Violence and disorder - diminished responsibility

In R v Dietschmann 2003, Crim LR 550, the House of Lords has significantly extended the availability of diminished responsibility as a defence to murder.

The decision allows a defendant, though acting strongly under the influence of alcohol, to argue that an abnormality of mind existed, thus reducing the conviction to manslaughter.

On three occasions, the Court of Appeal had held that such an issue could not arise unless the killing would have taken place even

  • The item is a sharp bladed instrument within the meaning of section, and;
  • The defendant had it with him in a public place.

The case confirmed that a person had an instrument with him if he originally placed the item in the public place but then forgot about it or (if he did not place it) otherwise knew of the presence of the instrument in the public place.

A mere belief is not enough to make out the crime (R v Daubney 164 JP 519) It amounted to insufficient knowledge or control and was insufficiently proximate.

The burden or proof then passes to the defence (R v Matthew 2003 4 Archbold News 1 approving L v DPP 2003 QB 137) to prove good reason.

It is this aspect that is reconsidered by the court.

The statute contains a list that is non-exclusive.

However, while the court confirmed that forgetfulness alone will not suffice, it could do so when associated with another reason (such as the particular circumstances relating to the original acquisition of the instrument and the time since elapsed.)

Good reason is not to be given a judicial gloss but considered on the facts of each case.

Perverting the course

Good motive cannot provide a defence to the crime of perverting the course of justice.

In AG Ref Number 1 of 2002 (2003 Crim LR 410), a police officer induced a witness to lie as to the source of a photograph for what appeared to her proper reasons, so as to protect a vulnerable witness.

However, the Court of Appeal held that the officer had undoubtedly intended the witness to lie and that being an intentional act that could pervert the course of justice, the matter should have been left to the jury.

However, in R v Clark 2003, Crim LR 558, it was held that the mere driving away from the scene of a road traffic incident, thus removing the vehicle from immediate forensic examination and the driver from immediate testing for alcohol levels, was not sufficient to amount to this offence.

The judgment, which still allows for further expansion of the law, indicates that notwithstanding the removal of the vehicle it still remained available for examination, and although the test might have taken place, later breath test procedures could still be followed.

Thus there was no positive act to interfere with evidence sufficient to amount to this offence

Custody time-limits

In R v (Smith) v Woolwich Crown Court 2002 Crim LR 915, the court was unwilling to say that the Crown had not acted with all due expedition and diligence, and thus extended a time-limit, where there was still significant time still available to the Crown under a judge's directions as to disclosure.

It was not considered appropriate to use the custody time-limit hearing to review the progress of work in that connection.

However, the decision needs to be contrasted with that in R (Holland) v and Leeds Crown Court 2003 Crim LR 271 where there was again a time-table laid down by the court for disclosure but the Crown had failed to comply with it.

As a result, the defence was not able to obtain its own independent evidence in time and a trial fixed for June had to be delayed until October.

The Crown sought an extension of the custody time-limit but the defence argued that it had not acted with all due diligence and expedition.

On investigation it became apparent that had the Crown made further enquiries early on it would have known that it was always impossible to comply with the time-table directed by the judge.

Had it bought this to the attention of the court at an earlier stage a trial date long before October could have been obtained.

Its failure to keep the matter under review meant it had not acted with the appropriate diligence and expedition required and the custody time limit could not therefore be extended.

With regard to bail, in audit bulletin number 10 both magistrates' courts and Crown Courts are advised that it will no longer be possible (because of money laundering problems) for solicitors to hold a security as has often been the case in the past.

These must now be accepted by the courts and if the amount involved exceeds 1,000 the security should be placed on deposit.

Crime and Disorder Act

R v Haye 2003 Crim LR 286 emphasises the importance of the correct application of the rules under section 51 of the Crime and Disorder Act 1998.

The case had begun as an allegation of robbery against an adult and had therefore been sent to the Crown Court.

However, at the Crown Court a different view was taken.

The indictable only allegation was withdrawn and the defendant entered a plea of guilty to theft.

He was sentenced to nine months' imprisonment.

However, the court had not followed the correct procedure under schedule 3 of the Act.

If all indictable, only matters are withdrawn the schedule effectively requires a mode of trial hearing to take place in the Crown Court.

The court held that because the defendant had been denied the opportunity to enter no plea and then seek the remission of the case to the magistrates' court, and thus possibly obtain a lower sentence, it rendered all that happened thereafter a nullity.

This has a particular significance in relation to an allegation of domestic burglary, which, while normally an either way offence ceased to be such if it is the third qualifying offence committed since the 1 December, 1999.

It will thus be essential to check the date that each offence is committed and the date of conviction if the correct procedures are to be followed.

There must be an offence followed by a 0conviction followed by an offence and a second conviction for the third charge of domestic burglary to be indictable only.

If such a matter is dealt with by way of plea before venue all later hearings will be void.

The history should always be carefully checked by solicitors, particularly if a defendant is before a court for a sentence improperly imposed.

By Anthony Edwards, TV Edwards, London