1. Criminal Law Diminished 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
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
Gitttens alcoholism or brain damage due to alcohol may come within definition under s.2 - Egan 1992
Tandy 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 directed jury:
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’