R v Hendy [2006] EWCA Crim

In 1992, at the age of 16, the appellant stabbed and killed a complete stranger. He had been out at a party drinking with friends when he kicked a friend in the face. He immediately appologised and shouted "I don't deserve to live. I should be dead". He then tried to jump in front of a car but was held back by his friends. The friends took him back into the house. He then said "I always hurt the people I like I might as well be dead." The police were called and took the appellant home. Later that night the appellant took a knife and went and stabbed a man in an alleyway about 100 yards from his home in an unprovoked attack. At his trial he admitted the killing and raised the defence of diminished responsibility. He had suffered a head injury in early childhood. Medical experts differed in their assessment of his mental condition. The jury convicted him of murder. He appealed against his conviction on two grounds:

1. That the psychiatric evidence given at trial for the prosecution was flawed and fresh evidence demonstrates that he was suffering from a personality disorder at the time of the killing.

2. That the judge's direction relating to the effect of alcohol on the defence of diminished responsibility was wrong in that it was in line with that stated in R v Atkinson [1985] Crim LR 314 and R v Egan [1992] 95Cr. App. R whereas the correct direction at the time was that stated in R v Gittens [1984] Crim LR 554. -

Held:


1. Fresh evidence as to the appellant's mental responsibility was accepted as the age of the offender at trial made it very difficult to diagnose a personality disorder and also the new medical evidence came from a psychiatrist who had treated him for many years post trial. The case of R v Andrews was therefore distinguished. LJ Gage:

"We are acutely conscious of the fact that Professor Taylor's evidence is based on a retrospective assessment of the appellant. However, unlike in Andrews the retrospective evidence is given by a doctor who treated the appellant for a number of years post-trial. In the circumstances, it seems to us that it is in the interests of justice that we should receive it."

2. R v Dietschmann [2003] 2 Cr. App. Rep. 54 did not represent a change in the law but simply affirmed the law as stated in R v Gittens [1984] Crim LR 554. Thus the Court of Appeal in R v Atkinson [1985] Crim LR 314 and R v Egan [1992] 95Cr. App. had taken a wrong turning. The trial judge's direction to the jury was thus erroneous.

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