R v Khan [2009] EWCA Crim 1569

(1) The judge had been right to refuse to withdraw the charge of murder from the jury at the close of the evidence: to do otherwise he would have to be satisfied that the evidence, both medical and factual, was such that no reasonable jury, properly directed, could conclude that the defendant had failed to prove, on a balance of probabilities, the diminished responsibility defence. (2) Although the medical evidence in favour of diminished responsibility was unchallenged, there was ample factual evidence on which the jury could conclude that it was not satisfied, on a balance of probabilities, that the defence was made out.


The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  


CRIME — Homicide — Diminished responsibility — Abnormality of mind such as to impair mental responsibility for acts — Unchallenged expert medical advice of abnormality — Evidence that schizophrenia operating at time of killing — Other evidence that defendant understood what he was doing and that he could control his actions — Whether murder charge should be withdrawn from jury — Whether evidence to support jury’s verdict of murder — Homicide Act 1957, s 2(1)


The circumstance that, on a charge of murder, there was unchallenged expert medical evidence that the defendant suffered from such abnormality of mind as to support a defence of diminished responsibility did not of itself necessitate the withdrawal of the charge from the jury.

The Court of Appeal (Criminal Division) so held in dismissing the appeal of the defendant, Dawood Khan, against his conviction in the Crown Court at Bradford (Grigson J and a jury) on 23 May 2008 of murder.

AIKENS LJ, giving the judgment of the court, said that the defendant had been charged with the murder of a house-mate by bludgeoning him with a cricket bat. At the trial the evidence of the consultant psychiatrists called by the prosecution and by the defence was that the defendant suffered from schizophrenia, paranoid schizophrenia, or schizo-affective disorder. The trial judge had rejected a submission that the charge of murder should be withdrawn from the jury, holding that whether the defendant’s mental responsibility was substantially impaired was always a matter for the jury. It had been established in R v Byrne [1960] 2 QB 396 that the issue whether a defendant suffered from any abnormality of mind was a question for the jury. In R v Matheson [1958] 1 WLR 474Not on Bailii!, followed in R v Bailey (1978) 66 Cr App R 31, it had been held that, where doctors’ evidence concerning insanity was unchallenged and there was no other evidence on the issue, a jury’s contrary verdict could not be upheld. But in Walton v The Queen [1978] AC 788Not on Bailii!, in which there had been uncontradicted medical evidence that the defendant suffered from an abnormality of mind which substantially impaired his mental responsibility for his acts, the Privy Council said that the authorities made it clear that on an issue of diminished responsibility the jury were entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case, including the nature of the killing and the conduct of the defendant before, at the time, and after it. In R v Eifinger [2001] EWCA Crim 1855Not on Bailii! the Court of Appeal had dismissed an appeal against a conviction for murder on the basis that, while there had been evidence about diminished responsibility, the verdict was explained by evidence about the circumstances of the killing. In the present case there had been evidence before the jury that the defendant was in a schizophrenic state at the time that he made the attack, but against that there was much other evidence which suggested that, to a greater or lesser extent, he had comprehended what physical acts he was doing in mounting the attack and that he had had the power to control his actions. There was ample evidence on which the jury could have concluded that it was not satisfied, on a balance of probabilities, that the abnormality of mind of the defendant had substantially impaired his mental responsibility in doing the acts which it found he did.


[2009] EWCA Crim 1569B; [2009] WLR (D) 261

CA: Aikens LJ, Holman J, Judge Bevan QC: 27 July 2009

Appearances: Nicholas Askins, assigned by the Registrar of Criminal Appeals, for the defendant; Richard Mansell QC (instructed by Crown Prosecution Service, Bradford) for the prosecution.

Reported by: Philip Ridd, solicitor

External link


ICLR [2009] WLR (D) 261