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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 >> Foye v R  EWCA Crim 475 (24 April 2013)
Cite as:  EWCA Crim 475
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ON APPEAL FROM LUTON CROWN COURT
His Honour Judge Foster
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE GLOSTER
MR JUSTICE HICKINBOTTOM
| Lee Robert Foye
|- and -
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Neil Moore (instructed by the Crown Prosecution Service) for the Respondent
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Grounds of appeal
i) The defendant should not have borne the burden of proving, even on the balance of probabilities that he was in a state of diminished responsibility when he killed Coello.
ii) Even if this is not so, the judge was wrong not to direct the jury that it had to be sure of facts asserted by two witnesses before it could take any account of those facts upon the issue of diminished responsibility.
iii) The judge wrongly limited the cross examination of a Crown witness.
iv) There were factual errors in the summing up which render the conviction for murder unsafe.
v) The judge summed up the evidence of a psychiatric witness inaccurately and unfairly.
vi) The minimum term of 35 years was manifestly excessive.
The reverse burden of proof
"On a charge of murder it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder."
The Act goes on immediately in section 2(3) to provide that if diminished responsibility is shown, the defendant is to be convicted not of murder but of manslaughter. In accordance with principle, section 2(2) has always been read as imposing on the defendant a burden of proof only on the balance of probabilities, and not requiring the enhanced standard demanded of the Crown when it bears a burden of proof in a criminal case, viz of making the jury sure, ie beyond reasonable doubt.
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
i) He submits that Ali and Jordan cannot stand with Lambert and the subsequent decisions of the House of Lords. This is wrong. Lambert contains nothing inconsistent with Ali and Jordan but rather, to the contrary, must have proceeded on the basis that an appeal against the decision was unarguable. The other subsequent cases, as we shall show, address the correct Article 6 test and none casts the beginnings of doubt on the rule as to diminished responsibility.
ii) He submits that in Ali and Jordan this court proceeded on the basis that the Human Rights Act 1998 was already in force, whereas this was later shown not to be so. That is right so far as it goes, but it is little to the point. It was precisely because this court applied the Human Rights Act that it made a decision that the law of diminished responsibility does not contravene Article 6.
iii) He submits that this court in Ali and Jordan wrongly took into account a deference to Parliament. That is just another way of saying that Ali and Jordan is wrong which is what this court is not in a position to do. We shall moreover show that this court did not fall into the error of making an assumption that Parliament must have been correct. It did no more than recognise that the fact that a democratically elected Parliament had passed the legislation in question and that a degree of appropriate deference constitutes one relevant factor.
iv) He submits that the decision in Ali and Jordan was per incuriam. Whether the decision was right or wrong there is no possible basis for this submission. An assertion that other arguments might have been addressed to the court does not begin to provide such a basis. The absence of detailed examination of the facts of the two cases of Ali and Jordan cannot do so either, because the court was addressing the principle of the reverse onus rather than its application to particular facts.
i) Diminished responsibility is an exceptional defence available in an appropriate case with a view to avoiding the mandatory sentence which would otherwise apply, so that a discretionary sentence can be imposed, tailored to the circumstances of the individual case.
ii) Diminished responsibility depends on the highly personal condition of the defendant himself, indeed on the internal functioning of his mental processes.
iii) A wholly impractical position would arise if the Crown had to bear the onus of disproving diminished responsibility whenever it was raised on the evidence; that would lead not to a fair, but to a potentially unfair trial.
"Presumptions of fact or law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect….
Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."
In other words, a reverse onus must be justified. Applying that test, the court upheld a provision of French law which deemed guilty of a customs infringement offence a person who was in possession of contraband, at least in the absence of force majeure or of it being impossible for the defendant to know the contents of the container. In effect, this provision laid upon the defendant the onus of proving such an exception.
"the overriding concern is that a trial should be fair and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary…. The substance and effect of any presumption adverse to a defendant must be examined and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention of the ability of the court to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption …. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb but on examination of all the facts and circumstances of the particular provision as applied in the particular case."
"The task of the court is never to decide whether a reverse burden should be imposed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence. It may nonetheless be questioned whether (as the Court of Appeal ruled…) 'the assumption should be that Parliament would not have made an exception without good reason.' Such an approach may lead the court to give too much weight to the enactment under review and too little to the presumption of innocence and the obligation imposed on it by section 3."
We do not, however, agree that in Ali and Jordan this court fell into the error there identified. On the contrary, at , this court set out the passage in Salabiaku in which the observation is made that a national legislature cannot strip the presumption of innocence of substance, and plainly directed itself in accordance with it. All that this court said, at , was that it remains important to have in mind that legislation is passed by a democratically elected Parliament, and that therefore courts are, under the ECHR, entitled to, and should, pay a degree of deference to Parliament's view as to what is in the public interest, which has then to be balanced against the interest of the individual.
"If the defendant is being required to prove an essential element of the offence this will be more difficult to justify. If, however, what the defendant is required to do is establish a special defence or exception this will be less objectionable."
We respectfully agree, and also with the similar analysis of Sir Brian Kerr LCJ in the Northern Ireland case of R v McQuade  NICA 2;  NI 331 at -:
"We do not, in the event, believe it necessary to embark on this interesting debate in the present case for reasons which will appear presently. Whatever may be the true position, it is, in our view, clear that it is less difficult to justify a burden on the defendant, where he has raised an entitlement to a statutory defence, to prove entitlement to that defence than it is to support a requirement that a defendant discharge an onus of proof in relation to an element of the offence."
The context of that statement was identical because the reverse onus provision there under consideration was the one arising upon diminished responsibility, on which the law is, in essence, the same in Northern Ireland as in England and Wales.
"There could be situations where there is an uncooperative defendant. Then it would be very difficult for the prosecution to satisfy the jury of the negative. A defendant is not required to submit to an examination by a doctor and it would not be desirable to change the law to require him to submit to an examination."
This was also the reason which persuaded the Scottish Law Commission to alter its previous provisional position in the light of extensive public consultation and to recommend the reverse onus provision which is now to be found in Scottish statute (see below). Likewise it was the principal consideration which underlay the decision of the Northern Ireland Court of Appeal in R v McQuade  NICA 2 that the reverse onus in diminished responsibility is fully justified. Sir Brian Kerr LCJ referred at  to the fact that the defendant's mental condition is unquestionably personal to him, and that it lies within his power to provide to medical experts the information necessary to establish the existence of diminished responsibility. At , in holding that the reverse onus was proportionate and justified, he added:
"We have reached this conclusion principally because of what we perceive to be the practical difficulties in the way of requiring the prosecution to prove that a defendant who raises the issue of mental abnormality does not suffer from that condition."
"While the effect of s. 16(4) on the presumption of innocence is clearly detrimental, given the importance of the objective that the Crown not be encumbered with an unworkable burden and given that I have concluded above that s. 16(4) limits s. 11(d) as little as is reasonably possible, it is my view that there is proportionality between the effects of the measure and the objective."
"As D is not obliged to submit to an examination by the prosecution's medical experts, a contested trial would become impossible to prosecute."
As is well known, the Commission's recommendations for a subdivision of homicide into two degrees of murder plus manslaughter did not in the end command Parliamentary approval. Its recommendations as to the substance of diminished responsibility did, save for the disappearance of the concept of developmental immaturity. But the whole topic of diminished responsibility was thus considered in depth. The reverse onus was endorsed both by the Commission and, in due course, by Parliament via the retention of section 2(2).
"Moreover, faced with the compelling reasoning of this court in Dowds in the context of diminished responsibility, it is inconceivable that different criteria should govern the approach to the issue of voluntary drunkenness, depending on whether the partial defence under consideration is diminished responsibility or loss of control. Indeed, given that in a fair proportion of cases both defences are canvassed before the jury, the potential for uncertainty and confusion which would follow the necessarily very different directions on the issue of intoxication depending on which partial defence was under consideration, does not bear contemplation."
"(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D"
Asmelash had been drunk when he stabbed his victim. The issue in the case was whether his self-induced intoxication was one of his circumstances for the purpose of section 54(1)(c). This court held that it was not. It held that the law's general approach to denying voluntary intoxication as a ground of defence to criminal offences (except on the issue of the formation of a specific intent) underlay the new statute and any change in it would have been spelled out in unequivocal language. The reaction of the hypothetical other person with a normal degree of tolerance and self restraint had to be judged as if he were sober. In reaching that conclusion this court adopted reasoning similar to that of a different constitution of the court in the diminished responsibility case of Dowds  EWCA Crim 281;  1 Cr App R 34. There, it had been held that the general approach to self-induced intoxication underlay the new law of diminished responsibility so that such voluntary intoxication was not a recognised medical condition which could be relied upon to found that partial defence.
The onus as to particular parts of Crown evidence
Details in the summing up
i) Enough has been said above about the points made on the evidence of MD. Although there were two 'Lee's and the one in Coello's subgroup was not the defendant, there was never any suggestion by anyone that it was not this defendant who made the remark about Coello needing to be on a different wing or put down.
ii) We cannot see that the accidental inclusion in the read evidence of McCann to the effect that he had seen the deceased and the defendant speaking to one another apparently without hostility can have had any impact on the jury's decision. Even if the Crown had suggested generally that the defendant was cultivating Coello with a view to murder, it is a very long step from this fragmentary evidence to that possibility.
iii) The judge's summing up of the evidence of Warwick quite sufficiently identified points made during it on behalf of the defendant.
iv) The admittedly possible if rather complicated reasoning now advanced on behalf of the defendant on the basis of a tiny piece of Mr Mandikate's evidence, to the effect that the defendant had said that his homicidal thoughts related to persons unknown as well as to those who had behaved badly to his mother, did not require separate identification to the jury.
v) Dr Joseph was perfectly entitled to refer to the record of Mr Mandikate that the defendant had spoken of admiring his violent father, and the rival contentions about the possible significance of this were neutrally summed up.
vi) There was a slip in relation to the percentage of prisoners overall with personality disorders. It would no doubt have been corrected by defence counsel if it had been likely to be unfair to the defendant, but it was not.
vii) The judge did indeed refer to the opinion of Dr Joseph as coming robustly to the view that the defendant did have control of himself at the material time, and it is true that this was based on hypotheses which the jury had to resolve, but they were hypotheses which commended themselves to the doctor. The passage in the summing up is immediately balanced by the different view of the other two psychiatrists on the subject of control.
viii) In our view the judge would have been better to avoid reference to Dr Shapero having had a closer clinical association with the defendant than the other doctors, but we are quite unable to see that it can have led the jury to an unfair conclusion.
ix) We do not agree that the treatment of the possible psychotic symptoms which appeared extremely late and without any apparent trigger, was unfair. The comment might have been rather stronger, since Dr Shapero was not able to suggest any medical process by which they might have arisen.