England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ TOPOLSKI QC
T20157119
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
HHJ COTTLE
T20157226

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2017

The Vice President :

Introduction

1. Rejmanski has leave to appeal against his conviction for murder and Charice Gassman seeks leave to appeal against her conviction for murder. The cases have been listed together because they raise the same issue: the extent to which a mental disorder can be relevant to an assessment of "the circumstances of the defendant", when considering the partial defence of loss of control provided by s.54(1) Coroners and Justice Act 2009 ("the CAJA 2009"). They both complain that the trial judge's directions effectively deprived them of the defence.
2. Charice Gassman and her sister Amberstasia Gassman, her co-defendant, also apply for leave to appeal against sentence.
3. We have had the benefit of submissions from counsel for each of the parties and from an amicus curiae, Mr Louis Mably QC, appointed by Her Majesty's Attorney General at the court's request. We are grateful to Her Majesty's Attorney and to all counsel, particularly Mr Mably, for their assistance.

Background to the enactment of Sections 54 and 55 of the CAJA 2009

4. Sections 54 and 55 of the CAJA 2009 were enacted against a background of controversy and widespread dissatisfaction with the common law partial defence of provocation as revised by section 3 of the Homicide Act 1957. The dissatisfaction was summarised by the Law Commission in two reports: Partial Defences to Murder, Final Report (2004) Law Com No 290, [2004] EWLC 290 and Murder, Manslaughter and Infanticide (2006) Law Com No 304, [2006] EWLC 304 ("the 2006 Report").
5. The components of the pre CAJA 2009 defence were that (a) the defendant lost his/her self-control as a result of something said or done, and (b) a person having ordinary powers of self-control would have reacted as s/he did.
6. In determining the second, objective component, two strands of judicial opinion arose as to the extent to which a jury could take into account the particular characteristics of the defendant, in addition to age and sex, when considering the degree of self-control which would be exercised by the hypothetical person against whose conduct the defendant's conduct was measured. One strand was that the objective test gave rise to a flexible standard, which attributed the defendant's characteristics to the person having ordinary powers of control; the other strand held that there was a single objective standard, and the particular characteristics of the defendant were irrelevant. This led to conflicting case law.
7. In R v Smith (Morgan) [2001] 1 AC ("Morgan Smith"), a majority of the House of Lords held that the defendant's particular characteristics could be taken into account, and that the question for the jury was: what could reasonably be expected of a person with the defendant's characteristics, including characteristics which affected his general ability to control himself? On this view, the objective standard was flexible, and not constant.
8. The minority, however, took the opposite view. They held that the objective component of the defence gave rise to a single standard, which did not vary depending on personal characteristics. Particular characteristics which affected the defendant's general ability to control himself, such as a short temper, a mental disorder or intoxication, should not be attributed to the reasonable man. They could be taken into account, however, to the extent that they were relevant to an assessment of the gravity of the provocation (an approach that was consistent with the decision in DPP v Camplin [1978] AC 705). The minority also observed that where a person killed because of a mental disorder affecting his general capacity for self-control, the mitigation of the offence of murder was found in the defence of diminished responsibility.
9. In Attorney General for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580, a Board of nine members of the Privy Council was specially convened to consider whether Morgan Smith was correctly decided. Lord Nicholls said that Morgan Smith was in "direct conflict" with the decision of the Privy Council in Luc Thiet Thuan v The Queen [1997] AC 131 and the reasoning of the majority in Morgan Smith was "not easy to reconcile with the reasoning of the House of Lords in R v Camplin [1978] AC 705 or R v Morhall [1996] AC 90". The Board held, by a majority, that the position in English law was as set out by the minority in Morgan Smith. The Board declared that the reasonable person test gave rise to one standard that did not vary from defendant to defendant. Personal characteristics could be taken into account to the extent that they were relevant to an assessment of the gravity of the provocation, but were not relevant if and insofar as they reduced the defendant's capacity to exercise self-control.
10. In making a series of recommendations for reform the Law Commission expressed a clear preference for the approach of the Privy Council in Holley, of the minority in Morgan Smith and of the House of Lords in Camplin. The Commission recommended that that approach should be given statutory effect.
11. The Government did not adopt all the Law Commission's recommendations as to the partial defences to murder in enacting the CAJA 2009, as was noted in R v Clinton [2012] EWCA Crim 2. However, in respect of the reasonable person test with which we are concerned, it expressly accepted the recommendation of the Law Commission and the wording of subsections (1)(c) and (3) of section 54 of the CAJA 2009 is very similar to the formulation proposed in the 2006 Report.

The statutory framework

12. Chapter 1 of the CAJA 2009 provides for two partial defences to murder, diminished responsibility and loss of control, and it is important to read them together. In relation to diminished responsibility, section 52 amends section 2 of the Homicide Act 1957, substituting a new statutory test to this effect:

"(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."

13. In relation to loss of control, section 56 abolishes the common law defence of provocation, and replaces it with the new partial defence, set out in sections 54 and 55. Section 54 provides:

(1) Where a person ("D") kills or is a party to the killing of another ("V"), D is not to be convicted of murder if—

(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,

(b) the loss of self-control had a qualifying trigger, and

(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

(3) In subsection (1)(c) the reference to "the circumstances of D" is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.

(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.

(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.

14. Section 55 defines "qualifying trigger" for the purposes of section 54:

(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.

(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which—

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged.

(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

(6) In determining whether a loss of self-control had a qualifying trigger—

(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

15. The new loss of control defence therefore consists of three components:

(i) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,

(ii) the loss of self-control had a qualifying trigger, and

(iii) a person of D's sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D, might have reacted in the same or a similar way to D.

16. The focus of the argument before us has been on the effect of section 54(3), which provides that "in the circumstances of D" is a reference to all of D's circumstances, "other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint".
17. Academic commentators such as Professor Ormerod (in Smith and Hogan's Criminal Law, 14^th edition) have suggested that the effect of section 54(3) may be different from the tests set out in Camplin and Holley, in that it is less restrictive and more generous to the defendant. Whereas in Holley the Board excluded all characteristics or circumstances, unless they were relevant to the gravity of the provocation, section 54(3) includes all circumstances, unless their only relevance is that they bear on the defendant's general capacity for tolerance or self-restraint. On this reading of section 54(3), it is no longer necessary to demonstrate a connection between the defendant's particular circumstance and the gravity of the provocation; all that must be demonstrated is some relevance to the defendant's conduct over and above the fact that the circumstance bears on the defendant's general capacity for tolerance and self-restraint.
18. Three decisions of this Court have been put before us in which the relevance of mental disorder to "the circumstances of the defendant" in section 54(1)(c) has been considered.
19. In R v Mcgrory [2013] EWCA Crim 2336, the Court held that the trial judge had been correct to direct the jury that evidence from a medical expert that the defendant's depression meant that she had a "reduced ability to deal with taunting and to cope with those sorts of pressures compared to someone not suffering from depression", was excluded from their consideration by section 54(3).
20. In R v Wilcocks [2016] EWCA Crim 2043, [2017] 1 Cr App R 23, the Court considered the case of an Appellant with a personality disorder which affected his ability to form a rational judgment. It was argued on his behalf that this was one of the "circumstances" which was not excluded by section 54(3). The trial judge, Holroyde J, (as he was then) had given the following direction, which distinguished between a matter affecting general capacity, and a matter affecting the gravity of the qualifying trigger:

"If and in so far as you conclude a personality disorder reduced his general capacity for tolerance or self-restraint, that would not be a relevant circumstance when you are considering the defence of loss of control. But it is important to emphasise that this exclusion only relates to any feature of a personality disorder which reduced his general capacity for tolerance or self-restraint. Let me give you an illustration. If you thought that CW suffered from a personality disorder which made him unusually likely to become angry and aggressive at the slightest provocation, that would of course be relevant to diminished responsibility but it could not assist him in relation to loss of control. But if you thought that a personality disorder had caused him to attempt suicide, then you would be entitled to take into account as one of his circumstances the effect on him of being taunted that he should have killed himself."

21. It should be noted that Holroyde J allowed the jury to consider the disorder in relation to the gravity of the trigger, but he excluded it from their consideration if and insofar as it related to the defendant's general capacity. This Court held that the direction accorded with section 54(3). Despite the fact that it was common ground before us that Holroyde J's directions were correct in law, Mr Griffiths QC attempted to argue a contrary position. Since section 54(3) excluded evidence whose only relevance was to general capacity, it was his contention that if the disorder was relevant to two or more issues, say general capacity and the gravity of the trigger, and was admitted into evidence, it could be used in relation to both issues.
22. In R v Meanza [2017] EWCA Crim 445, the Appellant suffered from paranoid schizophrenia and anti social personality disorder. The court rejected an argument that the partial defence of loss of control should have been left to the jury. The court considered there were two insurmountable obstacles faced by the Appellant. First, the Appellant could have no "justifiable sense of being seriously wronged". Second, the Appellant's paranoid schizophrenia and anti social personality disorder were "excluded from account" in considering his circumstances under section 54(1)(c), as was conceded by his counsel.

Conclusions on the effect of sections 54 and 55

23. First, we have considered whether it is necessary to analyse further the background to the enactment of sections 54 and 55. In our view, it is not. The provisions themselves and Parliament's intent are sufficiently clear in this regard and no resort to additional material such as Hansard is necessary. Furthermore, our conclusions accord, for the most part, with the final submissions of all counsel.
24. Second, the three components of loss of control are distinct and require separate consideration. We agree with Ms Whitehouse QC and Mr Mably QC that the potential relevance of a mental disorder to each of the components is fact specific. It depends on the nature of the defendant's disorder, the effect it has on the defendant and the facts of the case.
25. Third, the wording of s. 54(1)(c) is clear: in assessing the third component, the defendant is to be judged against the standard of a person with a normal degree, and not an abnormal degree, of tolerance and self-restraint. If, and in so far as, a personality disorder reduced the defendant's general capacity for tolerance or self-restraint, that would not be a relevant consideration. Moreover, it would not be a relevant consideration even if the personality disorder was one of the "circumstances" of the defendant because it was relevant to the gravity of the trigger (for which, see Wilcocks). Expert evidence about the impact of the disorder would be irrelevant and inadmissible on the issue of whether it would have reduced the capacity for tolerance and self-restraint of the hypothetical "person of D's sex and age, with a normal degree of tolerance and self-restraint".
26. Fourth, if a mental disorder has a relevance to the defendant's conduct other than a bearing on his general capacity for tolerance or self-restraint, it is not excluded by subsection (3), and the jury will be entitled to take it into account as one of the defendant's circumstances under s.54(1)(c). However, it is necessary to identify with some care how the mental disorder is said to be relevant as one of the defendant's circumstances. It must not be relied upon to undermine the principle that the conduct of the defendant is to be judged against "normal" standards, rather than the abnormal standard of an individual defendant. It follows that we reject Mr Griffiths' argument that, if a disorder is relevant to, say, the gravity of the qualifying trigger, and evidence of the disorder is admitted in relation to the gravity of the trigger, the jury would also be entitled to take it into account in so far as it bore on the defendant's general capacity for tolerance and self-restraint. The disorder would be a relevant circumstance of the defendant, but would not be relevant to the question of the degree of tolerance and self-restraint which would be exercised by the hypothetical person referred to in section 54(1)(c).
27. As we have indicated, the most obvious example of when evidence of a mental disorder may be relevant to the defendant's circumstances is the one mentioned in Holley and Wilcocks, where the disorder was relevant to the gravity of the qualifying trigger. In Holley, the Board accepted that in the case of a woman suffering from 'Battered Woman's Syndrome' or a personality disorder, who killed her abuser, evidence of her condition may be relevant to both the loss of self control and to the gravity of the provocation for her. In Wilcocks, the trial judge, and this Court, accepted that, if a personality disorder had caused the defendant to attempt suicide and he had been taunted by the deceased about committing suicide, then the jury was entitled to take it into account as one of his circumstances in considering the third stage of the defence.
28. We do not exclude the possibility of other circumstances where a disorder might be relevant to the third component, but none have been put before us. This suggests the question is of academic interest only.
29. Finally, the exclusionary effect of subsection (3) is consistent with, and reinforced by, the availability and scope of the partial defence of diminished responsibility in section 2 of the Homicide Act 1957, as amended by section 52 of the 2009 Act. The amended section 2 applies where a mental disorder substantially impairs the ability of the defendant to exercise self-control. The two defences may be presented together as alternatives. The law does not therefore ignore a mental disorder that, through no fault of a defendant, renders him or her unable to exercise the degree of self-control of a 'normal' person.
30. We shall now apply those principles to the facts of the individual cases before us.

R v Rejmanski

Prosecution case

31. Number 30 Compton Avenue, London E6 was home to the Appellant, a Polish national, the deceased, Grzegorz Raczek, also a Polish national, and Adrian Magiel, with whom Mr Raczek shared a room.
32. On 28 March 2015 Mr Magiel and Mr Raczek were in their room when the Appellant knocked at the door. Mr Raczek did not want to let him in because the two men disliked each other. The Appellant persisted and said that the three of them needed to talk together in the kitchen about some food that had gone missing and for which he blamed the deceased. The Appellant appeared to be a little "tipsy". They went to the kitchen where they drank a beer and the two men seemingly resolved their differences.
33. Later Mr Magiel returned to his room. He found the deceased lying on the floor with his face swollen. The Appellant was standing over him, seemingly trying to move his upper body. Mr Magiel asked the Appellant what had happened. The Appellant replied, "He deserved it. He didn't get a kicking for nothing." They moved the deceased onto the bed. The Appellant said, "Let him sleep". He appeared to be slightly under the influence of alcohol and there was a bottle of vodka, some of the contents of which had spilled onto the floor. The room was untidy. Mr Magiel went downstairs to call the emergency services.
34. When the paramedics and police arrived, they found the deceased lying on a bed. He had several head injuries and was unresponsive. He was declared dead at the scene. The floor was littered with empty alcohol bottles.
35. The Appellant was still in the room, sitting on a chair, strumming a guitar and singing or chanting words to the effect of, "I've killed him. He's dead. I'm not afraid." On arrest, the Appellant stated, "I'm not afraid. I killed him." Thereafter he made several more admissions to the police that he was responsible for killing the deceased, although later in interview he made no comment.
36. At the police station he was examined by a doctor. The Appellant told him that he was a boxer and had previously been a soldier. He did not disclose any medical condition. He was too drunk to consent to a blood test. He had a number of injuries, in the form of bruises and grazes, mostly to his knuckles, which were consistent with punching.
37. The Appellant's clothing was found to be heavily stained with the deceased's blood. The marks on the deceased's head and shoulders and on his shirt could have been made by the Appellant's shoes and would have required forceful contact (eg kicking or stamping).
38. Dr. Ian Cumming, a psychiatrist, examined the Appellant. He was of the opinion that at the time of the killing the Appellant may have been suffering from some of the symptoms of Post Traumatic Stress Disorder ("PTSD") but its presence was neither strong nor pervasive. He had heard nothing from the Appellant to indicate that he had PTSD before the killing. He noted that there was no evidence that he had sought help either in Poland or in the UK. The condition had had little effect on his life beyond some occasional binge drinking. There was a contrast between the symptoms recorded by the prison and the lack of anything similar beforehand. There was no suggestion that prior to March 2015 he was unpredictable or violent. The doctor therefore had no confidence in a diagnosis of PTSD. He could find no link between PTSD and what the Appellant did that night. It was pure speculation to suggest otherwise.
39. Dr. Julia Heller, a psychologist, said that the Appellant had some symptoms of PTSD but did not meet the full diagnosis. The only evidence to that effect came from the Appellant and one could not rely upon self-reporting. The Appellant reported minimal alcohol use in the three months prior to the killing but heavy use in the 24 hours leading up to the incident. He said he was highly thought of at work, related well to his colleagues and had a lot of friends. His history did not indicate or disclose any evidence of the sort of disturbance, significant distress or impairment found in the lives of those with a full PTSD diagnosis. The absence of clinical depression or a generalised anxiety disorder were further indicators that a diagnosis was not made out.
40. In summary, the prosecution case was that the Appellant had become angry with the deceased and, fuelled by drink, had lost his temper and attacked him with his fists and/or feet intending, at the very least, to cause him really serious harm.
41. Their case in respect of PTSD and loss of control was that the Appellant's symptoms did not meet the full criteria for a complete diagnosis and, in any event, his condition was not linked to the loss of self control. All the evidence pointed to his having been drunk and disinhibited rather than having lost self-control. In any event the things said and done by the deceased were relatively minor and would not amount to the Appellant having a justifiable sense of being seriously wronged and thus did not establish a qualifying trigger. A normal, sober man would not have reacted in the way he did.

The defence case

42. The Appellant was of previous good character, a decorated soldier in the Polish army and a veteran of the Afghanistan war. As a result of the horrific scenes he had witnessed in Afghanistan and the battles in which he had been directly involved, he said that he suffered symptoms which he contended were correctly diagnosed (albeit only after the killing) as PTSD. For several months after his return he experienced nightmares and flashbacks. When those memories became more intense he began to drink more to control himself. He never sought professional help because it would have caused his friends in Poland to look down upon him. His ability to work was affected and he found it hard to focus and concentrate.
43. The attack on the deceased was triggered by the deceased's comments about the Polish army. When the Appellant tried to change the subject the deceased slapped him on the back of the head and said to him in Polish, "Pour some vodka, cat (or kitten)", a derogatory term used to refer to fresh recruits to compare them with more established older soldiers. He asked the deceased not to talk that way and told him that he had greater knowledge because he had served in Afghanistan. The deceased flew into a rage and accused the defendant and people like him of going to Afghanistan to make money, rape women, and shoot children.
44. Dr. Kahtan, a psychiatrist, relying solely on the Appellant's account to him and as recorded in prison records after the killing, was of the opinion that the Appellant fulfilled the criteria for a diagnosis of PTSD, which was a recognised mental health condition. His symptoms were intrusive memories, daytime flashbacks and nightmares, together with anxiety symptoms consisting of mood change, panic and jumpiness. Further symptoms were seen in his avoidance of traumatic memories and in his depressive presentation. His alcohol abuse, typically described as self-medicating, was a way of coping with the above symptoms.
45. He described the Appellant as a troubled man at the time of the killing. What the deceased had said was belittling and this provocation in combination with his intoxication led to the offence. The PTSD would have made the provocation worse because he was unwell and finding it hard to cope with stress. The Appellant had "lost it" when subject to relatively minor provocation from which, viewed objectively, most people would walk away.
46. The Appellant denied being drunk but, if he was, it would have impaired his judgment and he would have been more likely to react violently to the provocation. A sober man would have found it easier to deal with the insults but the doctor could not say whether, had the Appellant been sober, the killing would not have happened. There was no history of alcohol dependency.
47. Dr. Marc Desautels, a psychologist, used a diagnostic questionnaire as part of his examination of the Appellant. For reasons we do not understand, the questions contained indicators of how an answer might be used to lead to a diagnosis and the questionnaire was sent to him in advance. His diagnosis was entirely dependent upon what the Appellant told him in that questionnaire and in person and on a diagnosis of PTSD made after the killing by a prison doctor. Nevertheless, Dr Desautels was confident that the Appellant's answers were accurate and the Appellant was suffering from PTSD. PTSD increased the risk of drinking problems and veterans who were diagnosed with PTSD and who misused alcohol showed an increase in violence and aggression.
48. On the night of the killing, the conversation with the deceased would have caused the Appellant stress by triggering memories and his PTSD symptoms. The symptoms would have been exacerbated by the addition of alcohol, resulting in him becoming more disinhibited and leading to him losing control.
49. In summary, the defence case relied on lack of intent and the two partial defences of loss of control and diminished responsibility.
50. The defence case specifically in respect of PTSD and loss of control was that the diagnosis had been underplayed by the prosecution. It was clear that the incident was entirely out-of-character and that the Appellant had lost control. It was also clear that there was a qualifying trigger in the things said and done by the deceased. Such things were by no means trivial to the Appellant, but were extremely grave and would have left him with a justifiable sense of being seriously wronged. Given his history, his circumstances, and his experiences in the military the jury could find that he had lost self-control.

The issues for the jury

51. The issues as left to the jury were

(i) whether the Appellant had the requisite intent;

(ii) whether the prosecution had proved that he had not lost self-control; and

(iii) whether the defence had established that his responsibility was diminished.

In respect of the defence of loss of control, the specific issues were:

(a) whether the Appellant might have lost his self-control rather than merely attacking the deceased in anger or frustration;

(b) if so, whether that loss of self-control was attributable to something said or done by the deceased which was extremely grave in the circumstances and which caused the Appellant to have a justifiable sense of being seriously wronged; and

(c) whether a person of the Appellant's age and sex, with a normal degree of tolerance and self-restraint and in the Appellant's circumstances (such circumstances not including any circumstances that affected his ability to keep himself under control, such as the effect of drink) might have reacted in the same or similar way.

Ground of appeal

52. Mr Peter Griffiths QC complains that the judge failed to give the necessary directions as to the relevance of PTSD to the loss of control defence. Before summing up, the defence had suggested that the judge should direct the jury that the Appellant's PTSD was relevant to the qualifying trigger and to his circumstances for the purposes of section 54(1)(b) and (c). Although the judge directed the jury to consider the second component of the defence in the context of "his history, his circumstances and his experience in Afghanistan", the judge did not specifically direct the jury that the Appellant's PTSD should be included as part of the defendant's circumstances for the purposes of the third component of the defence. He directed the jury to consider what the reaction of a sober person with a normal degree of tolerance and self restraint placed in the same predicament as the defendant would have been. This was described as a serious error and one that renders the Appellant's conviction unsafe.
53. Mr Griffiths accepted that one of the effects of PTSD (if the jury accepted the Appellant was suffering from PTSD) was to impair his general capacity for tolerance and self-restraint, but he maintained it was still admissible. It was not excluded by section 54(3) because the PTSD was relevant over and above its effect on the Appellant's general capacity. If so, the Appellant's mental condition, which caused him distress, anxiety, nightmares and flashbacks, should have been a circumstance or characteristic for the jury to consider in evaluating whether a person with an otherwise normal degree of tolerance and self-restraint, but suffering with PTSD, might have reacted in a similar way to the defendant.
54. Furthermore, the Appellant's particular circumstance of PTSD fell squarely within the requirements of section 54(1)(c) of the CAJA 2009 and also met the test in Camplin and Holley, in that the taunting was about the circumstances which gave rise to the PTSD. Telling a man with a normal degree of tolerance and self-restraint, who has never served in any army and has never set foot in Afghanistan, that he had raped women and killed children in Afghanistan would sound nonsensical. However to say the same thing to a man who had served in the army in Afghanistan and suffered with PTSD as a result would be substantially different. The relevance of the PTSD to the Appellant's conduct therefore was not only to reduce his general capacity for tolerance and self-restraint, but also to explain the gravity of the trigger for the Appellant's conduct.

Conclusions on appeal against conviction

55. Having accepted that in principle a disorder such as PTSD may be a relevant circumstance for the jury to consider when assessing each of the components of the partial defence of loss of control, we analyse its relevance on the facts of this case.
56. For present purposes we shall assume that the jury found that the Appellant was suffering from PTSD as a result of his experiences in Afghanistan, although that is by no means certain. In the years since leaving Afghanistan and before the killing, there was no record of any complaint of the symptoms of PTSD, he had held down a job, he had no history of violence and he had normal social relationships. The experts who testified he was suffering from PTSD had relied on his own reports of symptoms and on a diagnosis made after the killing and, in one case, had used a questionable methodology to reach his conclusion.
57. Accepting that the two doctors called for the defence were or may have been correct, however, there remain two hurdles in the Appellant's path.
58. We note that, according to the Appellant's own evidence and his account to medical professionals, the effects of PTSD on him were nightmares and flashbacks which, when they became intense, caused him to drink more alcohol. The flashbacks were set off by, for example, the sound of aeroplanes or personal radios. There was no evidence from the Appellant that he experienced any sort of flashback at the time he killed the deceased and he had never become violent in response to flashbacks. Dr Desautel's initial observation that the insults of the deceased "would have caused the defendant to stress by triggering memories and his PTSD symptoms (….exacerbated by the addition of alcohol) resulting in the defendant becoming more disinhibited", was qualified in cross-examination in that he conceded this was no more than a hypothesis. There was, therefore, little, if any, basis in the evidence for saying that the Appellant's PTSD in fact affected his general capacity for tolerance and self-restraint at the time of the killing.
59. However, the first, and insurmountable, hurdle faced by the Appellant was that, if and insofar as his PTSD did affect his general capacity for tolerance and self-restraint, that was irrelevant to the third component of the defence. In effect, the defence wished the judge to direct the jury to consider whether the hypothetical person of the defendant's age and sex, with a normal degree of tolerance and self-restraint, but who had contracted PTSD which reduced his general capacity for tolerance and self-restraint, would have acted as he did. As it seems to us, this is precisely the kind of consideration that Parliament expressly excluded at this stage. The hypothetical person is assumed to have a normal degree of tolerance and self-restraint. Accordingly, we are satisfied the judge properly resisted the defence's efforts to dilute the objective standard laid down in section 54(1)(c).
60. There is a second hurdle. There was undoubtedly a link between the deceased's alleged conduct and the Appellant's military service in Afghanistan. The insults were directed at the Appellant's military service and, if his account was true, he knew that he had suffered mentally as a result of his time in Afghanistan. His military service and its effects upon him were therefore relevant to the issue of the qualifying trigger. The judge accepted this and directed the jury to consider all of the evidence about the Appellant's background in deciding whether the Appellant's loss of self-control was attributable to things done or said which constituted circumstances of an extremely grave character, and caused the Appellant to have a justifiable sense of being seriously wronged.
61. He may not have used the "label" PTSD, but the judge directed the jury to assess the deceased's words and conduct (slapping about the head, using derogatory terms and accusing those who served in Afghanistan of improper motives and appalling conduct) against the background of the relationship between the Appellant and the deceased and the Appellant's personal circumstances. In dealing with the second component of the defence, he directed the jury in terms that in assessing the qualifying trigger they "must consider the defendant's personal history, in particular … his experiences in Afghanistan and how they affected him and his personality." No complaint is made about those directions.
62. When he turned to the third component, the judge directed the jury to consider "whether a man aged in his early 20s with a normal degree of tolerance and self-restraint placed in the same situation might have acted in the same or similar way as the defendant did…" At other points in the summing up the judge used the expressions "in his circumstances" and "placed in the same predicament" or "in the same situation". He did not repeat his summary of the evidence as to the Appellant's circumstances, but it was clear from his directions taken as a whole that the jury could take all the Appellant's relevant circumstances into account. Finally, he did not direct the jury, as he would have been entitled to do (as in Wilcocks), to ignore the PTSD insofar as it bore on his general capacity for tolerance and self-restraint.
63. Thus, the Appellant was given the benefit of the kind of direction he sought: the jury were directed to consider the components of the partial defence of loss of control in the context of a man who had served in Afghanistan, suffered as a result and then was taunted about his behaviour and motives.
64. In our view that was sufficient. Even if the judge had expressly directed the jury to bear in mind the condition of PTSD at every stage, as Mr Griffiths claims he should have done, we have no doubt the verdict would have been the same. The conviction is not unsafe and we dismiss the appeal.

R v Charice and Amberstasia Gassman

Prosecution case

65. On the morning of 12 May 2015, a heated argument took place between Charice Gassman and the deceased, Alison Connelly, about an incident the previous evening. Later Charice Gassman went into the local shop. She was followed by the deceased and one of her daughters, Kylie Heys. The deceased "flipped" and head-butted Charice. Charice said to the deceased, "You're fucked", before running off in the direction of her sister Amberstasia's house. She banged on the door, shouting, "Get the machete. I am going to fucking kill her". She took a knife and concealed it. Followed by her sister and another woman called Danielle, she headed for Kylie Heys' flat at Evelyn House, where the deceased was staying. She was overheard issuing a variety of threats to kill or murder Ms Connelly as she made her way there including, "I am going to nank (stab) some bitch". She did not want any witnesses for what she was about to do. Charice banged and kicked on Ms Heys' front door. Amberstasia shouted to the deceased to "get the fuck down here" and told Charice to wait until they came out. When the deceased did leave the flat, a fight ensued and Amberstasia warned Ms Connelly, "I wouldn't do that if I were you". She did nothing to stop her sister. Charice took the knife from her waistband and stabbed Ms Connelly once in the chest. Amberstasia hit the deceased on the back of the head and shouted, "That's what comes when you fuck with my family". As the sisters left the scene, she threatened, "If my sister goes down for this I will come back and get you." Shortly thereafter, the deceased died.
66. Both applicants were arrested and interviewed. Charice Gassman declined to answer any questions.
67. Dr. Sandford, a consultant forensic psychiatrist, interviewed Charice Gassman in October 2015. She was not suffering from any major mental illness, but she was suffering from a Cluster B personality disorder (which is similar to Emotionally Unstable Personality Disorder ("EUPD") but is a broader category). She had anti-social and emotionally unstable personality traits and, at the time of the killing, she had an abnormal mental state, i.e. an intense anger related to her personality.

Defence case

68. Charice Gassman told the jury she felt dizzy after the head-butting incident. She rang her father and asked him to take her to hospital. She then knocked hard on her sister's front door and was let in. She said that she did not remember much after this; she did not remember getting a knife from her sister's house or the journey back to Kylie's flat. The next thing she remembered was the deceased shouting, "She has stabbed me." She looked down and saw a knife in her hands.
69. She said that the day before the incident, her step-grandfather had died. He had sexually abused her between the ages of 13 and 16 and she had only ever told two people about the abuse, one of whom was Danielle, whom she had told the day before. She had been smoking cannabis daily since the age of 14 and it calmed her down and took away her angry feelings.
70. She said that she had seen medical professionals about her anger and that she had an issue with voices in her head.
71. Dr. Bradley, a consultant forensic psychiatrist, gave evidence that Charice Gassman was suffering from EUPD, which meant that she was unable to regulate her emotions and was abnormally sensitive. People who suffer from EUPD can become extremely distressed and angry, self-harm and take a long time to calm down. Sexual abuse is often a principal cause of the more extreme types of EUPD.
72. Charice also had a chronic cannabis dependency, part of which was related to the abuse she had suffered. In November 2014, she had seen a high intensity therapist who thought she was having periods of dissociation because she spoke of three different personalities. Transient psychotic symptoms and hearing voices were common with EUPD, but cannabis could also cause drug-induced psychosis.
73. In December 2014, Charice declared that she might kill if someone upset her and she was not using cannabis. She was told that she needed proper psychological treatment, but she failed to engage with the relevant bodies.
74. The doctor thought that the account given by Charice was genuine and that on 15 May 2015 she was suffering from "an abnormality of mental functioning and, in particular, a liability to outbursts of anger or violence with an inability to control the resulting behavioural explosion". Within the definition of EUPD was an impairment of ability to exercise self-control. This diagnosis provided an explanation for the killing.

Issues as left to the jury

75. The Judge handed down written directions and a route to verdict. He correctly identified that the burden of proof remained on the Crown and dealt with the elements required by section 54(1).
76. In relation to the third component considered above, the judge directed the jury to take into account all of Charice's circumstances, such as the death of her abusive step-grandfather, the break-up of her relationship with her boyfriend and the threat of eviction, but he expressly directed them to ignore the evidence that Charice was suffering from EUPD which may have made her less able to exercise tolerance and self-restraint than a person of her age and sex. This was because "Parliament required a jury to consider whether a person with a normal degree of tolerance and restraint might have acted in the same or similar way." The fact that she was prone to lose her temper, particularly when she had not taken cannabis, bore on her general capacity for self-control and was irrelevant on this issue.

Ground of Appeal against conviction

77. There is one ground of appeal against conviction, namely that the directions of the trial judge on the issue of loss of control were wrong in law.
78. Mr Adam Vaitilingam QC invited the court to conclude that, on the facts of this case, the diagnosis of EUPD was relevant to the third component of the defence because it affected the way she reacted to the death of her abuser. For a defendant suffering from EUPD, a traumatic event may be more distressing than it would be for a normal person, because she may become disproportionately emotional. This has nothing to do with her general capacity for tolerance and self-restraint, but relates to her ability to exercise self-control on the day in question. On the day she killed Ms Connelly, she was in a greatly distressed state. The jury should have been directed to consider the hypothetical person with a normal degree of tolerance and self-restraint, but in such a state.
79. He attempted to distinguish a "general" capacity for tolerance and self-restraint from the ability to exercise self-control in the face of particular circumstances. He accepted that, had it not been for the death of the step-grandfather the day before, the evidence of EUPD would not have been admissible at the third stage. If a defendant is by nature bad-tempered and easily provoked (particularly when she has not taken cannabis), that is her general capacity and, insofar as her mental condition makes her a generally bad tempered person, it is to be disregarded. It is not a "circumstance" for the purposes of section 54(1)(c). However, he insisted that the death of the step-grandfather makes all the difference. If a defendant kills while a particularly traumatic event has placed her in a distressed condition, the consequences of that event should be left to the jury as one of her "circumstances" in the way that Mr Vaitilingam understood Holroyde J had done in Wilcocks.
80. Mr Vaitilingam proposed a direction along these lines:

"Given the condition that you find Charice Gassmann was in that morning as a result of her grandfather/abuser's death, how might a person of her age and sex in that condition have reacted to the provocation had she had normal powers of tolerance and self-restraint?" Had such a direction been given, it was his contention that the jury might have decided that Charice Gassmann was in an abnormally distressed and emotional state that morning, far beyond what one might expect of someone whose grandfather/abuser had just died and that a woman in a similar state of distress might have reacted to the provocation in a similar way, even though that woman had normal powers of tolerance and self-restraint."

Conclusions on the application for leave to appeal conviction

81. Mr Vaitilingam's distinction was an ingenious one, but we have no doubt the judge was correct in the way he directed the jury. The only relevance of EUPD to Charice Gassmann's circumstances for the purposes of the third component was that it bore on her general capacity for tolerance and self-restraint. By its very definition, EUPD impairs a person's general ability to exercise self-control; as a result of her disorder, she overreacted to events, she lost her temper and she took a long time to calm down. Furthermore, the qualifying trigger was said to be the deceased's head-butt. Nothing was said or done which was directly referable to her mental condition, the sexual abuse she had suffered, the death of her grandfather or her withdrawal from cannabis. In those circumstances, we agree with Mr Mably that it is difficult to identify how it can be said that the condition of EUPD was relevant to the third component in any way other than her general capacity to react to events.
82. The result is not unduly harsh because, if her condition was as bad as the defence claimed, and if a combination of her illness and a series of events just before the killing provided an explanation for the killing, the appropriate partial defence for her was diminished responsibility. On one view that was the only appropriate defence for her and the judge and Mr Malcolm QC for the prosecution were overly generous to her in agreeing that loss of control should be left to the jury. Having decided the defence should be left, the judge directed the jury fully and fairly to take into account at each stage all of her circumstances, such as the death of her abusive grandfather, the breakdown of her relationship with her boyfriend and the threat of eviction. He only excluded the evidence of EUPD from their consideration in so far as it bore on her general capacity for tolerance and self-restraint. He thereby fully complied with the requirements of section 54(1)(a) to (c) and section 54(3). There is nothing unsafe about the conviction. We refuse leave.

Appeal against sentence

Sentencing hearing

83. Charice Gassman was aged 19 at the time of the sentencing hearing. She had three previous court appearances between 2011 and 2013 for three offences: common assault, inflicting grievous bodily harm and criminal damage. She had not previously served a custodial sentence.
84. Amberstasia Gassman was aged 23 at sentence. She had three previous court appearances between 2008 and 2014 for three offences: common assault, assaulting a police constable and resisting or obstructing a police constable. She had not previously served a custodial sentence.
85. The trial judge had a number of victim personal statements from members of Ms Connelly's family, setting out the devastating consequences of her death to them all, especially to the youngest of her eight children, her son aged 12.
86. He also had the benefit of a number of medical reports. We have already referred to those on Charice. There was a psychiatric report on Amberstasia setting out her history, which suggested that she too had experienced symptoms consistent with a diagnosis of EUPD. She was not suffering from a severe or enduring mental illness.
87. The judge described the applicants as involved in a joint enterprise that left Ms Connelly bleeding to death outside her daughter's home. Charice was intent on revenge and really serious harm when she armed herself with a knife and then headed off uttering threats to kill or murder. When confronted by Ms Connelly she killed her. At some point in their journey to Evelyn House, at the latest, Amberstasia realised that Charice had a knife and, having heard the threats, realised she might use it. She herself was intent on using violence towards the deceased as well as encouraging and backing up her sister. In the aftermath of the stabbing, when she may not have known that Ms Connelly was dying, Amberstasia was heard to shout, "That's what happens when you mess with my family."
88. Although Charice had written to the court to express her remorse, he had seen few signs of genuine remorse when giving evidence and he had detected a sense of anger and irritation. She was prone to act violently and unable to control her emotions. Her EUPD acted as some impairment but not a substantial impairment.
89. In relation to Charice, the judge took the normal starting point in paragraph 5A of schedule 21 to the Criminal Justice Act 2003 of 25 years' custody for the minimum term because she took a knife to the scene. He noted, as he did so, that had she been under 18 the starting point would have been 12 years. He decided not to add to the starting point to reflect the aggravating factors of premeditation and her previous convictions for offences of violence, but he did make a downward adjustment of 6 years to reflect her age and mitigation, namely her disorder, her cannabis dependence and the effects of withdrawal. She was sentenced to custody for life with a minimum term of 19 years.
90. In relation to Amberstasia Gassman, the judge bore in mind the contents of the psychiatric report and the fact that she too may have suffered from EUPD. He acknowledged she was still relatively young and her convictions for violence were limited. Balancing all the aggravating and mitigating factors and her role as he found it to be, he concluded that a sentence of 12 years' imprisonment was appropriate.

Ground of appeal against sentence for Charice Gassman

91. There is one ground of appeal for Charice Gassman, i.e. that the minimum term of 19 years was manifestly excessive. Mr Vaitilingam invited the court to find that in the light of her age, a degree of provocation (in the head-butt) and her mental disorder, the judge should have made a greater downward adjustment from the starting point of 25 years.

Ground of appeal against sentence for Amberstasia Gassman

92. Similarly, Amberstasia Gassman argues that her sentence of 12 years' imprisonment was manifestly excessive.
93. Mr Daymond for the applicant criticised the judge for failing to adjourn sentence for the preparation of a pre-sentence report ("PSR"). Such a report would have dealt with matters relevant to sentence other than the facts of the offence. It was his contention that a psychiatric report was not a substitute for a PSR; in effect it dealt only with the applicant having some traits of EUPD. In the light of this diagnosis a PSR was more important, rather than less so.
94. Mr Daymond also criticised the judge's approach to the factual basis for sentence. The judge was accused of going behind the jury's verdict based on his directions in the route to verdict. The judge suggested that "the jury had given (Amberstasia) the benefit of the doubt" as to her intent, but went on to sentence as if she did have the necessary intent for murder. He declared himself satisfied that by the time she reached Evelyn House she was aware that her sister had a knife and intended to cause at least really serious bodily harm to Ms Connelly. There was no proper evidential basis for the finding that Amberstasia knew her sister had a knife at any stage before the stabbing. Had the jury been satisfied she knew of the knife and of her sister's intent, they would have convicted of murder.
95. Finally, complaint was made that the judge placed insufficient weight on

i) the Appellant's age (23),

ii) the fact that she had no more than minor previous convictions,

iii) the fact that she had played no active physical or verbal part in the stabbing, and

iv) her mental disorder.

Conclusions on the applications for leave to appeal against sentence

Charice Gassman

96. We understand why Mr Vaitilingam applied for leave to appeal against sentence. A term of 19 years to serve before being considered for parole is a very long time for a young woman of nineteen.
97. However, the judge was obliged to take the starting point of 25 years for the minimum term, as Mr Vaitilingam conceded. There was here no reason to depart from the norm. The judge could have made an upward adjustment to reflect the aggravating factors but decided not to do so, rightly in our view.
98. There was some slight mitigation in the fact she had been head-butted by the deceased that morning, but we note, as the judge noted, she had plenty of time to calm down. There was a gap of over ten minutes between the incident in the shop and the stabbing, during which time she went to her sister's home, armed herself and then set off with the intent to kill or, at the very least, cause really serious bodily harm. Given the nature of her threats the judge would have been entitled to conclude she intended to kill.
99. Part of the reason she did not calm down was her EUPD and that too is a mitigating factor, but Charice Gassman knew full well the effect upon her of the disorder and that she may kill and refused to engage with the help offered to her. Had she done so, she may not have reacted to the head-butt in the way that she did.
100. We agree that a significant downward adjustment from the starting point was required for that mitigation, in particular her age. However, a reduction of 6 years (the equivalent of a 12 year determinate sentence) is a very significant reduction and, despite Mr Vaitilingam's eloquence, we remain unpersuaded that a 19 year minimum term was excessive. We give leave but dismiss the appeal.

Amberstasia Gassman

101. A full and careful Pre-Appeal Report including a risk assessment has been prepared for us. If there was an omission on the judge's part, it has been remedied. We have considered the contents with care and conclude that it does not assist the applicant in the way Mr Daymond had hoped. She is making progress in prison and is motivated to address her problems, but there have been two adjudications for violent behaviour. She is currently assessed as posing a high risk of serious harm to members of the public, especially to those she perceives as a threat to her family. She now regrets her actions, but still attempts to minimise and justify her past violent behaviour. The author of the report concluded that her involvement in the death of Ms Connelly was triggered by a combination of factors: by the fact her sister had been "disrespected and wronged", by her inability to control her anger generally (her EUPD) and by her heavy drug abuse at the time. She still disputes the extent of that involvement.
102. That brings us to the complaint about the judge's assessment of the factual basis for sentencing. A useful summary of the proper approach is contained in the judgment in R v King [2017] EWCA Crim 128. Sweeney J, giving the judgment of the court, said this at paragraph 31:

"In our view the correct approach by the judge, after a trial, to the determination of the factual basis upon which to pass sentence, is clear. If there is only one possible interpretation of a jury's verdict(s) then the judge must sentence on that basis. When there is more than one possible interpretation, then the judge must make up his own mind, to the criminal standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part) most favourable to the defendant."

103. We respectfully agree.
104. There was here more than one interpretation of the jury's verdict and it was for the judge to form his own conclusions on the evidence as to the factual basis for sentence, if he could properly do so. In our judgment, there was ample evidence to satisfy the judge so that he was sure that the applicant knew of the knife and Charice's intent and to reject any suggestion that Amberstasia thought they were going to Evelyn House for some innocent purpose. Charice had made her intent all too clear. It does not follow from the fact that Amberstasia was acquitted of murder that she did not know of the knife and of her sister's intent. It means simply that the jury was not satisfied she shared her sister's intent. Amberstasia was, therefore, a knowing party to an armed revenge mission, as the judge found, albeit not a party with the proven intent to kill or cause really serious bodily harm.
105. She is still a young woman and before this offence was relatively lightly convicted. She is also said to suffer from a personality disorder. These were all factors that the judge bore very much in mind, as reflected in his careful sentencing remarks. Bearing the aggravating and mitigating factors in mind, we are satisfied it is not arguable that the sentence of 12 years was excessive. We refuse leave.