Court of Appeal in Northern Ireland Decisions

               

Neutral Citation no.[2001] NICA 44	Ref:	CARC3499
Judgment: approved by the Court for handing down	Delivered:	05.10.2001
(subject to editorial corrections)

 

  IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND   _____   THE QUEEN   V   LIAM JOHN McBRIDE   _____  

CARSWELL LCJ

 

Introduction

            This is an application for leave to appeal against the applicant's conviction at Belfast Crown Court on 23 March 2000 of the murder of Sally Diver after a trial before Sheil J and a jury.  He was charged on twelve counts with a series of offences.  He pleaded guilty to six charges, was found guilty on three, including the murder charge, and was found not guilty on the remaining three.  The verdict of guilty on the murder charge was by a majority.  He was sentenced to imprisonment for life on the murder charge and to determinate terms on the other charges of which he was guilty.  Leave to appeal was refused by the single judge.  By his notice of appeal the applicant appealed against conviction in general terms, but the argument at the hearing before us was directed essentially towards the conviction for murder.

 

The Factual Background

            Mrs Sally Diver was stabbed to death by the applicant Liam John McBride in the early morning of 28 July 1998 in her house at 81 Antrim Road, Belfast, sustaining some 26 stab wounds.  The defence put forward on behalf of McBride was one of diminished responsibility.  The major ground of his case on appeal was that the judge did not direct the jury properly on the issue of that defence.  It was also argued that the verdict should be set aside because one of the jurors was biased and because the sitting at which the jury brought in its verdict went on until too late an hour and the trial judge did not direct the jury correctly on taking a majority verdict.

McBride was born on 20 December 1974 and was aged 23 years at the time of the major incident in the case on 28 July 1998.  He had a disturbed childhood and, according to the medical evidence, which we shall discuss later in more detail, demonstrated a pattern of conduct disorder which became in adult life a severe personality disorder.  He indulged in solvent abuse as a child and young person, then commenced to abuse alcohol, to an extent which satisfied the diagnostic criteria for alcohol dependence.

            He commenced a relationship with Lynsey Diver late in 1996.  Lynsey then lived with her mother Sally Diver and two of her sisters Tammy Leigh and Shiree in the family home 81 Antrim Road, Belfast, but she and McBride moved into a flat in Cliftonville Avenue.  Lynsey already had a child by another relationship.  She became pregnant again and their son Caolan was born in October 1997.  In March 1998 they were evicted from their flat for non-payment of rent and Lynsey and her children returned to live with her mother.  Strains developed in the family and relations between McBride and Sally Diver became very hostile. 

            There appear to have been various incidents between McBride and Lynsey and her family, but three in particular became the subject of charges in the indictment.  The first occurred on 27 April 1998, when an argument developed late at night in a club between McBride, Lynsey and Tammy Leigh Diver, in the course of which he assaulted Tammy Leigh.  He was charged with and found guilty of this assault on count 10 of the indictment, but not guilty of a second assault the same night charged on count 11.  He went to 81 Antrim Road and demanded access to his son.  In the course of an altercation he committed an assault on Sally Diver, in the course of which he punched her in the face and twice seized her by the throat and squeezed it hard.  This assault was the subject of count 6 on the indictment, of which he was also found guilty.  He was also charged on count 8 with an assault the same evening on Nicola Harrison, but the jury found him not guilty on that count.  McBride took the child to his mother's house, but was later arrested for the assaults.  The magistrates' court subsequently made exclusion orders requiring him to stay away from the house at 81 Antrim Road where Lynsey and the child resided and not to molest them.

            On 10 May 1998 McBride met Lynsey Diver by arrangement on Antrim Road, Belfast, in order to allow him to take their child for a time.  He had been drinking and quarrelled with Lynsey.  He struck her on the forehead with a bottle, inflicting a cut in the skin, and kicked her, causing bruising.  On 12 May he again encountered Lynsey on Antrim Road.  A dispute developed between them and he punched and kicked her.  She complained to the police and he was arrested.  He pleaded guilty to these assaults, charged on counts 7 and 9 of the indictment.

            It appears that McBride was granted bail in respect of these charges but subsequently was detained in prison for failure to observe the exclusion orders.  It was established that while in prison he wrote several letters to Lynsey and telephoned her, asking her to withdraw the charges of assault on her, but she did not do so. 

McBride was granted compassionate bail for a number of hours to attend his brother's wedding on Saturday 25 July 1998.  He was upset by being told that Lynsey was seeing another man.  He was allowed by Lynsey to take their son to the wedding reception, but was further distressed when Sally and Tammy Leigh Diver arrived with police officers at the reception to take the child home.  At the wedding reception he got drunk and decided not to return to prison that night.  The next day, Sunday 26 July, he spent drinking and failed to return to prison.  On Monday 27 July he bought some clothing for his son in Belfast, then met his father in the late afternoon.  He told Dr Browne that he had his first drink that day at about 5.30 or 6 pm.  During the evening he then consumed quite a substantial quantity of alcohol. 

            Somewhere about 5 am the following morning he approached the Diver house at 81 Antrim Road, bringing with him two pairs of handcuffs and a roll of broad sticky tape.  He entered through a back window and took from a drawer in the kitchen a knife which he had previously used in his work at a meat plant and which he knew he would find there.  He made his way quietly upstairs, ascertaining en route that Sally Diver and Tammy Leigh's boyfriend Andrew Mercer were in bed asleep.  He went into the bedroom where Lynsey and her children slept and woke her up.  He threatened to stick the knife in her if she made a noise.  He handcuffed her hands behind her back.  He accused her of going out with another man and searched her handbag to see if her contraceptive pills had been used.  He then wound a strip of tape over her mouth and round her head.  He went into Tammy Leigh's room and handcuffed and gagged her in similar fashion.  Then he returned to Lynsey's room for a short time before proceeding downstairs, saying, according to her account, that he was going down to "do" her mother now.  In his evidence McBride denied saying this and stated that he had heard movement downstairs and wished to get out of the house.

            McBride deposed that he was running through the hall when the living room door opened and he saw Sally Diver putting the telephone down.  According to him she said "Birdie, I'm sorry" (Birdie was his nickname) and Lynsey and Tammy Leigh said that they heard her shout "Don't, Birdie".  McBride professed, perhaps correctly, to have no subsequent recollection of his attack on Sally Diver, but it is clear that he stabbed her with the knife which he was carrying and inflicted multiple stab wounds to the chest and upper abdomen, affecting the front, right side and back of the body.  Death would have been rapid.  Andrew Mercer came on the scene and tackled McBride.  A fight took place, in the course of which Mercer sustained stab wounds.  The attack on him was the subject of count 2, but the jury found McBride not guilty of attempted murder on that count.  He made his escape from the house, kicking in a glass panel to do so.  He swallowed a large number of tablets in a nearby garden, but vomited them up.  Shortly afterwards he was arrested near the top of New Lodge Road.

            McBride's precise motives and intention are difficult to fathom, and may well have been mixed or confused.  He had passed Sally Diver's room, having seen her asleep, which may support his assertion that he did not set out to attack her.  He averred to the medical examiners and in his evidence that he wanted to frighten the Diver sisters into withdrawing their complaints against him.  Exactly how he proposed to do that he did not specify.  The sequence of events gives some support to the proposition that his attack on Sally Diver was an unpremeditated reaction to finding that she had been using the telephone to send for the police, although his assault went far beyond what would have been required to prevent her from pursuing a summons to the police and savoured of a murderous frenzy.  

Bias

                    The first ground of appeal argued on behalf of the applicant was that of bias on the part of a juror.  We were informed by defence counsel that subsequent to the trial it was ascertained that one of the jurors was a retired bank manager whose adult son was killed by stabbing in 1996, and that police inquiries had not resulted in a prosecution.  Crown counsel did not dispute the correctness of this information or object to its being received by the court.  It was suggested that this created a suspicion of bias sufficient to invalidate the verdict.  We do not wish in this judgment to attempt to define the limits within which an appellate court should be prepared to admit evidence about tendencies in individual jurors which may have affected their impartiality.  Much may depend on the nature of the facts ascertained and the manner in which it comes to the notice of the parties or the court, but we consider that in general the court should be cautious about admitting such evidence or entertaining challenges of this nature after the conclusion of a trial.  Although we did not have formal evidence before us on this issue no objection was taken by the Crown to our considering the point on the facts stated, and in view of our conclusion on its merits we are willing to express an opinion on it.

            The test to be applied to a suggestion of bias was established in R v Gough [1993] AC as being that of real danger of bias.  Lord Goff said at page 670 that he preferred to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability.  In R v West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 at 151 Simon Brown LJ deduced a number of propositions from the speeches in R v Gough, the first four of which were:

"(1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts.

 

(2)  It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court.  What may appear at the leave stage to be a strong case of 'justice [not] manifestly and undoubtedly be[ing] seen to be done', may, following the court's investigation, nevertheless fail.  Or, of course, although perhaps less probably, the case may have become stronger.

 

(3)  In reaching its conclusion the court 'personifies the reasonable man'.

 

(4)  The question upon which the court must reach its own factual conclusion is this:  is there a real danger of injustice having occurred as a result of bias?  By 'real' is meant not without substance.  A real danger clearly involves more than a minimal risk, less the probability.  One could, I think, as well speak of a real risk or a real possibility."

 

            Counsel for the applicant drew to our attention the decision in DPP v Tobin (2001, unreported), in which the Irish Court of Criminal Appeal set aside a verdict of guilty in a case of rape and indecent assault on the ground of possible bias.  The jury returned to court after deliberating for over two hours and informed the judge that they were concerned as a body because one juror had related personal experience of sexual abuse.  The juror was not identified and no further particulars of that juror's experience were given.  The court applied a test similar to that contained in R v Gough and held at page 13 of its judgment:

"The central facts are the simple ones that the appellant was on trial for extremely serious offences which must have been sufficiently similar to the experience of the juror to cause him or her to bring the matter up.  In that situation, the Court considers that in the special circumstances of this case a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that the juror might have been unconsciously influenced by his or her personal experience and, for that reason the appellant might not receive a fair trial.  Moreover, even jurors without similar experience of sexual abuse might well be influenced by sympathy for a fellow juror who had suffered, at the hands of another, the type of abuse with which the accused was charged.  This is not to say that such considerations would apply to the trial of every type of offence where a juror had undergone a similar ordeal.  It is enough to say that assumed abuse is in a special category.  Nor does it follow that subsequent discovery that a juror had had an experience of that kind would warrant quashing the conviction.  The issue in this case was explicitly raised by the jury which expressed its concern."

 

            The present case can be distinguished in a number of respects from DPP v Tobin.  The nature of the juror's experience is less directly personal, contains fewer similarities to the case before the jury and relates to a field in which the risk of prejudice or bias is smaller than in sexual cases.  The juror in R v Tobin had clearly discussed his or her experiences, to some extent at least, with the other jurors, whereas there is no evidence that the juror in the present case had communicated to his colleagues what had happened to his son.  Moreover, the jury acquitted the applicant of the attempted murder by stabbing of Andrew Mercer, which gives some indication that they were not overborne by prejudice to convict on that count.  There are also substantial differences between the present case and the situations which arose in the other Irish case cited to us, The People (Attorney General) v Singer [1975] IR 408, and the American decisions in Dyer v Calderon (1998) 151 F. 3d 970 and USA v Gonzalez (2000).

Applying the test in R v Gough, we do not consider that there was a real danger of bias on the part of the juror in question.  Nor do we consider that there is a real danger that other members of the jury could have been influenced by him in a manner which would be adverse to the accused.

Majority Verdict Direction and Sitting Hours

            The second ground of appeal on which the applicant relied concerned the content of the judge's direction to the jury on bringing in a majority verdict and the hour to which they were allowed to sit on 22 March 2000, the day on which they gave their verdict.  The judge commenced his summing up at 10.35 am that morning.  The court rose for lunch between 12.45 and 1.30 pm, and the judge concluded his summing a few minutes later.  In the course of the summing up he had given the jury quite full information about the possibility that they might bring in a majority verdict in due course, although he properly directed them that their first aim must be to bring in a unanimous verdict.  The jury retired at 1.47 pm.  There were no requisitions.

            At or about 4.48 pm the judge sent for the jury and they were asked in respect of each count if they had reached a verdict on which they were all agreed.  On the first and second counts the foreman replied No, and on the other counts she replied Yes and gave the verdict on each of these counts.  The judge asked if there was any prospect of their agreeing on a unanimous verdict on the first two counts or if they were hopelessly divided.  The foreman replied "I think we are hopelessly divided at the moment".  The judge asked the jury to retire and entered into a discussion with counsel, indicating that he proposed to give them a short time, then bring them back to give them a majority verdict direction.  The defendant's counsel (who did not appear on the appeal) expressed concern about the lateness of the hour.  An extended discussion then took place between the judge and counsel about the course to be taken.    Defence counsel stated that he would be concerned "that such an issue be forced" after a retirement of three hours in a difficult case and at that hour of the day.  Prosecuting counsel asked the judge to consider the possibility of asking the jury whether they felt that a further period of reflection on the following day might bring them to a conclusion about the case.  The judge concluded that he thought it best to ask the jury if they had reached a majority verdict, and if they were hopelessly divided then he would discharge them rather than send them away overnight.

            The jury were then brought back into court.  The time is not stated in the transcript, but it could only have been a very few minutes after they had given the unanimous verdicts.  They were asked if they had reached a verdict on count 1 on which at least ten had agreed, and the foreman answered Yes, the verdict being Guilty of murder.  The same question was asked in respect of count 2 and again the answer was Yes, the verdict being Not Guilty.  The number who agreed on the verdict on count 1 was stated to be ten.  The jury were then discharged and after a brief exchange with counsel the judge rose at 5.10 pm. 

             Mr Treacy's contention was that the judge failed to comply with the English Practice Direction [1967] 3 All ER 137, issued following the enactment of the Criminal Justice Act 1967.  He submitted that when he sent for the jury after their retirement at about 5 pm he should have given them a majority verdict direction and sent them away again to see if they could reach a unanimous verdict.  It has consistently been held, however, both in this court and in England, that the 1967 Practice Direction is purely directory and only the terms of the legislation (in this jurisdiction the Criminal Procedure (Majority Verdicts) Act (Northern Ireland) 1971) are mandatory: see R v Deegan [1987] NI 359 at 364-5 and the cases cited there.  Specifically, Lord Lowry LCJ stated at page 366 that when the jury have stated (after deliberation for a sufficient length of time) that they are not unanimous, the judge is not obliged to send them away to try to reach a unanimous verdict.  There is accordingly no substance in this point.

             It is a necessary component of a fair trial that jurors should not be required or permitted to sit for such long hours that their quality of concentration and decision may be impaired, particularly in a long or complex case.  It is equally important that they should not be put under any pressure to complete their deliberations and bring in a verdict.  It was submitted on behalf of the applicant that the majority verdicts should not have been taken after such a long day, or that at the least the judge should have inquired if they felt fresh enough to continue, would like refreshment or would prefer to continue their deliberations the following morning. 

            There are no hard and fast rules about the hour at which a court should adjourn or the maximum length of sitting which is justifiable.  Indeed, a generation ago it was not uncommon for courts and juries to sit for hours in criminal cases which would not now be considered desirable.  In more recent times it was stated by Lord Lane CJ in R v Sutton and Moore (1978, unreported) that 10 o'clock at night was far too late for a jury to be reaching a conclusion.  There are decided cases concerning coroners' inquests which may afford some guidance, but as the facts are so different from the present case that is necessarily limited.  In Re Bradley's Application [1995] NI 192 the verdict of a coroner's jury was set aside when the sitting day had extended (at the jury's request) for twelve hours from 10.30 am until the verdict was brought in at 10.25 pm.  The same conclusion was reached in R v HM Coroner for the City of London, ex parte Calvi (1983) The Times, 2 April, where the sitting extended for some twelve hours.  In R v Southwark Coroner, ex parte Hicks [1987] 2 All ER 140 a coroner's inquisition was quashed where he had held a continuous sitting with a jury for six hours without a break for rest or refreshment.

            We do not consider that the verdicts should be set aside on this ground.  There was no sign from the jury that they felt tired or under any pressure, nor did the judge say anything to them which could be construed as pressing them to reach a verdict.  The judge was clearly alert to the necessity in the interests of justice that they should not be asked to remain to deliberate for too long a period.  The jury had completed their task by just after 5 pm, and on the facts of the case we do not consider that it has been established that there is a significant risk that the verdicts were unsafe.

Diminished Responsibility

             It was contended on behalf of the applicant that the judge had not given an adequate direction to the jury on the issue of diminished responsibility.  The governing law is contained in section 5(1) of the Criminal Justice Act (Northern Ireland) 1966:

"5.-(1)  Where a person charged with murder has killed or was a party to the killing of another, and it appears to the jury that he was suffering from mental abnormality which substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing, the jury shall find him not guilty of murder but shall find him guilty (whether as principal or accessory) of manslaughter."

 

            The judge defined diminished responsibility in the earlier part of his judgment by reading the wording of section 5(1) and directing them that the onus of proof on this issue is on the defence to prove on the balance of probabilities that the accused was suffering from mental abnormality of the requisite kind.  He then proceeded (page 486):

"Mental abnormality means an abnormality of mind which arises from a condition of arrests or retarded development of mind or any inherent causes or is induced by disease or injury.  Diminished responsibility, therefore, has three elements.  Firstly, an abnormality of the mind.  Secondly, it must arise from a condition of arrested or retarded development of mind or from any inherent causes or which is induced by disease or injury.  And, thirdly, which substantially impairs the defendant's mental responsibility for his acts in doing the killing.

 

Now, if I may return for a moment just to the second element.  You will recollect the first element is abnormality of mind.  The second element, and I will delete the parts that aren't relevant to this case, because you will appreciate some of the clauses in the Act which might cover other cases are not relevant to this case.

 

In this case the defence is that that abnormality of mind arises from a condition of retarded development, you recollect the evidence in relation to that, to retarded development of the mind or from any inherent causes, but there's no suggestion in this case that it was caused by disease or injury as such.  And, as I say, it must substantially impair the defendant's mental responsibility for his acts in doing the killing.

 

As to the first of those three elements abnormality of mind, by mind I include perception, understanding, judgment and will.  As to the second element, although the medical evidence which you have heard both for the prosecution and for the defence is important, consider not only the medical evidence, but the evidence as to the whole facts and circumstances of the case, including the nature of the killing, the conduct of the defendant before, at the time of, and after it, and any history of mental abnormality.  You must approach this question in a broad commonsense way.  As to the third element, that the abnormality of mind [is] substantially impaired the defendant's mental responsibility for his acts, approach the word `substantially' also in a broad commonsense way.  It means more than some trivial degree of impairment which does not make any real or appreciable difference to a person's ability to control himself.  However, it does not have to be

total impairment.  Where medical experts differ, as they do in this case, it is for you alone to resolve that issue."

 

            Later in his judgment the judge set out the medical evidence in some detail and it was not suggested that this summary was anything but careful and accurate.  Before we deal with the criticisms advanced of his directions, it is necessary to examine as briefly as we can the essence of that medical evidence.

             The defence called in support of their case Professor GW Fenton, a consultant neuro-psychiatrist and Emeritus Professor of Psychiatry in Dundee University.  Professor Fenton gave a detailed description of McBride's severe childhood behaviour problems and his own account of the events the subject of the charges.  There was no evidence of delusional thinking, serious psychotic illness or severe depressive disorder.  In his opinion McBride suffered in childhood from a serious psychiatric condition termed severe conduct disorder.  He was addicted to glue sniffing, from which he turned in adult life to alcohol abuse.  He had become addicted to alcohol, suffering from an alcohol dependence syndrome.  His body was dependent on alcohol, so that it would react adversely when he stopped taking it.  His psychiatric condition progressed to a syndrome known as severe personality disorder.  That syndrome was recognised as a mental disorder under the International Classification of Diseases.  Professor Fenton expressed the opinion that this mental disorder constituted an abnormality of mind which was likely to have substantially impaired his mental responsibility at the time of the killing.  He stated in evidence (16 March, page 16):

 

"Someone with this type of severe personality disorder has great difficulty in controlling their feelings and impulses and therefore may suddenly explode in this uncontrollable, frenzied way."

 

            Professor Fenton then went on to say:

"The alcohol dependence could have contributed to have [sic] problems because alcohol, itself, is no justification for – no excuse for carrying out offences (as we know) but someone who becomes addicted has difficulty in stopping and, therefore, has to keep on taking the alcohol, topping themselves up, because their brain has changed in a way that they can't do without alcohol.  So in a sense it becomes an illness, a disease of the brain due to the fact that the alcohol alters how the brain functions, and the brain can't do without it."

 

At that point prosecuting counsel objected, in the absence of the jury, that the case had not thitherto been made that McBride's mental responsibility was diminished because of his alcohol dependency.  In the course of the discussion which followed defence counsel stated that he was not making the case that alcoholism as a disease in itself was a mental abnormality which substantially impaired McBride's responsibility for his acts.  Rather he sought to establish that a person with a severe personality disorder had reduced control over his impulses and alcohol added another disinhibiting agent, so that it increased the risk of this sort of explosive behaviour.  The jury was then recalled and Professor Fenton gave his opinion in similar terms (16 March, page 24):

" … somebody with a severe personality disorder is more likely to drink heavier for a start and a large load of alcohol on top of the personality disorder is likely to lead to even greater disinhibition.  In other words, someone with a severe personality disorder has reduced control over their impulses to act in this sort of way and the alcohol disinhibits them further so that it increases the risk basically of erratic explosive behaviour."

 

He later stated that the alcohol dependence or addiction was a mental disorder which could contribute to the impairment of responsibility, but the main contributing factor was the severe personality disorder.  In another passage (20 March, page 17) he said that alcohol abuse was "often associated as a symptom of this type of disorder."

             Professor Fenton said later in his evidence (20 March, page 20) that McBride had poor self-control and foresight of the consequences of his actions, with the result that his choice of action was impaired in these respects.  At page 46 he described his behaviour as very disinhibited, without any thought for the consequences.  In the immediately preceding passage he said about his behaviour:

"It certainly was absolutely consistent with the personality disorder.  I mean, not to put too fine a point, it was crazy behaviour.  It was self defeating behaviour, it was chaotic behaviour."

 

            The prosecution then called rebutting evidence from Dr Fred Browne, a consultant forensic psychiatrist from Knockbracken Healthcare Park, Belfast.  Dr Browne went through his lengthy reports in evidence to the jury.  In the course of his evidence he agreed with Professor Fenton that McBride was suffering from a severe personality disorder and that the degree of his craving for drink satisfied the criteria for alcohol dependence.  Where he differed from him was in his assessment of the degree of impairment of McBride's responsibility for his acts.  He concluded his evidence in chief by expressing the opinion (20 March, page 52):

"My view is that Mr McBride does have deficiencies in his personality but I do not consider that his problem of personality disorder substantially impairs his mental responsibility."

 

            The authoritative interpretation of abnormality of mind in the defence of diminished responsibility is to be found in the judgment of the Court of Criminal Appeal in  R v Byrne [1960] 2 QB 396, the relevant passages of which are usefully summarised in Archbold, 2001 ed, para 19-68.  The court there stated, as the judge correctly directed the jury in the present case, that whether the abnormality of mind substantially impaired the defendant's responsibility is a matter for the jury, which they are to approach in a broad, common-sense way. 

             Mr Treacy's criticism of the judge's charge was that he did not direct the jury in the terms approved by the English Court of Appeal in R v Gittens [1984] QB 698.  Lord Lane CJ set these out in a passage at page 703:

"Where alcohol or drugs are factors to be considered by the jury, the best approach is that adopted by the judge and approved by this court in Reg v Turnbull (Launcelot) (1975) 61 Cr.App.R.261.  The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section.  Then the jury should consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendant's mental responsibility within the meaning of `substantial' set out in Reg v Lloyd [1967] 1 QB 175."

 

In the later case of R v Egan (1992) 95 Cr App R 278 the court approved the trial judge's pithy direction on this issue, set out at pages 284-5:

"The second point is this, you must disregard the effects produced by alcohol, you look solely at the evidence which bears upon the abnormality of mind.  If you conclude that his responsibility was substantially reduced, drink or no drink, then the defence is made out.  But if you conclude that the abnormality of mind would not on the balance oF probabilities have diminished his responsibility substantially without the drink then the defence is not made out."

 

            In the present case the judge did not give the jury such an instruction.  This did not, however, operate to the prejudice of the applicant.  Rather, it was to his benefit, in that the jury were permitted to consider the disinhibition caused by his abnormality of mind, as fuelled by his intake of alcohol, and to determine whether the combined effect substantially impaired his mental responsibility for his acts.  If they had been instructed to strip out the element of alcohol, it would have been more difficult for them to conclude that his responsibility was so impaired – the bar would, as it were, have been set higher – and the absence of that instruction favoured his case rather than damaging it.  In saying this, however, we do not criticise the judge, for it seems to us to have been eminently fair on the particular facts of this case and the medical evidence before the court for him not to apply the law as set out in R v Gittens and to allow the question of alcohol to be considered by the jury in the way in which he put it to them.

            We raised in the course of argument the point whether on the evidence as presented to the jury the judge should have directed the jury to determine whether McBride's alcoholism itself was a disease which constituted a mental abnormality.  The direction which he gave confined the mental abnormality on which McBride could rely to his severe personality disorder and set out the evidence about his alcoholism as being a contributory factor which increased the possibility of explosive and erratic behaviour.  We wished to satisfy ourselves that that direction was sufficient. 

On careful consideration of the evidence and reflection on the issues we consider that it was sufficient.  Although at one point in his evidence Professor Fenton stated, as we have set out, that McBride's alcohol dependence was a mental disorder which could contribute to the impairment of responsibility, that did not appear to be the case which was being made by him, and it was disclaimed by the applicant's counsel in the discussion before the judge in the absence of the jury. 

Indeed, if the defence had sought to put forward alcoholism as a disease, they would have been met by the decision of the English Court of Appeal in R v Tandy (1988) 87 Cr App R 45.  In that case the only mental abnormality relied upon was that of alcoholism.  Watkins LJ, giving the judgment of the court said at page 51:

"So in this case it was for the appellant to show: (1) that she was suffering from an abnormality of mind at the time of the act of strangulation; (2) that that abnormality of mind was induced by disease, namely the disease of alcoholism; and (3) that the abnormality of mind induced by the disease of alcoholism was such as substantially impaired her mental responsibility for her act of strangling her daughter.

 

The principles involved in seeking answers to these questions are, in our view, as follows.

 

The appellant would not establish the second element of the defence unless the evidence showed that the abnormality of mind at the time of the killing was due to the fact that she was a chronic alcoholic.  If the alcoholism had reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgment and emotional responses, then the defence of diminished responsibility was available to her, provided that she satisfied the jury that the third element of the defence existed.  Further, if the appellant were able to establish that the alcoholism had reached the level where although the brain had not been damaged to the extent just stated, the appellant's drinking had become involuntary, that is to say she was no longer able to resist the impulse to drink, then the defence of diminished responsibility would be available to her, subject to her establishing the first and third elements, because if her drinking was involuntary, then her abnormality of mind at the time of the act of strangulation was induced by her condition of alcoholism.

 

On the other hand, if the appellant had simply not resisted an impulse to drink and it was the drink taken on the Wednesday which brought about the impairment of judgement and emotional response, then the defence of diminished responsibility was not available to the defendant."

 

In simple terms, unless the taking of the first drink in the day was involuntary, in the sense that McBride could not prevent himself from starting to drink, it did not qualify.  This rule has been criticised – see Tolmie, Alcoholism and Criminal Liability, 64 MLR 688 (2001) and articles there cited – but it represents the law in England, and we should be slow to depart from it without receiving evidence and argument directed to the issue.  If we applied it to the present case, it may be seen that the conditions would not be satisfied, for McBride did not take any alcohol until about 5.30 or 6 pm in the evening of 27 July 1998.

            We therefore are of the opinion that the judge's directions on the issue of alcohol and alcoholism were sufficient and that the jury had material on which they were entitled to hold that the defence of diminished responsibility had not been established.  The conviction is accordingly not rendered unsafe on this ground.

Conclusion

For the reasons which we have set out we do not consider that the applicant has made out any of the grounds upon which he relied and we refuse his application for leave to appeal against his conviction.


 
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND   _____     THE QUEEN   V   LIAM JOHN McBRIDE     _____  

 

J U D G M E N T   O F   CARSWELL LCJ   ______