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Cite as: [2004] EWLC 290(5)

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PART 5

DIMINISHED RESPONSIBILITY

INTRODUCTION

Section 2 of the Homicide Act 1957 provides:

(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing;

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder;

(3) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.

5.2

In Consultation Paper No 173

^[1]

(1) abolition of diminished responsibility, whether or not the mandatory sentence is abolished;

(2) abolition of diminished responsibility, conditional upon abolition of the mandatory sentence;

(3) retention of diminished responsibility, whether or not the mandatory sentence is abolished?

What are their principal reasons?

Only about half of those who have commented on our Consultation Paper addressed the partial defence of diminished responsibility. What conclusion, if any, should be drawn from this? One is that there is a considerable body of opinion which believes that the partial defence is, in principle, justified, that it should continue to exist and that it is not in need of any significant reform. We should, however, be cautious about drawing such a conclusion from mere silence. Those who did not address the defence included mainly lay persons, whose responses were, mainly, brief and were directed to supporting the position principally articulated by Justice for Women, which focused on provocation and the pre-emptive use of force in self-defence.

^[2]

Before setting out our recommendations, we wish to make certain preliminary observations.

5.5

First, as we have indicated in Part 2,

^[3]

Second, a small number of consultees either expressed the view that it made "little sense" to review the law of diminished responsibility in isolation,

^[4]

^[5]

^[6]

Third, the most recent statistics contained in Crime in England and Wales 2002/2003: Supplementary Volume 1: Homicide and Gun Crime (01/04, January 2004) reveal that in 2001/2002 for the first time the total number of successful diminished responsibility pleas fell below 20 (the figure for 2000/2001). In 2001/2002 there were 15 successful pleas. The same table also shows that for 2002/2003 the number of convictions for manslaughter under section 2 was as few as five.

^[7]

Finally, we should bear in mind that, whereas all the other common law jurisdictions

^[8]

^[9]

A. ABOLISH OR RETAIN THE DEFENCE?

Retention of the defence as long as the mandatory life sentence is retained

Only one consultee expressly favoured abolition of the defence even if the mandatory life sentence for murder is retained.

5.10

There is, therefore, overwhelming support from those consultees who addressed the issue for the retention of a partial defence of diminished responsibility for as long as there is the mandatory life sentence for murder. We agree.

5.11

We recommend that for as long as there is a mandatory sentence of life imprisonment for all who are convicted of murder there should be a partial defence of diminished responsibility which would reduce what would otherwise be a conviction of murder to one of manslaughter.

Retention of the defence even if the mandatory sentence of life imprisonment for murder were to be abolished

5.12

Opinion was divided on the merits of retaining the defence if the mandatory life sentence were to be abolished.

^[14]

^[15]

Overall, the preponderance of responses favoured retention of the defence even if the mandatory life sentence were to be abolished. It was not, however, an overwhelming preponderance. Thus were we, in this Report, to express a firm view on the merits of retaining the defence even if the mandatory life sentence were to be abolished, we would acknowledge that, whatever the view we expressed, it would be contrary to a considerable body of informed opinion.

5.14

We have thought it best not to express any such view. As has been made clear to us, there is no prospect of the removal of the mandatory life sentence for as long as the substantive law of murder remains in its unreformed state. We have, in Part 2, argued that the sound development of the substantive law of murder, including the existence and form of partial defences, together with the appropriate sentencing regime, requires a systematic review of the subject which the Law Commission is presently willing and able to undertake. Consideration of the place, if any, and the form of a partial defence of diminished responsibility in such a reformed law of voluntary homicide is best left to such an exercise. We think it useful, however, in order to inform further consideration of this subject, briefly to set out the arguments advanced on either side of the debate in response to our Consultation Paper.

Some introductory comments

Views expressed over fifty years ago, even those of a Royal Commission, need to be carefully scrutinised and considered, particularly when it is remembered that Parliament, in 1957, did not accept the Royal Commission's advice but instead opted for what the Royal Commission had rejected. Nevertheless, the views expressed by the Royal Commission are of interest. The Royal Commission, referring to diminished responsibility as developed by Scots law, referred to it as "a device to enable the courts to take account of a special category of mitigating circumstances in cases of murder".

^[18]

This is of interest because most of the consultees who supported abolition of diminished responsibility, provided the mandatory sentence were to be abolished, were of the view that the issues raised by the defence are no more than issues of mitigation which go to sentence.

^[19]

^[20]

Arguments in favour of retention of the defence of diminished responsibility

The main rationale which underlies the body of opinion favouring retention of diminished responsibility, even if the mandatory life sentence were to be abolished, can be summed up in the phrase "fair and just labelling". Consultees frequently expressed the view that it is unjust to label as murderers those not fully responsible for their actions. Some consultees

^[21]

^[22]

culpability

^[23]

This rationale merits two comments. First, the frequent reference to culpability is problematic because, traditionally, English law has employed the concept of mens rea (in conjunction with actus reus), and in particular the distinction between intention and subjective recklessness, as a means of assessing culpability and labelling conduct.

^[24]

^[25]

Professor Ronnie Mackay recognised the contradiction, namely that diminished responsibility allows a defendant to be convicted of one offence when he has the mens rea, and, on the traditional analysis, the culpability of another and more serious offence but stated:

There is, in my view, a clear moral distinction between murder and a diminished responsibility killing despite the presence of the mens rea of the former offence … what is needed is a newly crafted plea which more appropriately reflects this moral distinction.^[26]

Second, if the defence is necessary and desirable for labelling purposes, why should it be confined to the offence of murder? If the person who kills with the mens rea of murder can and should be labelled as somebody other than a murderer because of reduced responsibility, then why not the person who is guilty of attempted murder (with its stricter mens rea requirement) or who inflicts grievous bodily harm with intent? This issue is addressed by very few of our consultees, no doubt because non-fatal offences of violence are outside our terms of reference.

^[27]

Apart from the need to ensure fair and just labelling, a number of other factors were mentioned in individual responses:

the out-dated nature of the insanity defence as contained in the M'Naghten Rules. The narrowness of the Rules, in the sense of their preoccupation with cognitive understanding, is seen as reinforcing the need for a partial defence of diminished responsibility. In addition, the stigma which attaches to being labelled "insane" makes defendants reluctant to plead insanity;^[28]

the need to enable jurors to convict a defendant of a homicide offence in cases where, if the only conviction open to them was for murder, they might otherwise (perversely) acquit altogether;^[29]

the importance of ensuring that the issue, which goes to the culpability of the defendant, is determined by a jury and not by the judge as part of the sentencing process;^[30]

the need to ensure public confidence in sentencing. Sentences passed by judges following a finding by a jury that the defendant is guilty of manslaughter by reason of diminished responsibility are more likely to find public acceptance than sentences passed following a conviction for murder;^[31]

the need in a disputed case for a jury, rather than a judge, to determine between experts whether responsibility is diminished;^[32]

the fact that diminished responsibility is presently often the only defence to murder available to abused women "driven to kill";^[33]

the fact that the defence may enable a merciful but just disposition of certain types of case where all parties consider it meets the justice of the case.^[34]

Reservations expressed by those who favour retention of the defence

The pathologising effect of the defence

Not all the consultees who favoured retention of the defence viewed it with equanimity. There were reservations expressed, particularly by women's groups, about the way the defence operates. These reservations centred on its pathologising effect.

5.24

The Middlesborough Domestic Violence Forum, Justice for Women, Rights of Women, Women's Aid Federation of England and Southall Black Sisters all favoured retention of the defence, regardless of the fate of the mandatory sentence, partly because it was felt to be often the only defence to murder which is available to many abused women who are "driven to kill".

^[35]

These groups were concerned that many abused women are terrified of a psychiatric diagnosis and of being viewed as "mad". This reluctance to accept a mental illness label is, in their view, understandable as the reactions of the women in question are, in one sense, quite normal responses to the abnormal violence and abuse to which they have been subjected. Yet, as the Royal College of Psychiatrists observed, these conditions can affect their cognitions and reactions so that they do not perceive the options for escape in the same way as an "ordinary person" would do.

5.26

In addition, these groups thought that pathologising of the woman could and did have adverse consequences with regard to her subsequently obtaining custody of or access to her children.

5.27

Notwithstanding their stated reservations about the potential adverse impact of its operation in such cases, with one exception, none of these groups recommended a new formulation for the defence.

^[36]

In addition, these groups referred to a further cause of dissatisfaction with the defence, namely that, in their view, the courts and juries frequently lack the expert evidence which would enable them to understand the ways in which fear, anxiety and despair can affect a person's mental state and their assessment of their current and future safety.

Evidential concerns

5.29

Some psychiatrists expressed concern about differences in the levels of knowledge and experience among psychiatrists who are called to give evidence on issues of mental abnormality in murder cases. Some women's groups were critical of what they see as a lack of understanding among some psychiatrists of the dynamics of domestic violence.

5.30

One experienced judge raised evidential concerns of a different kind. He made the point that sometimes an accurate diagnosis of the defendant can only be made after the defendant has been observed and treated over an extended period in a secure unit in a mental hospital. That is generally not practicable before the trial as most defendants facing murder charges are kept in prison. The one or two interviews in prison by a consultant psychiatrist, which are all that can realistically be arranged, are of "limited value" in enabling an accurate diagnosis to be made. He said:

I should make it clear that I have every confidence in the ability of a jury, with appropriate assistance from the psychiatrists, counsel and the judge, to reach a proper and reasonable conclusion on the evidence placed before them. The difficulty lies not in the ability of the jury to understand the evidence or the issues, but in the paucity of the evidence likely to be available at the time of the trial.

5.31

He acknowledged that:

There is something to be said for abolishing diminished responsibility as a partial defence, which has necessarily to be adjudicated on at the time of the trial, and leaving the issue to be determined by the judge on the evidence available at the time of sentence, some months "down the track".

But he concluded that the defence should be retained, because he subscribed to the view that:

[T]here is much to be said for the view that cases [of diminished responsibility] do fall into a distinct category, in terms of culpability, and that it should be left to a jury to decide whether any particular case falls into that special category.

A discriminatory defence?

5.32

One consultee, argued that there is "an urgent need" to conduct research into whether the defence of diminished responsibility operates in a discriminatory fashion.

5.33

We now have the results of Professor Mackay's current research.

^[37]

Of the 157 cases studied by Professor Mackay, the prosecution accepted a diminished responsibility plea in 77.1% (n=121) of cases. Within the overall total of 157 cases, of the 29 cases where the defendant was female such a plea was accepted in 25 (86.2%) cases, a higher proportion than for the totality of the cases.

5.35

Of the 36 cases across the sample where there was a trial, over half (22 cases) resulted in a conviction of murder. In 20 of those 22 cases the defendant was male.

5.36

Of the 36 cases where there was a trial, only four involved female defendants. There was a murder conviction in two of them. Only one of those four cases involved a woman, in an abusive relationship, killing her male partner and she was convicted of manslaughter pursuant to section 2. Of the remaining three cases, one arose out of a fatal argument with the defendant's lesbian partner, where both had been drinking and where a conviction of manslaughter was returned. It is unclear whether or not that verdict was on the basis of diminished responsibility. Another, which involved a 14-year-old female defendant, was the murder of a 71-year-old acquaintance. The defendant, together with her female co-defendant, had taken drink and drugs. She was convicted of murder. The last case concerned a mother who assisted her son to strangle her daughter. The daughter was pregnant from a liaison which was disapproved of by the family. The mother was convicted of murder.

5.37

Of the 25 women whose pleas to section 2 manslaughter were accepted, 11 killed a current or former male partner

^[38]

Of the 128 males in the sample, 51 (39.8%) killed their current or former female partner, a similar proportion to females in the sample who killed their current or former male sexual partner where the number was 12 out of 29 (40.9%).

5.39

Of those 51 male defendants, the prosecution accepted a diminished responsibility plea in 38 cases (74.5%), a significantly lower proportion than for female defendants where 11 out of 12 (91.6%) had their pleas of diminished responsibility accepted. Of the 38, 17 arose out of sexual jealousy and in 12 of those cases the basis of the mental abnormality was depression whereas in five cases it was psychosis.

5.40

All three mercy killings were accepted as diminished responsibility pleas.

5.41

Of the 13 male defendants who killed their current or former female partner and whose case went to trial, nine were convicted of murder and four of manslaughter. Of the latter four, one was convicted of "unlawful and dangerous act" manslaughter, while three were convicted of manslaughter by virtue of diminished responsibility .

5.42

Thus, in the cases of males killing current or former female partners, the prosecution accepted a substantially lower proportion of diminished responsibility pleas than where a female killed a current or former male partner. Where the matter was contested, juries rejected diminished responsibility when pleaded by males who killed current or former partners in a significantly larger proportion of cases than over the sample as a whole. In the only case in the sample of a trial where a female killed a current or former male partner and pleaded diminished responsibility the jury convicted of manslaughter.

Arguments against retention of the defence of diminished responsibility

5.43

A significant minority of consultees, particularly amongst the judiciary, favoured the abolition of the defence provided that the mandatory life sentence was abolished. The arguments for adopting this view were not entirely uniform but can be summarised as follows:

logically, as diminished responsibility reduces the defendant's responsibility for the killing, it ought to be viewed as a mitigating factor rather than a partial defence in a case where, by definition, the defendant's level of culpability is established by reference to the traditional concepts of conduct and mens rea.^[39]

the issues addressed by the defence are matters of mitigation, which go to sentence. Instead, they have been, in the words of Buxton LJ, "artificially forced into the straightjacket of substantive liability". The defence was introduced to "sanitise the worst aspects of capital punishment";

there are insuperable definitional problems. The definition contained in section 2 is "disastrous" and "beyond redemption";^[40]

the "chaos of the present law" which has enabled the smuggling in of mercy is a very poor substitute for the rational sentencing exercise that could be undertaken, as in any other case of mental illness or social dislocation, once the mandatory sentence goes;^[41]

the defence is "grossly abused" and whether a defendant finds a psychiatrist who will be prepared to testify that, for example, depression was responsible for his behaviour is "a lottery";^[42]

The Response of the Royal College of Psychiatrists

The Royal College expressed concern in its response that in many homicide cases psychiatrists are pushed by the way the law is constructed into convoluted argument. For example, there are cases where the "abnormality of mind" is not that severe, but things were said or done as triggers which were very important in playing upon that abnormality. From a medical viewpoint, such cases sit on a continuum where there is a balance between factors in the defendant and the victim which does not fit neatly with the thinking of the law. There is, in the view of the Royal College, a profound mismatch between the thinking of law and psychiatry in such areas. They say:

At least as far as psychiatric evidence is concerned, the vast majority of problems that arise in homicide cases could, and would, be abolished with the abolition of the mandatory life sentence on conviction of murder. Once psychiatry has placed solely within sentencing hearings, rather than within hearings directed towards jury decisions about verdict, the effect of the mismatch between legal and medical thinking is all but abolished.

5.45

This response might be read as implicitly urging the abolition of the defence of diminished responsibility, conditional on the abolition of the mandatory sentence, but the response does not explicitly go that far. Retention of the defence, even if the mandatory sentence were abolished, was favoured by one consultant forensic psychiatrist,

^[43]

there seems to be a world of difference between … the cases of homicide in which there is … [an] absence of any mental disorder and homicides which are largely the product of a mental disorder for which the sufferer bears little or no responsibility.

That leads on to broader questions about the way in which the law deals with mentally disordered defendants. The Royal College made the points in its response that there is no logic in the adoption of one set of mental conditions for defendants facing a charge of murder but not for lesser charges, and that the "insanity" defences fail to represent the range of mental state abnormalities that the law might reasonably see, within its own terms, as relevant to verdict in a variety of criminal cases.

Conclusion

5.47

We are not persuaded that it is desirable to come to a final view about diminished responsibility in advance of a comprehensive review of the law of murder and the sentencing regime. A decision on the need for a partial defence of diminished responsibility can only sensibly be taken as a part of that review. In the next section of this Part we consider the case for reformulation of the partial defence under the present regime. We also tentatively consider, as an aid to further discussion and in the light of the many helpful responses we have received, how a partial defence of diminished responsibility might be framed in the event that it were to be a part of a reformed law of murder.

B. REFORMULATION OF THE DEFENCE

Introduction

5.48

In considering whether, and to what extent, the defence should be reformulated, pending any wider review of murder, the central issues might be thought to be: to what extent is the defence accommodating cases which it should not be and to what extent is it failing to accommodate cases which it should be?

5.49

Other than the assertion of gender bias to which reference has already been made, there was little evidence in the responses of a concern that the partial defence of diminished responsibility was in general being applied too widely or too narrowly. At the same time, concerns were expressed that it is a lottery and that the outcome is more dependant on the persuasiveness of the psychiatrists and the advocates, and the degree of sympathy which the jury has for the defendant, than on any objective criteria.

The role of psychiatrists

5.50

The evidence we have received suggests that on the whole psychiatrists do not have difficulty in forming and explaining to the jury their reasons for an opinion whether the defendant was suffering from an abnormality of mind within section 2, although that term is broad and not legally defined.

5.51

The role of the psychiatrist is more difficult in relation to the second limb of the section, ie whether the defendant's abnormality of mind "substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing". It is apparent from Professor Mackay's study that although a minority of psychiatrists restrict themselves to the first limb of the section, almost 70% express an opinion on that "ultimate question". The psychiatrists to whom we spoke expressed real reservations about being asked to give evidence about that question, because it is not a matter of medical science, but in practice the forensic process frequently draws them into doing so, implicitly if not explicitly.

Consultees' views on alternative versions of the defence set out in the Consultation Paper

5.52

In Consultation Paper No 173

^[44]

(1) the present wording of section 2 of the 1957 Act;

(2) the alternative formula proposed in the Butler Report:^[45]

"Where a person kills or is party to the killing of another, he shall not be convicted of murder if there is medical or other evidence that he was suffering from a form of mental disorder as defined in [section 1 of the Mental Health Act 1983, that is, "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind"] and if, in the opinion of the jury, the mental disorder was such as to be an extenuating circumstance which ought to reduce the offence to manslaughter";^[46]

(3) the version proposed by the Criminal Law Revision Committee:^[47]

"Where a person kills or is party to the killing of another, he shall not be convicted of murder if there is medical or other evidence that he was suffering from a form of mental disorder as defined in [section 1 of the Mental Health Act 1983] and if, in the opinion of the jury,"^[48] "the mental disorder was such as to be a substantial enough reason to reduce the offence to manslaughter"^[49]

(4) the version proposed by the New South Wales Law Reform Commission:

"A person, who would otherwise be guilty of murder, is not guilty of murder if, at the time of the act or omission causing death, that person's capacity to:

(a) understand events; or

(b) judge whether that person's actions were right or wrong; or

(c) control himself or herself,

was so substantially impaired by an abnormality of mental functioning arising from an underlying condition as to warrant reducing murder to manslaughter.

"Underlying condition" in this subsection means a pre-existing mental or physiological condition other than of a transitory kind";^[50]

(5) a version proposed by Professor Mackay:^[51]

"A defendant who would otherwise be guilty of murder is not guilty of murder if, at the time of the commission of the alleged offence, his mental functioning was so aberrant and affected his criminal behaviour to such a substantial degree that the offence ought to be reduced to one of manslaughter;"^[52]

(6) an amended version which would provide:

"Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) and that abnormality of mind was a significant cause of his acts or omissions in doing or being a party to the killing";

(7) some other version?

Our analysis of responses revealed that none of the versions which we put forward for consideration attracted widespread support. Fifty-five consultees chose one or more of the versions.

A. The pervasive "ought to be reduced to manslaughter" test

One common feature of versions (2), (3), (4) and (5) is that the ultimate question the jury has to decide is whether the offence "ought" to be reduced to manslaughter. This element in these versions appealed to some whose view was that the essence of the defence involves the jury making a moral choice. Version (3) was particularly favoured by two consultees because it introduces a societal test and is akin to the test set by Lord Hoffmann in Smith (Morgan).

^[59]

Conversely, others objected to a test that would involve the jury judging whether the offence should be reduced from murder to manslaughter because it is "very imprecise and subjective"

^[60]

^[61]

We share those objections. To direct a jury that mental abnormality reduces murder to manslaughter if sufficiently serious that it ought to do so, leaves the jury to set its own standard for deciding what ought to reduce murder to manslaughter.

The Scottish Law Commission

5.57

In June of this year the Scottish Law Commission presented its Report on Insanity and Diminished Responsibility.

^[62]

Galbraith v. Lord Advocate (No 2)^[63]

HM Advocate v. Savage^[64]

It is very difficult to put it in a phrase, but it has been put in this way: that there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on though not amounting to insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility-- in other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through the cases that there is implied … that there must be some form of mental disease.^[65]

Galbraith indicated a major change in judicial approach. The formula in Savage was not to be read in a narrow sense. It was not necessary that all the criteria in that formula should be present. Moreover, although the plea had to be based on some form of mental abnormality, a wide range of conditions could constitute diminished responsibility and they need not be bordering on insanity. The court in Galbraith ruled that diminished responsibility required the existence of an abnormality of mind which had the effect that the accused's ability to determine or control his actions was substantially impaired. The court excluded from the scope of the plea (i) any condition brought on by the voluntary consumption of drink or drugs and (ii) psychopathic personality disorder.

^[66]

It formulated the defence as follows:

In our law diminished responsibility applies in cases where, because the accused's ability to determine and control his actings is impaired as a result of some mental abnormality, his responsibility for any killing can properly be regarded as correspondingly reduced… .^[67]

In essence, the judge must decide whether there is evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts. … The abnormality of mind may take various forms. It may mean that the individual perceives physical acts and matters differently from a normal person. Or else it may affect his ability to form a rational judgement as to whether a particular act is right or wrong or to decide whether to perform it. In a given case any or all of these effects may be operating.

In essence the jury should be told that they must be satisfied that, by reason of the abnormality of mind of the person in question, the ability of the accused, as compared with a normal person, to determine or control his actings was substantially impaired.^[68]

The Scottish Law Commission, in its Discussion Paper on the subject

^[69]

his or her condition at the time of the commission of the offence amounted to such extenuating circumstances as to justify a conviction for culpable homicide instead of a conviction for murder.^[70]

This did not find favour with consultees to that Discussion Paper. They pointed out that the definitions of other defences in criminal law do not set out their rationales. The Scottish Law Commission accepted the point that had been made by consultees. It said that as the rationale of diminished responsibility is well understood, there is no need to include it as part of the test for the plea. Furthermore, it thought that there might be a danger of confusing the different roles of expert witnesses and jury were the test itself to refer to such matters as conditions which justify a conviction on the lesser charge.

^[71]

The Scottish Law Commission has not recommended this formulation but instead has recommended a statutory formulation which mirrors the essence of Galbraith namely:

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. ^[72]

The Scottish Law Commission also recommends that the plea of diminished responsibility should not be excluded solely by virtue of the fact that at the relevant time the accused had any form of personality disorder.

^[73]

^[74]

Reformulations of the defence suggested by consultees

One consultee suggested a version which provided:

A person shall not be convicted of murder, but shall be convicted of manslaughter, if his blameworthiness for killing or being a party to the killing of another is substantially diminished by reason of –

(a) mental abnormality or disorder (other than that resulting solely and directly from his being intoxicated);

(b) his youth or immaturity.^[75]

This formulation highlights the position of the young. There is a need to undertake a detailed review of the defence, and indeed the whole of the law of homicide, in the way it impacts on child defendants.

^[76]

Two versions have been proposed by consultees which have some similarities but significant differences. The first was:

Mitigation by reduced capacity: Where a person kills or is a party to the killing of another, he shall be convicted of manslaughter and not murder if at the time of the commission of the offence he was in an abnormal state of mind which substantially impaired his ability to appreciate the wrongness of his conduct, or his ability to act in accordance with his recognition that his actions were wrong.

5.67

The second was:

A person who would otherwise be guilty of murder is not guilty of murder but is guilty of manslaughter if at the time of the act or omission causing death:

(1) that person's capacity to:

(i) understand events; or

(ii) judge whether that person's actions were right or wrong; or

(iii) control himself;

(2) was substantially affected by a form of mental disorder as defined in section 1 of the Mental Health Act 1983, which shall not include any temporary alteration of mental state caused by drugs of any kind; and

(3) the mental disorder was a substantial cause of the act or omission causing death; and

(4) in the opinion of the jury, the mental disorder was an extenuating circumstance, which ought to reduce the offence to manslaughter.

5.68

These versions have in common that they identify the link explaining why the defendant's culpability should be regarded as reduced by his or her mental abnormality.

5.69

The second version has three ingredients which are not in the first version. One ingredient is that "the mental disorder was an extenuating circumstance, which ought to reduce the offence to manslaughter". For the reasons that we have already given, we are not attracted to that form of test.

^[77]

Another difference is the stipulation that "the mental disorder was a substantial cause of the act or omission causing death", but we think that this difference may be more apparent than real because we think that a causative link may be regarded as implicit in the first version.

5.71

The most significant difference between the two versions is in the definition of mental abnormality or disorder. The first version refers simply to an abnormal state of mind; the second refers to a mental disorder as defined in section 1 of the Mental Health Act 1983 (and would exclude any temporary alteration of mental state caused by drugs).

5.72

The proponents of the first version intended the expression "abnormal state of mind" to be capable of being given a very broad interpretation. They said:

What we have in mind are people who were (for example) physically and mentally exhausted from over work, disorientated by prolonged lack of sleep, or distracted by shock or grief. That people in these states are not really normal, and not to be judged as strictly as others, is reflected in a range of everyday sayings and expressions: "she was beside herself with grief", "he was so tried he did not know what he was doing". Even more to the point is the Jewish proverb, "do not judge a man in his grief".

The following real situations come to mind: the parent (e.g. Doughty) who has not slept for nights because of a crying baby; the spouse who thinking, (s)he was happily married, discovers that the other spouse has been unfaithful for years and is about to leave with the lover – a situation which has sometimes led to the deserted parent killing their children and then committing suicide; or a parent who learns that the children have all been killed in an accident. Prolonged deprivation of sleep produce[s] psychological effects that can cause people to act strangely and out of character – and so, I believe, can extreme shock and grief.

5.73

We are troubled by such a broad approach.

5.74

The distinction between what is normal and abnormal is one of degree and can be difficult to draw. The requirement of a medically recognisable basis provides both a doctrinal justification (that a person suffering a medically recognisable abnormality of mind lacks full responsibility for his or her acts) and a practical limitation on the ambit of the defence. Without it, there would be a serious risk of an "evaluative free for all" such as some commentators describe existing in provocation post Smith (Morgan).

^[78]

A person who batters a child from distracted exhaustion may do so on an isolated occasion or regularly. If the fact that it happened out of distracted exhaustion should be a partial defence, in principle that should be so even if something similar had happened before. To many it would be abhorrent that such a defence should be available to a serial child abuser at a time when child abuse is a grave problem. Acting out of character may be a ground of mitigation, but it is hard to see how it fits into a defence. If the defendant had no intent to kill and did not foresee causing life threatening injury, so that death was not only unforeseen but also unforeseeable, we can see a strongly arguable case for saying that he should not be guilty of murder.

^[79]

On the other hand, knowledge of mental illness is a developing science and to tie the definition to that contained in the Mental Health Act 1983 might be over restrictive.

^[80]

^[81]

The New South Wales Law Reform Commission heard evidence that any reference to "abnormality of mind" or a similar phrase should be omitted.

^[82]

The Commission was not persuaded. It felt that a formulation which did not expressly link the defence to an underlying concept of mental impairment or mental disorder would risk widening the ambit of the defence too far. Any person who killed in a heightened emotional state might potentially plead the defence. Instead, the Commission recommended the term "abnormality of mental functioning arising from an underlying condition."

^[83]

^[84]

The Commission also recommended that "abnormality", not being a precise expression, should be defined in terms of a person's capacity to understand, judge and control actions. It is important to note that the Commission envisaged that such a definition would have the purpose of limiting the meaning of "abnormality of mental functioning."

^[85]

In proposing the phrase "underlying condition" which was defined as "a pre-existing mental or physiological condition, other than a condition of a transitory kind", the Commission said:

Nor do we intend to limit the defence to endogenous mental diseases to the exclusion of, for example, people whose capacities are impaired by reason of brain injury. The term … is intended to link the defence to a notion of pre-existing impairment requiring proof by way of expert evidence,^[86] which impairment is of a more permanent nature than a simply temporary state of heightened emotions. This does not mean that the condition must be shown to be permanent. It simply requires that the condition be more than of an ephemeral or transitory nature.^[87]

Can the current formulation in section 2 be improved?^[88]

We are conscious that a new test may produce as many problems as it purports to solve. One consultee gave the salutary warning:

Change is always subject to the risk of unintended consequences together with an inevitable degree of speculation as to the extent of the need for change, leading to appeals. Unless there is a strong practical need to change section 2, demonstrated by evidence, it should be left as it is.

5.82

Professor Mackay, who has particular expertise in this area, points to arguments for and against change. He points to Professor Griew's warning that, however conceptually flawed the wording of section 2, reformulation of the section is fraught with danger. The perceived advantage is its flexibility and the way it allows, as put by Buxton LJ, "the smuggling in of mercy".

Professor Mackay's study of diminished responsibility cases

5.83

As we have stated we are grateful to Professor Mackay and the Nuffield Foundation for making available to us the results of his extensive study of diminished responsibility cases. His paper is published as appendix B to this Report.

5.84

The conclusion which we draw from this study is that, whilst there are some cases which may cause some surprise on the limited facts available, the picture which emerges is that the partial defence seems in the main to be reasonably applied by the courts and by juries. This study provides no evidence to support any contention that the defence should be drawn in such a way as to make it significantly broader or narrower in terms of the outcomes achieved. Diminished responsibility is readily accepted or succeeds where there is a clear psychosis. In other cases (such as depression) the success of the plea seems to be closely related to whether there is an established prior medical condition and its severity.

Alcohol, drugs and diminished responsibility

5.85

In Consultation Paper No 173 we set out briefly the essential elements of the relationship between the voluntary consumption of alcohol and drugs and the defence of diminished responsibility.

^[89]

Dietschmann

^[90]

^[91]

Tandy^[92]

^[93]

^[94]

Our recommendation

Our view is that for the time being, and pending any full consideration of murder, section 2 should remain unreformed. There appears to be no great dissatisfaction with the operation of the defence and this is consistent with our consideration of the results of Professor Mackay's investigation of the defence in practice. To the extent that there is concern that certain defendants are forced to adopt the partial defence of diminished responsibility when their true defence is that they acted out of fear of future violence, our recommendations in respect of provocation would meet that concern more directly than tinkering with diminished responsibility. To the extent that there is some concern that the defence operates overly sympathetically to men who kill their partners, the evidence does not support that concern.

5.87

There is no substantial support for any of the alternative formulations which we canvassed. It would be wrong for us to make a recommendation which might simply give rise to a round of appellate hearings and which would not significantly improve this area of the law.

The burden of proof^[95]

A small majority of consultees who addressed this issue was in favour of the defence only bearing an evidential burden.

^[96]

^[97]

^[98]

The arguments in favour of placing only an evidential burden on the defence arose primarily from a perceived need for consistency between the two partial defences of provocation and diminished responsibility (particularly where, post Smith (Morgan), there may be considerable overlap in the relevant evidence to which the jury may be directed to apply different burdens of proof), rather than from instances of perceived injustice.

^[99]

The arguments on the other side focused on the fact that the defence was one where the matters relied on were peculiarly in the hands of the defence. In contrast to provocation, the defence depends not on external facts which might be investigated and challenged independently of the defendant but on the defendant's state of mind, a matter which can only be investigated with his co-operation. Furthermore, even where the medical evidence to support the defence is weak, it might be very difficult for the jury to conclude that the defence had been disproved to the criminal standard because of the limitations of the evidence. One consultee

^[100]

We are persuaded that the reasons advanced for retaining the present burden of proof are reasons of substance and we do not recommend a change for the sake of conceptual neatness.

5.92

We therefore recommend no change to section 2 of the Homicide Act 1957 for as long as the law of murder remains as it is, and conviction carries a mandatory sentence of life imprisonment.

A signpost for the future

5.93

That said, we should not be shy about putting forward our thinking as to how a partial defence of diminished responsibility might be framed, were it to continue to be a defence under a reformed law of murder. We put forward our tentative suggestion as a "stalking horse" against which the wisdom of having any such defence may be judged. Our suggestion seeks to bring together elements suggested by our consultees. We set out below a number of issues and our tentative conclusions. Finally, we pull them together in a suggested formulation which is offered only as a spur to further debate in the event that we were asked to consider the reform of the law of murder.

5.94

First, the defence should continue to be a defence founded upon recognised mental conditions. Some of our consultees

^[101]

Second, the current formulation can be improved by:

deleting the reference to "substantial impairment of responsibility";

defining what is meant by "abnormality of mind/mental functioning" along the lines of the New South Wales version (whether the defendant's capacity to understand, judge and control herself substantially impaired);

substituting "underlying condition" (in the sense of a recognised mental condition) for the words in parenthesis ("whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury"); and

introducing an explicit test whether the substantially impaired capacity to understand, etc. was a significant cause of the defendant's act in carrying out or taking part in the killing. We suggest "a significant cause" to make it clear that it need not be the sole cause but it must have had a real effect on the defendant's conduct.^[102]

A reformulation on these lines would remove the vexed question of the proper role of the psychiatrist in relation to what is presently the second limb of section 2.

5.97

Pulling these elements together we put forward, for further consideration were we to undertake a comprehensive review of murder, a possible reformulation of the partial defence of diminished responsibility:

A person, who would otherwise be guilty of murder, is not guilty of murder but of manslaughter if, at the time of the act or omission causing death,

(1) that person's capacity to:

(a) understand events; or

(b) judge whether his actions were right or wrong; or

(c) control himself,

was substantially impaired by an abnormality of mental functioning arising from an underlying condition and

(2) the abnormality was a significant cause of the defendant's conduct in carrying out or taking part in the killing.

"Underlying condition" means a pre-existing mental or physiological condition other than of a transitory kind.

Merger of provocation and diminished responsibility into a single defence

5.98

Among consultees there has been very little support for the Mitchell/Mackay suggestion of merging these partial defences (discussed in Consultation Paper No 173 paras 12.77 - 12.81). The great preponderance of those who addressed the issue opposed it.

^[103]

^[104]

The preponderant view was that the two partial defences rest on entirely different moral bases and the fact that they my be run together on occasions is not a reason for merging them. The jury can understand the difference and apply them separately. The contrary view

^[105]

The preponderant view was stated succinctly by one consultee:

The moral basis of each is different. The basis of provocation is the fact that the victim behaved outrageously towards the defendant, which makes the defendant's failure to control himself less bad than it would otherwise have been. It is not, and should not be, that the victim's behaviour has affected his mental state so as to reduce or remove his capacity for self-control.^[106]

We agree and do not recommend a single partial defence merging the partial defences of provocation and diminished responsibility

D. Children

5.102

We have consulted with two forensic psychiatrists who specialise in cases of children and young people, Dr Eileen Vizard and Professor Sue Bailey. Their responses show how deeply unsatisfactory the present law of murder is in relation to children, including the law relating to diminished responsibility. We consider that this area needs special attention. Dr Eileen Vizard has suggested that the definition of diminished responsibility is defective in relation to children and young people because it omits reference to developmental immaturity.

5.103

This view was also shared by NACRO which criticised Consultation Paper No 173 for failing sufficiently to recognise the distinctive needs of children between the ages of 10 and 17. It believes that the concepts and terminology currently to be found in section 2 of the 1957 Act are "entirely ill-suited to the defence of children". It makes the same criticism of the different formulations put forward for consideration in Consultation Paper No 173.

5.104

Mr Peter Glazebrook in his response drew attention specifically to the plight of the person whose blameworthiness for killing is substantially diminished by reason of his youth or immaturity.

5.105

Whilst we recognise that there is a case for proposing an amendment to section 2 in relation to children and young people, in our view it is far more desirable that there should be a wider examination of the law of murder as it applies to children and young people. This could form a discrete element in a comprehensive review of the law of murder.

(Signed) ROGER TOULSON, Chairman
HUGH BEALE
STUART BRIDGE
MARTIN PARTINGTON
ALAN WILKIE

STEVE HUMPHREYS, Chief Executive

August 2004

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Note 1    Para 12.72.    [Back]

Note 2    Justice for Women does, in fact, support the retention of diminished responsibility as a partial defence even if the mandatory sentence is abolished. It also supports the retention of the current formulation of the defence although, arguably, without a great deal of enthusiasm. Its support of the current formulation appears to be founded on the belief that it is better than the other alternatives posited in that it is the least “narrowly medically defined version”.     [Back]

Note 3    Paras 2.12 – 2.16 above.    [Back]

Note 4    Nicky Padfield.    [Back]

Note 5    JUSTICE.    [Back]

Note 6    The joint response of HHJ Clement Goldstone QC, HHJ Maddison, Honorary Recorder of Manchester and HHJ Geake.    [Back]

Note 7    Home Office Statistical Bulletin 01/04, cited in the Sentencing Advisory Panel Consultation Paper, Sentencing of manslaughter by reason of provocation, 11 March 2004. The 2002/2003 figures are, of course, not full year statistics. They appear, nonetheless, to be consistent with the trend observed. The next set of statistics, which will provide the full year statistics for 2002/2003, will be available in January 2005.     [Back]

Note 8    With the singular exception of Tasmania.    [Back]

Note 9    For a more detailed summary see Part VIII of Consultation Paper No 173.    [Back]

Note 10    Canada retains the mandatory life sentence for murder with different minimum periods of parole eligibility depending on whether the case is one of first or second-degree murder. In Canada there is a more expansive defence of insanity than that contained in the M’Naghten Rules, although it does not extend to volitional defects. In New Zealand the Sentencing Act 2002 provides that the maximum (rather than the mandatory) sentence for murder is life imprisonment, with a presumption in favour of its imposition in nearly every case where there is at least one serious aggravating factor. At a time when the mandatory sentence was applicable in all cases of murder, the New Zealand Law Commission did consider diminished responsibility in its investigation into criminal defences available to abused women who kill their partners (Report on Some Criminal Offences with Particular Reference to Battered Defendants Report 73 (2001)). The Commission recommended, at para 140, that the defence should not be adopted. In Appendix D to Consultation Paper No 173, Professor Brookbanks suggests, at paras 68-71, that it is arguable that the defence “has insinuated itself into New Zealand law via the ‘back door’ of provocation.”    [Back]

Note 11    It is not recognised in South Australia, Tasmania, Victoria, in each of which there is no mandatory sentence for murder, and Western Australia. In 1991 the Western Australia Law Commission recommended that a defence of diminished responsibility be introduced (Crimnal Process and Mental Disorder Final Report No 69). The defence is recognised in Australian Capital Territory, New South Wales, Queensland and Northern Territory. In Queensland and Northern Territory there is a mandatory sentence for murder. In Australian Capital Territory and New South Wales the life sentence is discretionary. In Report on Partial Defences to Murder: Diminished Responsibility Report 82 (1997) para 3.20, the New South Wales Law Reform Commission “strongly recommended” that the defence should be retained notwithstanding the recent abolition of the mandatory sentence.    [Back]

Note 12    As with Canadian law, Irish law adopted a more expansive test of insanity than the M’Naghten Rules. Indeed, the Irish test is more generous than that found in Canadian law in that it incorporates ‘volitional insanity’ (Doyle v Wicklow County Council [1974] IR 55).    [Back]

Note 13    The explanatory memorandum to the Bill states that there is no need to apply the concept in the case of other crimes where there is no mandatory sentence.     [Back]

Note 14    There were 68 responses which directly expressed an opinion. 44 favoured retention of the defence regardless of whether or not the mandatory sentence were to be abolished. That included the Rose Committee which represents the views of a number of the senior judiciary.    [Back]

Note 15    As pointed out above, the response of the Rose Committee represents the views of a number of senior judges. In addition, one response in favour of retention expresses the joint views of HHJ Clement Goldstone QC, HHJ Maddison, Honorary Recorder of Manchester and HHJ Geake. Thus, if one counts individuals as opposed to responses, the majority in favour of retention is more substantial.    [Back]

Note 16    JUSTICE. For a brief description of the reasoning and conclusions of the Royal Commission in relation to diminished responsibility see Consultation Paper No 173 Part VI paras 6.1 - 6.9.    [Back]

Note 17    (1953) Cmd 8932.    [Back]

Note 18    Ibid, at para 413.    [Back]

Note 19    A view very forcibly expressed by Buxton LJ.    [Back]

Note 20    Per Buxton LJ.    [Back]

Note 21    Mr Justice Richards; Mr Justice Poole.    [Back]

Note 22    As, indeed, the Law Commission did in 1989 in its Memorandum to the Select Committee on Murder and Life Imprisonment, in which it favoured abolition of the mandatory sentence but retention of diminished responsibility as a partial defence to murder (Minutes of Evidence taken before the Select Committee on Murder and Life Imprisonment (1988-89) HL Paper 20-vi, Memorandum by the Law Commission para 9.16).    [Back]

Note 23    A view strongly held by the New South Wales Law Reform Commission: “people who kill while in a state of substantially impaired responsibility should not be treated as ‘murderers’” (Report on Partial Defences to Murder: Diminished Responsibility Report 82 (1997) para 3.18). Mr Justice Stanley Burnton agreed that “the culpability of someone with reduced or damaged mental functioning is not the same as that of a normal and healthy person”. He, however, favoured the abolition of the defence provided the mandatory life sentence is abolished.    [Back]

Note 24    Examples are the offences contained in the Public Order Act 1986. At the meeting with JUSTICE, Anthony Edwards, solicitor, cited these as an illustration of “fair and just labelling”. He argued that by analogy the partial defences should be retained regardless of the fate of the mandatory life sentence.     [Back]

Note 25    Such as self-defence.    [Back]

Note 26    This raises an important point and one which is not confined to the present context. Do we need to acknowledge that gradations of culpability are not always properly reflected by the intent/recklessness divide? Professor Sullivan – one of our consultees – has elsewhere written that “if particular incidents are appraised in terms of substantive (our emphasis) values we may be confronted with legal classifications which appear counter-indicated in moral terms” (“Intent, Subjective Recklessness and Culpability” (1992) 12 Oxford Journal of Legal Studies 380, 380). We may believe that the way we legally classify conduct should not be affected by either honourable or dishonourable motives but still maintain that mental disorder, although not negating mens rea, should be capable, if sufficiently serious and relevant, of impacting on traditional legal classifications. If, however, the reason for allowing mental abnormality to impact on legal classification is in order to reflect a moral distinction, those who advocate such an approach need to explain why other conduct resulting from honourable motives should not be afforded the same treatment. Some, of course, would say that the way diminished responsibility has been allowed to develop and operate has been as a means of affording legal recognition to honourable motives. The “mercy killer” is convicted of manslaughter rather than murder because of her honourable motives rather than because she is mentally disordered.    [Back]

Note 27   No consultee who supported retention of the defence even if the mandatory life sentence were to be abolished argued that it should also be extended to other defences. Two consultees referred to the issue. HHJ John Griffith Williams QC, Honorary Recorder of Cardiff, stated that it is “unacceptable that the defence is unavailable to those charged with attempted murder and other serious offences”. He, however, favoured the abolition of the partial defence provided that the mandatory life sentence is abolished. Mr Justice Silber thought that the justification for restricting it to murder was the huge differential in sentences imposed for murder and those for manslaughter when the partial defences succeed.     [Back]

Note 28    Judge Advocate Camp, Assistant Judge Advocate General; Mr. Justice Silber; Professor Ronald Mackay.    [Back]

Note 29    Mr Peter Glazebrook. Mr Justice Silber made the same point although this was in the course of discussing provocation. The majority of the Criminal Law Revision Committee referred to this factor as a reason for retaining the defence even if the mandatory sentence was abolished (Fourteenth Report: Offences Against the Person (1980) Cmnd 7844).    [Back]

Note 30    Spencer Stephens, solicitor. The majority of the Criminal Law Revision Committee, ibid, were influenced by this factor. It is a consideration which weighed very heavily with the New South Wales Law Reform Commission. It described it as being of “vital importance” (Report on Partial Defences to Murder: Diminished Responsibility Report 82 (1997) para 3.11). It did not, however, persuade the New Zealand Law Commission when it was considering what defences should be available to abused women who kill (Report on Some Criminal Offences with Particular Reference to Battered Defendants Report 73 (2001)).    [Back]

Note 31    Spencer Stephens, solicitor. He, however, favoured the defendant who successfully pleads diminished responsibility (and provocation) being convicted of “mitigated murder” rather than manslaughter. This would avoid “the conceptual difficulty of finding that the Defendant has the necessary state of mind and has committed the necessary act but nonetheless finding them guilty of an offence that is not murder”. The need to ensure public confidence in sentencing was emphasised by the New South Wales Law Reform Commission. In its view “there is a greater likelihood that the community will accept a sentence imposed on the basis of mental impairment if it is the community itself, as represented by the jury, that has participated in the process of deciding whether that mental impairment has sufficiently reduced the accused’s culpability. The alternative, that is a lower sentence imposed for murder where the sentencing judge considers there to be strong evidence of diminished mental capacity, would invariably attract criticism, and public confidence in the criminal justice system would suffer as a consequence. There is also a risk that sentences for mentally impaired offenders may increase if they are sentenced for murder rather than manslaughter, which may result in inappropriately harsh penalty in individual cases” (Report on Partial Defences to Murder: Diminished Responsibility Report 82 (1997) para 3.11). HHJ Michael Stokes QC also referred to the benefits flowing from the decision being made by the jury. Nevertheless, he favours abolition of the defence provided the mandatory sentence is abolished. He added “care would have to be taken to ensure that the sentencing process was made much more open and accountable to scrutiny than exists at present.”    [Back]

Note 32    The Rose Committee.    [Back]

Note 33    Middlesborough Domestic Violence Forum; Justice for Women; Southall Black Sisters.    [Back]

Note 34    Mr Justice Treacy. Professor Ronald Mackay stated that “certainly the fact that the plea ‘has come to the rescue’ of some mercy killers is not a good reason for abolition”.    [Back]

Note 35    In this respect our proposals in relation to provocation are significant. Southall Black Sisters argued that one reason why historically the defence has been “more accessible” to women is that it marries with the notion that women are “weak and emotionally unstable”.    [Back]

Note 36    Southall Black Sisters asked whether the defence can be reformulated so that “different forms of depression can be incorporated without having to meet strict clinical diagnosis of mental disorder which can be restrictive”.    [Back]

Note 37    Appendix B.    [Back]

Note 38    The term “partner” includes spouse, co-habitant and lover.    [Back]

Note 39    HHJ Michael Stokes QC. His reference to reduction of responsibility does, of course, raise the thorny question of what does it mean to say that somebody is partially responsible for his or her actions and what should the legal consequences be. Those Scottish judges who in the first half of the twentieth century were hostile to the defence and anxious to rein it back referred to the “basic doctrine of our criminal law that a man, if sane, is responsible for his acts and, if not sane, is not responsible” (Kirkwood v HM Advocate 1939 JC 36, 40, per Lord Justice General Norman). According to the Scottish Law Commission “if diminished responsibility is regarded as only a special means of giving effect to mitigating circumstances, this objection is merely a semantic and not a conceptual one" (Discussion Paper on Insanity and Diminished Responsibility (2003)Discussion Paper No 122 at para 3.16).     [Back]

Note 40    Buxton LJ.    [Back]

Note 41    Buxton LJ.    [Back]

Note 42    Mr Justice Curtis. Dr Jeremy Horder, in his response to the Victoria Law Commission Defences to Homicide: Options Paper (September 2003), stated with reference to the position in England and Wales: “the defence can go from one doctor to the next, in search of someone willing to testify to the accused’s mental disorder, until they find someone who will give the ‘right’ evidence”.    [Back]

Note 43    Dr Keith Rix.    [Back]

Note 44    Part XIII question 11.    [Back]

Note 45    Report of the Committee on Mentally Abnormal Offenders (1975) Cmnd 6244; in this Part referred to as “the Butler Report”.    [Back]

Note 46    Ibid, at para 19.17.    [Back]

Note 47    Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (1980) Cmnd 7844.    [Back]

Note 48    Replicating the beginning of the recommendation of the Butler Report.    [Back]

Note 49    Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (1980) Cmnd 7844, para 93. In Criminal Law: A Criminal Code for England and Wales (1989) Law Com No 177, clause 56, the Law Commission adopted the Criminal Law Revision Committee’s definition of diminished responsibility with the substitution of “mental abnormality” for “mental disorder”, but the definition of those terms remained identical.    [Back]

Note 50    New South Wales Law Reform Commission, Report on Partial Defences to Murder: Diminished Responsibility: Report 82 (1997) para 3.43.     [Back]

Note 51    R D Mackay, “Diminished Responsibility and Mentally Disordered Killers” in Professors A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) 55.    [Back]

Note 52    Ibid, at p 83.    [Back]

Note 53    Mr Justice Curtis, Mr Justice Penry-Davey and Sally Cunningham chose both versions (2) and (3).    [Back]

Note 54    Each of these versions attracted the support of four consultees. The two versions are very different from each other. The former stresses the accused’s mental capacity and it restricts the defence to “a notion of a pre-existing impairment requiring proof by way of expert evidence, which impairment is of a more permanent nature than a simply temporary state of heightened emotions”. Professor Mackay’s version incorporates neither of those features.    [Back]

Note 55    7 and 13 consultees respectively.    [Back]

Note 56    Middlesborough Domestic Violence Forum; Justice for Women; Southall Black Sisters.    [Back]

Note 57    11 consultees favoured retention of the current formulation.    [Back]

Note 58    In total 11 consultees supported this version.    [Back]

Note 59    [2001] 1 AC 146.    [Back]

Note 60    HHJ Robert Taylor.     [Back]

Note 61    Mr Justice Pitchers stated that he dislikes directions to the jury which “give an undue normative role to their decisions” and Mr Justice Stanley Burnton stated that he dislikes any definition that “involves the jury in a value judgment”.    [Back]

Note 62    Scot Law Com No 195.    [Back]

Note 63    2002 JC 1.    [Back]

Note 64    1923 JC 49.    [Back]

Note 65    Ibid, at p 51.    [Back]

Note 66    Scot Law Com No 195 para. 3.3.    [Back]

Note 67    2002 JC 1, para 41.    [Back]

Note 68    Ibid, at para 54.    [Back]

Note 69    Scottish Law Commission, Discussion Paper No 122 on Insanity and Diminished Responsibility (2003).    [Back]

Note 70    Ibid, at para 3.38.    [Back]

Note 71    Scots Law Com No 195, para 3.16.    [Back]

Note 72    Scots Law Com No 195, Appendix A: Criminal Responsibility and Unfitness for Trial (Scotland) Bill [Draft] clause 3(1).    [Back]

Note 73    Ibid, at para 3.34 and draft Bill clauses 3(1)(2) and 8. Scots Law would mirror that of England and Wales.    [Back]

Note 74    Ibid, at para 3.42 and draft Bill clause 3(3). If enacted, Scots Law would be similar to that of England and Wales.     [Back]

Note 75    The formulation went on to include paragraphs dealing with a person who kills in fear induced by threats to the life of himself or another and duress by threats. For the reasons we explain in Part 3, we prefer to deal with a person who kills in response to fear (but who is not entitled to a complete defence) as part of provocation rather than in this partial defence. We have referred to duress in Part 3 paras 3.161 – 3.162.    [Back]

Note 76    A point which was emphasised in the responses of NACRO, Dr Eileen Vizard and Professor Sue Bailey.    [Back]

Note 77    See paras 5.54 – 5.56 above.    [Back]

Note 78    [2001] 1 AC 146.    [Back]

Note 79    Presently such a person would be guilty of murder if he foresaw that some serious injury was virtually inevitable, though not having it as his purpose (Woollin [1999] AC 82).     [Back]

Note 80    Section 1(2) of the Mental Health Act 1983 states: “In this Act: “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind and "mentally disordered" shall be construed accordingly;…”    [Back]

Note 81    Report on Partial Defences to Murder: Diminished Responsibility Report 82 (1997) para 3.43.    [Back]

Note 82    Ibid, at para 3.33 – 7.    [Back]

Note 83    Report on Partial Defences to Murder: Diminished Responsibility Report 82 (1997) para 3.43.    [Back]

Note 84    Ibid, at para 3.34.    [Back]

Note 85    At the same time, however, it says that the definition spells out “what has generally been regarded since Byrne as the essential meaning of ‘abnormality of mind’” (Ibid, at para 3.52). It is generally acknowledged that the interpretation accorded to “abnormality of mind” by the Court of Criminal Appeal in Byrne is a wide one. The Scottish Law Commission in Discussion Paper No 122, Insanity and Diminished Responsibility (2003) para 3.38, put forward a definition which speaks of substantial impairment of “ability to understand events, or to determine or control his or her acts.” As we have seen they now advance a version which incorporates a similar concept namely the “…ability to determine or control conduct…”.     [Back]

Note 86    The definition which was put forward by the Scottish Law Commission in its Discussion Paper, ibid, referred to “medical or other evidence”(emphasis added).     [Back]

Note 87    Para 3.51. The New South Wales Law Reform Commission recommended a specific provision to deal with cases of self-induced intoxication (Report on Partial Defences to Murder: Diminished Responsibility Report 82 (1997)).    [Back]

Note 88    Buxton LJ gave an emphatic “no”. He stated it to be “beyond redemption”.    [Back]

Note 89    Paras 7.71 - 7.90.    [Back]

Note 90    [2003] 1 AC 1209.    [Back]

Note 91    Consultation Paper No 173 para 7.82.    [Back]

Note 92    [1989] 1 WLR 350.    [Back]

Note 93    Consultation Paper No 173 para 7.82.    [Back]

Note 94    Only one consultee, HHJ James Stewart QC made express reference to this problem.    [Back]

Note 95    In Lambert, Ali and Jordan [2002] QB 1112 the Court of Appeal held that the imposition of the burden of proof on the defendant was compatible with the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights.    [Back]

Note 96    33 for, 24 against.    [Back]

Note 97    12 for, 12 against.    [Back]

Note 98    7 for, 4 against.    [Back]

Note 99    One judicial consultee suggested that the resolution of this dilemma would be to require the defence to bear the legal burden of establishing each of the partial defences.    [Back]

Note 100    JUSTICE.    [Back]

Note 101    In particular, Women’s Groups.    [Back]

Note 102    See Dietschmann [2003] 1 AC 1209, 1217, per Lord Hutton: “I think that in referring to substantial impairment of mental responsibility the subsection does not require the abnormality of mind to be the sole cause of the defendant’s acts in doing the killing.” (emphasis added)    [Back]

Note 103    44 out of 53 who addressed it.    [Back]

Note 104    R Mackay & B Mitchell “Provoking Diminished Responsibility: Two Pleas Merging into One?” [2003] Crim LR 745, J Chalmers “Merging Provocation and Diminished Responsibility: Some Reasons for Sceptism” [2004] Crim LR 198, J Gardner & T Macklem “No Provocation Without Responsibility: A Reply to Mackay and Mitchell” [2004] Crim LR 213, R Mackay & B Mitchell “Replacing Provocation: More on a Combined Plea” [2004] Crim LR 219.    [Back]

Note 105    Articulated by the Bar of the Wales and Chester Circuit.    [Back]

Note 106    See also, J Chalmers “Merging Provocation and Diminished Responsibility: Some Reasons for Sceptism”[2004] Crim LR 198; J Gardner & T Macklem “No Provocation Without Responsibility: A Reply to Mackay and Mitchell” [2004] Crim LR 213.    [Back]

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