In the early afternoon of Sunday 22nd March 2020 a little 7-year old girl from Bolton in Greater Manchester died in the most horrific circumstances. Emily Jones was in Queen’s Park in the town with her parents when she was randomly attacked by an assailant unknown to her and her family.

Eltiona Skana, an Albanian national, randomly attacked the child as she was playing on her scooter. She slashed the 7 year old’s throat causing, unsurprisingly, catastrophic injuries. Immediately following the incident, she tried to flee the scene but was tackled to the ground by a member of the public and restrained until the Police arrived.

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(Skana, responsible for killing Emily Jones in march 2020)

Skana was initially charged with murder and possession of a ‘bladed article’ She was remanded in custody until an appearance on 26th May at Manchester and Salford Magistrates’ Court. She did not enter any plea and a ‘pre-trial hearing’ was arranged for 5th October.

The perpetrator was held on remand at Rampton Secure Hospital, one of three high security institutions in England and Wales. At a further hearing on 6th November she denied the charge of murder but offered a plea of guilty to ‘manslaughter’ (our ‘culpable homicide) on the grounds of diminished responsibility. Not for the first time, as a result of a failure to understand the law as it stands, there has been much uneducated comment with the usual and all too familiar section of the populus baying for blood. Whilst often, not always but often, these knee-jerk reactions are understandable, but are rarely helpful. Hence the rationale behind today’s blog post.

The appalling ‘facts’ of this desperately sad case are well-known thanks to a morass of commentaries that have been provided from everyone from the national press to eminent members of the legal fraternity and even, heaven forfend, the odd aspiring blogger who claims to have some knowledge of the law. On the face of what we have seen, this looks like murder. The unlawful/unjustifiable killing of another with what perhaps appears to be ‘intent’. The prerequisites appear to have been met and therefore it looks like a pretty straightforward matter. But it is anything other than that. As in all such cases, might there be ‘a defence’ to any charges brought..? Yes, in many cases and, here, possibly one of ‘diminished responsibility’.

This is what is referred to as a ‘partial’ rather than ‘complete’ defence’. ‘Self-defence’, for example, is a ‘complete’ defence and therefore, if successfully pled, leads to an acquittal. A partial defence, paradoxically, reduces the severity of a charge. So, in a case such as this, a charge of murder is reduced to one of culpable homicide /(manslaughter). In Scotland (as in England), murder carries a mandatory life sentence and here the judge must set , by law, a ‘punishment part’ of that sentence. This is the minimum length of time that an individual must serve before they can be considered for parole. The significance and relevance is that a (successful) plea of diminished responsibility does not attract a mandatory life sentence (in prison) and one can therefore see the stark effect of it. The paradox of a successful plea is that often they may be detained without limit of time in a state institution where they will receive appropriate medical treatment for their condition.

The subsequent question then necessarily must be ‘what is diminished responsibility?’ At this stage it is important for me to point out that the Jones case is English and the following explanation is based on Scots Law (though it is remarkably similar). In England (and Wales) the relevant statutory legislation is the Homicide Act 1957 but, for the purposes of our slant via Scots Law, the answer is found in the Criminal Procedure (S) Act 1995 Part VI and specifically s51A&B.

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s51(B)(1) states that:-

‘A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind’.

It therefore follows that we are required to ask if Skana suffered from an abnormality of mind. Certainly Dr. Syed Afghan, Consultant Forensic Psychiatrist, testified that there was ‘ample evidence’ she was a ‘paranoid schizophrenic’ and, as such, this would undoubtedly meet the criteria. s51(A)(1) states that:-

A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct’.

The prosecution in this case initially argued, unsurprisingly perhaps, that Skana should be convicted of murder. Evidence was led that demonstrated she had purchased a series of knives on the morning of the attack and that she deliberately went to the park, both of which would possibly demonstrate the necessary mens rea which, when accompanied by the actus reus (of the actual stabbing) would be sufficient to establish criminality. They further argued that her history of mental illness was used merely as a ‘convenient excuse’ for the commission of the crime. However, in a seemingly remarkable volt-face, Crown counsel on 4th December admitted to the judge that there was ‘no longer any realistic prospect of conviction’ (for murder) and that ‘no further evidence’ would be offered against her.

So what happened? Why this apparent dramatic turn of events? Well, in terms of statute (and again I am interpreting this case from a Scottish perspective and not the law as it stands/stood in England last year), the accused must demonstrate (as we can see above) that their ‘conduct…(must be) substantially impaired by reason of abnormality of mind’. Therefore, the accused ostensibly must be substantially ‘impaired’ in their judgement, be unable to comprehend the nature of their conduct/actions and not be capable of forming what we would otherwise refer to as a rational judgement. The burden to prove the entire defence (of ‘diminished responsibility’) rests, of course, with the accused.

In this case, the Crown did not accept this proposition at the commencement of the trial. However, when the psychiatric evidence was led it became evident that they were not going to be in a position to maintain their view that they could ‘prove beyond reasonable doubt’ a charge of murder. Criminal trials by their very nature turn on a sixpence and what may seem entirely unthinkable on Day 3 may be the very opposite on Day 4. The psychiatric evidence in this case, principally that of Dr Afghan, all supported the concept that Skana was acting under diminished responsibility. This almost certainly caught the Crown somewhat unaware but ‘expert witnesses’ must give ‘independent’ evidence in the sense that they are not there to assist the case for either party. Should their medical opinion change, then they must say so. After all, they, too, are under oath.

Should evidence undermine the Crown’s case, however unexpected, they (the prosecution) must not carry on regardless. A review into the case should take place forthwith to see whether any ‘change of direction’ is required. What are the continuing prospects of a conviction? If none, they must stop. As happened here.

For the overwhelming majority of individuals, we are not present to hear the evidence presented in court cases. It follows that we are not best placed to form opinions on whether they are correct or not. But in the Jones case one can be certain that this scenario will have been deliberated over extremely carefully before reaching the decision not to proceed further.

Why is there such a defence available in the first place? Well the law accepts that there are circumstances where an individual acts and behaves in a manner which indicates that they are suffering from a mental health condition so serious as to relieve them of the culpability and actions they would have been held responsible for if they did not have such a condition. It vitiates the necessary mens rea, if you like.

This is of scant comfort to little Emily’s parents but this tenet of the criminal law that it should deal with individuals on the basis of their culpability is vitally important.

Stay safe everyone.