APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Paton Lord Reed Lord Emslie Lord Kingarth	[2011] HCJAC 41 Appeal No: XC588/08 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by DAVID LILBURN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Labaki; Paterson Bell, Edinburgh

Respondent: Ferguson, Q.C., A.D.; Crown Agent

26 April 2011

Introduction

[1] On 18 July 2008 the appellant was convicted after trial of the murder of his wife. He did not dispute that he had killed her but pled that, on the ground of diminished responsibility, his conviction should be of culpable homicide rather than of murder. After sundry procedure this court on 12 August 2010 remitted to a bench of five judges "the general question ... as to the nature and the incidence of the onus when a question of diminished responsibility is raised by the defence".

The practice

[2] The practice of trial judges in this matter is long-established and is not in dispute. In HM Advocate v Braithwaite 1945 JC 55 Lord Justice Clerk Cooper referred to diminished responsibility as a "defence", though he made it clear that, if such a "defence" was made out, the proper verdict would be of guilty of culpable homicide, not an acquittal. He told the jury (page 57):

"If you can find enough to justify such a conclusion [of diminished responsibility], your verdict should be one of culpable homicide only. If, on the other hand, you cannot find enough in the evidence to justify such a conclusion, then I have to tell you that, so far as this issue is concerned, you must steel yourselves to do your sworn duty by returning a verdict of guilty of murder".

At page 58 he makes explicit that it is for the defence to make out the plea of diminished responsibility. This was confirmed in the full bench decision Ross v HM Advocate 1991 JC 210, where at page 218 Lord Justice General Hope, under reference to HM Advocate v Braithwaite, observed:

"... in cases where a verdict of culpable homicide on the ground of diminished responsibility is sought, the accused requires an express finding by the jury who must be satisfied that his defence of partial responsibility is made out before a verdict in these terms can be returned."

A like direction was given by Lord Russell at trial in Carraher v HM Advocate 1946 JC 108 at pages 112-3 where, echoing the words of Lord Justice Clerk Cooper in Braithwaite at page 58, he said:

"If the Crown have established here [the actus reus] it is not for the Crown to go further and show that the accused was fully responsible for what he did. It is for the accused to make good his defence of partial irresponsibility, and that means that he must show you that the balance of probability on the evidence is in favour of the view that his accountability and his responsibility are below normal in the sense of the legal requisites that I endeavoured to make plain to you."

In Lindsay v HM Advocate 1997 JC 19 the court described the trial judge's direction to the same effect as "consistent with an unbroken line of authority".

[3] Diminished responsibility (sometimes described as "impaired" or "reduced" responsibility) as a factor bearing on the character of the crime committed is generally considered to have entered Scots jurisprudence in the directions given to the jury by Lord Deas in HM Advocate v Dingwall (1867) 5 Irv. 466 where at page 480 it is reported:

"The state of mind of a prisoner might, his Lordship thought, be an extenuating circumstance, although not such as to warrant an acquittal on the ground of insanity; and he could not therefore exclude it from the consideration of the jury here, along with the whole other circumstances, in making up their minds whether, if responsible to the law at all, the prisoner was to be held guilty of murder or of culpable homicide."

Lord Deas repeated these views in HM Advocate v McLean (1876) 3 Couper 334 at pages 337-8. In the whole court case Kirkwood v HM Advocate 1939 JC 36 Lord Justice General Normand said at page 40:

"I think that there is no doubt that the defence of impaired responsibility is somewhat inconsistent with the basic doctrine of our criminal law that a man, if sane, is responsible for his acts, and, if not sane, is not responsible. It is a modern variation of that basic doctrine, justified in each case by medical testimony directed to the special facts of the case. The mental weakness, or weakness of responsibility, is regarded by our law as an extenuating circumstance, and it has effect as modifying the character of the crime, or as justifying a modification of sentence, or both."

Submission for the appellant

[4] Mr Shead for the appellant did not maintain that there was no onus on an accused who contended that his responsibility was diminished. He submitted, however, that the burden was only an evidential, not a legal, burden; the accused had to raise evidentially, almost inevitably by appropriately qualified medical opinion testimony, that his responsibility was diminished; if he did so, it was for the Crown to prove beyond reasonable doubt and on corroborated evidence that he was fully responsible for his actions. The position, so ran the argument, was analogous with that of provocation which had been authoritatively discussed in Drury v HM Advocate 2001 SCCR 583; any former rule or practice to the contrary was now obsolete and should be overruled. Lord Justice General Rodger had in Drury likened diminished responsibility to provocation. At para [13] he said:

"As its name suggests, ... the crime of culpable homicide covers the killing of human beings in all circumstances, short of murder, where the criminal law attaches a relevant measure of blame to the person who kills. For instance, it covers cases where a person who is suffering from diminished responsibility intends to kill someone and does so. Even though the killing is intentional, the appropriate verdict is one of culpable homicide. Similarly, where the deceased has provoked the accused and the accused, under the influence of that provocation, kills him, the accused will be guilty of culpable homicide even though he intended to kill the deceased."

In the case of provocation there was no legal onus on an accused - see for example Drury per Lord Justice General Rodger at para [21], where he said:

"If, because of [the accused's evidence] ... or for any other reason based on the evidence in the case, [the jury] had not been satisfied beyond reasonable doubt that the appellant had acted wickedly, then they would have convicted him of culpable homicide."

Lord Nimmo Smith in the same case at para [3] said:

"To secure a conviction for murder, the Crown must, when the point is raised, displace, inter alia, any effect that provocation may have had on the mens rea of the accused. ... Unless, where it is put in issue, the Crown can succeed in excluding provocation as affecting the state of mind of the accused, the appropriate verdict is, at most, one of culpable homicide."

The public policy considerations in respect of provocation and of diminished responsibility were the same. The analogy between these concepts had recently been drawn by the court in HM Advocate v Kerr [2011] HCJAC 17 (where the issue was whether diminished responsibility was available as a plea in a case where attempted murder was charged). In any event to impose a legal burden on an accused to establish diminished responsibility was inconsistent with the presumption of innocence in Article 6(a) of the Convention.

Discussion
[5] The most recent authoritative treatment of the concept of diminished responsibility is in Galbraith v HM Advocate 2001 SCCR 551. In summarising the court's conclusions Lord Justice General Rodger said at para [54]:

"... precisely because diminished responsibility is a legal concept, it is for the trial judge to determine whether there is evidence on which the jury would be entitled to convict the accused of culpable homicide rather than of murder, on the ground of diminished responsibility. ... 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."

That summary reflected a fuller treatment at para [41]. There is no express reference in either of these passages to the incidence of proof; but they are wholly consistent with the settled practice of trial judges (and the decision in Lindsay v HM Advocate) that there is a legal onus on the accused not only to raise but to establish (albeit on a balance of probabilities) any plea of diminished responsibility. Had the court considered that that settled practice was wrong, or that there were doubts about its soundness, we would have expected the court (which comprised five judges) to make reference to that matter. That is particularly so where the trial judge's directions on diminished responsibility (narrated at para [9]) included an express direction that, as an exception to the general principle about the onus of proof, the burden of proving diminished responsibility lay on the accused.

[6] It is clear that in the case of a plea of insanity at the time of the offence an onus rests upon the defence to establish it "since proof of insanity is required before the presumption of sanity can be displaced" (Lambie v HM Advocate 1973 JC 53, per Lord Justice General Emslie at page 57). Mr Shead did not dispute that in such a case the onus was a legal onus on the defence. In Ross v HM Advocate Lord Justice General Hope at page 218 treated, as regards onus of proof, insanity and diminished responsibility in the same way, distinguishing such pleas from a contention of automatism. In Lambie Lord Justice General Emslie had at page 57 cited with approval a passage from Renton and Brown's Criminal Procedure (4^th ed. at page 360), where insanity and diminished responsibility were treated together. That passage is repeated in the current 6^th edition at para 24-01. In its research and recommendations, both in its Discussion Paper on Insanity and Diminished Responsibility (No.122) (2003) and its Report on Insanity and Diminished Responsibility (No.195) (2004), the Scottish Law Commission concluded that the same rule as to onus should apply in relation to pleas of insanity and diminished responsibility (see Discussion Paper at para 5.35 and Report at para 5.47), regarding the two as broadly analogous. That was notwithstanding a revised treatment of diminished responsibility in Galbraith v HM Advocate, which was noticed.

[7] In the Discussion Paper the Commission proposed that in each case the burden of proof on the accused should be evidential only (paras 5.19 and 5.37). By the time of its Report it had changed its view on that issue. It now recommended that in each case there should, in statutory form, be a burden of proof on the accused to prove his defence or plea on the balance of probabilities (paras 5.28 and 5.48) - that is, a legal burden on him. This revised view was adopted by the Scottish Parliament in enacting the Criminal Justice and Licensing (Scotland) Act 2010, section 168. By that section the Criminal Procedure (Scotland) Act 1995 is amended by the insertion of new sections before section 52 of that Act. By section 51A(4) it is for a person stating a special defence of insanity at the time of the relevant conduct to establish that defence on the balance of probabilities. By section 51B(4) it is for a person charged with murder who pleads diminished responsibility to establish, on the balance of probabilities, that that condition existed. Section 168 is yet to be brought into force.

[8] In para 5.21 of the Report the Commission said:

"We are of the view that the [European] Convention does not require that any burden on the accused [to prove insanity at the trial] should be an evidential one only. Placing a legal burden of proving the defence can be a proportionate qualification to the rights of an accused person under article 6 provided that there are clear reasons for doing so. In our view there are at least four such reasons."

[9] The Report then sets forth these reasons. Some of them may be more compelling than others. They largely turn upon practical considerations rather than on legal principle. But there is clearly a rational basis for distinguishing a defence of insanity from a defence of self-defence or a plea of provocation and Mr Shead did not dispute that, in cases of insanity, there is, and should be, a legal burden on the accused. There is also a rational basis for adopting the same rule for the plea of diminished responsibility. To do so is proportionate. An equivalent rule in English law was held by the European Court to be consistent with the Convention (Robinson v United Kingdom, App. No. 20858/92, unreported, 5 May 1993). The Commission noted that the statutory provision in question did not concern the presumption of innocence as such but "an inherent presumption of mental normality". Decisions to the same effect were reached by the Court of Appeal, Criminal Division, in R v Lambert and Others [2002] QB 1112 - see paras 17-19 - and by the Court of Appeal of Northern Ireland in R v McQuade [2005] NICA 2.

[10] Although there are some parallels between the plea of provocation and that of diminished responsibility (each involves consideration and assessment of the mental state of the accused at the relevant time), there are important differences. The former is primarily concerned with an accused's immediate reaction to external circumstances and involves objective criteria. The latter is primarily concerned with the internal state of an accused's mind, which state is likely to have had an antecedent history and the establishment of which will importantly depend upon the accused's co-operation. The parallels between provocation and diminished responsibility drawn by Lord Justice General Rodger in Drury v HM Advocate at para [13] and by the court in HM Advocate v Kerr were not drawn in the context of any question of onus of proof. In R v McQuade the Court of Appeal of Northern Ireland said at para [28]:

"The presumption [of mental normality] does no more than assume that a defendant has normal mental capacity. Although the defendant who claims to suffer from mental abnormality may not be able from his own resources to produce evidence of this, such a condition is unquestionably personal to him and is one to which the prosecuting authorities will not normally be privy. It is reasonable that the defendant be required to prove that he suffers from the condition since it lies within his power to provide to medical experts the information necessary to establish its existence. The standard of proof that he is required to produce is such as will establish the proposition on the balance of probabilities, whereas if the burden were cast on the prosecution it would not only have to prove a negative (that the condition was not present) but would have to do so beyond reasonable doubt. While it may be true that medical knowledge about the aetiology of [the particular personality disorder from which the appellant suffered] is in a less than settled state, it does not appear to us to be reasonable that the prosecution (facing as it does a higher standard of proof) should be burdened with such difficulties in evidence that may arise from this lack of certainty."

We find this reasoning persuasive. It is all the more compelling in the context of Scots law, where the imposition of the burden on the Crown would also entail proof by corroborated evidence.

Disposal

[11] The nature and the incidence of the onus in a question of diminished responsibility are essentially issues of practical legal policy. It has long been the established practice in criminal trials in Scotland for judges to direct juries that the burden of establishing that plea rests on the defence, proof on the matter being on the balance of probabilities. There is no authority in Scotland which suggests that such a direction is unsound. It is consistent with Convention law. It was not doubted in Galbraith v HM Advocate. The Scottish Law Commission has recommended that it be given statutory force. A provision to that effect has been enacted, and is expected to be brought into force later this year. In these circumstances we see no reason for disapproving that practice, which in our view is sound.

[12] The relevant ground of appeal (ground 1(b)) is accordingly rejected. As this is the only outstanding ground of appeal against conviction, the appeal against conviction is refused. The case will now be remitted for consideration of the appeal against sentence.