Court of Appeal

R v Rejmanski (Bartosz)

R lived with the deceased, Grzegorz Raczek, also a Polish national, and Adrian Magiel, with whom Mr Raczek shared a room. On 28 March 2015, Mr Magiel and Mr Raczek were in their room when R knocked at the door seeking to discuss missing food. Evidence presented to the court was that R and Mr Raczek disliked each other, making Mr Raczek hesitant to open the door. However, they attended the kitchen with R and seemingly resolved their differences while drinking a beer together. R was described as appearing to be a little ‘tipsy’.

Returning to his room later that evening, Mr Magiel found the deceased lying on the floor, face swollen, with R standing over him, trying to move his upper body. On asking R what had happened, he replied, ‘he deserved it. He didn’t get a kicking for nothing’ (at [33]). Both men moved the deceased onto the bed and R said, ‘Let him sleep’ (at [33]). R still appeared to be under the influence of alcohol, and it was noted that there was a spilled bottle of vodka on the floor of the deceased’s room. Mr Magiel then went downstairs to call the emergency services.

On arriving at the scene, the emergency services found the deceased lying on the bed, with several head injuries. He was unresponsive and declared dead at the scene. R was sitting in the room at the time of emergency response attendance and was strumming a guitar while singing or chanting the words ‘I’ve killed him. He’s dead. I’m not afraid’ (at [35]), a contention he repeated to police upon arrest. R continued to tell police he was responsible for the death, yet made no comment during police interview.

During examination by a doctor at the police station, R told the doctor he was a former soldier and boxer but made no disclosure of any medical condition. It was noted that R had injuries consistent with punching and that his clothing was bloodstained. Marks on the body and clothing of the deceased were consistent with being stamped or kicked during forceful contact.

The defence contended that the attack on the deceased was triggered by the deceased’s comments about the conduct of soldiers in the Afghanistan war and derogatory comments about the Polish army. The deceased allegedly referred to R as ‘cat (kitten)’, a slur used to define new or ‘green’ recruits to the army. R asked the deceased not to speak to him in that manner, as he was an experienced soldier who had served tours in Afghanistan. At this point, the deceased is said to have flown into a rage stating soldiers and people like him used the war to make money, shoot children and rape women.

Two psychiatrists and two psychologists were employed to assess R’s mental state following an initial assessment that R may be suffering from post-traumatic stress disorder (PTSD) following his military service. Despite having differing opinions as to the pervasive nature of the PTSD, all agreed that he was in fact, suffering symptoms of the disorder. The question at trial was to what extent the PTSD symptoms affected his life and particularly his capacity for self-control and tolerance under the C&JA.

The defence argued that, although R’s PTSD did affect his general capacity for tolerance and self-restraint, it was nevertheless admissible as it was relevant ‘over and above its affect’ on R’s general capacity (at [53]). The argument was advanced that this particular circumstance of PTSD ‘fell squarely within the requirements in s. 54 (1)(c) and also met the tests in Camplin [1978] A.C. 705 and Holley [2005] UKPC 23 in that the taunting was about the circumstance which gave rise to the PTSD’ (at [54]). By fulfilling the criteria of s. 54(1)(c) and meeting the standards of the previous judicial tests, it was argued that R would be able to use the partial defence as PTSD would be a relevant circumstance and be sufficiently grave to activate the qualifying trigger.

Held, dismissing the appeal, Hallett LJ, accepted that in principle, PTSD could qualify as a ‘relevant circumstance’ for jury consideration but that the trial judge had ‘properly resisted the defence’s efforts to dilute the objective standard as laid out in s. 54 (1)(c)’ (at [59]). According to evidence heard at trial, it was the contention of R that his PTSD resonated in the form of nightmares and flashbacks to his military service, yet he could not provide any evidence that he was suffering from any such flashback at the time of the deceased’s death. Hallett LJ provided guidance on the ‘insurmountable hurdle’ (at [59]) faced by R, in that if accepted as a ‘relevant characteristic’ which affected R’s general capacity for tolerance and self-restraint, it was irrelevant under s. 53(1)(c). In forcing a change to the objective standard by asking the jury to look at a particular set of circumstances relevant to the defendant only, the test laid out by the 2009 Act would become subjective, crossing over into more suitable partial defences which would take account of a defendant’s circumstances.

Hallett LJ reiterated that the wording used by the trial judge did not alter the effect of the summation. Aggrieved that the trial judge did not offer specific direction on ‘PTSD’, R sought leave on the ground that in leaving out the words ‘PTSD’, the trial judge had misdirected the jury, effectively depriving him of the defence. It was noted that the judge had specifically directed the jury to assess the deceased’s words and conduct regarding R’s experiences in Afghanistan against the second component. During the summing up, the trial judge had used the terms ‘in his circumstances’, ‘placed in the same predicament’ and ‘in the same situation’ (at [62]). Hallett LJ therefore concluded that the trial judge allowed the jury to take all of R’s circumstances into account and did not follow Wilcocks ([2017] 4 W.L.R. 39) in directing the jury to ignore the PTSD insofar as it bore on his general capacity. Hallett LJ noted that R was ‘given the benefit of the kind of direction he sought’ and that the jury had been directed to consider the constituent components of the defence in the ‘context of a man who had served in Afghanistan, suffered as a result and then was taunted about his behaviour and motives’ (at [63]).

R v Gassman (Charice)

Following a heated argument on 12 May 2015, the victim and one of her daughters followed G into a local shop. The victim was described to have ‘flipped’ and head-butted G who responded, ‘You’re fucked’, before running off in the direction of her sister’s house. On arrival, G banged repeatedly on the door, shouting ‘Get the machete. I am going to fucking kill her’ (at [65]). Concealing a knife, the appellant made her way to the house in which the victim was staying. G was noted to threaten ‘I am going to nank (stab) some bitch’ (at [65]) along with other varied threats. Banging and kicking the door, G’s sister shouted, ‘get the fuck down here’ and issued instruction to G to wait at the door until someone came out. When the victim came out of the property, a physical fight ensued and G’s sister warned the victim ‘I wouldn’t do that if I were you’ (at [65]). It was noted at trial that G’s sister did nothing to dissuade or stop G. Taking the concealed knife from her waistband, G stabbed the victim once in the chest, while her sister hit the victim on the back of the head shouting ‘That’s what comes when you fuck with my family’ and ‘if my sister goes down for this I will come back and get you’ (at [65]). The sisters left the scene and shortly afterwards the victim died.

G claimed to have little recollection of the events of the killing. She had previous convictions for violence and was known to mental health services. She described chronic cannabis dependence, auditory hallucinations, periods of dissociation, a recent relationship breakup, imminent eviction and a history of childhood sexual abuse. Key to her defence case, the perpetrator of the abuse, her step-grandfather, had died the previous day. Psychiatric expert witnesses opined she did not suffer from a major mental illness but did display traits of a Cluster B personality disorder, exhibiting itself along similar lines to Emotionally Unstable Personality Disorder (EUPD). It was concluded that, at the time of the killing, she had an abnormal mental state, with a considerable amount of anger attributed to her personality type. Believing G’s account as genuine, the doctor noted that G was suffering from ‘an abnormality of mental functioning and, in particular, a liability to outbursts of anger or violence with an inability to control the resulting behavioural explosion’ (at [74]).

During the trial, the Judge handed down written directions, providing a route to verdict. The judge directly instructed the jury to take account of all of G’s circumstances but expressly directed that they ignore the evidence of the personality disorder as it was deemed that the disorder had made her less able to exercise tolerance and self-restraint. Quantifying this, the trial judge in written directions stated that ‘Parliament required a jury to consider whether a person with a normal degree of tolerance and restraint might have acted in the same or similar way’. The evidence that ‘she was prone to lose her temper, particularly when she had not taken cannabis, bore on her general capacity for tolerance and self-restraint’ (at [76]). G was found guilty of murder.

G appealed her conviction on the single ground that the directions of the trial judge to ignore EUPD in respect of loss of control were wrong in law. It was advanced that because of her personality disorder, she was susceptible to ‘disproportionately emotional’ reactions (at [78]). The EUPD was relevant to the third component of the defence as it directly affected the way she reacted to the death of her alleged abuser, placing her in the realm of the ‘normal person’. This response had been amplified by her underlying EUPD and resulted in a ‘greatly distressed state’ that had affected her ability for self-control. G contended that the jury should therefore have been directed to consider the reaction of a person with a normal degree of tolerance and self-restraint, but in such a state (at [78]).

Under s. 54(1)(c) of the Coroners and Justice Act, a defendant must show a normal degree of tolerance and self-restraint. The objective test states that for a defence to be available, 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 similar way to D. This is further quantified in s. 54(3) whereby the ‘circumstances of D’ refers to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint.

Held, dismissing the application for leave to appeal, Hallett LJ agreed that the trial judge had excluded evidence of G’s EUPD only in so far as it bore on her general capacity for tolerance and self-restraint and in doing so had fully complied with the requirements of s. 54(1)(a)–(c) and s. 54(3). Hallett LJ, in judgment stated that the defence argument was ‘an ingenious one’ (at [82]), but there was no room to distinguish between a general capacity for tolerance and self-restraint and ‘the ability to exercise self-control in the face of particular circumstances’ (at [78]). Hallett LJ noted that ‘by its very definition, EUPD impairs a person’s general ability to exercise self-control’ and that as a result of this G lost her temper and often took a long time to calm down (at [81]). Using the test established by Holroyde J in Wilcocks, the qualifying trigger, although accepted as present in the case, was not of a sufficient gravity as to affect G’s behaviour at the time of the murder and as such G’s behaviour and the pertinence of the EUPD affected her general capacity only. In this circumstance, the exclusion under s. 54(3) was sound and therefore the conviction was safe. The prosecution at trial were ‘overly generous’ in allowing loss of control to be left to the jury (at [82]) and in the circumstances Hallett LJ noted that if G’s condition was as bad as the defence case made out, her correct route would have been to claim the more appropriate partial defence of diminished responsibility.

Commentary

The conjoined cases both consider the extent to which a mental disorder can be relevant to the circumstances of the defendant, with both advocating for a novel interpretation of the statute in an attempt to circumvent the statutory conditions, with Hallett LJ noting that counsel in both cases attempted to expand the partial defence to encompass situations that were deliberately excluded.

The cases, although advancing new arguments in the area, follow a great many number of cases brought before the appeal court for the same reason. Dealing specifically with the relevance of a mental condition to the circumstances of the defendant under loss of control as opposed to diminished responsibility, Rejmanski follows judgment in Wilcocks quite closely, detouring slightly on the operation of the word ‘only’ within the wording of s. 54(3). Counsel in Rejmanski attempted to argue that the inclusion of the word into statute allowed for R to advance his defence that PTSD affected more than just his general capacity; it affected his qualifying trigger also. As the PTSD was now relevant to two or more issues, counsel argued that it should be admitted into evidence and used in relation to both.

Building upon the judgment delivered by Holroyde J in Wilcocks, R contended that the taunts surrounding his military service were of such a gravity that the requirements of s. 54(1)(b) were satisfied. The taunts were directly aimed at the circumstances that gave rise to the PTSD and this coupled with the reduction in general capacity made the PTSD admissible. In Wilcocks, Holroyde J as trial judge, offered a differentiation between the relevance of a mental condition to that of a matter affecting the gravity of the qualifying trigger. Hallett LJ, though stated that ‘it is necessary to identify with some care how the mental disorder is said to be relevant as one of the defendant’s circumstances’ (at [26]). Noticing the unorthodox approach of counsel, Hallett LJ further offers that upon the identification of a mental disorder, the relevance of it ‘must not be relied upon to undermine the principle of the that the conduct of the defendant is to be judged against “normal” standards rather than the abnormal standard of an individual defendant’ (at [26]).

The same is true in Gassman, where the defence of loss of self-control was advanced in respect of G’s particular set of circumstances rather than the application of the ‘normal’ degree of tolerance and self-restraint. Applying Wilcocks, G had not experienced any behaviour which was directly related to her EUPD. During the fight and subsequent stabbing, G had not been taunted or provoked due to her mental conditions, the death of her abuser, her withdrawal from cannabis or the possibility of eviction. The qualifying trigger was the headbutt, and as such, there was nothing said or done regarding her EUPD which she was able to successfully raise the defence of loss of control. G’s EUPD is a Cluster B personality disorder which, by its definition, significantly alters a person’s capability to exercise the degree of self-n control to the standard set out in the law. One of the difficulties faced by G is that although personality disorders are ‘recognised medical condition’, they are not considered an illness. It is a matter for the Courts to mandate the validity of ‘recognised medical conditions’ for the purpose of medical defences or murder. Therefore, the presence of a ‘recognised medical condition’ is a necessary, but not always a sufficient condition to raise the issue of diminished responsibility (Dowds [2012] EWCA Crim 281 at [40]). Disorders, such as personality disorders and intoxication, are often excluded through antecedent rulings. This leaves individuals such as G, who experience significant mental dysfunction, with no legal recognition of their difficulties. Elucidated by Hallett LJ in the present case, the ‘appropriate partial defence for her was diminished responsibility’ (at [82]). Although seeming to offer G some protection, Hallett LJ, then dismisses diminished responsibility, stating that G’s EUPD ‘had acted as some impairment, but not a substantial impairment’ (at [88]), effectively denying G of a second partial defence to murder.

Personality disorders are defined as enduring, maladaptive patterns of cognition, behaviour and inner experience, spanning multiple contexts that divagate from what is considered socially normal (see generally http://www.who.int/classifications/icd/en/bluebook.pdf). Characteristically they affect how an individual, such as G, ‘perceives, thinks, feels and…relates to others’ (ICD 10 Disorders of Adult Personality and Behaviour (F60-F69)). A propensity to impulsivity, disproportionate frustration and a low threshold for violence often leads to individuals with personality disorders struggling more than the average man to comply with the law, a situation not recognised under either of the partial defences.

The defence of diminished responsibility sets a high bar. Following the amendment to s.2 Homicide Act 1957 by s. 52 Coroners and Justice Act 2009, the requirement to identify a ‘recognised medical condition’ as a cause of the defendant’s abnormal mental functioning has become a central tenet of the diminished responsibility defence. It is for the defence to demonstrate presence of a ‘substantial impairment’ of either the ability to ‘understand’ one’s own conduct to ‘form a rational judgment’ or ‘exercise self-control’. As noted by Hallett LJ in Gassmann for the self-control element of the diminished responsibility defence to apply, it is essential to show a causal link between the defendant’s substantial impairment of the ability to exercise self-control and the killing. As yet, it is unclear how diminished responsibility will apply to defendants who suffer from personality disorders. For the defence of diminished responsibility to be of any avail, it is necessary according to s. 2(1) of the Homicide Act 1957, (as amended by s. 52 CAJA), for the defence to prove on the balance of probabilities, that D suffered from an abnormality of mental functioning, arising from a recognised medical condition; that substantially impaired his ability to understand the nature of his conduct; form a rational judgment; and/or to exercise self-control. The abnormality of mental functioning must provide an explanation for his acts and omissions in doing or being party to the killing.

In both Rejmanski and Gassmann, certain elements of the behaviours exhibited by each defendant were factors in raising the partial defence of loss of control. It seems that the presentation of the mental condition played a significant role in the adjudication of culpability.

Rejmanski’s diagnosis of PTSD was heavily scrutinised in judgment. The evidence of four medical professionals, with the addition of the police station doctor all concluded that R was suffering from symptoms of PTSD, although the effect to which this manifested itself and its level of pervasiveness were not agreed upon. Two experts felt R met the full criteria diagnosis, while two felt that although suffering some of the symptoms, R did not meet the full diagnosis and the presence of PTSD was ‘neither strong nor pervasive’ (at [37] and [38]). Both dissenting opinions also noted an absence of clinical depression and anxiety disorders which contributed to lack of complete diagnosis. In judgment, Hallett LJ noted that ‘there was no evidence from the Appellant that he experienced any sort of flashback at the time he killed the deceased and he had never become violent in response to these flashbacks’ (at [58]). Disagreeing with the defence experts, Hallett LJ remarked that ‘there was…little, if any, basis in the evidence for saying that the Appellant’s PTSD in fact affected his general capacity for self-restraint at the time of the killing’ (at [58]). R’s reliance upon a proposed mental condition, for which he had previously sought no treatment, having no bearing on his loss of control, saw Hallett LJ dismiss this as a relevant circumstance under s. 54(3).

During Gassmann’s appeal against sentence, Hallett LJ probed further into G’s ability to advance a partial defence of diminished responsibility, noting G’s behaviour before during and after the killing. Several aggravating factors affected the sentence, namely a propensity to violent behaviour, an inability to control her emotions and sense during trial of a lack of remorse, yet the defence continued to advance G’s EUPD as evidence of a mental condition affecting her general capacity for tolerance and self-restraint. Crucially, Hallett LJ noted that G ‘knew full well the effect upon her of the disorder, and that she may kill and refused to engage with the help offered to her’ (at [99]). Had G sought treatment for her EUPD and continued treatment that had initially begun for this, Hallett LJ stated that ‘she may not have reacted to the head-butt in the way she did’ (at [100]).

The recent case of Martin (EWCA Crim 1359) makes the key point that under the C&JA, relatively few cases where loss of control is raised, will actually be left to the jury. Arguably, this could be seen as broadly reinforcing a restrictive interpretation of the law. In Rejmanski and Gassmann, despite having grounds to direct the jury otherwise, both trial judges allowed the loss of control element to be put to the jury. How successful this has been is debatable. When considering a mental condition defence in terms of loss of control and diminished responsibility, raising both together would see a jury needing to establish if the facts of the case satisfied many evidential tests, which is potentially problematic, given the sheer amount of evidential ‘hurdles’. If the mental condition was pertinent to loss of self-control, the jury would still need to apply the objective test and to establish that a person of the same age and sex as D, with a normal degree of tolerance and self-restraint would have reacted in a similar way. In addition, the jury would have to establish whether the loss of control had a qualifying trigger and how far the condition was relevant in the circumstances. They would then need to establish if the mental condition was relevant to all of D’s circumstances or only to those that bear on D’s general capacity for tolerance and self-restraint. Similarly, the same set of facts would have to be measured against the ‘substantial impairment’ test in s. 52 conditions to successfully raise diminished responsibility. Given the advancements in psychiatry, the treatment of personality disorders and the overlap between the two partial defences, it is likely based on recent cases that the Appellate Court will be likely to see more cases attempt to raise multiple defences in order that one will apply.