Her Majesty's Advocate v. Gareth Kerr [2011] HCJAC 17

Crown Note of Appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995:- The respondent has been indicted by the appellant in relation to four charges, including the following charge which is relevant to this appeal:- "(3) On 22 March 2009 at Strathmore Drive and Esk Place, both Aberdeen you GARETH KERR did assault Gail McCann, c/o Grampian Police, Queen Street, Aberdeen and did pursue her, brandish a knife at her, seize hold of her, drag her, force her to the ground, repeatedly strike her on the head and body with said knife to her severe injury, permanent disfigurement, permanent impairment and you did attempt to murder her." Due to concerns in relation to the mental health of the respondent a number of reports were obtained. On 12 April 2010, at a continued preliminary hearing, following upon the receipt of various reports from medical professionals instructed on behalf of the respondent, the respondent tendered a plea of guilty to the above charge under deletion of the words "and you did attempt to murder her". The plea was refused by the Crown who themselves wished to have the respondent medically examined. On 1 September 2010, at a further continued preliminary hearing, following upon receipt of further psychiatric reports in relation to the respondent, the appellant lodged a minute under section 72(6)(b)(ii) of the Criminal Procedure (Scotland) Act 1995 in which the appellant submitted that a plea of diminished responsibility was not available to the respondent  because the appellant contended that such a plea was only available to persons indicted for murder. On 20 September 2010, the judge at first instance refused the preliminary issue minute and granted leave to appeal. The note of appeal contained the following grounds:-"The judge erred in holding that a plea of diminished responsibility is available to a person facing a charge of attempted murder. A plea of diminished responsibility is only available to a person indicted for murder." Here it was submitted on behalf of the Crown that a plea of diminished responsibility is only available to persons indicted for murder as the principle behind diminished responsibility was the mitigation of punishment and mitigation of penalty by reason of the accused's state of mind could be achieved in all cases except where the accused was convicted of murder because the penalty for murder is fixed by law. In H.M.A. v Blake 1986 S.L.T. 661 Lord Brand directed a jury that the effect of diminished responsibility was to reduce a crime of attempted murder to the crime of assault, and it was submitted here, on behalf of the Crown, that that direction was contrary to principle and should not be followed. It was submitted on behalf of the respondent that the essential difference between an attempted crime and a completed crime is the actus reus and the mens rea for the crime of murder and the crime of attempted murder is the same. Here the court considered the question of whether the plea of diminished responsibility was only available to an accused in cases of murder or whether, in cases of attempted murder, where the issue of diminished responsibility of the accused is live, it is necessary for the jury to take into account any evidence in support of the accused's diminished responsibility in assessing whether he had the necessary wicked intention or wicked recklessness required for murder, and, if not, whether he should be convicted of a lesser charge of assault.