Neutral Citation Number: [2009] EWCA Crim 593
Case No: 2007/04270/D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
HIS HONOUR JUDGE MARRON QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/03/2009
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE WYN WILLIAMS
and
MR JUSTICE HOLROYDE
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Between :

	R		
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	James Stewart		
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(Transcript of the Handed Down Judgment of
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Mr O Pownall QC and Mrs M Smullen for the Appellant
Mr B Altman QC and Miss R Karmy-Jones for the Crown

Hearing dates : 17th February 2009
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Judgment
The Lord Chief Justice of England and Wales : 
1.	On 16 July 2007 in the Crown Court at Blackfriars before His Honour Judge Marron QC and a jury James Stewart was convicted of the murder of Ian Liddle.  This is his appeal against conviction.
2.	During the night of 29th August 2006 the appellant and Ian Liddle were sleeping rough in the area of Marble Arch in London. Both men, and indeed a number of those with them had been drinking heavily, and they were all severely intoxicated.  The appellant suffered from alcohol dependency syndrome, at the extreme end of this condition.  Some relatively minor trouble developed in the early evening, initially between the deceased and another man, but at some point the deceased turned his attention towards the appellant and struck him, causing a laceration across his nose and bleeding under his eye.  Much later that night the appellant subjected the deceased to an attack of extreme violence which caused fatal injuries.  There were numerous blunt force impacts as well as injuries to the deceased’s head caused by a sharp jagged object.  There was a deep incised wound to his neck, likely to have been caused by a shard of glass.  His body was found slumped in some flower beds in the early hours. The cause of death was brain damage and blood loss. 
3.	A large quantity of blood was later found on the appellant’s clothing as well as the jacket worn by the deceased.  The blood distribution was consistent with the two men having been in close proximity in a fight.  The deceased was probably sitting on a bench when he was struck several blows with sufficient force to spread blood on the wall and ground behind him.  He remained on the bench while blood dripped into a pool on the ground beneath it.  The area between the flower bed where he was found and the bench where he was sitting was also riddled with blood, and the distribution of some of the blood suggested that the two men had rolled around in this area.  
4.	When the police arrived the appellant told the officers that he knew something about what had happened and he admitted responsibility for killing the deceased.  He was arrested and taken to a police station where he said that the deceased had kept pestering him, that “he was a wanker, but he did not deserve this”.  In the course of an interview in the presence of his solicitor he made a prepared statement. The relevant part began:
“I remember very little of the events of yesterday evening.  I came to London about 10 days ago and have been drinking very heavily since.  I have been staying all the time on the grassy area of Marble Arch.  Yesterday was my birthday and I drank particularly heavily then.  I was drinking vodka and wine and I was extremely drunk.”
He said that the deceased was threatening and aggressive, and that he recalled the moment when the deceased punched him, but that thereafter his memory was hazy.  He remembered fighting with the deceased and feeling scared of him.  He did not remember using a weapon.  When he realised that Liddle was dead, he waited for the police to arrive and handed himself in to them.  He went on to observe:
“I am a chronic alcoholic and have been so for a year or more.  I cannot control my drinking.  I have attended AA meetings and have tried to get rehab treatment for this.  I have blackouts and periods I can’t remember as a result of excessive drinking before.”
After the interview he told the officers that he did not care about himself, that he was ashamed of himself, and he wanted to go to jail.
5.	Samples taken after the appellant’s arrest showed that the level of blood alcohol in his system was approximately 4 times the legal limit for driving.
6.	The prosecution case was that the appellant killed the deceased intending to do him really serious harm.  The defence case was diminished responsibility, based on alcohol dependency syndrome.  Although the Crown accepted that the appellant was a chronic alcoholic, the defence contentions that the appellant’s consumption of alcohol in the period immediately before the fatal attack was involuntary and that his actions at the time when he killed the deceased resulted from abnormality of mind caused by disease or injury were rejected. 
7.	The appellant was examined shortly after 9.00am by a general practitioner.  The appellant said that he had an alcohol problem and suffered from depression.  He had had a history of drug abuse which stopped about 12 months earlier.  He said that he had been drinking the night before until about midnight.  He smelled of alcohol, but was fit and well.  When he was seen later that day by a police surgeon, apart from injuries, he showed tremor in his hands as he spoke and he spilled a cup of coffee.  He said that he had never stopped drinking alcohol and was never normally at risk of withdrawal fits.  However the doctor was of the opinion that the appellant was beginning to develop significant symptoms consequent on the withdrawal of alcohol.  
8.	Expert medical evidence was called to assist the jury. The defence psychiatrist, Dr Alcock, and the prosecution psychiatrist, Dr Chesterman, were both agreed that the appellant had been for many years and was at the time of the killing properly described as a chronic alcoholic.  He suffered from alcohol dependency syndrome.  They were also agreed that he had not suffered consequential brain damage.  
9.	Dr Alcock concluded that the appellant met the International Classification of Diseases (ICD – 10) criteria for alcohol dependency syndrome, that this constituted an abnormality of mind, which substantially impaired his responsibility for the killing.  The ICD-10 diagnosis can only be made if three or more of the following conditions have been present simultaneously at some time during the previous year.  These are (a) a strong desire or compulsion to drink alcohol (b) difficulty in controlling alcohol use (c) a physiological withdrawal state (d) evidence of tolerance (e) progressive neglect of alternative pleasures or interests (f) persistent use of alcohol despite evidence of harmful consequences.
10.	Dr Chesterman concluded that the appellant met the Diagnostic and Statistical Manual of Mental Disorders (DSM – IV – TR) criteria for alcohol dependency syndrome as well as the ICD – 10 criteria.  The DCM – IV –TR method of diagnosis includes 3 or more of the following features: tolerance, withdrawal, taking the substance in larger amounts over a longer period than intended, a persistent desire or unsuccessful efforts to cut down or control substance abuse, a great deal of time spent in activities necessary to obtain the substance, giving up important social, occupational and recreational activities, and continuing use of the substance, notwithstanding knowledge that this had caused recurrent physical and psychological problems.  
11.	Something of the appellant’s problems with alcohol and drug addiction, and their causes, was disclosed to the jury.  It was plain that he had been a chronic alcoholic for many years.  However, and it was a matter that assumed importance in the course of the trial, some improvement was noted during the period between 1999 and 2002 when, with the assistance of the Probation Service, the appellant achieved proper control over his drinking habits.  However, following domestic difficulties, he returned to alcohol and his problem became more serious.  Then in early 2006, the appellant once again sought assistance to overcome the problem.  He left his old haunts, where he apparently had easy access to alcohol, and on 24 April 2006 he consulted a general medical practitioner and claimed to have been alcohol free for 2 days.  The doctor was satisfied that the claim was true, and prescribed antabuse.  On 4 August, the appellant visited a general practice, and again claimed to have been alcohol free for 48 hours.  That claim, too, appeared to be true.  On the same day he saw his probation officer.  In the course of interview before a court appearance, the defendant said that he wanted to drink, but that he wished to address his alcohol dependency and was well motivated to change.  A fortnight or so later, on 17 August after a court appearance, he told the probation officer that he had started drinking heavily again.  That appears to have been the start of the drinking after his arrival in London some 10 days earlier, as described in his prepared statement after his arrest.  
12.	Dr Alcock believed that the appellant represented an extreme example of the problems caused by alcohol dependency syndrome.  His compulsion to drink was very great.  Alcoholism was a disease, and he was at the most severe end of the disease.  To him alcohol was like oxygen – he needed it to survive.  His appetite for alcohol was overpowering.  Although there had been two alcohol free periods in his recent history, Dr Alcock concluded that despite what the appellant was saying, and that he may indeed have been hoping to achieve a reduction in his alcohol dependency, in reality the disease overbore his best intentions.   He had lost the ability voluntarily to control his drinking.  The moment he woke up, there was what could be described as a reflex action.  His mind focused on alcohol.  As the judge put it in his summing up, Dr Alcock’s view was -  “not only, in fact, was he obligated to have the first drink, he also in effect had no choice at all in the amount he was drinking as well”.  If it was possible to summarise Dr Alcock’s position in a word his alcoholism was a disease.
13.	Dr Chesterman agreed that the appellant met the criteria for alcohol dependency syndrome, but the question whether mental responsibility was substantially impaired at the time of the killing was a matter for the jury, but that assessment would depend on the precise circumstances of events. Dr Chesterman’s view in essence was that, however chronic the alcoholism, an alcoholic always had a choice whether to drink at all, and if he did, in the amount that he drank.  In relation to the voluntary nature of the consumption of alcohol, he suggested that alcohol dependence was not a disease in the typical sense like pneumonia, a condition over which the sufferer had no control.  Although he accepted that the appellant was dependent on alcohol at the time of the offence, his condition did not amount to an abnormality of mind, which in any event was a legal rather than a medical term.  In his view an identifiable mental disorder did not necessarily amount to an abnormality of mind.  Dr Chesterman was troubled about what was described as the Tandy test, a reference to the decision of this court in R v Tandy [1987] 87 CAR 45.  In his view an alcoholic would always have a choice, and he had never come across an individual, even one suffering from the syndrome, whose behaviour could not be modified or treated.  Although the appellant was at the severe end of alcohol dependence he would still have had a choice whether to drink or not.  Rather than a disease alcoholism was a habit.
14.	Dr Chesterman noted in particular the periods when the appellant had been alcohol free, including the most recent such occasions, and suggested that these periods demonstrated that the appellant had an appropriate measure of choice whether to drink or not.  He continued that many individuals properly described as alcoholics maintained a measured existence by moderating their consumption, but he added that the depth of the appellant’s addiction was at the serious end of the spectrum.
15.	 Dr Alcock concluded that the appellant’s mental responsibility for his actions was substantially impaired at the time of the killing: Dr Chesterman said that it was not, but he also said that the question of substantial impairment, and whether his state of intoxification was such that his responsibility was impaired, depended on the view taken by the jury of the appellant’s behaviour immediately before the killing.
16.	The evidence of the two psychiatrists was given over two days. In his summing up, the judge provided the jury with an admirable précis of lengthy, and at times convoluted evidence.  It is indeed properly to be described as a summary, and this summing up must have involved very careful preparation.  One criticism is directed to the summary of the evidence.  The judge did not expressly remind the jury of Dr Alcock’s opinion that the appellant’s mental responsibility was substantially impaired.  On the other hand he suggested that Dr Chesterman had said that if the appellant suffered from an abnormality of mind, “it was not one which substantially impaired his responsibility” for the killing.
17.	At an appropriate adjournment, counsel for the appellant invited the judge to “just set out the two separate psychiatric positions in summary, so the jury are aware of the two positions”.  The judge understood the submission to mean that he should redirect the jury about the ingredients of diminished responsibility.  Shortly afterwards, counsel for the appellant raised with him what she described as what Dr Chesterman had “factually” said, that the issue of impairment was “purely an issue for the jury”.  However the judge reflected, and counsel for the Crown agreed with him, that Dr Chesterman had said at one stage that it was a matter for the jury, but at another there was no appropriate impairment for the purposes of the Act.  On the jury’s return for the completion of the summing up, the judge did not mention these matters.  To that extent the summary of the medical evidence is criticised.  In his helpful oral submissions Mr Orlando Pownall QC did not withdraw this ground of appeal, but he rightly did no more than invite us to consider it.
18.	Our view is clear.  Although it perhaps would have been preferable for the judge to spell out for the jury the precise position advanced by Dr Alcock, the reality is that they can have been in no doubt that whereas he was firmly of the opinion that the defence was established, Dr Chesterman was not.  To the extent that Dr Chesterman was suggesting that the jury should decide the question, he was doing no more than accurately reflecting the position in law.  In our judgment the safety of this conviction is not undermined by what is described as the judge’s misstatement of these aspects of the expert evidence, and his failure to correct the misstatement.  
19.	The main issue in the appeal is the correctness of the directions of law given by the judge about the impact of the appellant’s alcoholism, or alcohol dependency syndrome, on the defence of diminished responsibility.  A subsidiary question was whether the medical evidence, and in particular that of Dr Chesterman, had focused on the correct issues.  In summing up the judge rightly followed the principles encapsulated in the decision of the court in Tandy [1988] 87 CAR 45.  After the conclusion of the trial, those principles were reconsidered in the light of the decision of the House of Lords in Dietchmann [2003] 1 AC 1209 and were restated in this court in June 2008 in Wood [2008] EWCA Crim 1305.  
20.	Mr Brian Altman QC for the Crown accepted the rationale behind the decision in Wood, as fairly reflecting developments in contemporary understanding of alcohol dependency syndrome which could, even in the absence of observable brain damage, constitute an abnormality of mind induced by disease or illness.  On that basis the approach taken in Tandy was too rigid.  He did, however, courteously invite us to consider whether it would be appropriate to issue further guidance to trial judges about how diminished responsibility should be addressed when the only basis for the alleged abnormality of mind arose from alcohol dependency syndrome without discernible brain damage.  Our attention was rightly drawn to the commentaries by Professor Andrew Ashworth [2008] CLR 977 and Mr James Richardson in the Criminal Law Week, 7 July 2008. 
The Directions to the Jury
21.	The judge directed the jury that the defendant had to satisfy them of three elements.  The first was whether “at the time of the killing…the defendant was suffering from an abnormality of mind…(that is) a state of mind which is so different from that of the ordinary human being that a reasonable person, like your goodselves, would term it abnormal. …it includes the ability to exercise willpower to control physical acts.”  The second constituent element was that the abnormality of mind should be induced by disease. “…the disease relied upon here is alcoholism, or its technical expression …alcohol dependency syndrome.  Crucial, you may think critical, to that particular issue is whether the defendant had the capacity to resist the impulse to consume alcohol: whether the defendant had the capacity to resist the impulse to consume alcohol.  In other words, was his consumption of alcohol totally (our emphasis) involuntary?”  He then addressed the third element that “the abnormality of mind must have substantially impaired the defendant’s mental responsibility for what he did; that is the acts which caused the death of Mr Liddle”.  He then explained the meaning of substantial impairment.
22.	The directions on the second constituent element of the defence are criticised as inconsistent with Wood, or more accurately, are so similar to what was held in Wood to be a misdirection to the jury, that the direction in the present case constituted a similar misdirection.  In Wood the judge had directed the jury that “giving in to a craving is not an involuntary act, even if it is very difficult to do otherwise”, and he went on that a defendant “later choosing to accept a drink after he has reached his normal quota, is not drinking involuntarily”.  This court concluded that, “taken together, these observations implied that unless every drink consumed that day by the appellant was involuntary, his alcohol dependency syndrome was to be disregarded”.  This direction was inconsistent with the principles to be derived from a re-analysis of Tandy in the light of Dietschmann, and might have been regarded by the jury as a direction that the consumption of alcohol by the appellant as a result of a craving did or could not give rise to diminished responsibility.
23.	Mr Pownall’s submission is that the directions in the present case suggested that diminished responsibility could not be established by the defendant unless, in effect, he was acting as an automaton.  Mr Altman, by contrast, submitted that the judge did not direct the jury in a way which implied that the appellant’s alcohol dependency syndrome would be insufficient for the purposes of diminished responsibility unless every drink consumed by him before the killing was involuntary.  Nor did his directions imply that alcohol consumed by the appellant as a result of his craving for it did not or could not give rise to the defence.  The effect of his directions was to enable the jury to answer the question whether it was established that the appellant’s syndrome constituted an abnormality of mind induced by disease or illness.
Conclusion
24.	We have reflected on the directions to the jury.  Leaving out of account that the judge was applying the principles as explained in Tandy rather than Wood, we have confined our attention to the effect of his directions.  In our judgment their effect was that the defence would not be available if the jury found that any of the appellant’s drinking was voluntary.  Save semantically that is indistinguishable from the direction in Wood, and for the same reasons set out in that case, constituted a misdirection.  Accordingly the appeal against conviction for murder must be allowed.
Re-trial  
25.	This is an obvious case in which to order a new trial.  The directions to the jury accurately reflected the law as it was understood at the date of trial.  Justice requires a re-examination of this case by the jury, directed in accordance with Wood.  We expressly refrain from commenting on the suggestion that Dr Chesterman’s evidence would be inadmissible.  In the end the trial judge may be required to make a formal ruling about which parts if any, of his evidence should be excluded, but we are unpersuaded that his evidence about the appellant’s capacity to choose whether and if so how much to drink can be said to be irrelevant to the prosecution contention that the appellant did not suffer from an abnormality of mind at the time of the killing and that his mental responsibility for his actions was not substantially impaired.
26.	This order enables us to address Mr Altman’s suggestion that further guidance should be offered about the directions to the jury. Whether or not brain damage is discernible, alcohol dependency syndrome is a disease (ICD10) or disorder of the mind (DSM – IV – TR).  It is not excluded from the operation of section 2 of the Homicide Act 1957.  If the defence of diminished responsibility is to operate according to its statutory structure, the law must take account of advances in medical knowledge.  Nevertheless,  when the issue arises, it must be addressed in the context of a further principle, that the voluntary consumption of alcohol, and the defendant’s voluntary intoxication, does not provide a defence to murder, although it may, in an extreme case, bear on the question of the defendant’s intent (R v Sheehan and Moore [1974] 60 CAR 208.  These principles have to be reconciled.  
27.	Alcoholism varies greatly in its nature and extent.  As with other conditions, it involves different levels of severity.  A heavy drinker does not necessarily suffer from alcohol dependency syndrome and someone suffering from it may very well have lengthy periods when he is either sober or when his mental responsibility is not significantly impaired by alcohol.  Thus, for example, in the present case, the appellant’s condition did not preclude sensible, intelligent discussions both with a doctor and his probation officer not long before he killed the deceased.  One of the criteria for ICD10 purposes includes the “difficulty”, not, we emphasise, the impossibility of controlling the use of alcohol, and DCM-IV-TR acknowledges that unsuccessful efforts to cut down or control alcohol abuse may be an indication of the presence of the disorder, and in other words, would allow for temporary improvements without undermining the overall diagnosis of alcohol dependency syndrome.  In short, even if the diagnosis is agreed and correct, not every alcoholic is suffering from such abnormality of mind that his mental responsibility for his actions at the time of the killing is or must be treated as if it were substantially impaired.  Thus, although the condition is a disease encompassed by section 2 of the 1957 Act, the defence is not established simply on the basis of a diagnosis of alcohol dependency syndrome.   
28.	With these considerations in mind we have re-examined paragraph 41 of the judgment in Wood, and in particular the sentence which reads “… the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily”.  Taken with the references to “voluntary” drinking later in this paragraph, we accept that the clause, “…and ignore the effect of any alcohol consumed voluntarily” may appear to require the jury to “separate out” (to use Mr Richardson’s words) each and every drink consumed by the defendant and decide whether it was taken voluntary or involuntarily.  As he argues, that would be unrealistic, when, at some levels of severity what may appear to be “voluntary” drinking may be inseparable from the defendant’s underlying syndrome.
29.	The effect of Wood was to align the principles which apply when the defendant’s alcohol dependency syndrome has not (yet) caused discernible brain damage to those where it has.  The consumption of vast amounts of alcohol may therefore reduce murder to manslaughter, first, when the effect of the intoxication is so extreme that the prosecution has failed to prove the necessary intent to kill or cause grievous bodily harm (R v Sheehan and Moore) and second, assuming that the necessary intent is proved notwithstanding the consumption of alcohol, on the basis of diminished responsibility, provided the defendant proves that he was suffering from such abnormality of mind induced by the disease or illness of alcohol dependency syndrome that his mental responsibility for his actions in doing the killing was substantially impaired.   
30.	We offer these suggestions to trial judges structuring a summing up for the purposes of the defence of diminished responsibility based on alcohol dependency syndrome. At an early stage the judge may wish to reflect on the ordinary principles relating to voluntary intoxication.  He should then outline the ingredients of the defence, effectively paraphrasing section 2 of the 1957 Act in the familiar way. 
31.	The jury should be directed to decide, first, whether the defendant was indeed suffering from an abnormality of mind at the time of the killing.   For this purpose R v Byrne [1960] 2 QB 396 continues to be of assistance.  The judge is likely to direct the jury that it does not necessarily follow from the fact that the defendant suffers from alcohol dependency syndrome that he has established the necessary abnormality of mind.  This depends on the jury’s findings about the nature and extent of the syndrome and whether, looking at the matter broadly, his consumption of alcohol before the killing is fairly to be regarded as the involuntary result of an irresistible craving for or compulsion to drink.   
32.	If the defendant proves the necessary abnormality of mind, the second question, is whether this was caused by disease or illness.  In this class of case, the answer to this second question will normally follow from whatever answer is appropriate to the first question.    
33.	Finally, and assuming that the particular defendant’s alcohol dependency syndrome did indeed constitute an abnormality of mind due to disease or illness, which was present at the time of the killing, directions about whether the defendant’s mental responsibility for what he did was substantially impaired should be addressed in conventional terms. The jury should be assisted with the concept of substantial impairment, and may properly be invited to reflect on the difference between a failure by the defendant  to resist his impulses to behave as he actually did, and an inability consequent on it to resist them. 
34.	In answering their questions, the jury should be directed to consider all the evidence, including the opinions of the medical experts.  The issues likely to arise in this kind of case and on which they should be invited to  form their own judgment will include (a)  the extent and seriousness of the defendant’s dependency, if any, on alcohol (b) the extent to which his ability to control his drinking or to choose whether to drink or not, was reduced, (c) whether he was capable of abstinence from alcohol, and if so, (d) for how long, and (e) whether he was choosing for some particular reason, such as a birthday celebration, to decide to get drunk, or to drink even more than usual.  Without seeking to be prescriptive about considerations relevant to an individual case, the defendant’s pattern of drinking in the days leading to the day of the killing, and on the day of the killing itself, and notwithstanding his consumption of alcohol, his ability, if any, to make apparently sensible and rational decisions about ordinary day to day matters at the relevant time, may all bear on the  jury’s decision whether diminished responsibility is established in the context of this individual defendant’s alcohol dependency syndrome.   
35.	We acknowledge that this decision will rarely be easy. Indeed it is fair to say that diminished responsibility has always raised complex and difficult issues for the jury, not least because the defence usually involves conflicting medical evidence addressing legal, not medical concepts, for a jury of lay persons to decide.  The jury is often called upon to confront problems relating to the operation of the mind with which they will be unfamiliar.  Nevertheless the resolution of these problems continues to be the responsibility of the jury, and when addressing their responsibility they are inevitably required to make the necessary judgments not just on the basis of expert medical opinion but also by using their collective common sense and insight into the practical realities which underpin the individual case.