Neutral Citation Number: [2011] EWCA Crim 2796
Case No: 2011/03446/A8
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
Mr Justice Cooke
T2010/7409
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/12/2011
Before :

LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE ROYCE
and
MR JUSTICE GLOBE
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Between :

	R	Appellant	
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	Robert Brown	Respondent	

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J Whitfield QC for the Respondent
A Edis QC for the Crown

Hearing dates: 24th November 2011
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Judgment

The Lord Chief Justice of England and Wales: 
1.	This is our judgment in the appeal against sentence by Robert Brown who, on 24 May 2011 in the Crown Court at Reading before Cooke J and a jury, was acquitted of murder and convicted of manslaughter on the ground of diminished responsibility.  He was further convicted of obstructing a coroner in the execution of his duty.  He was sentenced to 24 years imprisonment for manslaughter with 2 years consecutive for the offence of obstruction.  An appropriate order was made in relation to time spent on remand.  The appeal was dismissed at the end of the hearing last Thursday.
2.	We must make it clear at the outset of the judgment that the evidence very strongly suggested that the prosecution was right not to accept the plea of guilty to manslaughter when it was tendered by or on behalf of the defendant, and to allow the jury to decide whether the verdict should be guilty of murder or manslaughter.  However once the jury acquitted of murder and accepted that the appellant’s responsibility for his actions at the time of the killing was substantially diminished, that verdict was binding on the judge, and it is binding on us.  None of us can interfere with the decision of the jury and there can be no appeal against the acquittal for murder.  What is more, the sentence imposed by the judge had to respect that verdict.  The essential question in this appeal is whether it did.
3.	The background to the case is an unhappy marriage.  The appellant met his wife Joanna in 1998.  A pre-nuptial agreement that each should retain their own property in the event of a separation was signed.  They married.  He sold his flat and the proceeds were spent as part of the contribution to a property in Ascot where they were to live together.  Their son was born in 1999 and their daughter in 2001.  The children’s awareness of the circumstances in which their mother met her death at the hand of their father is a specific aggravating feature of the case.
4.	By 2007 the marriage had broken down.  Divorce proceedings were started.  The negotiations were acrimonious.  We can narrate how things appeared to the appellant, but there is another point of view, and as in all these cases it is never wise to assume that any one of the parties is providing an objective assessment.  He believed that she was concealing the extent of her wealth, and that he had been manipulated into signing the pre-nuptial agreement. He contributed the proceeds of the sale of his flat to the matrimonial home, but this was in her name. The final financial settlement hearing was listed for April 2010, but then adjourned pending the decision of the Supreme Court in Radmacher v Granatino about the enforceability of pre-nuptial agreements.  In October 2010 the court held that they were enforceable.  He thought that he would emerge from the marriage with little or nothing in it for himself.  The discussions at this stage were that whereas the wife offered £200,000, to reflect the actual contributions made by the appellant, he was seeking a contribution of £800,000, on the basis that the equity in the matrimonial home was worth £1.5m.
5.	The case was relisted for hearing on 8 November.  According to the psychiatric evidence, and the evidence given by the appellant, he felt aggrieved and betrayed and believed that his wife was trying to manipulate the legal proceedings in order to increase the costs so that he would end up with as little as possible.  He also claimed that she wanted to deprive him of any real say in the children’s education, for which she had always paid from family resources.  
6.	The crown contended that there had been an earlier incident in 2007 when he had held and threatened his wife with a large kitchen knife.  He denied it.  Whatever the truth about the incident, what is apparent is that by the time he killed his wife the appellant was very closely focussed on what he regarded as his financial insecurity, and what he believed was his wife’s unreasonable attitude to the pre-nuptial settlement (now binding on them both), which would inevitably have a direct influence on the eventual financial arrangements.
7.	It was arranged between the parents that at half term the children should stay with the appellant.  His home was nearby.  They came for the weekend.   They were due to be returned to their mother on 31st October in the afternoon.  The appellant drove their children back to their home. It was a short journey.  Before he set off, he placed a hammer in the bag which contained his daughter’s homework.  When they arrived home, the children went in.  Their mother was waiting for them.  It can confidently be stated that the last thing that she could possibly have envisaged at that moment was that she might be the victim of an attack.  But that is what happened.  About 20 minutes after he had left his own home the appellant returned to it.  He brought the children with him.  Both were crying, and their daughter was particularly distressed.  He asked his girlfriend to look after the children and then disappeared.
8.	What had happened in the meantime is that he had killed the deceased in the hallway of her home by striking her repeatedly and violently on the head with the hammer on 14 occasions, innocently carried into the house by his daughter. When the house was subsequently examined there was no sign of any disturbance, although an area of blood staining was found in the entrance hallway, and there was further blood staining on the gravel drive outside.  The victim had sustained defensive injuries, consistent with trying to cover her head with her hands.  The evidence suggested that she had been taken entirely by surprise.  It appears that she must have lost consciousness and died very quickly.  The two children were in a room two doors away when their mother was attacked.
9.	Once she was unconscious, the deceased wrapped up her body and put it into the back of his car.  His daughter heard what had happened and she saw him put her mother’s body into the car.   He went back into the house and removed the CCTV recorder which would otherwise have contained film showing him putting the body into the car.  He also pulled out the telephone.  As he drove the children back to his house, on the way, his son asked if he was taking the deceased to hospital, but he never did so, and he never called an ambulance.
10.	Having dropped the children off with his girlfriend, he then drove to a remote part of Great Windsor Park.  He knew exactly where he was going.  On an earlier occasion he had dug a large hole and buried a garden box in a remote spot.  He took the deceased’s body from his car and carried or dragged it some 100m from the track, and put it into the garden box.  He wrapped the body in a surf board bag and plastic sheeting with a bin liner over the head to prevent blood leakage.  He left other items in the box and buried the box in a grave.  The arrangements for digging the grave and providing the box, which in reality became a coffin, must, on any view of the facts, have preceded the attack on his wife.
11.	He went  to his own home, changed, and then went out and disposed of his bloodstained clothing and the torches or camping lights that he had used for the burial.  Having buried his wife, at some stage he took the CCTV recorder and the murder weapon and buried or disposed of them elsewhere.  They were never found.
12.	When he returned home at 5 o’clock that morning, he refused to tell his girlfriend what had happened.  He telephoned his parents and told them that he was going to contact a lawyer and then go to the police.  His father contacted another of his children, a son, who lived in the area, who reported that the deceased was missing.  The police went to her home.  They arrested the appellant.  He was asked if his wife was alive.  He replied “I can’t say”.
13.	In interview the appellant spoke of the stress of his divorce proceedings.  When it became apparent that he would be charged with murder, on 3 November he gave a prepared statement to the police in which he said that there had been an argument over the schooling for the children, in which he had lost control and pushed the deceased.  In the fracas she was injured.  He said that he had put her in the back of the car intending to take her to hospital, but later he found that she had died.  He panicked and buried her in a box.  He took the police to the place where he had buried her.
14.	Evidence to support the contention that this was a case of diminished responsibility was provided by Dr M.E.C. Alcock.  In very brief summary he suggested that the appellant had developed an adjustment disorder “as a consequence of a number of life events from around April 2010 and thereafter, on a background of increasingly stressful life events commencing from 2007. … Mr Brown meets the diagnostic criteria for an Adjustment Disorder”.  This disorder is classified in the International Classification of Diseases, Version 10, and is a recognised medical condition under the general category of reaction to severe stress or continuing trauma.  Dr Alcock expressed the view, and gave evidence that as a result of the pressures which the appellant was under his ability to exercise self control at the time of the killing and his acts in disposing of the body were substantially impaired.  The overriding factor in his conduct was abnormality of mental functioning as a result of the adjustment disorder.  Dr Philip Joseph rejected the diagnosis of adjustment disorder or indeed any other form of mental disorder which amounted to an abnormality of mental functioning as defined in section 52 of the Coroners and Justice Act 2009.  He suggested that “in any event if he did suffer from such a disorder, its extent would only be of any relevance if the jury concluded that the defendant had killed his wife without any premeditation”.
15.	At the outset of the trial the appellant tendered a plea of guilty to manslaughter on the ground of diminished responsibility, following a written indication to the prosecution that that plea would be tendered.  In due course, the judge gave credit to him for the plea.  
16.	In his sentencing remarks Cooke J rehearsed the facts of the case.  He took the view that adjustment disorder was a mild disorder which rarely led to violence.  This was consistent with the evidence he had heard.  He also noted that in this particular case, the disorder appeared to have disappeared almost immediately after the killing.  He was satisfied that, on the basis of the jury’s evidence, although the appellant’s culpability was diminished, it remained substantial.   He noted particular aggravating features in the form of planning and premeditation, the proximity of the children to the attack, the fact that they had heard what had happened, and were carried in the car with their mother’s body in the back, and of course, in the case of the daughter at the very least, knowing that her mother’s body was in the back of the car following an attack by her father.  He considered, too, the way in which the body was concealed, and all the events leading up to the concealment, which represented an additional aggravating feature.  In any event although the appellant had, on the basis of the jury’s verdict, lost his control, the context was his anger and resentment towards his wife in the context of the acrimonious financial disposal of their assets.  The judge believed that the only reason why the hammer had been taken to her house on that day was that he had intended to kill her.  The blows that he struck can only have been done with the intention that she should be killed, and the judge was satisfied that the box or coffin could only have been buried and hidden for this purpose.
17.	In the context of this conviction for manslaughter on the grounds of diminished responsibility, the judge acknowledged the appellant’s good character, that he had eventually handed himself in to the police, and his guilty plea.  Nevertheless although his responsibility was diminished it remained substantial.  
18.	The judge then considered a number of decisions of this court, which dealt with the necessary correlation or link between sentences for murder, now imposed in accordance with the provisions of Schedule 21 of the Criminal Justice Act 2003 and manslaughter, in whatever circumstances manslaughter had taken place.  He assessed the length of the minimum term which would have been imposed if the jury had convicted the appellant of murder, as at least 28 years, the equivalent of a 56 year determinate sentence.  With that consideration in mind, allowing for the guilty plea, the judge assessed the sentence at 24 years imprisonment on count 1, with a short consecutive sentence of 2 years imprisonment on count 2.  
19.	Before passing sentence the judge had read the victim impact statements.  He was conscious of the affect of these events on the family.  We too have read the papers.  We have indeed read some further comments which indicate the belief of the family that there had been a miscarriage of justice.  But as we have said at the outset of this judgment, sympathetic as we are for the catastrophic consequences suffered by the family of the deceased, we are bound by the verdict of the jury and so was the judge.
20.	In summary the judge’s decision was based on two linked considerations.  First, he recognised that this court has made clear that the increase in minimum terms following conviction for murder should be reflected in homicide sentences.  Wood is a classic example.  Second, he considered that the verdict of the jury did not lead to the conclusion that the appellant’s mental responsibility for his actions was extinguished.  There remained a substantial level of culpability even at the moment when the killing itself took place, and, moreover, in the context of the post killing aggravating features were assessed, there is nothing to suggest that the appellant’s culpability was diminished by any loss of control.  At that stage every action was carefully considered and designed to avoid discovery.
21.	In essence, although there are a number of facets to the careful argument of Mr Whitfield QC on behalf of the appellant, the basis of the appeal is that the sentence was not loyal to the verdict of the jury.  The jury had found that because of the condition identified as adjustment disorder the appellant’s ability to exercise self control was substantially impaired.  That diminution in responsibility and therefore culpability was overlooked or insufficient allowance was made for it.  
22.	 We were invited to consider the possible impact of section 52 of the 2009 Act.  In the context of diminished responsibility this provides:
“(1) in section 2 of the Homicide Act 1957 (persons suffering from diminished responsibility), for sub-section (1) substitute
“(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D were suffering from an abnormality of mental functioning which -
(a) arose from a recognised medical condition –
(b) substantially impaired D’s ability to do one or more of the things mentioned in sub-section (1A), and 
(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.
(1A) those things are –
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment; 
(c) to exercise self-control.””
23.	It appears that one purpose of these amendments to the defence of diminished responsibility was to ensure a greater equilibrium between the law and medical science.  The issue is the level of mental functioning of the defendant, which must arise from a recognised medical condition, rather than abnormality of mind.  We were asked to consider whether the words “substantially impaired” in section 52(1)(b) provided a different test to that which was applied to the term “substantial impairment” in the 1957 Act.  We do not think that it does.  When Parliament enacted the 2009 Act it was perfectly well aware of the way in which the court had interpreted the phrase “substantial impairment” for very many years, (see R v Ramchurn  (2010) 2 Cr App R.3. Cooke J had directed the jury that the reference to “substantially impaired” required the jury to conclude that the impairment was more than minimal.  No further embellishment was suggested, and this direction formed the basis for the jury’s verdict.   Accordingly,  in our judgment, Cooke J was entitled to reach the conclusion that the appellant’s responsibility for the death of his wife, although diminished, remained substantial and that although his ability to exercise self control was, in accordance with the jury’s verdict, to be treated as substantially impaired, he “retained real culpability” for what he had done.  That was consistent with the verdict of the jury.
24.	We must now address the correlation between the normal starting points contained in Schedule 21 of the 2003 Act and sentencing following conviction of manslaughter. In cases of murder, of course, the sentencing judge assesses the minimum term to be served for the purposes of punishment and deterrence, before any question of release can be considered.  Unless the judge is considering a minimum term following a discretionary order for life imprisonment, in most cases of manslaughter the term of years ordered by the sentencing judge does not reflect the minimum term to be served, rather it specifies the term, half of which will be served.  We do not think it necessary for judges seeking to apply the Wood principle to set out an exact arithmetical computation of the sentence which would have been passed if there had been a conviction for murder.  In this court, on an appeal, we focus on the sentence itself.  Perceived errors in individual aspects of the sentencing process obviously require us to consider the end result very carefully, but it is the result on which we must concentrate.  Whether or not the computation is set out, it provides a helpful method of approach, identifying the necessary features of the case, both the aggravating and mitigating features, and then applying an appropriate discount for the defendant’s reduced level of culpability.  This is a fact specific decision, to be made by the judge, consistently with the medical evidence and the jury verdict, and then publicly explained, as Cooke J explained his conclusion in the present case.
25.	The facts of this case are stark.  This young woman died as a result of a brutal attack in her own home within moments of greeting her children after weekend contact with their father.  The weapon used for the killing was taken into the home by her innocent daughter.  The events, if not actually seen by the children, were witnessed by them.  The lack of thought for these young children, even if in part explicable through loss of control when the violence was inflicted on their mother, is chilling.  It was aggravated when her young daughter saw the appellant put her mother’s body in the boot of the car and her son, asking only because he must have known how badly injured his mother was, asked if they were taking her to hospital.  Not a moment’s thought was given to them, or their welfare, or the impact of what he fully appreciated he had done to their mother.  She, of course, was the first victim of this dreadful crime, but the children too were victims, not merely in the broad distressing sense that they had lost their mother but because they heard and saw this terrible crime unfold. 
26.	There was no lack of self control in the appellant’s journey to his home, leaving the children there, and then setting off in his controlled endeavours to escape the consequences of what he had done.
27.	There is, we believe, force in the submission that in this case the sentence for manslaughter, on count 1, included at least some allowance for the offence alleged in count 2, in relation to obstruction of the coroner.  Consecutive sentences were probably unnecessary and inappropriate.  What however we have considered is whether the total sentence imposed on this particular appellant making every allowance for the mitigation arising from his diminished responsibility, but also making due allowance for all the aggravating features of the case, was excessive.  In our judgment, it was not. Accordingly the appeal against sentence was dismissed.