence to be admitted. If and to the extent that it was common ground that any inappropriate behaviour was the result of his illness, there could have been some admission to that effect.

The meaning of "substantial" in section 2

52. The final issue concerns the refusal of the judge to give the jury any directions as to the meaning of the word "substantial" in connection with the question whether the appellant was suffering from an abnormality of mental functioning so as substantially to impair his ability to understand the nature of what he was doing, form a rational judgment, or exercise self-control.
53. Defence counsel had told the jury that the judge would direct them that the impairment must be treated as "substantial" if the effect of the abnormality of mental functioning on the ability to do the things identified in section 2(1A) was "more than trivial." He was there communicating his understanding of the law, and we understand that it is not unusual for some judges so to direct the jury. The judge refused to define the term in that way. Instead he said this:

"Mr Rose did suggest to you in his closing address that you would get some further help from me when giving you directions in law as to what the word substantially means, where it says substantially impaired his ability to exercise those qualities. I am not going to give you any help on the meaning of the word substantially, because unless it creates real difficulty and you require further elucidation, the general principle of English law is that where an everyday word is used, don't tell juries what it means. They are bright enough and sensible enough to work it out for themselves, so I am not going to paraphrase substantially. Substantially is the word that is in the Act of Parliament and that's the word that you have to work with. If it becomes a stumbling block in some way, well at the end of the day, you can send me a note and in those circumstances, I am permitted to offer you a little more help, but not at this stage of proceedings."

54. The jury did not in fact ask for any more help on the point.
55. At the heart of this submission is the contention that the word "substantial" is capable of having two different meanings. One possible meaning is that the abnormality of mental functioning substantially impairs if it does so to more than a trivial or minimal extent; it then has substance and the impairment is substantial. A second meaning is that the abnormality of mental functioning only substantially impairs where, whilst not wholly impairing the defendant's ability to do the things specified in section 2(1A), it significantly or appreciably impairs that ability, beyond something that is merely more than trivial or minimal. For example, if a salary is described as substantial, that would not convey the meaning that it is something a little more than minimal; on the contrary, it suggests that it is significantly more than that.
56. The meaning to be given to the term in the context of diminished responsibility has been considered in a number of cases. Until the law was changed by section 52 of the Coroners and Justice Act 2009, section 2 was as follows:

"Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether 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".

The concept of substantial impairment was therefore used in a similar way. As with the current formulation, the Act did not define "substantial" or the phrase "substantially impaired".

57. These words were first considered in R v Byrne[1960] 2 Q.B. 396; 44 CR.App.R 246 when Lord Parker CJ said that it was not enough that there was an impairment; it had to be "substantial". This was a "question of degree" for the jury to determine, and they could legitimately differ from doctors on that question.
58. In R v Simcox The Times, 25^th February 1964, four experts said that the appellant suffered from an abnormality of mind but they did not say the impairment was substantial; on the contrary, they used words such as "moderate". The trial Judge directed the jury in these words:

"Do we think, looking at it broadly as common-sense people, there was a substantial impairment of his mental responsibility in what he did?' If the answer is 'no', there may be some impairment, but we do not think it was substantial, we do not think it was something that really made any great difference, although it may have made it harder to control himself, to refrain from crime, then you would find him guilty …"

This is plainly adopting the second meaning outlined above. Even if the ability to exercise self control was to some degree affected, that would be insufficient. The impairment had to be substantial. That summing up was approved by the Court of Criminal Appeal.

59. In R v Lloyd [1967] 1 QB 175 one expert said that the accused's responsibility was not diminished to any substantial degree and the other that the diminution was "not as low as minimal … but not substantial." The judge had directed the jury that their own common sense would tell them what substantial meant, and then he continued as follows:

""Substantial" does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale it does not mean trivial or minimal. It is something in between and Parliament has left it to you and other juries to say on the evidence, was the mental responsibility impaired, and, if so, was it substantially impaired."

Edmund Davies J, giving the judgment of this court, said that there could be no criticism of this direction and that in substance it was conveying the same meaning as the direction in Simcox. We can understand why he said that; somewhere between total and minimal would not naturally mean anything which ceases to be minimal. Having said that, it seems to us that if the more rigorous test is to be adopted, the Simcox direction is more appropriate. It more clearly communicates the possibility that the jury will find that an impairment does have some modest impact, and to that extent will be more than merely minimal or trivial, yet will not as a result properly be described as substantial.

60. In R v Egan 919920 95 Cr. App. R. 278 this court expressly advised judges to follow either of the two directions in Simcox or Lloyd when dealing with the meaning of substantial impairment.
61. In Mitchell [1995] Crim L. R. 506 the complaint on appeal was essentially the complaint here, namely that the judge had failed to give any direction at all as to the meaning of the word "substantial". The appeal was rejected, the Court saying that this was a plain word which required no synonym and which the jury could well apply using their own common sense. That is in essence what HH Judge Ball QC said to the jury in this case.
62. These cases are in our view inconsistent with the notion that the impairment is substantial simply by virtue of having substance, of being more than trivial or minimal. Mitchell is based on the premise that this is the single and obvious meaning which juries will perfectly well comprehend.
63. All these decisions were considered by this Court in R v Ramchurn [2010] EWCA Crim 194; [2010] 2 Cr App R 3 where again the appeal was directed to the way in which the judge had directed the jury with respect to the term "substantial". The doctor in cross-examination in that case had conceded that the defendant had an abnormality of mind which had played a more than trivial part in his mental processes but had nonetheless asserted that it did not substantially impair the defendant's ability to understand what he was doing. Lord Judge CJ approved the following direction which the judge had handed to the jury (although in fact the judge departed from it in a small way when giving the oral direction in his summing up).

"Substantially impaired" means just that. You must conclude that his abnormality of mind was a real cause of the defendant's conduct. The defendant need not prove that his condition was the sole cause of it, but he must show that it was more than a merely trivial one which did not make any real or appreciable difference to this ability to control himself."

64. The judge was using the Crown Court Bench Book Specimen Direction, and it remains the direction which judges are encouraged to use. We respectfully suggest that there is some ambiguity in this formulation: is the judge saying that abnormality of mind is a real cause simply by virtue of being more than merely trivial? Or is he saying that more than merely trivial is not sufficient unless the impairment is appreciable or real (which he is apparently using as a synonym for substantial)?
65. Later, in response to a question from the jury asking him to explain the difference between trivial and substantial, he said this ( in words echoing in part the direction in Lloyd):

"The following direction has been approved at a senior level and it is this; the direction on the words 'substantially impaired'.

Your own common sense will tell you what it means. 'Substantial' does not mean 'total'. That is to say the mental responsibility need not be totally impaired, so to speak, destroyed altogether.

The other end of the scale, 'substantial' does not mean 'trivial' or 'minimal'. It is something in between and Parliament has left it to you to say on the evidence was the mental responsibility impaired and if so, was it substantially impaired? *23

The word 'substantial' means more than some trivial degree of impairment which does not make any appreciable difference to a person's ability to control himself but it means less than total impairment."

66. Defence counsel's submission to this court was that the second direction was inconsistent with, and undermined, the first. The first direction, it was said, told the jury that there was a substantial impairment provided it was simply more than trivial, whereas the second adopted the more stringent test consistent with earlier authorities. Lord Judge CJ rejected this submission on the grounds that the first direction accurately conveyed the issue to be determined by the jury; and the second did not alter or add to the burden.
67. We confess that we are less confident than Lord Judge CJ that the two formulations are saying the same thing. As we have said, the first appears to us to be ambiguous and on one reading at least is suggesting that anything more than trivial is substantial. That in our view is not consistent with the earlier stream of authority, and it is at odds with the second way in which the judge directed the jury.
68. Of course if the wider test is the appropriate test, as the jurisprudence suggests, then it matters not whether the jury in Ramchurn were left with the impression that they should adopt the wider or narrower meaning. A defendant is only potentially prejudiced if the narrower meaning is the appropriate one and they are directed in accordance with the wider meaning, as they were in this appeal.
69. The most recent decision raising this issue is R v Robert Brown [2011] EWCA Crim 2797. In this case a defendant was convicted of manslaughter on an indictment for murder. The jury was applying the new law and the judge directed them that the reference to "substantially impaired" required the jury to conclude that the impairment was more than minimal. The judge when sentencing said that notwithstanding the finding of diminished responsibility, the defendant's responsibility for the killing was still substantial. The appellant contended that this was at odds with the jury's finding. If the abnormality of mental functioning had substantially impaired his ability to understand what he was doing, then he could not at the same time be substantially responsible. Lord Judge CJ, giving the judgment of this court, rejected the submission without expressing any view as to whether the direction in the summing up was appropriate or not. He did, however, say that the meaning of substantially impaired in the amended version of section 2 was the same as in the original version.
70. What is of interest is that the concept of "substantial" is plainly being used in two very different senses in the same case. In relation to the impairment the jury were told that it meant anything more than minimal or trivial; in relation to responsibility it is conveying a sense of a significant or appreciable responsibility. Indeed, if the more rigorous test for establishing "substantial impairment" had been adopted when directing the jury as to the meaning of diminished responsibility, we think it would have been much more difficult for the judge to say that, notwithstanding that the impairment of mental functioning was substantial, so was the culpability.
71. We are concerned if the position is - as we believe it might be - that different judges are in fact directing juries in different ways with respect to this important principle. If the substantial test is met once something more than trivial or minimal is shown, that is very different from a test which requires the jury to determine its meaning by applying their common sense in the range from trivial or minimal to total. No doubt the concept must derive its meaning from its context, but there is at least a respectable case for saying that Parliament may have intended that any material impairment would be substantial if it has substance i.e. is more than trivial, and that this ought to be sufficient to reduce the offence from murder to manslaughter. The extent of the impairment thereafter would be relevant only to sentence. That appears to have been the position adopted in the Robert Brown case.
72. However, for reasons we have given, we do not think that it states the law. The jurisprudence is very clear. Judges ought not to adopt the narrower meaning. This requires that they should either refuse to provide any further explanation of the term, as in Mitchell and in this case, on the arguably optimistic premise that the meaning is obvious; or if asked for further help, they should be given a direction of the kind adopted in Simcox. For reasons we have given, we would prefer that to the direction adopted in Lloyd which in turn was reflected in the second formulation in the Ramchurn case. We would respectfully suggest that the first formulation in that case, reflecting the specimen direction, is potentially confusing and may suggest that the test for establishing diminished responsibility is in fact less rigorous than the authorities suggest that it is.
73. It follows that although we grant permission on this ground we find that the judge was not in error in failing to direct the jury in accordance with the narrower meaning, nor was he obliged to give the jury any fuller direction than he did. It follows that we must dismiss this ground of appeal also.
74. For these various reasons, therefore, we dismiss this appeal.