R v Dawood Khan [2009] EWCA Crim 1569

This was an appeal against a conviction for murder. At his original trial for the murder of his housemate Khan had claimed both that he was not at home at the time of the attack and that if he had attacked and killed his housemate he did so when suffering from schizophrenia or a schizoaffective disorder.  His defence argued that the charge of murder should be withdrawn from the jury in favour of a charge of manslaughter because, if Khan had carried out the attack, he had acted with diminished responsibility within the meaning of s.2(1) of the Homicide Act 1957.  The Judge refused the application; insisting that the issue of whether Khan’s mental responsibility was sufficiently impaired such that he did not have the necessary intent for murder was a question for the jury. Khan’s appeal was on the basis that the Judge was wrong not to have withdrawn the charge of murder for consideration by the jury because there had been no challenge to his medical evidence that his mental responsibility was impaired and that the jury’s verdict on the issue of his diminished responsibility was unsupported by the evidence and was therefore unsafe.
The Court of Appeal, in upholding the conviction, reaffirmed that the issue of whether an abnormality of the mind was of a severity to substantially impair the responsibility of the accused was a question of degree and one that a jury should consider. The correct approach when an abnormality of the mind is proven is to then allow a jury to determine the extent of the defendant’s understanding of his physical acts and whether he had any control over these at the time the attack took place R v Byrne (Patrick Joseph) (1960) applied. The Court of Appeal accepted that the Judge in this case had acted properly in ruling that Khan had, on the balance of probabilities, raised sufficient evidence to allow the defence of diminished responsibility to be considered by the Jury. The expert medical evidence was not challenged, but there were a number of facts that the jury had to consider to determine whether this abnormality had materially affected his mental responsibility. In particular evidence his own evidence at the trial denying that he had felt unwell on the day of the killing.  In addition Khan had locked the front door after the attack, made arrangements to visit relatives, including calling his relatives to say he was coming and arranging a lift, he had also told his relatives that he was leaving the flat because he had had an argument with a friend. As such the Court of Appeal determined that there was plenty of evidence for the jury to conclude that it was not satisfied, on the balance of probabilities, that the abnormality of mind suffered had diminished his responsibility. Therefore the conviction was safe.

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