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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Tandy, R. v [1987] EWCA Crim 5 (21 December 1987) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1987/5.html Cite as: (1988) 87 Cr App R 45, [1989] 1 WLR 350, [1987] EWCA Crim 5, [1989] WLR 350

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice,
		21st December 1987

JUDGMENT (As approved by Judge)

POINT OF LAW

Whether, for a craving for drink or drugs in itself to produce an abnormality of mind within the meaning of S. 2(1) of the Homicide Act 1957, the craving must be such as to render the accused's use of drink or drugs involuntary or whether it is sufficient for the defence to prove that the craving was such as to make it more difficult, than for an ordinary individual, for the accused to resist the impulse to consume alcohol or use drugs?

LORD JUSTICE WATKINS: The appellant was convicted of the murder of her 11-year old daughter, Amanda, at the Leeds Crown Court on 29th January 1987 in a trial before Mr. Justice Kennedy and sentenced to life imprisonment.

The appellant, to whom the single Judge gave leave to appeal against conviction, did not at the trial dispute that. She had caused Amanda's death on Wednesday, 5th March 1986, in a bedroom, at the home of the appellant and her second husband, Martin Tandy. Amanda and her brother were the children of the first marriage. Death was caused by strangulation with a scarf; the act of strangulation took place at approximately 8 p. m. Death followed at 9. 30 the following morning after Amanda had been admitted to hospital. She did not at any time recover consciousness.

The evidence at the trial indicated that the relationship between the appellant and her daughter was a good one; that they were like sisters.

On 5th March the appellant telephoned the police at 5.45 p.m., because Amanda, according to her, had not returned home at the expected time. She searched for her, she said, but could not find her. That call was tape recorded by the police, to whom the appellant sounded as though she had been drinking.

At 6.45 p.m. a woman Police Constable Went to the appellant's home. By this time Amanda had returned, had gone to her bedroom and was refusing to leave it. The constable saw Amanda there. She maintained that the appellant had known where she was. The constable reported that the appellant looked and smelled as though she had been drinking; she was dirty, unkempt, nervous and shaking.

After the constable had left the house at about 7.50 p. m., the appellant went to speak to Amanda in her bedroom. Martin Tandy was still in the house at that time. Whilst the appellant was speaking to Amanda he left.

Amanda told her mother that she wanted to go and live with her grandmother. When asked why, she said that she had been sexually interfered with but she would not name the person responsible. The appellant asked Amanda whether it was her step-father who had been interfering with her. The appellant's evidence as to that was, "I said to the child on the bed, is it that bastard just gone out? And then after a long while there was a scream and that was it. I thought that she meant that Martin had been at her. I just saw her there in the bed blue and lifeless. That was when I went to the neighbours. I accept that I must have been responsible, but I have no recollection of having killed her. I don't know where the scarf came from or anything. I don't remember what I said to the police or Mrs. Hemmingway. I remember the ambulance going and I remember going to the police Station and being arrested. "

In fact, having strangled her daughter, the appellant went to a neighbour and asked her to go to the appellant's house, because she, the appellant, thought Amanda was dead. Later the appellant claimed that Amanda had tried to kill herself.

A post mortem performed on the Thursday afternoon showed that Amanda death had been caused by the application of a ligature for tens of seconds. It also revealed that she had been sexually abused over a period of weeks or months in that there was dilation of the anus consistent only with a number of acts of intercourse per anum; in the pathologist's view, more than twelve such acts. In addition Amanda's pubic hairs had been shaved.

Evidence at the trial established that it was not the appellant who had interfered with Amanda. The appellant claimed -- there was no evidence to contradict this -- that until the Wednesday evening she had had no idea that her daughter was being sexually abused.

At the trial the appellant's intention at the time of the killing was put in issue. No complaint has been raised in regard to the learned trial Judge's directions to the jury upon the requisite intent for murder and no ground of appeal arises out of this issue.

The second issue raised at the trial was the defence of diminished responsibility under section 2(1) of the Homicide Act 1957.

It was raised in this way: the appellant was at all material times an alcoholic. According to her first husband she had by 1980 been in that condition. Her own evidence was that she had been drinking heavily for a number of years, her drinking being due to loneliness and two unhappy marriages.

She told the doctors who examined her, and the jury, that she normally drank either Barley Wine or Cinzano, but that on Monday, 3rd March, she had purchased a bottle of vodka. She had not opened this until the morning of the Wednesday, but having opened and started the bottle of vodka, she had consumed 9/10ths of it during the course of that day. She had had her last drink at about 6.30 p. m. She had not previously drunk vodka.

Vodka contains more alcohol than Cinzano which the appellant said she had drunk on Monday the 3rd. She could not recall Whether or not she had had a drink on the Tuesday.

Forensic evidence showed that her blood alcohol level at midnight on Wednesday 5th March, when a sample of blood was taken from her by Dr. Stoker, was 240 mgs. of alcohol per 100 mls. of blood. The opinion of Dr. Wood, a Consultant Forensic Psychiatrist called by the defence, was that at the time of the act of strangulation the level of alcohol in the appellant's blood would have been not less than 330 mgs. of alcohol per 100 mls. of blood and could have been anything up to 400 mgs. of alcohol per 100 mls. of blood.

Dr. Lawson, who gave evidence for the Crown, said that in his view the appellant's blood at the time of the strangulation would have contained approximately 300 mgs. of alcohol per 100 mls. of blood. The medical evidence indicated that this level of alcohol would be a lethal intake of intoxicants for a normal person, but that alcoholics, because of their persistent abuse of alcohol, become able to tolerate such levels of alcohol in their blood streams and to dissipate alcohol from their blood streams more quickly than non-alcoholics are able to.

Indeed in this case the evidence of Dr. Stoker, who examined the appellant when at midnight he obtained the sample of blood from her, was that her movements were coordinated, her speech was all right and the appellant displayed no clinical evidence of intoxication. Dr. Stoker had observed her walking up two flights of stairs.

There were three principal areas of conflict between the medical witnesses called at the trial on behalf of the appellant and the medical witness called by the Crown. The first was as to whether alcoholism is or is not a disease. Dr. Wood and Dr. Milne (a Consultant Psychiatrist) both expressed the view that alcohol dependence syndrome, or alcoholism in the severity manifested in. the appellant's case, constituted a disease. Dr. Lawson, who accepted that the appellant was an alcoholic, expressed the opinion that alcoholism, even chronic alcoholism, is not a disease.

In. summing up the Judge told the jury with regard to that (page 36B):

".... it is totally unnecessary for you to involve yourselves in that medical controversy about labelling. You have to apply the words of the Act of Parliament in a common sense way and those words are reflected in the wording on that sheet before you. "(Here the Judge was referring to a document headed, "Questions for the jury" which he had prepared and provided to the jury). "If you find that a woman is suffering from an abnormality of mind in the form of grossly impaired judgment and emotional responses and if you find that she is so suffering as a direct result of a condition over which she has — and I emphasise the words — no immediate control, then you can say that the second element in. this defence is proved because her abnormality of mind is induced by disease or injury. "

The Judge was there telling the jury that the issue they had to decide was not whether alcoholism is or is not a disease, but whether the appellant was suffering from an abnormality of mind, in the form of grossly impaired judgment and emotional responses, as a direct result of her alcoholism, or whether, as the Crown on the evidence of Dr. Lawson contended, her abnormal state of mind at the moment of the act of strangulation was due to the fact that she was drunk on vodka.

The second area of conflict between the doctors was whether the appellant's drinking on the Wednesday was voluntary or involuntary.

Dr. Wood said of this that he thought it would have been very difficult for her to resist the temptation of drink on that day. She was under some pressure to continue drinking to stave off the shakiness and other symptoms of withdrawal affecting her. He also said he would argue that drinking to that extent (that is to say most of a bottle of vodka) was an inherent part of the disease. He considered that compulsion was certainly partly causative of her drinking as she did on that day in that the choice to do so was not a free choice. Compulsion stemmed from her being an alcoholic and her experience that to deny herself drink would lead her to being severely uncomfortable, if not ill. When asked if the appellant in his view at that time- had control over her drinking habits, he replied, "No none whatsoever".

Dr. Milne said that he believed the appellant drank involuntarily, because she was an alcoholic.

Dr. Lawson agreed that a person who is an alcoholic has a craving for alcohol and a compulsion to drink. His view was that the appellant had control over whether she had the first drink of the day, but once she had had the first drink she was no longer in control.

The third area of conflict in the medical evidence was on the question whether, if the appellant had not taken drink that day, she would have strangled her daughter.

Dr. Lawson put his view in one short answer: "I could not see her killing the child if she were sober." Dr. Milne, when asked whether he went as far as to say that if the appellant had not consumed any drink that day she would have still committed this offence, answered "No."

Dr. Wood agreed that an alcoholic may do something which he or she would not otherwise do but for the intake of alcohol. When asked whether, if the appellant had not consumed any drink that day, she would have still done what she did to her daughter, he said, "I do not know. I think had she not consumed drink on that day she would have been quite seriously ill in another fashion by 8 o'clock that evening." He amplified that answer by saying that the appellant's problem on the 5th March was serious alcoholism and until she was withdrawn from alcohol, whether or not she was intoxicated, she would have suffered from seriously disturbed judgment and emotional control. He thought that her judgment and emotional control would have continued to be severely disturbed on the Wednesday, even had she not drunk the vodka which she did drink that day.

The ground of appeal is that there was material misdirection of the jury in regard to the defence of diminished responsibility.

The relevant passages in the summing up are where the Judge said:

"The choice [of the appellant whether to drink or not to drink on Wednesday the 5th March 1986] may not have been easy but .... if it was there at it is fatal to this defence, because the law simply will not allow a drug-user, whether the drug be alcohol or any other, to shelter behind the toxic effects of the drug which he or she need not have used."

And where he stated earlier (page 37A): "If she had taken no drink on the 5th March, 1986, or if you were satisfied that Dr. Wood is right in saying that judgment and emotional response would have been grossly impaired even if no drink had been taken, then the answer would be easy, but clearly she did take drink on the 5th March and if she did that as a matter of choice, she cannot say in law or in common sense that the abnormality of mind which resulted was induced by disease."

Mr. Stewart, the appellant's counsel, submits that these are misdirections, because:

(1) The medical evidence had been unanimous that there might be compulsion to drink at least after the first drink of the day, that it was the cumulative effect of the consumption of 9/10th of the bottle of vodka which caused her to be in the state of intoxication she was in at the time of the killing. By his directions the Judge removed the question of compulsion after the taking of the first drink from the jury's consideration.

(2) The directions removed from the jury's consideration Dr. Wood's evidence that the alcoholism alone produced an abnormal state of mind which substantially impaired her mental responsibility for her acts.

(3) The directions removed from the jury the issue which this Court in Fenton (1975) 61 Cr. App. R. 261 at 263 recognised could arise when an accused person proves such a craving for drink as to produce in itself an abnormality of mind. Lord Widgery, C.J.'s actual words were:

"....cases may arise hereafter where the accused proves such a craving for drink or drugs as to produce in itself an abnormality of mind; but that is not proved in this case. The appellant did not give evidence and we do not see how self-induced intoxication can of itself produce an abnormality of mind due to inherent causes." (The jury had been rightly told to ignore the effect of alcohol).

Section 2(1) of the Homicide Act 1957 provides: "Where a person kills ..... 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."

The authority of Byrne (1960) 2 Q.B. 396 at page 403 established that the phrase "abnormality of mind" was wide enough to cover the mind's activities in all its aspects, including the ability to exercise will power to control physical acts in accordance with rational judgment. But "abnormality of mind" means a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal.

The defence of diminished responsibility was derived from the law of Scotland, in which one of the colloquial names for the defence was "partial insanity". Normal human beings frequently drink to excess and When drunk do not suffer from abnormality of mind, within the meaning of that phrase in section 2(1) of the Act of 1957.

Whether an accused person was at the time of the act Which results in the victim's death suffering from any abnormality of mind is a question for the jury; and as this Court stated in Byrne, although medical evidence is important on this question, the jury are not bound to accept medical evidence if there is other material before them from which in their judgment a different conclusion may be drawn.

The Court of Appeal in Gittens (1984) 79 Cr. App. R. 272 said that it was a misdirection to invite the jury to decide whether it was inherent causes on the one hand or drink and pills on the other hand which were the main factor in causing the appellant in that case to act as he did. The correct direction in that case was to tell the jury that they had to decide whether the abnormality arising from the inherent causes substantially impaired the appellant's responsibility for his actions. Lord Lane C.J. said, at p. 703:

"Where alcohol or drugs are factors to be considered ..... the best approach is that..... approved by this Court in Reg. v. Fenton, 61 Cr.App.R. 261. The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes .... Then the jury should consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendant's mental responsibility ....".

At page 4A of the summing up and in the document headed "Questions for the Jury", the Judge set out the three matters which the defence had to establish on the balance of probability for the defence of diminished responsibility to succeed. No criticism of that part of the summing up or that part of the "Questions for the Jury" has been made nor could it have been.

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

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

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

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

In our judgment the direction which the Judge gave the jury accurately reflected these principles. There was evidence on which the jury, directed as they were, could reach their verdict. The appellant had chosen to drink vodka on the Wednesday rather than her customary drink of Cinzano. Her evidence was that she might not have had a drink at all on the Tuesday. She certainly did not tell the jury that she must have taken drink on the Tuesday or Wednesday because she could not help herself. She had been able to stop drinking at 6.30 p.m. on the Wednesday evening although her supply of Vodka was not exhausted. Thus her own evidence indicated that she was able to exercise some control even after she had taken the first drink, contrary to the view of the doctors. There was the evidence of Dr. Lawson that the appellant would have had the ability on that Wednesday to abstain from taking the first drink of the day.

Mr. Smith, who appeared for the Crown, pointed out in his submissions that the abnormality of mind described by Dr. Wood and Dr. Milne was of grossly impaired judgment and emotional responses and it did not include an irresistible craving for alcohol.

The three matters on which the appellant relies in the perfected grounds of appeal for saying that there was a misdirection can be dealt with shortly. As to the first, in our judgment the Judge was correct in telling the jury that if the taking of the first drink was not involuntary, then the whole of the drinking on the Wednesday was not involuntary. Further, as we have pointed out, the appellant's own evidence indicated that she still had control over her drinking on that Wednesday after she had taken the first drink.

As to the second, the jury were told correctly that the abnormality of mind with which they were concerned was the abnormality of mind at the time of the act of strangulation and as a matter of fact by that time on that Wednesday the appellant had drunk 9/10th of a bottle of vodka.

On the third point we conclude that for a craving for drinks or drugs in itself to produce an abnormality of mind Within the meaning of section 2(1) of the 1957 Act, the craving must be such as to render the accused's use of drink or drugs involuntary. Therefore in our judgment the Judge correctly defined how great the craving for drink had to be before it could in itself produce an abnormality of mind. In any event, it was not the evidence of the doctors called on behalf of the appellant that her abnormality of mind included, let alone consisted solely, of a craving for alcohol.

For those reasons we find that there was no material misdirection of the jury and we dismiss this appeal.

(The appellant's application for a certificate on a point of lav was deferred with legal aid, if necessary)