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Is the Supreme Court about to change the law of homicide?

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Student syllabuses set to change YET again

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The Supreme Court bench is hearing a potentially groundbreaking case today that could spell even longer reading lists for next year’s criminal law students.

The court today will be taking a long, hard look at the law of diminished responsibility, focusing on the word “substantially” in s2 of the Homicide Act 1957 (as amended by s52 of the Coroners and Justice Act 2009).

To secure a successful diminished responsibility defence, the jury must be convinced the defendant’s abnormality of mental functioning “substantially impaired” his or her ability to understand the nature of his or her conduct, or form a rational judgment, or exercise self-control.

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The highest court in the land will today consider whether trial judges are required to direct the jury about the definition of the word and, if yes, how it should be defined.

This appeal has been brought by Mark Golds, a former nightclub bouncer who was convicted for the murder of his partner in 2013 after he stabbed her 22 times. Despite having a history of mental illness, his diminished responsibility defence failed.

Represented by David Etherington QC and Stephen Rose from Red Lion Chambers, Golds will argue the trial judge — sitting in Chelmsford Crown Court — misdirected the jury when he told them:

I am not going to give you any help on the meaning of the word substantially, because unless it creates real difficulty and you require further elucidation, the general principle of English law is that where an everyday word is used, don’t tell juries what it means. They are bright enough and sensible enough to work it out for themselves.

So far, it hasn’t exactly been plain sailing for Golds and his legal team, who suffered a unanimous defeat in the Court of Appeal in 2014. The bench ruled:

[T]he judge was not in error in failing to direct the jury in accordance with the narrower meaning, nor was he obliged to give the jury any fuller direction than he did.

Permission to appeal was granted seven months later and, after a year and a half wait, the matter is currently being heard in the country’s highest court — and it could be the appellant’s lucky day.

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Law student icons Lady Hale and Lord Neuberger will be on the Supreme Court bench today along with five of their colleagues, which tots up to seven justices. This is two more than the usual five and, in the words of top legal commentator Joshua Rozenberg QC, “usually a sign that the judges are thinking about overturning a decision by the Court of Appeal”.

Criminal law students, watch this space.