Neutral Citation Number: [2010] EWCA Crim 2159
Case No: 200904262 D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: FRIDAY, 30TH JULY 2010

B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE KENNETH PARKER 
 
HIS HONOUR JUDGE BEVAN QC 
(SITTING AS A JUDGE OF THE CACD) 
- - - - - - - - - - - - - - - - - - - - -
R E G I N A 

v 

JAMES STEWART
 
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Miss S Howes Qc & Miss M Smullen Appeared On Behalf Of The Appellant 
Miss R Karmy‑Jones Appeared On Behalf Of The Crown 
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	MR JUSTICE KENNETH PARKER:  On 30 June 2009 in the Crown Court at Blackfriars the applicant pleaded guilty to the lesser alternative offence of manslaughter on the grounds of diminished responsibility.  On 10 July 2009 at the same court before the same judge the applicant was convicted on a retrial of murder.  On the same date he was sentenced to life imprisonment with a minimum term of 13 years.  The applicant had originally been convicted of murder on 16 July 2007 in the Crown Court at Blackfriars.  On 26 March 2009 this court, Lord Judge CJ, Williams J and Holroyde J allowed the appeal, quashed the conviction on the count of murder and ordered a retrial.  The applicant renews his application for leave to appeal sentence and conviction after refusal by the single judge.
2.	Background.  
Both the applicant and the deceased Ian Liddle were sleeping rough and on the evening of 29/30 August 2006 they, together with a number of other homeless people collected round the area of Marble Arch in the West End of London to sleep the night.  During the course of the evening the deceased was the cause of some trouble between himself and another individual and further discord arose shortly after, for which the deceased was again responsible, this time involving the applicant.  During the course of the incident the applicant was assaulted by the deceased, and suffered an injury to his face as a result.  The two men had to be separated by others.  
At about 3 in the morning on 30 August, David Richards, also homeless, noticed the deceased apparently asleep in the flower bed.  A short time later he noticed that the man had not moved and saw that he had blood on him and had been injured.  He contacted the emergency services, who confirmed upon arrival that the deceased was in fact dead.  About 2 or 3 hours after the arrival of the emergency services the applicant emerged and informed that that he knew something of the matter and proceeded to accept responsibility for the killing.  He was wearing the deceased's jacket.  The applicant made further admissions at the police station and said that the deceased had behaved offensively, and that he sorely regretted the consequences of what he had done.  I shall return to the injuries a little later in this judgment.
3.	The Psychiatric Evidence.  
The applicant was interviewed by two psychiatrists and provided an account that was broadly consistent with his evidence at trial, save that he failed to mention a 6 to 8 week period of abstinence which was achieved with a help of modification.  Dr Chesterman gave evidence for the prosecution.  He said that the applicant was not suffering from an abnormality of mind.  Alcohol dependency syndrome, ADS, was incapable of being an abnormality of mind unless the consumption of drink was involuntary.  He later said that an individual always had a choice and therefore the drinking was not involuntary.  The implication of this being that ADS could not constitute an abnormality of mind.  He then modified that opinion by saying that he had never encountered someone who did not have a choice but accepted that if a person's drinking was involuntary then it could constitute an abnormality of mind.  It may be very, very difficult for someone to resist a drink, but he had never seen a case where it was absolutely impossible to resist.  The applicant had failed to disclose to him a further period of abstinence and abuse.  
4.	Dr Alcott gave evidence for the defence.  In his opinion the applicant's level of alcoholism involved an overpowering desire to drink.  His drinking was involuntary.  It was an abnormality of mind which impaired the applicant's responsibility for the killing.  The applicant's ability to give up other addictions was of little significance, because he was simply swapping one addictive substance for another.  During the 10 days in London the applicant had lost his ability to control or resist drinking; he ticked all three boxes for ADS. 
5.	The short point in this application is that the Crown's expert, Dr Chesterman, was incompetent to give evidence and/or biased so that his evidence should not have been received.  The alleged reason for the incompetence or bias is said to be that:
"Despite the case of Wood the effect of Dr Chesterman's evidence was that a person always has a choice, however chronic his alcoholism.  Or put differently, he did not accept that there was in fact a Tandy type of defence.  He made plain his opposition to the whole approach in the case of Wood."
6.	Section 2 of the Homicide Act 1957 as currently framed and stripped to its essentials comprises: (1), a disease inducing, (2) an abnormality of mind and (3) substantial impairment of responsibility.  The language unfortunately does not accord with that used by psychiatrists and the third element seems to invite a ethical value judgment.  The whole section was famously described by Buxton LJ as "disastrous and beyond redemption".  It is soon to be replaced by section 52 of the Coroners and Justice Act.  Be that as it may, alcoholism that causes physiological or neurological damage to the brain was always in law capable of being classified as a disease.  It is plain from the authorities that such damage can be sufficient but is not necessary.  It is common ground that alcohol dependency syndrome, ADS, whether or not there is physiological or neurological damage is, as a matter of law, a disease for the purposes of section 2 and would plainly be a recognised medical condition under its intended replacement section.  If authority is needed for that proposition, see paragraph 27 of the R v Stewart, to which reference has already been made.  It is also plain that Dr Chesterman at all times accepted that ADS was a disease, see again R v Stewart at paragraph 10 and I quote:
"Dr Chesterman concluded that the applicant met the diagnostic and statistical manual of mental disorders, criteria for ADS as well as the ICD 10 criteria."  
7.	In the present context it is important to distinguish two further problems that have arisen, one being a problem of law and the other being a problem of medical science.  The legal difficulty was that some judges had told jurors that as a matter of law the defendant could not suffer a relevant abnormality of mind and so benefit from substantial impairment if the defendant at any time had freely chosen to drink.  In other words even if the defendant could show that at the time of the killing as a result of ADS he had been unable to stop himself from drinking and then from killing in law he had no partial defence.  This was held to be wrong in law in R v Wood which was further explained and affirmed in R v Stewart.  If the defendant can show that through ADS he had an irresistible craving for or compulsion to drink at the time of killing that may in law constitute mental abnormality and substantially impair responsibility, see R v Stewart, especial at paragraph 31.  
8.	The second difficulty is one of medical science, not law.  Namely whether in any particular case a person suffering from ADS did lose capacity to choose to drink.  It appears from all the evidence that Dr Chesterman has very serious doubts indeed whether even the most acute sufferer of ADS lacks capacity to choose to drink.  He is a practitioner and relies upon his practical experience.  He has not seen an ADS patient who in his opinion lacked capacity to chose to drink.  In holding and putting forward such an opinion, which is by no means not shared by others practicing his particular discipline, he was not committing some error of law, he was stating his expert professional opinion.  It might be wrong, and plainly Dr Alcott thought that it was wrong, but that conflict was precisely one for the jury to decide as an issue of fact.  At its highest it might be contended that Dr Chesterman had completely ruled out the medical possibility that someone suffering from ADS could lack capacity to chose to drink.  Given the shifting frontiers of medical science that might demonstrate a closed and unscientific mind.  However, on close inspection of the evidence here it is plain that if Dr Chesterman had initially put forward such an extreme opinion he later qualified it by accepting the medical possibility of an irresistible impulse to drink through ADS, noting, however, his opinion that he had not in his experience and assessment encountered such a case.  
9.	The judge could not have put this issue more clearly to the jury.  He said:
"ADS is a disease of the mind.  I say that unequivocally to you just incase anyone is in doubt.  Although Dr Chesterman identified some distinction between the disease of alcoholism and other conditions, such as epilepsy, you will proceed on the basis that it is a disease."  
Later he said:
"Dr Chesterman was called by the Crown.  He insisted that the defendant was not suffering from an abnormality of mind.  Alcohol Dependency Syndrome, he said, is incapable of being an abnormality of mind unless the consumption of drink is involuntary.  A little lawyer, however, he said there is always a choice and therefore the drinking is not involuntary.  There is always a choice, he reiterated, implying that Alcohol Dependency Syndrome could never constitute an abnormality of mind.  However he modified that opinion by saying that he had never encountered someone who did not have a choice, but he accepted and conceded that if a person's drinking was indeed involuntary that could constitute an abnormality of mind.  Ladies and gentlemen, if the drinking is a compulsion and is involuntary it can constitute an abnormality of mind.  Let me make that perfectly clear to you.  Dr Chesterman went on to say that it may be very, very difficult to resist, but he had never seen a case where it was absolutely impossible to resist, but he accepted that if the drinking was involuntary, that potentially was an abnormality of mind.  Of course, you must consider quite independently whether if the defendant suffered an abnormality of mind that substantially impaired his responsibility for the killing."  
10.	It is plain that Dr Chesterman did no more than express a medical opinion he was perfectly entitled to express.  His evidence infringed no rule of law as asserted and was not tainted by any bias.  The judge was entirely right to allow the evidence to stand, indeed it would have been a serious error if he had sought to exclude what was relevant evidence given by a qualified expert in the field to the best of his knowledge and belief.  Therefore that application is dismissed and I turn to the sentence.
11.	The agreed starting point under schedule 21 was 15 years.  As the judge noted, the murderous attack was brutal and sustained.  A post mortem found a number of wounds to the head, face and neck of the deceased.  Some of the wounds to the head were inflicted with some force.  The skull bore the marks of whatever had been used as a weapon.  The wounds were consistent with having been caused by glass, such as a broken bottle, there were also wounds to the hands and forearms consistent with defensive injuries.  There was a fracture of the nasal bone.  There were blunt force injuries to the arms and head which could have been caused by punches and kicks.  The total number of blows inflicted was between 30 and 50.  The likely cause of death was the combination of the effects of haemorrhage from the brain and injury to the brain itself.  
12.	From the forensic evidence of blood distribution at the scene it was concluded that the deceased was sitting on a wooden bench, where he was struck several blows.  It is likely that the struggle continued across the paved area to the flower bed where the deceased was eventually found.  A quantity of broken glass was recovered from the flower bed.  A broken and bloodstained wine bottle was recovered from a concrete terrace.  It is also apparent that the applicant had removed his jackets and shoes at some stage.  
13.	Between 1983 and 1994 the applicant accumulated seven convictions for assault occasioning actual bodily harm.  In addition he had four convictions from 1996 and 1998 for possession of an offensive weapon or bladed article, two convictions in 1994 for assaulting a police officer, a conviction in 1990 for a section 4 public order offence and in 1998 for affray.  His previous record of violent offending constituted an aggravating feature.  
14.	There were mitigating factors: his remorseful acceptance of responsibility for the death, the lack of intention to kill or of premeditation and his Alcohol Dependency Syndrome.  
15.	In our judgment taking account of the nature of the particular murder, of the aggravating and mitigating factors, the 13‑year minimum struck a fair balance and can in no way be considered manifestly excessive.  
16.	It appears that as a technical matter the sentence was incorrectly framed.  The judge should have imposed the sentence of 13 years less 319 days in custody on remand prior to his original trial or 12 years 46 days under schedule 2‑paragraph 3 of the Criminal Appeal Act 1968.  That sentence begins to run from the time when a life sentence passed at the original trial would have begun to run, namely 16 July 2007.  The sentence as expressed should therefore be set aside, and the sentence reformulated as indicated in accordance with the applicable law.  Subject to that the applications are dismissed.