On Culpability and Responsibility after mental health related killings

On Wednesday 24th January 2024 in a packed Nottingham Crown Court, three forensic psychiatrists were asked how culpable or responsible Valdo Calocane was for the mass attacks in that city in June 2023 that left three people dead and another three seriously injured. (1)

Professor Nigel Blackwood, a forensic psychiatrist acting for the Crown, told the court,

“I would consider that his degree of retained responsibility for all of the acts was at the lower end of the spectrum”. (2)

He agreed that Calocane fell squarely within lesser culpability. (3)

Dr Leo McSweeney, an expert appointed by the defence, agreed with Professor Blackwood and said he had assessed Calocane’s culpability “clearly at the lower level“. (4)

Defence counsel Peter Joyce KC then had the following exchange with Dr Ross Mirvis, Calocane’s treating physician at Ashworth High Secure psychiatric hospital:

In his closing speech Mr Joyce said:

“Prof Blackwood, Dr McSweeney, Dr Mirvis… all come to the same conclusion about culpability, about the lack of culpability…. We’re not talking about jobbing journeymen here. We’re talking about experts, considered, thoughtful, proper experts, properly qualified doctors. They don’t make it up. They all say this. (6)

But were they right?

Just how do you actually measure culpability?

Is culpability a binary concept, like pregnancy – that either you are, or you aren’t?

Or is there a sliding scale?

And if so, how is that measured?

What tools or standards do psychiatrists use to determine culpability?

And based on what evidence?

None of this was ever explained in court that day.

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The psychiatrists giving evidence in the Nottingham case were however not alone.

In many sentencing hearings considering what should happen to mentally unwell people who kill, forensic psychiatrists often voice their opinions on how culpable an offender was at the time of the offence.

They’ve done so frequently in cases with mentally ill killers – Gogoa Tape, Keven De Morais, Andrea Cardinale, Natalie Steele, Bradley Pye, Thomas Fisher, Khalid Ashraf, Christian Lacey, to name just a few. (See Appendix below).

Despite all the assurances and apparent certainty of the psychiatrists, there is a real problem here, a problem that arguably casts significant doubt on the safety of these prosecutions and sentences.

The situation is not quite as certain as these ‘experts’ would have us believe.

Current Law and guidance

Current English law on expert witnesses (Criminal Procedure Rules 2015) says such experts have a duty to the court, and must give evidence, which is objective and unbiased, and within the expert’s area of expertise. (7)

The 2023 Ministry of Justice guidance on court experts says:

“Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate….
Experts should make it clear when a question or issue falls outside their expertise” (8)

In the Jones case, the court of Criminal Appeal, (citing the cases of Walton and Edwards) found that it was a matter for the jury to decide whether a defendant suffered from diminished responsibility. (9)

Walton established that in diminished responsibility cases it was for the jury to assess the medical evidence along with all the other facts and circumstances of the case. (10)

In Edwards the appeal court made it clear that Judges had to assess the culpability of the offender but stated:

“The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions.” (11)

Mental illness alone is not sufficient for the judge and jury to establish culpability.

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Fifty years ago, after several terrible killings by recently released psychiatric patients, especially Graham Young and Terrence Illiffe (12) which had all raised widespread public concern, the government of the day established a wide-ranging committee to report on the care, treatment and judicial disposal of mentally abnormal offenders (The Butler Committee).

In a revealing passage in their final report they said:

“Mental responsibility’ [is] ‘a phrase not to be found elsewhere in any statute…
It is either a concept of law or a concept of morality; it is not a clinical fact relating to a defendant….
It seems odd that psychiatrists should be asked to testify as to legal or moral responsibility. It is even more surprising that courts are prepared to hear that testimony….
The idea that ability to conform to the law can be measured is extremely puzzling” (13)

In 1996, the late Professor Nigel Eastman, a noted Barrister and Forensic Psychiatrist wrote:

“There is no scientific basis upon which such advice [on responsibility] could be given to a court.” (14)

The following year legal academic Barry Mitchell noted:

“Psychiatrists have no special training or expertise in assessing personal responsibility and should thus not comment on it” (15)

In 2000, Professor of Criminal Policy and Mental Health, Ronnie Mackey, wrote:

“Although psychiatrists should not be prevented from giving an opinion on the matter, it should be made clear that in doing so they are not exercising their clinical judgement but merely making a value judgement which can either be accepted or rejected by the jury irrespective of the medical evidence. Because this does not happen one suspects that some diminished responsibility pleas which are accepted by the prosecution might have been rejected by a jury.” (16)

In 2020, Nicholas Hallett, a consultant forensic psychiatrist and academic researcher who has published widely on the subject, and Keith Rix, also a consultant forensic psychiatrist and an authority on expert witness testimony wrote:

“Culpability is not properly a matter for expert psychiatric opinion. Although psychiatrists can and should explain in what ways psychiatric symptoms may affect decision-making ability or behaviour, commenting directly on culpability puts them at risk of straying outside their area of expertise. The mental state of a defendant at the time of their offence does not map onto legal concepts of culpability. And even if it did, it would be unethical for a psychiatrist to offer an opinion on culpability.” (17)

And in 2020, Hallett wrote:

“Mental disorder does not translate easily into degrees of legal culpability. Although psychiatric evidence will often be central to such cases, the determination of culpability is a matter for the court, and experts should not comment on it explicitly…

Even if psychiatric evidence is admissible, experts should not … give a definitive view on the actual level of culpability. This is both because there are other non-medical factors which have a bearing on culpability and because culpability itself is a legal rather than a medical concept and is an ultimate issue for the court.

To give an opinion on the overall level of culpability is to step outside one’s area of medical expertise and to pronounce on issues of guilt and blame.” (18)

Similarly in 2023, the Royal College of Psychiatrists, updated its guidance to doctors who provide expert evidence to courts and tribunals.

They said :

“ There are many ‘causal’ factors relevant to culpability on which an expert may legitimately comment, such as an offender’s psychiatric symptoms, capacity, insight, decision-making ability, use of illicit substances or help-seeking behaviour. Nevertheless, this is in a very different domain from then commenting upon the level of culpability, which should be resisted. There are other non-medical factors which are relevant to culpability, which is itself a concept ‘outwith’ psychiatry., It is for the court to determine the ultimate issue of culpability and subsequent need for punishment, not the expert. To do so is to step outside one’s area of expertise.” (19)

So we’ve had fifty years of government and professional guidance, multiple academic studies and reports from experts and academics all clearly demonstrating that for psychiatrists to comment in court on the level of culpability is to go beyond their expertise (and is contrary to the Criminal Procedure Rules 2015).

Yet this regularly happens, and often without any comment, complaint, or even apparent understanding from the Court.

Why should this be?

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I haven’t been able to find any definitive research on the subject in Britain, but European academic investigations may offer some clues.

A Swiss study looking at how legal professionals cope with medical reports and forensic evidence found:

“Several legal experts reported that their understanding of medical evidence was limited or even non-existent. Moreover, the acquisition of skills related to the assessment of medical reports and forensic evidence appeared to be unstructured. Participants reported having no formal instruction in how to evaluate or deal with medical knowledge.” (20)

Similarly, a recent Dutch study, highlighted three main problems:

• Criminal justice professionals struggle to distinguish sound from unsound forensic expert reports.
• Reports from reputable institutes face less scrutiny, risking flawed legal decisions.
• Tools and training are needed to improve forensic evidence evaluation by justice professionals. (21)

I’d suggest we need similar research and training in the UK criminal justice system.

If expert psychiatric evidence is not critically examined and challenged in open court it can lead to public concern that we are seeing ‘Trial by Doctor’ rather than Open Justice.

What evidence is there that Judges and legal professionals in Britain have the necessary knowledge, skills, and training to critically assess and evaluate ‘expert’ psychiatric evidence?

Do they have the necessary understanding of the limitations of expert psychiatrists commenting on ‘culpability’?

Because if they don’t, how can we be sure correct decisions are being taken for mentally disordered offenders who have committed the most serious of offences?

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I fear that common sense is out of date,
Or else the laws are not quite understood
By those who make them, since we’ve seen of late,
Lawyers and judges, the supreme concoctors
In legal knowledge, knuckle to the doctors. (22)

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APPENDIX – Reported psychiatric evidence on culpability in the sentencing hearings of some mentally disordered killers

Gogoa Tape, Hackney
“Three psychiatrists opine that the defendant’s retained responsibility was at the lower end of the spectrum.”

Keven Antonio Lourenco De Morais, Wembley
Prof Blackwood said…“I would consider he trains [sic] some responsibility, because, in my view, he was not totally insane,” …. But I would view his retained responsibility as being at the low end of the spectrum because he was suffering acute psychosis, characterised by hallucinations, interference with thoughts, and paranoia,”

Andrea Cardinale Thornaby, North Yorkshire
Professor Donald Grubin of Newcastle University told the court Cardinale’s “unrecognised psychosis was so acute his culpability for the killing was minimal”.

Natalie Steele, Bridgend
Dr Huckle also said Steele had an “unrecognised, undiagnosed and untreated serious mental illness and was so deluded she drowned her son to protect him from demons and send him to heaven” which suggests her culpability was low.“

Bradley Pye, Walsall
Psychiatric experts said that Pye suffered with paranoid schizophrenia and he was determined to have had “low culpability” in the attack.

Thomas Fisher, Crowborough
Dr Joseph considered the Appellant’s culpability for the death was in the medium range of the spectrum of diminished responsibility

Khalid Ashraf, Docklands
A psychiatric report said Ashraf was “suffering from an abnormality of mental functioning” at the time of his sister’s death, and found the killing was “entirely attributable to the defendant’s mental illness”.
The report said his culpability for the killing was “very low”.

Christian Lacey, Liverpool
The judge said Lacey killed a mum who loved him and his attacks may have merited a form of prison sentence, if doctors had not concluded his culpability was “extremely limited”

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By contrast, the Judge in the sentencing of Zephaniah McLeod, took a different approach
“In view of your level of culpability, I take a starting point of 15 years’ imprisonment for a single offence of manslaughter before considering the aggravating and mitigating features of your case. Your offending was aggravated by your previous convictions; by some element of planning in arming and rearming yourself for these offences; and by your use of knives taken to the scene with the intention of their use in offences of extreme violence. I have of course already taken into account your mental illness at the first stage in determining your culpability. The use of knives that you had taken to the scene in order to commit offences of violence is a factor that would ordinarily indicate high culpability…
The doctors properly recognise that it is for this court, and not them, to determine whether there is a need for punishment and the proper sentence.”

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References

1 R v Calocane – Nottingham Crown Court – Wednesday, 24 January 2024 – Trial Transcript
2 Ibid page 17
3 Ibid page 30
4 Ibid page 36
5 Ibid page 42
6 Ibid pages 59 & 60
7 The Criminal Procedure Rules 2015 UK Statutory Instruments 2015 No. 1490 (L. 18)
8 Ministry Of Justice – Practice Direction 35 – Experts And Assessors (October 2023)
9 R v Jones |2021] EWCA Crim 929 –
10 Walton Privy Council decision (1977) . This was also the approach proposed in New South Wales by their Law Reform Commissionon Diminished Responsibility – “The administration of criminal justice must be the responsibility of both the judges and the community through participation in trials as jurors deciding on questions of primary culpability.” NSW Law Reform Commission, Partial Defences to Murder: Diminished Responsibility (Report 82, 1997) para 3.11ff
11 R v Edwards [2018] EWCA Crim 595 – General Principles , Paragraph 34 iv –
12 On Young see Paul Bowden, Graham Young (1947–90); the St Albans poisoner: his life and times. Criminal Behaviour and Mental Health, 17–24 1996. On Illiffe see The Times 9 April 1974 and 10 May 1974, and National Archives. R v Terrence John Kenneth Illiffe – J 297/175 –
13 Home Office, Department of Health and Social Security, Report of the Committee on Mentally Abnormal Offenders. Cmnd 6244 (1975) – Para 19.5 p 242.
14 Nigel Eastman, Hybrid orders: An analysis of their likely effects on sentencing practice and on forensic psychiatric practice and services – The Journal of Forensic Psychiatry Volume 7, 1996 – Issue 3
15 Barry Mitchell, Putting diminished responsibility law into practice: A forensic psychiatric perspective, Journal of Forensic Psychiatry, Vol 8 (1997) (3)
16 RD Mackay – Diminished Responsibility and Mentally Disordered Killers, p 62 In Ashworth & Mitchell. Rethinking English Homicide Law.(Oxford, 2000)
17 Nicholas Hallett, Nadine Smit & Keith Rix, Miscarriages of justice and expert psychiatric evidence: lessons from criminal appeals in England and Wales BJPsych Advances (2019), vol. 25, 251–264
18 Nicholas Hallett – To what extent should expert psychiatric witnesses comment on criminal culpability? Medicine, Science and the Law 2020, Vol. 60(1) 67–74
19 Rix, Eastman et al, – Responsibilities of psychiatrists who provide expert evidence to courts and tribunals (March 23). Royal College of Psychiatrists College Report CR193 –
20 Canela et al . How Do Legal Experts Cope With Medical Reports and Forensic Evidence? The Experiences, Perceptions, and Narratives of Swiss Judges and Other Legal Experts Frontiers in Psychiatry Volume 10 – 2019 
21 de Roo, Stevens, & de Poot. The impact of institutional authority on forensic evidence evaluation by criminal justice professionals Journal of Forensic Sciences, September 2025
22 Dry Nurse: Monomania. London, Saunders and Otley, 1843, quoted in Phillip J Resnick – Perceptions of psychiatric testimony: A historical perspective on the hysterical invective The Bulletin of the American Academy of Psychiatry and the Law 14(3):203-19 – February 1986