England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 1 February 2017

LORD JUSTICE DAVIS:

Introduction

1. On 1st October 2015, after a trial at Bristol Crown Court before His Honour Judge Cottle and a jury, the appellant was convicted of murder. The only issue at the trial was one of diminished responsibility. As is not infrequently the position in cases of such a kind, the appellant gave no evidence himself at trial.
2. Expert evidence was adduced on behalf of the defence in support of the defence of diminished responsibility. Expert evidence had been adduced by the Crown to rebut such a defence. Plainly the jury were not persuaded by the defence expert evidence and preferred that of the Crown.
3. It is now said, however, that there was a material misdirection in the summing-up in consequence of which the conviction is unsafe. The asserted error relates to the judge's directions to the jury on one of the requirements relating to diminished responsibility as set out in section 2 of the Homicide Act 1957, as substituted by the Coroners and Justice Act 2009. It is said in particular that the judge misled the jury on the issue of the appellant's ability to form a rational judgment and in consequence erred to an extent that the conviction is unsafe. Leave was granted on the papers by the single judge.
4. Section 2 of the Homicide Act 1957, as substituted by the 2009 Act, followed an extensive investigation by the Law Commission and otherwise extensive debate. In its ultimate form section 2 is in these terms:

"2 Persons suffering from diminished responsibility.

(1) A person ('D') who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

(a) arose from a recognised medical condition

(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.

(1A) Those things are—

(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(c) to exercise self-control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.

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

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

(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it."

5. It may be noted that in a number of respects the section is so worded as to an extent to reflect some of the general observations of Lord Parker LCJ in the case of Byrne [1960] 2 QB 396. In particular, in describing abnormality of mind, Lord Parker had said this at page 403 of the report:

"It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment."

It should nevertheless be emphasised that the decision in that case was by reference to the previous provisions of section 2 of the 1957 Act and the current version of the section certainly has distinct differences.

6. In particular, as has on previous occasions been pointed out, the current section puts the emphasis very much on what are psychiatric issues relating to all aspects of the defence. Nevertheless the ultimate decision on the issues in a contested case at trial is one for the jury, which will include a judgment as to whether there is "substantial" impairment of a defendant's ability to do one or more of the three things specified in the section.
7. Because of the psychiatric tenor of the whole section, it has also been stated that an expert psychiatrist is free, if he so wishes, to express an opinion not only on all elements of the section but also on the ultimate issue: see Brennan [2015] 1 CrAppR 14. In the present case, the experts differed between themselves on that and on the reasoning for their respective conclusions as to whether or not there was diminished responsibility.

Facts

The background facts are these.

8. The appellant was born on 18th December 1995. He had a most difficult and troubled upbringing. There was, for example, a history of parental mental ill-health and alcoholism. Physical and emotional abuse was manifested in his upbringing from an early stage. He had to be taken into care. In due course he was assessed as having autism spectrum disorder (ASD) which could also be linked to Asperger's Syndrome. He has learning difficulties; and there was also a diagnosis of ADHD. From a relatively early age his behaviour has been marked by incidents of violence and also of inappropriate and highly sexualised behaviour, including amongst other things inappropriate touching and remarks, incidents of exposure and so on. In particular, in 2013 whilst he was at a special school, he seriously assaulted a female teacher (Miss Johnson) by seeking to strangle her before a colleague came to her rescue. He was later to say, whether truthfully or not was in issue, that he had wanted to have sex with her and as he knew that he could not have sex with a carer, he decided to kill her so that she would then cease to be a carer and he could then have sex with her. This incident ultimately resulted in a charge of an attempted section 18 offence, to which he pleaded guilty.
9. The primary facts relating to the killing in this particular case were not really in dispute. At the relevant time the appellant and the female victim, Melissa Mathieson (whom we will call "M"), were resident at a home called Alexandra House in Bristol. It was a special residential home for young sufferers of Asperger's Syndrome with appropriately trained specialist staff. M had a room on the top floor. The appellant's room was on the floor below.
10. In October 2014 M was complaining to staff that the appellant kept staring at her, waiting for her on the landing and showing other signs of obsessive interest in her. She complained that she felt intimidated and afraid. Other members of staff had also noted the appellant's apparent preoccupation with M and he was spoken to about it. Staff were told to be extra vigilant with regards to the two of them. From what the appellant was subsequently to say, he well knew that M had no interest in him, either sexual or otherwise.
11. On 12th October 2014 a support worker had noted the appellant constantly staring at M. That night M and the appellant went to their respective rooms. The appellant was instructed by a member of staff to lock his door on the inside, which he was heard to do. It seems that it was not M's usual practice to lock her own room and on this night in question she failed to do so. During that night staff heard a loud bang at around 11.30 pm. A member of staff went to investigate. M was lying on the landing of the top floor, by then at the very least unconscious. The appellant was standing nearby, even though his own room was one floor below. He was to say to the member of staff that M had "fallen". He then walked off looking agitated. Unsuccessful attempts were made to resuscitate M. Whilst all this was going on the appellant was heard to say that he would be "executed" because "that is what happens to murderers". At a later stage he went out onto the roof of the building and then jumped from it. He was found with a garden hose in his mouth. He was arrested. Scratches on his neck were noted.
12. Before any police interview, the appellant spoke at length to the general manager of Alexandra House. She formed the impression that he wanted to talk about what happened but was fearful of being recorded or of her telling the police. He told the manager that he had attacked M because he had been thinking about "it" for around two hours. He said that he then went to M's room and decided to do "it". He was to say that she looked peaceful lying in bed. He wondered "should I do it?" and then decided to go ahead and put his hands around her neck. She had tried to fight him off but he had persisted. Afterwards he tried to drag her to his room to "use her" but, in doing so, he then dropped her.
13. He was also to say to the manager that he hoped that M would not be able to recall what had happened as it would then "all be forgotten about". In the event, M died on 16th October 2014. The cause of death was attributed to strangulation.

The trial

14. As we have said, the appellant gave no evidence at trial himself; and the judge, entirely properly in the circumstances of a case such as this, expressly told the jury that they should not hold that against him. It was accepted that the appellant had killed M.
15. He had by this time been interviewed by four consultant psychiatrists. He had given each of them a somewhat different account of the events of that night and the judge in due course was to tell the jury to approach his accounts as given to the psychiatrists with caution.
16. In his explanations given to Dr Sandford, the appellant stated amongst other things that he had been up to M's room two times earlier that evening, that he had then left when challenged by her next door neighbour called Matthew and had returned to his own room on the floor below. The appellant said to Dr Sandford: "I went back and I sat and I waited. When I thought Matthew was asleep I went up to her room." When asked why he had done that by Dr Sandford, he said: "To have sex."
17. So far as the expert evidence was concerned, the defence called three expert psychiatric witnesses: Dr Rooprai, Dr Amos and Professor Fazel. The prosecution called Dr Sandford. Each expert had, as is of course the practice, provided a written report in advance of trial. Each gave extensive oral evidence. It is accepted that the judge fairly and accurately summarised that evidence in the course of his subsequent summing-up to the jury. The judge made clear both at the outset of his summing-up and thereafter that it was for the jury to resolve the issues arising as between the psychiatrists.
18. All the experts were agreed that the appellant was suffering from an abnormality of mental functioning which arose from a recognised mental condition, ASD. As summarised by the judge, the central areas of dispute were as to whether or not the abnormality of the mental functioning substantially (emphasis added) impaired the appellant's ability to form a rational judgment and/or to exercise self-control. Whether it was in causative terms a significant contributing factor was also in issue.
19. We perhaps should add that in the intervening period between trial and the hearing of this appeal the Supreme Court has handed down its decision in the case of Golds [2016] UKSC 61. In the light of the way the judge dealt with the matter in summing-up in this case, no further ground of appeal is sought to be added on the basis of the point discussed in Golds.
20. The judge had helpfully provided the jury with a written route to verdict document which he also took them through orally in his summing-up. He gave instructions on the law and on the elements of the defence under section 2 and then proceeded to summarise the evidence. So far as that evidence was concerned, Dr Rooprai was the first of the experts to give evidence. He fully recounted the appellant's lengthy background history and further gave an account of the events which the appellant had given to him, Dr Rooprai, of the night in question. Amongst other things Dr Rooprai has, as summarised, said this in the course of his evidence, and we quote from the summing-up:

"...

As to his sexualised behaviour, Dr Rooprai said that Jason's attitude to sexual relationships had been blurred by experiences, and he has deficits in understanding appropriate social norms. Dr Rooprai did not believe that the defendant could form a rational judgement in relation to the question of having a relationship. He said, 'In my view he was aware of the nature of his actions. However his deficits affected his ability to form a rational judgement and to exercise self-control. To form a rational judgement about an action, the person should be able to appraise the social, emotional and intellectual dimensions of an action.

'However, due to his ASD and mild learning disability, Jason suffers with deficits in all of these domains, which in turn would affect his ability to form a rational judgement. Additionally his lack of theory of mind, a very egocentric view of the world, ADHD and mild learning disability would all contribute to the impairment of his ability to exercise self-control.'

...

He said that Jason's desire was to have sex and he was unable to form a rational judgement as to how to go about that, in the right way. He could not understand what the normal way was to approach the question of having sex. He said that his actions might appear to have been planned and thought through, but they are not, because what Jason was seeking was the end result, namely sex, and so he was simply intent on achieving an end goal, which appeared rational to him."

21. In cross-examination, Dr Rooprai had accepted that the appellant knew what he was doing in strangling M:

"He wanted just one thing to happen and he understood the means to that end. He knew that he was not allowed to strangle her and that it would be wrong to do it."

Dr Rooprai further accepted that he was not saying that the appellant was unable to choose whether to strangle M or not; but he said that because of the appellant's "different ways of seeing the world, he does not have the ability to form a rational judgment ...".

22. At the end of Dr Rooprai's evidence, and it would appear at the suggestion of the judge, the jury put in a note raising questions which they had at that stage. The jury note reads as follows:

"Did he follow a rational decision taking process that led to an illogical or wrong outcome or was his decision taking irrational? What is the expert's view on this?

The Defendant appears to admit he knew it was wrong when at the scene. Did he comprehend, in the expert's view, that this was wrong when 'toing and froing' outside her room?

He appears to know right from wrong, for example, knowing he shouldn't enter her room. Why can he apprehend right from wrong on some things and not other things?"

The second and third questions are perceptive, easy to understand and plainly material to the case. The first question, with all respect, is rather less easy to understand on the face of it. For one thing it seems sharply to distinguish between a decision-making process on the one hand and an outcome on the other hand. Further it having used the word "illogical" when the focus perhaps more strictly needs to be on the word "irrational", then includes the alternative word "wrong", which may or may not be intended to have moral connotations. But at all events, that is one of the questions the jury asked; and the experts, including Dr Rooprai himself, gave answers as best they could dealing with that question as well as the other two questions. For example, Dr Rooprai was to say:

"In the defendant's mind he was taking a rational decision-making process which led to a wrong outcome."

What Dr Rooprai meant by "wrong outcome" does not appear to have been explained.

23. Dr Amos, called by the defence, also agreed that the appellant knew the difference between right and wrong. But Dr Amos said that did not mean that there was an ability to exercise a rational judgment. In the course of his evidence, as summed up by the judge, this was said by Dr Amos:

"Dr Amos said that Jason was clear that he went to Melissa's room to have sex with her. He had been thinking about it and was sexually attracted to her. He did not have a clear plan as to how he was going to achieve that end. When he got there he decided the best way was to strangle her to unconsciousness so that he could drag her to his room. He said if he could get her back to his room, he had no clear plan beyond having sex with her.

Dr Amos was asked why he had reached the conclusion that the defendant's ability to form a rational judgement was substantially impaired. He said that none of us know what the defendant was thinking, nor may he have done. Dr Amos' view is that the defendant wanted to have sex with Melissa and the only way he would be able to do that is if he killed her or rendered her unconscious, and this reflects the previous incident with Miss Johnson."

At a later stage, he said:

"Dr Amos said that attacking Melissa, Jason knew was wrong and bad but not how wrong. He understood the nature of his conduct. He wanted to have sex with her and knew that he had to incapacitate her. So the doctor was asked, in those circumstances why was that not a rational judgement? Dr Amos said that the defendant approached it from the standpoint that he wanted to have sex with her and the only way he could do that was by incapacitating her, and Dr Amos questioned the rationality of his judgement from the standpoint that defendant had not thought through the consequences."

24. When Professor Fazel gave evidence, he focused to a considerable extent on the issue of whether there was an ability to exercise self-control, a matter which had also been the subject of the expert evidence of the others. He also gave evidence to the effect that the appellant's desire to have sex with M overrode any other considerations and in effect, as he was to suggest, was "irresistible" to the appellant. Professor Fazel agreed that the appellant knew what he was doing and also knew that M did not want to have sex with the appellant. Professor Fazel also amongst other things accepted that the steps taken by the appellant were logical but not that the appellant's judgment was rational. Professor Fazel agreed, however, that the appellant had waited deliberately until the coast was clear and that could be styled as rational, and also agreed that there was planning in relation to events after the strangulation itself.
25. Dr Sandford, called by the prosecution, gave evidence to entirely contrary effect to that of the defence experts. He agreed and affirmed that the appellant knew what he was doing and knew that it was wrong. He said that what the appellant did was pursuant to a plan to suffocate M, get her to his room, have sex with her and then restore her to her own room. He noted that the overall incident had lasted on the appellant's account some 20 minutes or so. He said that what happened was not consistent with a loss of self-control. Amongst other things, Dr Sandford said this as summarised in the summing-up:

"'In my opinion' he said, 'there is no evidence to suggest that at the time of the offence he was suffering from a disturbed or abnormal mental state. By this I mean that although he had an abnormal sex drive and difficulty with social communication, he was not deluded, he was able to think rationally, he was not suffering from an abnormal mood state, such as extreme anger, depression or elation, and he was fully aware of what he was doing.

'Analysis of the offence shows that it was a planned, thought out and instrumental assault on a sleeping female who was known to him and who he had previously shown an abnormal interest in."

In dealing with questions raised by the jury note, Dr Sandford amongst other things said that there was nothing to suggest that the appellant was incapable of forming a rational judgment or incapable of exercising self-control. Dr Sandford's view in fact was to the effect that his background of ASD had little to do with what the appellant did that night. It was rather, according to Dr Sandford, a sexually motivated murder arising from his sexual psychopathic deviancy. Dr Sandford added that a person can take rational steps and yet reach a "wrong" decision. But that did not mean that such a person had not appreciated the circumstances. Amongst other things, as is set out in the summing-up, Dr Sandford had said this:

"'There is nothing to suggest that he was incapable of rational judgement. It is clear that he knew what he was doing was illegal and wrong. He planned to do it so that other people didn't see him. He had planned to conceal what he had done, this implies an ability to think things through, an awareness of his actions and a rational, if morally wrong, choice.'

In relation to the exercise of self-control Dr Sandford quoted from his report as follows, 'There is no evidence, in this case, to suggest that Jason lost control of himself, rather he was very much in control of himself. He waited for weeks. He chose his time. That night when unsuccessful in entering her room unseen, he came back and waited two more times. Whilst strangling her he checked her pulse to confirm that she was dead.'"

Later on, the judge said:

"Finally, Dr Sandford repeated that it was his opinion that Jason's primary motivation was sexual deviation. He had reached a considered decision. He had been thinking about it and his decision to attack Melissa was based on reason. The fact that the decision was bad or immoral does not make it irrational. The fact that he decided to kill Melissa in order to have sex with her does not make that decision irrational."

In the event, the jury unanimously convicted after they had retired and deliberated.

Submissions and Discussion

26. On the face of it this was entirely a matter for the jury's assessment of the competing psychiatric evidence by reference to the facts and circumstances of the case. But the complaint made on this appeal is as to the way the judge summed up to the jury in a passage towards the beginning of the summing-up when the judge was dealing with the concept of ability to form a rational judgment as appearing in section 2 of the 1957 Act, as substituted.
27. What the judge had said was this:

"What does 'rational judgement' mean, and how do you apply its meaning to the circumstances of this case? The expression 'rational judgement' has not been defined by the Act of Parliament that creates the defence of diminished responsibility, nor is it an expression used by psychiatrists. Accordingly you should apply the English language definition of the expression, namely 'a considered decision based on reason'."

Pausing there, thus far no complaint is made. But complaint is directed at the immediately following passage which is in these terms:

"In applying the expression 'rational judgement' to this case you are not asking yourselves whether the outcome of the defendant's thought processes was rational, namely the killing of Melissa, so that he could have sex with her, on any view that was an irrational outcome, you must ask yourselves whether the thought processes that led to that outcome were rational. You must concentrate on the process and not the outcome of that process.

So the question is, has the defendant established that it is more probable than not that his ability, either to form a rational judgement or to exercise self-control, was substantially impaired?... "

Mr Richard Smith QC for the appellant argues that this was a significant misdirection impacting on the jury's overall assessment of whether the appellant's ability to do one or more of the specified things was "substantially impaired". In his written grounds he had submitted that the language of the section refers to the "ability to form a rational judgment": not an ability rationally to form a judgment. In his written arguments he further suggested that might be significant, although to a considerable extent he somewhat downplayed that in his oral argument before us this morning. At all events, by reference to his written argument he submits that the former approach, which he said was the correct approach, requires some rationality to the final judgment itself. He submits that the latter approach, which he says is an incorrect approach, could, he said, connote a series of rational decisions or steps which nevertheless gave rise to an irrational conclusion. Moreover, he pointed out that the wording of the relevant subsection is to an extent open-ended. The ability is to form a rational judgment: not for example, as he goes on to say, an ability to form a judgment as to whether the act is or is not morally wrong.

28. With respect, much of this is, in our judgment, over-refined: as indeed, with all respect to the first question in the jury note, were some of the points there sought to be raised perhaps over-refined. As we have already indicated, quite what is meant in that jury note by an "illogical or wrong outcome" is rather hard to identify. A wrong judgment or outcome is by no means the same as an irrational one in all cases.
29. In this particular case, as we see it, the actual decision of the appellant to strangle M need not necessarily be assessed as illogical or irrational. On the contrary, on one view of the evidence, and as Dr Sandford was himself saying, it was rational even though undoubtedly morally wrong: as being precisely what the appellant had deliberately planned to do, by physically overpowering M so that he could then have sex with her.
30. In truth, as it seems to us, one cannot always neatly separate the "decision-making process" (in the jury's phrase) from the actual ultimate decision: although of course it can be accepted that a jury may need, as part of its overall consideration, to consider how it was that in the particular defendant's mind the decision was arrived at. There may be cases where an entirely "irrational" decision may be taken: for example, to kill one's neighbour because of a fixed belief that he is an alien from Mars intent on blowing up innocent people in the village. But that decision and the motivation for it may then be accompanied, in terms of giving effect to the decision, by ostensibly logical and rational decisions with a view to carrying out the intended killing: for example by buying a knife, by waiting for the neighbour to be at home alone and so on.
31. There are a number of examples of the potential reach of the section where such a scenario may (we do not say would: it will all depend on the circumstances of the particular case and the assessment of those circumstances) give rise to a valid defence of diminished responsibility. Some interesting potential examples are given in paragraph 5.121 of the Law Commission Paper Number 304 of 2006 on Murder, Manslaughter and Infanticide which preceded the 2009 Act and to which Mr Vaitilingham QC for the respondent helpfully drew our attention.
32. Clearly a jury in a case where diminished responsibility is raised has to assess the position in the light of the expert psychiatric evidence by reference to the abnormality of the mental functioning of the defendant at the time of the killing. But in making that assessment the jury's consideration is by no means necessarily confined to just that point of time. The jury may properly assess all relevant circumstances preceding, and perhaps preceding over a very long period, the killing as well as any relevant circumstances following the killing. The section imports amongst other things a consideration of the extent of the abnormality of functioning and its impact, substantial or otherwise, on doing the specified things. That in turn is likely in an appropriate case to involve an appraisal of the impact of any abnormality of mental functioning both on a defendant's decision-making generally and also on the particular decision to kill the victim specifically.
33. In his written arguments, Mr Vaitilingham had submitted, basing himself on the decision in Byrne, that the words in section 2 concerning the ability "to form a rational judgment" meant an ability to form a rational judgment as to whether an act is right or wrong. We have little doubt that in a usual case that will be one element - and potentially an important element - on which a jury's appraisal may be directed as part of the overall circumstances. But the Act, as amended, is not in terms confined to such a scenario. The wording is altogether more open-ended. We do not think that the section is to be restricted or glossed in this particular way as Mr Vaitilingham had suggested in his written arguments; and it is right to say that he did not further pursue the point in his oral argument before us today.
34. We should also refer to another point made by Mr Vaitilingham in his written arguments which again he has not pursued. In the course of his respondent's notice, he had suggested that no outcome that involves the killing of another person could be considered rational, absent self-defence or other lawful justification. Put like that, that is simply not sustainable as a general proposition; nor does it reflect the wording of the section. On the contrary, it is regrettably the case that many killings as an outcome, although obviously "wrong", are all too "rational": whether it be, for instance, in the form of a killing of a disliked wife in order to inherit her money or the gangland execution of a rival whose competition has proved unwelcome, and so on.
35. All that said, we revert to the judge's summing-up in this particular case. By his instruction to the jury he had in effect told them that the "outcome" need not be part of their deliberations. It has to be said that there is imprecision here in the judge's use of the word "outcome". On one view the outcome is simply the death of M. Another way perhaps of putting it is that the outcome is the act of killing M: which is not to be equated simply with her death. But the judge in fact added a yet further element, to the effect that the outcome was the killing of M "so that he could have sex with her": which is hardly just an outcome but also an additional statement of what the appellant's motivation and intention was. But be that as it may, the judge having so stated, he then went on to say that "on any view" this was an irrational "outcome": and the jury were therefore to focus on the appellant's thought processes that had led to that outcome.
36. It is that aspect which Mr Smith challenges on behalf of the appellant. He says that the judge had wrongly separated out the decision-making process from the outcome whereas the jury should have been invited to look at the position as a whole. This, it has to be said, is rather contrary to the way he had put it in his written argument. That, however, is the argument presented before us orally today.
37. It may be said that the way in which the judge dealt with this point in this passage was in fact contrary to the evidence of Dr Sandford called by the prosecution: that evidence of course being a matter for the jury. Dr Sandford's evidence was that the outcome (in the sense of the killing of M), and the process by which that outcome was reached in terms of the appellant's thinking, was rational. As it seems to us, while of course any jury will need in the light of the available psychiatric evidence to assess a defendant's thinking processes in the context of assessing his ability to form a rational judgment, it is likely to be over-refined to divorce that consideration relating to a defendant's thinking processes from the actual outcome. Indeed, in some cases it may actually be extremely difficult to separate out the thought processes on the one hand from the "outcome" on the other hand. In some cases it may well be that the two may be entirely enmeshed. In our view, there is a potential danger in a direction such as this straying beyond what is actually stated in section 2 itself. The elements of section 2 should so far as possible not be glossed in a summing-up to the jury.
38. We do appreciate that a summing-up in each case of diminished responsibility of course has to be moulded to the circumstances of that case and to the psychiatric evidence given. Moreover, it does seem that the first question raised by the jury note may have been allowed to acquire a particular importance for the purposes of this particular trial. Nevertheless, the aim in a summing-up in cases of this kind should, in terms of the legal directions, be to focus on the actual provisions of the section without undue elaboration. Thereafter the aim of the summing-up should be to marshal the evidence of the expert witnesses as given at trial to the provisions of the section and the issues arising thereunder.
39. All that said, it can in the result be seen that the judge's summing-up in this particular passage, so far from being adverse to the defence was positively helpful to it. By it the jury were left with an instruction that the outcome here was "irrational" - although that was not Dr Sandford's evidence as adduced by the prosecution and indeed was not in all respects even the defence evidence. But that instruction by the judge could only have favoured the defence: who, after all, overall were seeking to demonstrate irrationality. Nevertheless, notwithstanding that particular indication by the judge, favourable to the defence, the jury, as it was entitled to do on an appraisal of all the evidence, convicted.
40. We should also add that we do not, contrary to a further submission of Mr Smith, accept that the judge's choice of words in this passage and his instruction that the outcome was on any view an irrational outcome, devalued in the eyes of the jury the sense of the word "rational" as used in section 2. If one reads the summing-up as a whole, that could not possibly have been the impression conveyed. There was no devaluation, as it were, of the word "rational."
41. Ultimately, the issue here depended on the jury's appraisal of the expert evidence. To the extent that the judge misstated the position in the passage we have cited, such misstatement could have had no material impact on the outcome adverse to the defence. As Mr Smith fairly and rightly accepted, the summing-up has to be read as a whole. Reading the summing-up as a whole, the issues were fully set out and were fully marshalled against the evidence of the respective expert witnesses. The summing-up in crystal clear terms contained a commendably concise, as well as fair and balanced, exposition by way of summary of the expert evidence set against the issues arising. Looking at the matter overall, we think that the jury were fully entitled to conclude as they did. They were not materially misdirected in any sense. It is plain that the jury must have accepted Dr Sandford's evidence in preference to the evidence adduced on behalf of the defence and, having accepted that evidence, properly rejected the defence of diminished responsibility.

Conclusion

42. In such circumstances, this appeal is dismissed.
43. We only add that the appellant was 18 at the time and we apprehend that, by reference to the provisions of section 93 of the Powers of Criminal Courts (Sentencing) Act 2000, the sentence should have been and should be expressed as one of custody for life.