Published: Wed, 07 Mar 2018
Case Summary of R v Stewart  1 WLR 2507
Introduction to the topic
Diminished responsibility is a partial defence to murder, having the effect of reducing the charge to voluntary manslaughter,1 which carries a discretionary, as opposed to mandatory,2 life sentence. The relevant legislative provision is s.2 Homicide Act 1957, as amended by the Coroners and Justice Act 2009.
In outline, s.2 provides that a person suffering from an ‘abnormality of mental functioning’3 which arises from a ‘recognised medical condition’4 that ‘substantially impairs‘5 the defendant’s ability to either understand the nature of his conduct, form a rational judgment or exercise self-control,6 and forms an explanation for the defendant’s conduct in killing the victim,7 is not to be convicted of murder but, instead, manslaughter.8
Intoxication operates as a general defence. Where a defendant is voluntarily intoxicated he may plead the defence for a specific intent crime (as opposed to basic intent) such as murder, if the defendant was so intoxicated as to not possess the requisite mens rea for the crime.9 A voluntarily intoxicated defendant has no defence to crimes of basic intent such as assault occasioning actual bodily harm contrary to s.47 Offences Against the Person Act 1861.10
Issue raised by the case
The case raised the issue of the relationship between voluntary intoxication and diminished responsibility, and whether R v Tandy (1989)11 still remained good law. That case considered that if the first drink of the day was voluntary, then the defendant’s intoxication could not be said to be involuntary. Intoxication, without more, can only be used for the defence of diminished responsibility if it has damaged the brain or the first drink of alcohol is totally involuntary (alcohol dependency syndrome).
It also concerned whether or not alcohol dependency syndrome is sufficient alone to satisfy the defence.
The defendant killed the victim during a drunken fight whilst heavily intoxicated. He suffered from alcohol dependency syndrome, a recognised medical condition.12
The decision in R v Tandy (1989) was considered to be too strict in light of the decision in R v Wood (2008).13 The contention that the defence would fail if any of the defendant’s drinking was voluntary was incorrect.14 Alcohol dependency syndrome did not require complete involuntariness: ‘one of the criteria for ICD10 purposes includes the “difficulty”, not, we emphasise, the impossibility of controlling the use of alcohol’15
At paragraph 26 Lord Judge CJ noted that the recognition of alcohol dependency syndrome as a disease needed to be reconciled with the general bar on the use of voluntary intoxication as a defence unless it bears on the question of the defendant’s intent.16
The key paragraph of the judgment is paragraph 29:
The consumption of vast amounts of alcohol may therefore reduce murder to manslaughter, first, when the effect of the intoxication is so extreme that the prosecution has failed to prove the necessary intent to kill or cause grievous bodily harm (R v Sheehan and Moore)17 and second, assuming that the necessary intent is proved notwithstanding the consumption of alcohol, on the basis of diminished responsibility, provided the Defendant proves that he was suffering from such abnormality of mind induced by the disease or illness of alcohol dependency syndrome that his mental responsibility for his actions in doing the killing was substantially impaired.18
Therefore, the existence of alcohol dependency syndrome, without more, is insufficient to found the defence of diminished responsibility; the other two elements in s.2 Homicide Act 1957 (above) must also be satisfied. ‘Not every alcoholic is suffering from such abnormality of mind that his mental responsibility for his actionsat the time of the killingis or must be treated as if it were substantially impaired.’19
R v Stewart (2009)20 acts as a clarification on the law following R v Wood (2008),21 clearing up any uncertainty regarding when chronic alcoholism constitutes an ‘abnormality of mental functioning’ and when it ‘substantially impairs’ the defendant’s responsibility.
Ashworth notes that Lord Judge CJ ‘re-examined’ his judgment in R v Wood (2008),22 which was previously interpreted as meaning that the jury need to separate out D’s voluntary and involuntary drinking – something it was criticised for. Lord Judge CJ sets out six considerations for the jury dealing with the ‘extent of D’s alcohol dependency’ and ‘D’s pattern of drinking on the day and preceding days.’ Ashworth considers that this is, in fact, no different to the test in R v Wood,23 which is ‘afflicted with the same problem of determining whether D’s apparent choices of when and what to drink were real choices, or actions stemming chiefly from his alcohol dependency.’24
The reasoning in R v Wood (2008)25 stems from the decisions of R v Deitschmann (2003)26 and R v Gittens (1984)27 which considered that when there has been a combination of a mental abnormality and voluntary intoxication not amounting to alcohol dependency syndrome, the correct approach is to consider whether the mental abnormality was sufficient, alone, to substantially impair D’s responsibility, irrespective of the intoxication (which would not normally fall within s.2(1)). These decisions, therefore, required the separation of two contributing factors. One can easily see the logic in extending this reasoning to separate out mental abnormality caused by alcohol dependency syndrome and voluntary intoxication, as in R v Wood (2008).28
It could be argued that, given the amendments introduced in the Coroners and Justice Act 2009, it might be open to the jury to find that an irresistible craving for alcohol amounts to an ‘abnormality of mental functioning arising from a recognised medical condition’, since ‘acute intoxication’29 is listed as a condition in the ICD-10. 30However, it is doubted that this will be the case following R v Dowds (2012)31 which made it clear that the amendments were not intended to reverse the rule in R v Wood (2008) and R v Stewart (2009) that ‘voluntary acute intoxication, uncomplicated by alcoholism or dependence, is not capable of being relied upon’ alone.32 Therefore, the law has remained settled in this area following R v Stewart (2009).
1S.2(3) Homicide Act 1957.
2S.1(1) Murder (Abolition of the Death Penalty) Act 1965.
3S.2(1) Homicide Act 1957.
9R v Sheehan and Moore  1 WLR 739 (CA).
10R v Majewski  A.C. 443.
11 1 All ER 267.
12Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV) (2000) and now Diagnostic and Statistical Manual of Mental Disorders V (DSM-V) (2013), International Statistical Classification of Diseases and Related Health Problems (10th edn) (ICD-10) (2012).
13EWCA Crim 1305.
14R v Stewart  1 WLR 2507, at  (Lord Judge CJ).
15Ibid, at  (Lord Judge CJ).
16R v Sheehan and Moore  1 WLR 739 (CA).
18R v Stewart  1 WLR 2507, at  (Lord Judge CJ).
19Ibid, at  (Lord Judge CJ).
21EWCA Crim 1305.
23(2008) EWCA Crim 1305.
24Andrew Ashworth, ‘R. v Stewart: manslaughter – diminished responsibility – alcohol dependency’ Crim. L.R. 2009, 11, 807-809.
25EWCA Crim 1305.
261 AC 1209 (HL).
27 Q.B. 698.
28EWCA Crim 1305.
29S.2(1) Homicide Act 1957.
30International Statistical Classification of Diseases and Related Health Problems (10th edn) (ICD-10) (2012), the official classification of health problems used by the National Health Service.
31EWCA Crim 281.
32James Richardson (ed), Archbold: Criminal Pleading, Evidence and Practice (63rd edn, Sweet and Maxwell 2015), 18-89.
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