Criminal Law Diminished Responsibility

1. Criminal LawDiminished Responsibility

2. Insanity and Diminished Responsibility • M’Naghten Rules on insanity: • high threshold before D ‘acquitted’ of criminal liability • those with lesser impairments: • normally such mental impairment was taken account of in sentencing • but sentence for murder is fixed by law

3. Diminished Responsibility and Insanity • s.2 Homicide Act 1957 introduces Scottish defence of diminished responsibility: • not to be convicted of murder if: • suffering from abnormality of mind as substantially impairs mental responsibility for act

4. Diminished Responsibility • The defence of diminished responsibility: • only available on murder charge (not ‘attempted murder’ or ‘conspiracy to murder’ or ‘accessory to murder’) • partial defence - if successful, means conviction for manslaughter • burden of proof on D - s.2(2) – Ali (2001) 1 All E R 1014

5. The Use of Diminished Responsibility • Prior to 1957: • 40% of murder trials involved plea of insanity • In 2000/1: • 849 recorded as homicide: • 66 no longer recorded as homicide • 233 murder • 267 other manslaughter • 20 diminished responsibility See: Crime in England and Wales 2001/02 - ch.1 ‘Homicide’

6. The Use of Diminished Responsibility • Sentence at the discretion of the court (Chambers 1983 Crim LR 688): • in 2000/1, 20 convictions for s.2 manslaughter • 0 - life sentence • 7- 4-10 years imprisonment • 2 - less than 4 years imprisonment • 7 - hospital orders under s.37 MHA 1983 • 4 – suspended sentence/probation (for example Turner [2001]

7. Elements of Diminished Responsibility Abnormality of mind: • some pathological condition arising from: • arrested or retarded development of mind • any inherent cause • induced by disease or injury

8. Abnormality of mind • Consider Byrne 1960 where he strangled and mutilated young girl - sexual psychopath unable to control sexual desires • abnormality of mind includes: • inability to form rational judgment or to exercise will power to control acts • covers mind’s activities in all its aspects including psychopaths and irresistible impulses – but Sutcliffe and Nilsen both found guilty of murder • state of mind so different from that of an ordinary person that a reasonable person would term it abnormal

9. Abnormality of mind • Some pathological condition arising from: • arrested or retarded development of mind • any inherent cause – paranoid psychosis as opposed to reactive depression • induced by disease or injury – physical deterioration of brain, even if caused by substance abuse • epilepsy, stress disorder, battered woman syndrome • obsessive jealousy (Miller 1972; Vinaigre 1979) • pre-menstrual tension (Smith 1982)

10. Elements of Diminished Responsibility • Substantial impairment of mental responsibility: • can hazard guess about ‘legal’ or ‘moral’ responsibility • ‘mental’ responsibility is ill-chosen but has been left free from judicial interpretation - matter for juries

11. Intoxication and Diminished Responsibility • Intoxication: • Gitttens 1984 - alcoholism or brain damage due to alcohol may come within definition under s.2 - Egan 1992 • Tandy 1989 - mother discovered husband had been abusing daughter - drank bottle of vodka before killing daughter • convicted – jury told that DR if she had no choice as to first drink – upheld by CA • intoxication is not abnormality of mind and jury must disregard effect of drink or drugs

12. Intoxication and Diminished Responsibility • Dietschmann [2003] - killed V after dispute over watch which was last gift to D from aunt who had recently died – adjustment disorder after depressed grief reaction • judge directedjury: • 1. would D have killed if he had not been drinking?2. would such a killing have been the result of DR? • House of Lords (Hutton): • 1. above has wrong emphasis • jury should consider whether, despite the drink, the abnormality substantially impaired responsibility

13. Provocation and Diminished Responsibility • DR and provocation are not mutually exclusive: • s.2 based on abnormality that impairs self control • s.3 based on objective test of whether reasonable person would have reacted in this way • Overlapping factual situations: • battered woman syndrome basis for DR (Hobson 1998) • also consider Humphreys and Dryden

14. Provocation and Diminished Responsibility • Luc Thiet Thuan critical of blurring defences: • D unable to establish DR because of burden of proof - that is, D must satisfy jury on balance of probabilities that D suffering from DR • D succeeds on provocation because [on the same evidence] prosecution unable to satisfy jury beyond reasonable doubt that D NOT suffering from mental infirmity affecting self-control • In Luc Thiet Thuan Privy Council reduces scope of defence of provocation

15. Provocation and Diminished Responsibility • Smith (Morgan) [2000] 4 All ER 289 – House of Lords ignores Privy Council in Luc Thiet Thuan • Smith has effect of blurring DR and provocation further: • Smith effectively abandons reasonable person test; the objective basis of s.3 is ‘eroded and its moral basis subverted’ (Lord Millett) • Smith expanded provocation in order to provide a wider defence than DR is able to provide? • consider Bevan Roberts (2002) CA Lawtel • Law Commission Report 290: ‘Partial Defences to Murder’