APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Mackay of Drumadoon	[2009] HCJAC 44 Appeal No: XC673/05 OPINION OF LORD OSBORNE in NOTE OF APPEAL AGAINST SENTENCE by HARRY CALDWELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Wheatley, Solicitor Q.C., Morrow; MTM Defence, Falkirk

Alt: K.D. Stewart A.D.; Crown Agent

8 May 2009

The Background Circumstances

[1] The appellant was found guilty, after trial, of charge (5) in the indictment which he faced. Charge (5) was in the following terms:

"(5) On 2 March 2003 at 7 Broomlands Street, Paisley, you did assault Louisa Jean McNeil McDaid, also known as Louisa Caldwell, born 7 June 2001, then residing there, and did seize hold of her, strike her against a wall, repeatedly attempt to cut her throat with a knife and repeatedly strike her on the head and body with a knife and did murder her; you did commit this offence while on bail, having been granted bail on 13 January 2003 at Paisley Sheriff Court."

The child, Louisa McDaid, was the stepchild of the appellant, being the daughter of Laura McDaid, to whom the appellant was married at the material time. There were seven other charges on the indictment, all of which were withdrawn by the Crown after evidence had been led. The position of the appellant at the trial was that he fully accepted that he had killed the child Louisa McDaid but maintained that his conviction should be of culpable homicide, on account of diminished responsibility.

[2] The evidence as to what happened on the occasion of the offence was not in serious dispute. Laura McDaid gave evidence to the effect that she had married the appellant on 1 November 2002. She had two children, neither of whom were the children of the appellant. These were Roxanne, who, at the time of the trial was 11 years old, and Louisa, who had been born on 7 June 2001. After the marriage the appellant and Laura McDaid lived together as a family in a flat at 7 Broomlands Street, Paisley. The relationship deteriorated and, by March 2003, the appellant had left the home. On Sunday 2 March 2003, the father of the now deceased child had had contact with his daughter, after which Laura McDaid picked the child up around 6pm. Shortly after she returned to 7 Broomlands Street, Paisley, the appellant arrived. She and the appellant had been attempting a reconciliation in the period before this date. When the appellant arrived at the flat on this occasion, he appeared to have been drinking, but did not seem to be drunk. Laura McDaid described him as having an evil look in his eyes, a nasty, evil look. She had been wearing a T-shirt with the number 69 on it. It appeared that the appellant took umbrage at that, reading a sexual innuendo into the figure.

[3] The appellant did not give evidence at his trial, but evidence was led of what he had said in an interview to the police on the date of the offence; and later of an account of the evening that he had given to psychiatrists instructed by the defence. Just how events developed, after the argument about the T-shirt, was the subject of a conflict between the evidence of Laura McDaid and the statements made by the appellant. On the evidence of Laura McDaid, the appellant had been sitting with the child Louisa on the couch. Laura McDaid had sent her other daughter, Roxanne, to buy nappies. Laura had heard Louisa crying and went to see what was wrong. She had said to the appellant: "Why is Louisa crying?" He replied: "Because you were shouting at Roxanne to get the nappies". Shortly after that the appellant came out of the kitchen carrying a knife. He had Louisa on the floor and held the knife to her throat. Laura put her hand underneath to try to prevent anything being done to Louisa, with the result that her own hand was cut. The appellant said that he was going to kill Louisa. There ensued a struggle in the hall involving the appellant and Laura. Then the appellant, who was holding Louisa by the ankles, smashed her head off the wall twice. At that stage, Laura herself managed to get Louisa into the livingroom and tried to comfort her. There were no apparent injuries on her at that stage. The appellant was turning lights off and running about the house barricading doors saying that the police were coming. Laura tried to calm him down, but was unsuccessful. He grabbed Louisa from the couch and took her into the hall. He was then seen to be kneeling over her, making stabbing motions.

[4] The version of the event given by the appellant to the defence psychiatrists was that, after the argument about the T-shirt, he had been sitting beside Louisa in the sitting room, when she began to cry. Laura came into the room, picked up Louisa, and accused the appellant of hitting Louisa. She said: "This is why I'm happy, I've lost your child". It should be explained that Laura had been pregnant with the child of the appellant. She had told him that she had had a miscarriage, but he had been suspicious that she had in fact had an abortion. In the event it transpired that his suspicions had been correct and that she had had the pregnancy terminated. The appellant had gone on to tell the psychiatrists that he felt that Laura was taunting him and he then, as he put it, "blacked out". He believed that he must have obtained a knife from the kitchen and, although he had no direct memory of stabbing the baby, he accepted that he had done so. The post mortem examination of the body of Louisa disclosed that there were several superficial wounds in the area of the neck. Over the front of the chest there was a collection of eight stab wounds. There were five penetrating wounds on the right side between the first and second ribs and between the second and third ribs. On the left side there were two such wounds between the first and second ribs and one between the second and third ribs. These had penetrated the heart and lungs and had caused death. There was also a recent fracture to the right lower tibia, which could have been consistent with a sudden twisting of the lower leg, or direct impact.

[5] In support of the defence of diminished responsibility, the defence had led the evidence of Dr Isobel Hamilton Campbell, a Consultant Psychiatrist from the State Hospital, Carstairs and Dr Derek Chiswick, a Consultant Forensic Psychiatrist at the Royal Edinburgh Hospital. The Crown had led the evidence of two consultant psychiatrists from Dykebar Hospital, Dr Ian C. Matson and Dr George Macdonald.

[6] Dr Campbell found the appellant to be suffering from a personality disorder, namely emotionally unstable personality disorder. Dr Chiswick found him to be showing the features of a condition known as intermittent explosive disorder. It appeared from the evidence that, for practical purposes, these two titles described the same disorder. Dr Campbell explained that it was a personality disorder which gave rise to a marked difficulty with control and marked affective instability. She said that it was due to a number of causes. First, there was a possibility that the appellant had suffered oxygen deprivation after birth. Second, he had undergone profoundly damaging early life experiences. His mother had been very violent towards his father, who was a drunkard. The appellant's sister had pursued a course of considerable cruelty towards him as a child. Then there were episodes of trouble while the appellant was in the army. In addition, Dr Campbell referred to his desperate desire to have a child of his own. The history showed that sometimes the appellant bottled things up and, at other times, relatively trivial things would precipitate a huge outburst of intense rage. The way that he interpreted the world was distorted. His perception of the situation at the time of the incident had been completely different from that of a normal person. The abnormality of mind might lead to a number of effects. The appellant might have a different perception of physical acts from a normal person. Although he would know right from wrong and that an act would be wrong, he did not have the capacity fully to control his actions. She described him as having something very far wrong with him. Although she recognised that alcohol was a disinhibitor and disinhibited aggression, she said that, because he was a very heavy drinker, he would have more tolerance towards drink than others and that he had eaten after drinking seven or eight pints of beer at the material time. In her view, the alcohol consumption made only a small contribution to what had happened.

[7] Dr Chiswick expressed the opinion that, at the time when the appellant had committed the offence, he had been suffering from a personality disorder. However, he considered that the alcohol consumption was also a significant factor. He accepted that it would not be unusual to encounter someone who committed violent crime and who had had a difficult upbringing, a history of aggressive and violent behaviour and had taken alcohol. He sought to distinguish the appellant's personality disorder from the case of a person who did not have a personality disorder, but who had simply lost his temper and might well have had a traumatic childhood and shown aggression in the past. He pointed to the episodic nature of the behaviour of the appellant and the history of more than just serious loss of temper. He also pointed to an absence of a graduation through penal institutions. The appellant had been in the army and had held down work. In addition, Dr Chiswick pointed to the very unusual nature of the killing. He saw the outcome as a combination of the disorder and the effects of alcohol.

[8] Dr Matson accepted that the disorders identified by Dr Campbell and Dr Chiswick were scientifically recognised, but he said that, in the context of a case such as the present, many psychiatrists would make no use of them. Conventionally they would not have been considered in the context of diminished responsibility. While anyone who had committed this act would not be in a normal state of mind, in the sense of a usual state of mind, it was harder to identify it as a pathological state of mind, by which he meant mental illness, learning disability, etc. He also stated that he had no doubt that the consumption of alcohol would have affected the actions of the appellant.

[9] Dr Macdonald did not regard intermittent explosive disorder as a scientifically recognised personality disorder. However, he did recognise emotionally unstable personality disorder as being such. His own view was that the various factors, including the childhood history, the history of aggressive behaviour, the obsessive desire to father a child, and the perception of abortion as killing, did not point to a personality disorder. In his view, the appellant had acted as he did out of anger, jealousy and the consumption of a large amount of alcohol.

[10] Thus, in considering whether the appellant was of diminished responsibility, the jury had before them a range of views among the psychiatrists. In the event, they unanimously found the appellant guilty of murder, thereby rejecting the contention that, at the material time, the appellant had been acting under diminished responsibility.

[11] Following conviction, the trial judge imposed the mandatory sentence of life imprisonment. He fixed the punishment part of that sentence, in terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993, section 2 at a period of 20 years. He explains in his Report to this court that he considered that the murder had been of a particularly appalling kind. It had been committed against a completely defenceless infant child and had been characterised by extreme brutality. He considered that a punishment part of substantially longer than that selected in the ordinary case was appropriate for those reasons.

The Grounds of Appeal

[12] The appellant has appealed against his sentence, as constituting a miscarriage of justice, on the following grounds:

"Whilst it is accepted that the nature of this particular offence required that the appellant serve a lengthy punishment part, it is submitted that for the following reasons a 20 year tariff was too high:

1. The appellant meets the diagnostic criteria for having an emotionally unstable personality disorder. (Psychiatric report dated 25 September 2003 of Dr Campbell, Consultant Forensic Psychiatrist). The appellant has also been diagnosed using different criteria as having an 'intermittent explosive disorder' (Dr Chiswick, Consultant Forensic Psychiatrist). Whilst the appellant did not suffer from diminished responsibility when committing the index offence, he was diagnosed as suffering from some abnormality of mind at the time of the assault.

2. The appellant confessed to the police at the earliest opportunity in relation to his actions. Even before the police had interviewed him or had an opportunity to caution or charge him he admitted at the charge bar when he was being processed that he had committed the act. He then repeated his confession to the police on tape in interview. The trial was not conducted on the basis that the appellant denied committing the act, but that he was suffering from diminished responsibility.

3. The appellant has expressed his remorse for his actions. He fully understands the requirements for retribution for his actions and exhibits a proper understanding that notwithstanding his mental health issues, he will require to spend a very lengthy period incarcerated."

Subsequent Procedure

[13] This appeal came before a two judge sentence appeal court on 2 March 2007. On that occasion the court decided that the case should be remitted to a Bench of three judges. It explained that it wished to have the benefit of submissions from the defence and the Crown on the question of whether medical evidence led in connection with a plea of diminished responsibility might be taken into account by the sentencing judge in determining the appropriate sentence and, in particular, the appropriate punishment part, when the jury had rejected the plea of diminished responsibility and had found the appellant guilty of murder.

[14] The case came before this court on 25 April 2008, when the solicitor for the appellant, having explained the background, submitted that if, as here, the appellant possessed an abnormality of mind, that would normally be taken into account in the selection of a sentence. Here diminished responsibility had been pled, but rejected by the jury. That meant that the appellant's undoubted abnormality of mind had not been shown, to the jury's satisfaction, to meet the test explained in Galbraith v Her Majesty's Advocate 2001 SCCR 551. However, looking at the sentencing judge's report to this court, he submitted that it was not wholly clear what attitude the sentencing judge had adopted towards the psychiatric evidence. Reference was made to page 8. The degree of culpability that could be attributed to the appellant, which was relevant to the issue of retribution, ought to have been evaluated in the light of the psychiatric evidence. It was submitted on behalf of the appellant that it appeared that the sentencing judge had not taken that material into account at all. There followed discussion on the basis of the sentencing judge's decision as regards the punishment part of the life sentence. In the light of that discussion, we reached the conclusion that it was not clear from the sentencing judge's report what matters he had taken into account in fixing the punishment part. In these circumstances, by interlocutor of 25 April 2008, we called for a supplementary report from him to clarify his approach to the selection of the punishment part of the appellant's sentence. In particular, answers were sought to the following questions:

1. Whether and, if so, to what extent, he had regard to the mental state of the appellant at the time of the offence, in selecting it?

2. The jury having rejected the appellant's plea of diminished responsibility, whether he then excluded totally from consideration any abnormality of mind the appellant may have possessed?

3. In any event, what conclusion did he reach during the trial, or what conclusion does he now reach on the conflicting psychiatric evidence, as regards the mental state of the appellant at the time of the offence?

[15] The sentencing judge has now compiled a supplementary report dealing with those questions, in which he states:

"I should say at the outset that I was not invited by counsel on behalf of the appellant in selecting the punishment part to take into account the mental state of the appellant at the time of the offence. In the circumstances of this case I did not have regard to the mental state of the appellant in selecting the punishment. I excluded totally from consideration any abnormality of mind that the appellant may have possessed.

It seemed to me that the verdict of the jury indicated that they were rejecting the evidence of Dr Campbell and Dr Chiswick that the appellant was suffering from a personality disorder. Although there was a range of views among the psychiatrists, essentially, the question came to be whether the very unhappy childhood experiences of the appellant, the history of aggressive and violent behaviour and the obsessive desire to father a child were factors which, taken together with the consumption of a large amount of alcohol, pointed to someone who had acted out of anger and loss of temper or whether these factors pointed to a personality disorder. In seeking to distinguish such symptoms, which would not be unusual in the case of someone who committed violent crime, and in contending that they indicated a personality disorder, Dr Chiswick pointed to the episodic nature of the behaviour and the history of more than just serious loss of temper. He also pointed to the absence of graduation through penal institutions. In addition, he pointed to the very unusual nature of the killing.

It seemed to me that the rejection by the jury of diminished responsibility was tantamount to a rejection of the contention that the appellant suffered from a personality disorder. In that event, when it came to sentence I was left with a case of a man who had consumed a large amount of alcohol, who was extremely jealous and very angry. Once it was accepted that the other factors did not point to a personality disorder it did not seem to me that they presented as relevant factors in relation to the appellant's mental state. It seemed to me that the evidence of the Crown psychiatrists, particularly that of Dr Macdonald, pointed to an absence of psychiatric considerations in assessing sentence.

In relation to the third question, I endeavoured throughout the trial to maintain an open mind, leaving it to the jury to decide on the issue of diminished responsibility. Had it been necessary for me to do so, I would have preferred the evidence of the Crown psychiatrists, and particularly the evidence of Dr Macdonald. I would have accepted the view of Dr Macdonald that the appellant acted as he did out of anger, jealousy and the consumption of a large amount of alcohol."

Following upon the receipt of the supplementary report from the sentencing judge, this appeal was the subject of a further hearing on 5 February 2009.

Submissions of the Appellant

[16] The solicitor for the appellant said that the issue before the court was whether, where diminished responsibility had been tabled as a defence, but rejected, evidence concerning the mental state of the appellant, not amounting to diminished responsibility, could and should be taken into account as a mitigating factor in the selection of a punishment part. He stated that, in the comparable situation in England and Wales, such material would be taken into account. In that connection he drew our attention to Section 269 of and Schedule 21 to the Criminal Justice Act 2003 (c.44). That section dealt with the selection of the counterpart of a punishment part of a mandatory life sentence. Among the matters to be taken into account was the seriousness of the offence. Section 269(5) provided that, in considering the seriousness of an offence, the court had to have regard to the general principles set out in Schedule 21. Paragraph 11 of that Schedule dealt with mitigating factors. One of those factors was:

"(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c.11)), lowered his degree of culpability."

Section 2(1) of the 1957 Act contained a statutory definition of persons suffering from diminished responsibility, for the purposes of the law of England and Wales.

[17] The solicitor for the appellant submitted that there was no reason why a different approach should be taken in Scotland, albeit that the detailed statutory provisions operating in England were not applicable in Scotland. In Scotland, the current definition of the requirements of a plea of diminished responsibility was to be found in Galbraith v Her Majesty's Advocate 2001 SCCR 551. In paragraph 54 of the Opinion of the Court, the question was whether there was:

"... an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts."

It was obvious from that statement of the criterion that there might be evidence of abnormality of mind which was sufficient to show that the ability of the accused to determine or control his acts was impaired, but not so substantially that his responsibility was to be taken to be diminished. In all these circumstances it was for a sentencing judge, in a case such as the present one where a plea of diminished responsibility had been rejected by the jury, to take into account such material as was available concerning abnormality of mind falling short of diminished responsibility. That was a matter for the sentencing judge himself. In that connection reference was made to Her Majesty's Advocate v Tracey 2008 SCCR 93. In the present case it was now clear that the sentencing judge had not taken the relevant material into consideration. He had thus misdirected himself, with the result that it was for this court to review the whole relevant circumstances and select a sentence of its own in substitution for that selected by the sentencing judge.

The submissions of the Crown

[18] In the particular circumstances of this case, we invited the Advocate depute to make such submissions on the principles to be applied as he thought fit, for the assistance of the court. He submitted that it had been for the jury to consider whether diminished responsibility had been established in this case, according to the criterion explained in Galbraith v Her Majesty's Advocate. They had taken the view that diminished responsibility had not been demonstrated to their satisfaction. It followed from that position that it was to be inferred that the appellant had not been suffering from an abnormality of mind which substantially impaired his ability, as compared with a normal person, to determine or control his acts. If that were the case, there was no justification for any interference with the sentence selected by the sentencing judge. It was a mistake to draw any analogy between cases of diminished responsibility and provocation. In relation to provocation cases, it was made clear that provocation was to be judged by the test of the ordinary man, as appeared from Drury v Her Majesty's Advocate 2001 SCCR 583, at paragraph 34. However, the matter of diminished responsibility was different. A decision in relation to it required to be reached upon the basis of expert evidence relating to the state of mind of the accused.

[19] The Advocate depute submitted that abnormality of mind falling short of what was required for the purposes of a plea of diminished responsibility might nevertheless be relevant to the issue of an appropriate sentence, although it could not affect the legal character of the crime committed. In that connection reference was made to Arthur v Her Majesty's Advocate 1994 S.C.C.R. 621 at page 624 and Andrews v Her Majesty's Advocate 1994 S.C.C.R. 190 at page 191. In both of those cases mental abnormalities had been taken into account as of a mitigatory character.

[20] Turning to the circumstances of the present case, the Advocate depute observed that it was clear that the four psychiatrists who had given evidence did not agree. The jury had made its decision on the issue of diminished responsibility, but had not been asked to reach any decision in relation to abnormality of mind falling short of diminished responsibility, nor could they have been. Mitigatory factors were for the sentencing judge to assess in accordance with what had been said in Her Majesty's Advocate v Tracey. The sentencing judge had not himself taken into account the material that was now the focus of controversy. However, he had considered the third question posed by the court, in its interlocutor of 25 April 2008, and had expressed his view upon the conflicting psychiatric evidence in his supplementary report. It was proper for this court, in selecting an appropriate sentence in this case, to follow that evaluation of the evidence by the sentencing judge.

The Decision

[21] In my opinion, two issues arise for consideration in this case. The first is whether, in a case such as this where the jury has rejected a plea of diminished responsibility upon the evidence before it, evidence of abnormality of mind which was not sufficient substantially to impair the ability of the accused, as compared with a normal person, to determine or control his actions should be taken into account as a mitigating factor. The second issue is by what means such evidence is to be evaluated, in the event of a conflict, in connection with the selection of an appropriate sentence.

[22] Addressing the first of the foregoing issues, in my view, there is no doubt that abnormality of mind, where established to the satisfaction of the court, can properly be taken into account as a mitigating factor. In Arthur v Her Majesty's Advocate, the appellant had pled guilty to a charge of assault to severe injury, permanent disfigurement and danger of life, a charge of assault to severe injury, and a charge of possessing cannabis resin. A number of psychiatric reports were placed before the trial judge which indicated that the appellant was suffering from a mental disorder short of insanity, some of which related the appellant's mental state to drug-taking. The sentencing judge, in reliance on Brennan v Her Majesty's Advocate 1977 JC 38, imposed concurrent sentences of 8 years, 6 years and 3 years imprisonment on the respective charges. In a subsequent appeal against sentence, the court held that the sentencing judge had been wrong in proceeding upon the basis that the appellant was fully responsible and that the matter of sentence was accordingly at large for the appeal court. In selecting reduced sentences, the appeal court took into account, among other things, the psychiatric reports on the appellant's state of mind. At page 624, Lord Justice Clerk Ross said:

"The sentences which the trial judge imposed in this case were imposed upon the view that the appellant was fully responsible for his actions. For the reasons which we have given we are of the view that that approach was not correct and that the trial judge ought to have proceeded upon the view that this was not an individual who was fully responsible for his actions but was someone who suffered from some degree of mental disorder short of insanity."

In Andrews v Her Majesty's Advocate a similar view was taken. There the appellant had been convicted of indecently assaulting his 13 year old stepsister. He was aged 27 at that time and was described as intellectually impaired and suffering from learning difficulties. He was sentenced to 2 years imprisonment and appealed against that sentence. In allowing the appeal, in the Opinion of the Court, Lord Justice Clerk Ross stated at page 191:

"The question then arises as to whether it was necessary for the sentence to be as long as one of two years. If the appellant had been a normal individual and had not had these learning difficulties and was not an inadequate individual then we have little doubt that the sentence would have been justified, but we have come to the conclusion that the trial judge has not perhaps paid sufficient weight to the special features affecting the appellant. When regard is had to the special features, we have come to the conclusion that it was neither necessary nor appropriate for the custodial sentence to be as long as one of 2 years."

[23] In Galbraith v Her Majesty's Advocate the test for diminished responsibility was reconsidered and clarified. In paragraph 54 of the Opinion of the Court delivered by Lord Justice General Rodger, in affirming that it was for the trial judge to determine whether there was evidence on which a jury would be entitled to convict an accused of culpable homicide rather than of murder on the ground of diminished responsibility, the court said:

"In essence, the judge must decide whether there is evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused as compared with a normal person to determine or control his acts."

Looking at that statement of the appropriate criterion, it appears to me that an accused person might be suffering from an abnormality of mind, but one which did not substantially impair his ability in the manner described. In my view, in accordance with the principles affirmed in Arthur v Her Majesty's Advocate and Andrews v Her Majesty's Advocate, material relating to such an abnormality would be relevant for consideration in mitigation of sentence. In principle, there is no reason why that material should not be taken into account in mitigation of sentence even in a case such as this, where a plea of diminished responsibility has been rejected by the jury and where the issue of mitigation arises in connection with the selection of a punishment part of a life sentence. No doubt, because, ex hypothesi, the material has been considered to be insufficient to justify the conclusion that there had been substantial impairment, the weight attributed to it may well be limited. However, such material cannot be seen as irrelevant in the context of mitigation. I note that that appears to be the approach followed in pursuance of the statutory arrangements operating in England and Wales, to which reference was made during the course of the submissions before us. Section 2(1) of the Homicide Act 1957 provides a definition of persons suffering from diminished responsibility, which is in these terms:

"Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."

Looking at the mitigatory factors set forth in schedule 21 to the Criminal Justice Act 2003 in paragraph 11(c), it is provided:

"Mitigating factors that may be relevant to the offence of murder include -

...

(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c.11)) lowered his degree of culpability."

[24] Turning now to the second principal issue which arises in this case, it is plain that responsibility for arriving at a conclusion of fact relating to the abnormality of mind concerned, falling short of diminished responsibility, lies with the sentencing judge. That is in accordance with what was said by Lord Uist in Her Majesty's Advocate v Tracey. In performing that task, it will be open to the sentencing judge to consider all the material that may have been put before the jury in relation to the plea of diminished responsibility and to make of that material what he considers to be appropriate, subject to this important qualification. Where a plea of diminished responsibility has been rejected by the jury, it would not be open to the sentencing judge, in that context, to accept any expert evidence which was inconsistent with the verdict of the jury and which must therefore be taken to have been rejected by them.

[25] In this case, it is apparent from the sentencing judge's supplementary report that he did not undertake this exercise of evaluating the evidence placed before the court. As already recognised, he did not have regard to the mental state of the appellant in selecting the punishment part. He states that he excluded totally from consideration any abnormality of mind that the appellant may have possessed. On that account, in my view he misdirected himself, with the result that the matter is now at large before us.

[26] In recognition of the possibility that that had in fact occurred, this court posed for the sentencing judge the third question set forth in the interlocutor of 25 April 2008. In response to that enquiry, the sentencing judge informs us that he would have preferred the evidence of the Crown psychiatrists and particularly the evidence of Dr Macdonald to the other expert evidence. Thus he would have accepted the view expressed by Dr Macdonald that the appellant had acted as he did out of anger, jealousy and the consumption of a large amount of alcohol. During the course of his submissions the solicitor for the appellant did not dispute that it was open to the sentencing judge to have reached such a conclusion. As he put it, he could not argue that such a conclusion was perverse.

[27] I consider that it is proper to rely on the opinion of the sentencing judge regarding the evaluation of the expert evidence, which he had heard. Indeed, unless this court were itself to order a hearing of that evidence, there is no other way in which we could proceed. Looking then at the sentencing judge's evaluation of the psychiatric evidence, within the constraints that I have explained, and all the other circumstances relevant to the question of sentence, I have reached the conclusion that the punishment part in fact selected by the sentencing judge was the appropriate one. In these circumstances I would refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Mackay of Drumadoon	[2009] HCJAC 44 Appeal No: XC673/05 OPINION OF LADY PATON in NOTE OF APPEAL AGAINST SENTENCE by HARRY CALDWELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Wheatley, Solicitor, Q.C., Morrow; MTM Defence, Falkirk

Alt: K.d. Stewart, A.D.; Crown Agent

8 May 2009

[28] I agree that the appeal should be refused. However in my view the sentencing judge, when selecting the punishment part, correctly disregarded any abnormality of mind that the appellant might have had at the time of the homicide. I have reached that view for the following reasons.

[29] The leading authority on diminished responsibility is Galbraith v HM Advocate 2001 SCCR 551. The court's conclusions are set out in paragraph [54], inter alia as follows:

"[54] In this opinion, in addition to examining the cases of Savage, Connelly and Wilson, we have been concerned to clarify certain elements in the plea of diminished responsibility. We can summarise our conclusions on that matter in this way.

1. Where, on the facts found proved by the jury, the law holds that the accused's responsibility was diminished at the time when he killed his victim, the proper course is for the jury to convict the accused of culpable homicide [emphasis added].

2. But, precisely because diminished responsibility is a legal concept, it is for the judge to determine whether there is evidence on which the jury would be entitled to convict that accused of culpable homicide rather than of murder, on the ground of diminished responsibility. In determining that issue, the judge must consider the kinds of issue that we have discussed. In essence, the judge must decide whether there is evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts [emphasis added] ...

7. If, applying the appropriate tests, the judge concludes that the evidence is not capable of supporting a plea of diminished responsibility, he should direct the jury that, if convicting, they should convict of murder.

8. If, on the other hand, the judge concludes that there is evidence to support the plea, then he must leave it for the jury to consider. In that event the judge's directions to the jury should not simply recite the Savage formula but should be tailored, so far as possible, to the facts of the particular case. The amount of detail required will also depend on the facts of the particular case and on the precise issue in controversy between the Crown and the defence. In essence, the jury should be told that they must be satisfied that, by reason of the abnormality of mind in question, the ability of the accused, as compared with a normal person, to determine or control his actings was substantially impaired [emphasis added]."

[30] Against that background, where (i) the issue of diminished responsibility has been raised in the course of a trial; (ii) evidence relating to diminished responsibility has been led before a jury; (iii) the trial judge has concluded that there is evidence to support the plea which should be left to the jury to consider; and (iv) the jury have considered and assessed that evidence, and have ultimately rejected the plea of diminished responsibility, it is in my view proper for the sentencing judge to treat the question of abnormality of mind as having been decided upon as a matter of fact by the jury in their role as masters of the facts. Further, as the jury have received legal directions in accordance with the guidance in Galbraith, it must be presumed that they decided that any mental condition from which the accused was (or might have been) suffering at the relevant time was not one which "substantially impaired [his] ability ... as compared with a normal person, to determine or control his acts". That being so, any alleged mental condition which might be sought to be relied upon in mitigation during sentencing would, by definition (as a result of the jury's decision) be de minimis and certainly not one which had substantially impaired the accused's ability to determine and control his acts - in other words, a condition which did not, in the context, explain or justify the accused's actions and accordingly could not provide any mitigation for the purposes of sentence.

[31] There might be, of course, other situations in which it would be appropriate for the sentencing judge to take into account some mental condition which he was satisfied affected the accused at the relevant time. For example, when the factual basis underlying a plea of diminished responsibility had not been left to a jury for their determination, then reports or evidence from psychiatrists, psychologists and others might be taken into account by the sentencing judge, with the result that the sentence might be mitigated to some extent. These therefore would be cases in which the jury had not made a decision about the mental condition of the accused as part of their function as masters of the facts when returning their verdict. The judge would not be trespassing on the jury's function by imposing his own views about any mental condition which the accused might have had. Authorities such as Arthur v HM Advocate and Andrews v HM Advocate cit sup are in my opinion illustrations of such situations.

[32] It is worth noting that, in the course of the debate, Mr. Wheatley for the appellant accepted that the approach which he advocated was not without difficulty. Questions would arise. For example, should the judicial evaluation of any psychiatric evidence be the sole province of the trial judge (who heard the evidence) or should the appeal court form its own view; would it be necessary to provide the appeal court with transcripts of the psychiatric evidence, speeches, and charge; and further, how should conflicting psychiatric evidence be dealt with, bearing in mind that the jury had already heard all the evidence, considered it, and given their view on it when returning their verdict. Mr Wheatley recognised the very real danger that the judge might trespass upon the jury's role as masters of the facts. It would be possible, for example, for the jury by their verdict to have clearly rejected any suggestion that the accused was suffering at the relevant time from a mental abnormality which substantially impaired his ability to determine or control his acts; yet the judge might form a different view of the evidence and for that reason might impose a lenient punishment part, to some extent undermining the jury's considered decision. Ultimately, Mr Wheatley submitted that the proper course in a trial in which a jury might reject a plea of diminished responsibility was for the trial judge in the course of his charge to invite the jury, in the event that they rejected the plea of diminished responsibility, to add a rider to their verdict indicating whether or not they concluded that the psychiatric and/or other evidence satisfied them that the appellant was suffering from a mental condition which, while not meeting the test for diminished responsibility, nevertheless should be taken into account in mitigation during any subsequent sentencing process. Mr Wheatley drew a parallel with the practice relating to the rider "under provocation". Whilst not referring to 19^th century authorities, Mr Wheatley's approach seemed to reflect the practice in the Scottish criminal courts prior to the decision in Alex Dingwall (1867) 5 Irv 466 (generally accepted to be the starting-point of the doctrine of diminished responsibility) at which time juries could be directed to add to their verdict such recommendations as to sentence as were justified by the evidence about the accused's mental state: see Volume 7 of the Stair Encyclopaedia at paragraphs 136 and 143, and Gordon, Criminal Law (3^rd ed) paragraphs 11.11 to 11.13.

[33] In my view however, such an invitation to the jury to add a rider as suggested by Mr Wheatley would be illogical and confusing. As noted above, the jury must be assumed to follow the directions reflecting the guidance in Galbraith. If they reject diminished responsibility - in effect making a finding-in-fact that the accused was not suffering at the relevant time from an abnormality of mind "which substantially impaired [his] ability ... as compared with a normal person, to determine or control his acts" - then the jury might have difficulty understanding why they had to perform a second assessment of a mental condition which, by definition, would be unlikely to affect sentence as any such condition had not substantially impaired the accused's ability at the relevant time to determine or control his acts. Thus to request a rider on that matter from the jury would be confusing for the jury, and might also give rise to some of the problems mentioned in HM Advocate v Tracey 2008 SCCR 93 at paragraph [19].

[34] I accept that sentencing guidelines in England, as set out in Schedule 21 of the Criminal Justice Act 2003, contain a special dispensation expressly permitting the sentencing judge in a murder case to take into account as a mitigating factor "the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c.11) [i.e. diminished responsibility]), lowered his degree of culpability". However those guidelines do not extend to Scotland. The Scottish Parliament had an opportunity to introduce a similar provision in Scotland in 2006 when enacting the Police, Public Order and Criminal Justice etc Act 2006, but did not do so. In the light of the guidance in Galbraith, set out above, I consider that sentencing judges in Scotland would also require express statutory permission before they could take into account any mental condition said to have affected the accused at the relevant time even although a plea of diminished responsibility had been rejected by a jury.

[35] In the result therefore it is my view that in situations where the jury have considered and expressly rejected the plea of diminished responsibility, it is not open to the sentencing judge to take into account any alleged abnormality of mind said to have been suffered by the accused at the time of the killing. For that reason, I consider that the approach adopted by the sentencing judge in the present case was correct, and that the appeal should be refused.

[36] However if I am wrong in that conclusion, and if the sentencing judge should, when sentencing, have taken into account any mental condition which he was satisfied affected the appellant at the relevant time, I agree with my lord in the chair that, for the reasons which he gives, the punishment part selected by the sentencing judge was an appropriate one. The appeal should be refused for that reason also.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Mackay of Drumadoon	[2009] HCJAC 44 Appeal No: XC673/05 OPINION OF LORD MACKAY OF DRUMADOON in NOTE OF APPEAL AGAINST SENTENCE by HARRY CALDWELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Wheatley, Solicitor Q.C., Morrow; MTM Defence, Falkirk

Alt: K.D. Stewart A.D.; Crown Agent

8 May 2009

[37] I have had the opportunity of reading in draft the Opinion of your Lordship in the Chair. For the reasons given by your Lordship, I too would refuse this appeal.

[38] I have also had the opportunity of reading in draft the Opinion of Lady Paton. It is appropriate that I should make clear that I do not find it possible to agree with the analysis of the issues set out by Lady Paton in Paras. [30] - [35] of her Opinion.