The Supreme Court dismissed Mark Golds’s appeal against his conviction for murdering his partner. He had admitted the killing, and the only issue was whether diminished responsibility reduced the offence to manslaughter because an abnormality of mental functioning substantially impaired specified abilities. The Court held that “substantially” requires an impairment of real weight or importance, not merely something more than trivial, and that a judge need not ordinarily define the word for the jury.
Golds admitted the killing and relied on the partial defence of diminished responsibility. The dispute in the Supreme Court concerned how jurors should decide whether a recognised medical condition had substantially impaired one or more of the abilities listed in section 2 of the Homicide Act 1957.
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The evidence at trial
Expert psychiatrists agreed that Golds had a medical condition which substantially impaired at least one of the statutory abilities. Their diagnoses and conclusions about which abilities were affected were not identical.
The judge correctly identified the successive questions for the jury and gave them a written route to verdict. On “substantially impaired”, he declined to offer a definition unless the word became a stumbling block, telling the jury that an everyday word should ordinarily be left to them. The jury asked for no further help and convicted Golds of murder.
The argument on appeal
Golds contended that the judge should have defined “substantially impaired” and that, without a definition, the jury might have applied too stringent a test. His case was that any impairment more than merely trivial was enough. The Court of Appeal dismissed the appeal. It held that the judge was not required to give a greater definition and that it would be wrong to direct a jury that impairment more than merely trivial sufficed. It certified two questions: whether a direction defining “substantial” is required, and, if a direction is given, whether the word means “something more than merely trivial” or something connoting more than that, such as impairment which, whilst short of total, is nevertheless significant and appreciable.
The established meaning of “substantially”
Lord Hughes, with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Reed, Lord Toulson and Lord Thomas agreed, reviewed the authorities on the unamended section, including R v Byrne, R v Simcox, R v Lloyd and R v Ramchurn. Those cases treated substantial impairment as a question of degree for the jury and rejected the submission that any impairment beyond the merely trivial was enough. The underlying assumption was that the impairment had to be of some importance, or, as it was put in R v Seers, a serious degree of impairment. References to the borderline of insanity were later recognised as unhelpful in many cases, but they did not support a triviality threshold.
The same expression was carried into the amended section and now governs impairment of one or more of three specified abilities rather than a single global question of mental responsibility. There was no indication that Parliament intended a different sense. As a matter of language, “substantial” can mean either present rather than fanciful, and thus more than merely trivial, or important and weighty. The Equality Act 2010 uses the first sense for disability, but diminished-responsibility cases have consistently used the second. An impairment of consequence or weight is required before murder is reduced to manslaughter.
That reading also fits the nature of the partial defence. Before diminished responsibility can arise, the killing must have been done with murderous intent and without provocation or self-defence. Reducing the offence is a radical alteration and is appropriate where there is a weighty reason, not a reason that merely passes the trivial. A finding that the condition was a significant cause of the killing does not necessarily answer whether the impairment itself was substantial.
Directions in future cases
The Court answered the certified questions by holding that, ordinarily, the judge need not go beyond the statutory words and should not attempt to define “substantially”. The jury should be given to understand that it is an ordinary English word, that it imports a question of degree, and that whether the impairment in the case before them can properly be called substantial is for them to decide. Experience suggested that the semantic issue would not arise in many trials.
If, however, the jury has been introduced to the suggestion that any impairment beyond the merely trivial will suffice, or to a spectrum running from just beyond trivial to total impairment, the judge should explain that the impairment must pass the merely trivial before it need be considered, but that it is not the law that anything beyond the trivial is enough. It must be such as the jury judges to be substantial. Whether that risk of misunderstanding has arisen is for the trial judge. Expressions such as “significant and appreciable”, provided “appreciable” is understood as considerable rather than merely recognisable, “a serious degree of impairment”, or “something far wrong” may illustrate the sense of the word, so long as the jury is clearly told that no single synonym replaces the statutory language. Experts who use “substantially” should use it in this second sense, while remembering that the decision is for the jury.
On these facts the debate between the two meanings barely arose. If Golds had been in the grip of a psychotic episode involving persecutory delusions, that would by any ordinary standard have involved substantial impairment. The real question was whether, on the balance of probabilities, he had been. The Crown’s case was that he was simply very angry for ordinary domestic reasons. The judge left the issues to the jury and reminded them that the doctors agreed there was a medical condition substantially impairing his abilities.
Uncontradicted medical evidence
The Court also considered R v Brennan, decided after the trial and appeal in this case. Where uncontradicted medical evidence supports diminished responsibility, the judge should ensure that any basis on which the Crown invites the jury to reject it is one the jury can properly adopt, and should warn that brutality and planning may be consistent with a disordered mind. The jury should be advised against acting as amateur psychiatrists and told that undisputed expert evidence will probably be accepted unless there is an identified reason not to do so. Even so, a judge should be cautious about withdrawing murder from the jury. The defendant bears the burden, and whether the impairment was substantial, like causation, remains a jury question.
For the earlier evidential issues and the first appeal, see R v Golds [2014] EWCA Crim 748.
Verdict: The Supreme Court unanimously dismissed Golds’s appeal. The murder conviction stood. The judge was entitled to leave “substantially” to the jury in its ordinary sense. If a risk of misunderstanding arises, the judge must make clear that an impairment can exceed the trivial and still fall short of substantial.
