Diminished Responsibility
Before the Homicide Act 1957, there was only the defence of being found guilty by way of insanity. Now there is a partial defence to murder on the ground of diminished responsibility. This comes from s.2(1) Homicide Act 1957 as amended by the Coroners and Justice Act 2009.
A person 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.
(1A)Those things are--
(a)to understand the nature of D's conduct;
(b)to form a rational judgment;
(c)to exercise self-control.
The burden of proof for this defence lies on the defendant, and it is on the balance of probabilities.
Before the Homicide Act 1957, there was only the defence of being found guilty by way of insanity. Now there is a partial defence to murder on the ground of diminished responsibility. This comes from s.2(1) Homicide Act 1957 as amended by the Coroners and Justice Act 2009.
A person 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.
(1A)Those things are--
(a)to understand the nature of D's conduct;
(b)to form a rational judgment;
(c)to exercise self-control.
The burden of proof for this defence lies on the defendant, and it is on the balance of probabilities.
Abnormality of mental functioning
Before the Coroners and Justice Act 2009, the phrase was 'abnormality of mind'. A lot of the cases we see predate the new definitions, but it is considered that the cases still work as examples. The Court of Appeal have stated that 'abnormality of mind' means 'a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal'.
In Byrne (1960), the defendant was a sexual psychopath who strangled a young woman and mutilated her body. The medical evidence stated because of his medical condition he was unable to control those urges. He was convicted of murder but the conviction was quashed and substituted with a conviction of manslaughter. It is likely the courts would use the same standard of abnormality.
Before the Coroners and Justice Act 2009, the phrase was 'abnormality of mind'. A lot of the cases we see predate the new definitions, but it is considered that the cases still work as examples. The Court of Appeal have stated that 'abnormality of mind' means 'a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal'.
In Byrne (1960), the defendant was a sexual psychopath who strangled a young woman and mutilated her body. The medical evidence stated because of his medical condition he was unable to control those urges. He was convicted of murder but the conviction was quashed and substituted with a conviction of manslaughter. It is likely the courts would use the same standard of abnormality.
Cause of the abnormality of mental functioning
The cause must come from a 'recognised medial condition'. This is a wide definition and can cover physical conditions and psychological disorders. These can include depressive illnesses, Paranoid Personality Disorders, Battered Women's Syndrome etc. It does also cover any physical condition which affects mental functioning like epilepsy or sleep disorders or even diabetes.
The cause must come from a 'recognised medial condition'. This is a wide definition and can cover physical conditions and psychological disorders. These can include depressive illnesses, Paranoid Personality Disorders, Battered Women's Syndrome etc. It does also cover any physical condition which affects mental functioning like epilepsy or sleep disorders or even diabetes.
Substantially impaired
The abnormality of mental functioning must substantially impair the defendant's mental responsibility for his acts or omissions. In Byrne, the question of whether the impairment was substantial was one for the jury to decide. In Lloyd (1967) it was held that substantial did not mean total, but it doesn't mean trivial or minimal. It is somewhere between and it is for the jury to decide whether the mental functioning was affected enough. It is a question of fact and this means the judge can withdraw the question from the jury if there is no evidence that a judge can make that decision. The phrase 'substantially impaired' remains in the new definition, so again it is likely that the ruling would be used in the new cases.
The abnormality of mental functioning must substantially impair the defendant's mental responsibility for his acts or omissions. In Byrne, the question of whether the impairment was substantial was one for the jury to decide. In Lloyd (1967) it was held that substantial did not mean total, but it doesn't mean trivial or minimal. It is somewhere between and it is for the jury to decide whether the mental functioning was affected enough. It is a question of fact and this means the judge can withdraw the question from the jury if there is no evidence that a judge can make that decision. The phrase 'substantially impaired' remains in the new definition, so again it is likely that the ruling would be used in the new cases.
The defendant's ability to do one of three things is what is needed to be substantially impaired for a defence of diminished responsibility to be successful. These things are:
'to cover the mind's activities in all its aspects, not only the perception of physical acts and matter, sand the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgement.' The amendments have effectively put Byrne's judgement into statutory form.
- to understand the nature of his conduct
- to form a rational judgement; and
- to exercise self-control
'to cover the mind's activities in all its aspects, not only the perception of physical acts and matter, sand the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgement.' The amendments have effectively put Byrne's judgement into statutory form.
Ability to understand the nature of his conduct
This is the sort of situations where D is in an automatic state and does not know what he is doing. It could also cover people with severe learning difficulties or those with a low mental age. If D believes he is killing the devil when he is in fact killing a person, he does not understand the nature of his conduct. |
Ability to form a rational judgement
If D knows the nature of his conduct, he may not be able to form a rational judgement about his acts or omissions those who suffer from paranoid or schizophrenia have their ability to form rational judgements affected and so they cannot fulfil this part. This is where Battered Woman's Syndrome comes in as well. |
Ability to exercise self-control
This was the situation in Byrne (1960) because the defendant was unable to control his sexual desires as a sexual psychopath. Thats why the defence of diminished responsibility was available to him. |
Provides an explanation for D's conduct
In order to come within the defence, D has to prove that the abnormality of mental function provides an explanation of his acts or omissions. This is new to the defence and comes from the Coroners and Justice Act 2009. There must now be some causal connection between D' abnormality of mental functioning and the killing. Section 1B Homicide Act 1957 states: '...an abnormality of mental functioning provides an explanation for D's conduct if it causes or is a significant contributory factor in causing, D to carry out that conduct.'
The abnormality of mind does not have to be the only contributing factor to the killing, but is must be a significant factor. This is important when looking at when the time of killing was when the D was intoxicated.
In order to come within the defence, D has to prove that the abnormality of mental function provides an explanation of his acts or omissions. This is new to the defence and comes from the Coroners and Justice Act 2009. There must now be some causal connection between D' abnormality of mental functioning and the killing. Section 1B Homicide Act 1957 states: '...an abnormality of mental functioning provides an explanation for D's conduct if it causes or is a significant contributory factor in causing, D to carry out that conduct.'
The abnormality of mind does not have to be the only contributing factor to the killing, but is must be a significant factor. This is important when looking at when the time of killing was when the D was intoxicated.
Diminished Responsibility and intoxication
The defence of diminished responsibility becomes more complicated when the defendant was intoxicated as well at the time of the killing. There is a clear rule that intoxication alone is not a defence for diminished responsibility. In Dowds (2012), the defendant and his girlfriend, the victim, were binge drinkers. In a drunken state, the defendant stabbed his girlfriend sixty times killing her. He was convicted of murder and he appealed on the grounds that his state of 'acute intoxication' should have been left for the jury to decide on whether he had a defence of diminished responsibility. His appeal was rejected because the courts said that the basis of voluntary acute intoxication is not capable of founding the defence of diminished responsibility.
The jury decide whether or not the defendant was suffering from an abnormality of mental functioning. If they decide that the defendant was not suffering from an abnormality of mind, then the defence is not available and the defendant will be guilty of murder.
The defence of diminished responsibility becomes more complicated when the defendant was intoxicated as well at the time of the killing. There is a clear rule that intoxication alone is not a defence for diminished responsibility. In Dowds (2012), the defendant and his girlfriend, the victim, were binge drinkers. In a drunken state, the defendant stabbed his girlfriend sixty times killing her. He was convicted of murder and he appealed on the grounds that his state of 'acute intoxication' should have been left for the jury to decide on whether he had a defence of diminished responsibility. His appeal was rejected because the courts said that the basis of voluntary acute intoxication is not capable of founding the defence of diminished responsibility.
The jury decide whether or not the defendant was suffering from an abnormality of mental functioning. If they decide that the defendant was not suffering from an abnormality of mind, then the defence is not available and the defendant will be guilty of murder.
Intoxication and a pre-existing abnormality of mental functioning
Sometimes the defendant can have an abnormality of mental functioning as well as being intoxicated. This can cause problems with determine the cause of the killing. In Dietschmann (2003), the defendant was upset by what the victim was saying. He believed that the victim was being disrespectful about his aunt who had just died. He killed the victim by repeatedly kicking him and stamping on him. There were psychiatrists from both sides called to give testimony and they agreed that the defendant was suffering from an adjustment disorder in the form of depressed grief reaction to the death of his aunt.
The problem was whether this had substantially impaired his mental responsibility for the killing. The defendant had drunk a lot of whiskey and other alcohol. He was convicted but then appealed and the House of Lord allowed his appeal.
Under the old definition, the HoL stated that if the defendant satisfied the jury that his abnormality of mind substantially impaired his mental responsibility for his acts in doing the killing, then even though he was intoxicated the jury should not find him guilty of murder and guilty of manslaughter. The CoA also considered this point in other cases after Diestchmann (2003)
Hendy (2006) - D was intoxicated, but there was also underlying evidence of brain damage and a psychopathic disorder.
Robson (2006) - D was heavily intoxicated but also suffered from acute stress disorder when he killed the victim.
In these cases the Court of Appeal quashed the convictions and substituted them with convictions of manslaughter. These decisions are likely to be followed in new cases in the new definition so they still are useful common law principles. The modern approach will probably rely on the idea that the jury must decide:
If all of these questions will be answered 'yes', then D should not be found guilty of murder but of voluntary manslaughter. If the jury decide that D did not have an abnormality of mental functioning etc, then the defence will not be open to him.
Sometimes the defendant can have an abnormality of mental functioning as well as being intoxicated. This can cause problems with determine the cause of the killing. In Dietschmann (2003), the defendant was upset by what the victim was saying. He believed that the victim was being disrespectful about his aunt who had just died. He killed the victim by repeatedly kicking him and stamping on him. There were psychiatrists from both sides called to give testimony and they agreed that the defendant was suffering from an adjustment disorder in the form of depressed grief reaction to the death of his aunt.
The problem was whether this had substantially impaired his mental responsibility for the killing. The defendant had drunk a lot of whiskey and other alcohol. He was convicted but then appealed and the House of Lord allowed his appeal.
Under the old definition, the HoL stated that if the defendant satisfied the jury that his abnormality of mind substantially impaired his mental responsibility for his acts in doing the killing, then even though he was intoxicated the jury should not find him guilty of murder and guilty of manslaughter. The CoA also considered this point in other cases after Diestchmann (2003)
Hendy (2006) - D was intoxicated, but there was also underlying evidence of brain damage and a psychopathic disorder.
Robson (2006) - D was heavily intoxicated but also suffered from acute stress disorder when he killed the victim.
In these cases the Court of Appeal quashed the convictions and substituted them with convictions of manslaughter. These decisions are likely to be followed in new cases in the new definition so they still are useful common law principles. The modern approach will probably rely on the idea that the jury must decide:
- if D had an abnormality of mental functioning arising from a recognised medical condition;
- whether the abnormality substantially impaired D's ability to understand the nature of his conduct/form a rational judgement and/or exercise self-control; and
- whether the abnormality caused, or was a significant factor in causing D to kill V
If all of these questions will be answered 'yes', then D should not be found guilty of murder but of voluntary manslaughter. If the jury decide that D did not have an abnormality of mental functioning etc, then the defence will not be open to him.
Intoxication due to addiction/dependency
There is a recognised medical condition called ADS (Alcohol Dependence Syndrome) which is where the defendant is addicted to alcohol and cannot function without it. In Tandy (1989), the defendant was an alcoholic and she drank a whole bottle of vodka one night. She then told her mother that her second husband had sexually interfered with her 11-year-old daughter. She then strangled her daughter. The trial judge said to the jury that they had to decide whether the action was due to the abnormality of mind or drinking. They convicted her and her appeal was dismissed because Tandy had not shown that there wad no damage to the brain or that he drinking was involuntary. This case was criticised because it didn't take into account this addiction as a medical condition.
In Wood (2008), a year before the new law came in, the point was raised again when the defendant, after drinking heavily, went to the victim's flat. He allegedly woke up to the victim trying to perform oral sex on him. The defendant hit him with a meat cleaver and killed him. The defendant had not suffered brain damage. The defendant was convicted and he appealed to the CoA who quashed the conviction holding that the judge was wrong to direct the jury that all the defendant's drinking had to be voluntary.
In Wood, they held that ADS could be considered as a possible source of abnormality of mind. The question was whether the abnormality of mind was caused by the ADS, similarly to the three part test from previously.
There is a recognised medical condition called ADS (Alcohol Dependence Syndrome) which is where the defendant is addicted to alcohol and cannot function without it. In Tandy (1989), the defendant was an alcoholic and she drank a whole bottle of vodka one night. She then told her mother that her second husband had sexually interfered with her 11-year-old daughter. She then strangled her daughter. The trial judge said to the jury that they had to decide whether the action was due to the abnormality of mind or drinking. They convicted her and her appeal was dismissed because Tandy had not shown that there wad no damage to the brain or that he drinking was involuntary. This case was criticised because it didn't take into account this addiction as a medical condition.
In Wood (2008), a year before the new law came in, the point was raised again when the defendant, after drinking heavily, went to the victim's flat. He allegedly woke up to the victim trying to perform oral sex on him. The defendant hit him with a meat cleaver and killed him. The defendant had not suffered brain damage. The defendant was convicted and he appealed to the CoA who quashed the conviction holding that the judge was wrong to direct the jury that all the defendant's drinking had to be voluntary.
In Wood, they held that ADS could be considered as a possible source of abnormality of mind. The question was whether the abnormality of mind was caused by the ADS, similarly to the three part test from previously.
Evaluation of Diminished Responsibility
The Coroners and Justice Act 2009 has incorporated a lot of changes that were recommended by the Law Commission report Murder, Manslaughter and Infanticide (2006). The changes included the phrase 'recognised medical condition' which allow for flexibility and ever expanding medical conditions that could have an impact on the ability to form rational judgements or that can impair mental functioning. This has incorporated the decision in Byrne (1960) into a statute to make a statutory defence of diminished responsibility.
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The burden of proof for the defendant is the balance of probabilities. In other defences, the defendant only has to raise the defence and then the prosecution has to disprove it. In diminished responsibility, they have to prove that it is more likely than not that there was a recognised medical condition that impaired their mental functioning. Defendants pleading diminished responsibility are at a disadvantage which is not faced by those raising loss of control.
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The issue of developmental immaturity is also a problem for the defence of diminished responsibility. The Law Commission suggested that those under 18 should be included within the diminished responsibility defence. This is due to the fact that their brains have not fully developed and there is evidence to show that the frontal lobes of the brain, which are responsible for self-control and impulsive behaviour do not fully develop until the age of 14. This means that a 14 year old will be held to the standard of a middle aged man when he may not have the same mental functioning and capabilities to control himself. It seems unfair to the children. The problem with it is that it would perhaps open up to justification and increase the amounts of killings from younger people. The Government didn't think they needed to take this into account because there was already learning disabilities and autism spectrum disorders which were included in the recognised medical conditions. But the problem is that 'developmental immaturity' is not the same as a learning disability.