Diminished Responsibility
- Often women in abusive relationships rely on this defence
- Old law: Homicide Act 1957 s 2
- D had to be suffering an abnormality of mind; the abnormality had to have arisen from one of the factors in s2(1); his/her responsibility for their actions had to be substantially impaired.
- Abnormality had to arise from a condition of arrested or retarded development of mind; or any inherent causes; or induced by disease and injury.
- 'Abnormality of mind' was not a medical term, it was a legal term - medics didn't know what an abnormality of mind actually meant in law.
- Byrne 1960: 'A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.' Objective test
- D unable to exercise own will power; unable to form a rational judgement on right/wrong.
- The law was vague and could be interpreted in a wide manner (Vinagre 1979) D killed V because he had Othello syndrome and thought she was cheating on him.
- Moral elbow room
- Problems with the expert evidence side of the law
- Lloyd 1967: Impairment didn't have to be total, just substantial. Question for the jury. Allowed acquittal for murder in 'morally deserving' cases.
- Medics reluctant to give an opinion because although they are qualified to say yes they are suffering from depression, they are not qualified to say yes I think the killing is a result of the depression.
- Yorkshire Ripper 1980s: parties willing to accept diminished responsibility, courts said no (too much media attention?)
- Khan 2009: D suffered from schizophrenia and killed V but his responsibility for the action was not substantially impaired by the schizophrenia.
- Dietschmann 2003: D suffered depression, killed V when he was drunk, thinking V had stolen his watch. Even if D wouldn't have killed V if he hadn't taken the drink, the causative effect of the drink doesn't necessarily prevent an abnormality of mind from substantially impairing his responsibility.
- Tandy: "Chronic alcoholism" could amount to an abnormality of mind. Must have physically damaged D's brain; or if the brain wasn't damaged from the alcohol, but the alcoholism had reached a stage where the drinking was involuntary (no will power).
- Wood 2008: Widened the effect of the old law even further. In deciding if D's responsibility for his actions was substantially impaired by alcohol dependency, the jury had to focus on the effect of the alcohol on the abnormality of mind where it was consumed involuntarily.
- Stewart 2009: Provided structured guidelines for how jurors sought to approach the issue: (i) consider if there was an abnormality of mind; (ii) decide if the abnormality was caused by disease/illness; (iii) decide if D's mental responsibility was substantially impaired, looking at all of the evidence. Jurors could take into consideration: (i) the extent and seriousness of D's alcohol dependency (if any); (ii) the extent to which he could control the drinking; (iii) whether he was capable of abstinence from alcohol and if so, (iv) how long; and (v) whether he was choosing to get drunk or more drunk than usual for a particular reason (e.g. a birthday party). Look at D's pattern of drinking in the previous days.
- No definition of substantial impairment of mental responsibility; definitions/terminology arguably outdated; expert evidence was critical but the terminology was legal, not scientific; experts expressed concerns about the experience of giving evidence and their own conclusions; unclear why abnormality of the mind had to 'cause' D to kill; 'grossly abused' system based on a 'lottery'; CCRC recommended its abolition.
- Law Commission proposed that a person who would otherwise be guilty of first degree murder is guilty of second degree murder if, at the time he or she played his or her part in the killing, his or her capacity to:
(ii) form a rational judgement; or
(iii) control him or herself,
was substantially impaired by an abnormality of mental functioning arising from a recognised medical condition, developmental immaturity in a defendant under the age of eighteen, or a combination of both; and
(b) the abnormality, the developmental immaturity, or the combination of both provides an explanation for the defendant’s conduct in carrying out or taking part in the killing.
New Law:
- Coroners and Justice Act 2009 s 52: A person (D) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which— (a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing. - Dowds 2012: Argued his voluntary intoxication was a recognised mental condition. Rejected.
- No definition given of "substantial impairment" (s.2(1)(b)) (Lloyd will still apply - something more than trivial)
- s.2(1)(c): The abnormality of mental functioning must provide an explanation for D’s acts and omissions in doing/being party to the killing. The Law Commission (2006) had previously suggested that there should be an ‘appropriate connection’ between the abnormality and the killing, but government ministers wanted to ensure that there was an explicit causal requirement between the two (see s.2(1B)). It does not however have to be the only cause – it can be a contributory cause. This could mean we see the same problems arising as far as e.g. the influence of alcohol and drugs on the defence are concerned (see above, under ‘old law’). Furthermore, proving the causal link could prove difficult, which might result in the new defence being narrower than the old version.
- s.2(1A)(a)(b) and (c): D’s ability to understand the nature of his/her conduct must be substantially impaired under (a), which McKay (2010) suggests comes very close to the first limb of the M’Naghten Rules for the purposes of insanity. He questions why therefore there was no discussion of how the relationship between the two defences should be seen during the drafting process. This is another area where there are also concerns about the possible narrowing of the defence compared with the old law, as these are the only three abnormalities of mental functioning which are now relevant.
- Absence of ‘developmental immaturity’: the Law Commission (2006) recommended that developmental immaturity be included as an explanation for the killing in the basis that children develop at different rates. The Ministry of Justice’s view was that this was unnecessary, and would widen the scope of the defence too far. The government took the view that a child’s immaturity should not preclude liability, with both children and adults who suffer from an ‘abnormal’ level of immaturity still having the defence available to them (see e.g. Ministry of Justice Response to Consultation CP(R) 19/08)
- In problem questions, apply the current law
- In essay questions look at the old law and its problems
- To what extent does the revised diminished responsibility defence represent an improvement upon the previous defence (as defined under the Homicide Act 1957)?