Diminished Responsibility In English Law
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English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
, diminished responsibility is one of the partial defenses that reduce the offense from
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...
to
manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th ce ...
if successful (termed "voluntary" manslaughter for these purposes). This allows the
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sentencing discretion, e.g. to impose a hospital order under section 37 of the Mental Health Act 1983 to ensure treatment rather than punishment in appropriate cases. Thus, when the ''
actus reus In criminal law, ''actus reus'' (; : ''actus rei''), Latin for "guilty act", is one of the elements normally required to prove commission of a crime in common law jurisdictions, the other being ("guilty mind"). In the United States, it is some ...
'' (
Latin Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...
for "guilty act") of death is accompanied by an objective or constructive version of ''
mens rea In criminal law, (; Law Latin for "guilty mind") is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of ''mens rea'' and '' actus reus'' ("guilty act") before th ...
'' (Latin for "guilty mind"), the subjective evidence that the defendant did intend to kill or cause
grievous bodily harm Assault occasioning grievous bodily harm (often abbreviated to GBH) is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the ...
because of a mental incapacity will partially excuse his conduct. Under s.2(2) of the Homicide Act 1957 the burden of proof is on the defendant to the
balance of probabilities In a legal dispute, one party has the burden of proof to show that they are correct, while the other party has no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
. The
M'Naghten Rules The M'Naghten rule(s) (pronounced, and sometimes spelled, McNaughton) is a legal test (law), test defining the Insanity defense, defence of insanity that was formulated by the House of Lords in 1843. It is the established standard in UK crimina ...
lack a volitional limb of "irresistible impulse"; diminished responsibility is the volitional mental condition defense in English criminal law.


The statutory provision

Section 2 of the Homicide Act 1957 states: (1) Where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from an abnormality of mental functioning which - *(a) arose from a 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. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides and explanation of D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct. The defence has recently been amended by s. 52 of the
Coroners and Justice Act 2009 The Coroners and Justice Act 2009 (c. 25) is an Act of the Parliament of the United Kingdom. It changed the law on coroners and criminal justice in England and Wales. Among its provisions are: *Preventing criminals from profiting from public ...
, which came into force on 4 October 2010.


How substantial must the impairment be?

''R v Golds'' provides a recent authority from the Court of Appeal Criminal Division on how the courts will interpret the term 'substantial'. At paragraph 5of Elias LJ's judgment (following the paragraphing from the neutral citation given below) two senses of the word 'substantial' are identified: (i) something substantial is more than something which is merely trivial or minimal if it has "substance", or (ii) something substantial is big or large (e.g. in the sense that a substantial salary is a large one). At paragraph 2Elias LJ concludes by opining that the court should (i) leave interpretation of the word 'substantial' to the jury, but if asked for further help should (ii) direct them under the second meaning of the term (i.e. substantial meaning big).


Diminished responsibility and voluntary intoxication

Voluntary intoxication will not satisfy the criterion that there must be an abnormality of mental functioning arising from a recognised medical condition (s.2(1)(a) Homicide Act 1957) and therefore cannot be relied upon as grounds for the partial defence. However a person suffering from alcoholism that has led to an abnormality of mental function may have access to the partial defence. In ''R v Gittens'' a defendant who suffered from depression killed his wife and stepdaughter after drinking and taking drugs for medication. The direction to a jury facing both diminished responsibility and drunkenness should be: *Would the defendant have killed as he did if he had not been drunk? and if the answer to that is yes, *Was he suffering from diminished responsibility when he did so? The more chronic forms of alcoholism and the long-term use of heroin and cocaine (see ''R v Sanderson'') can become a relevant factor where a craving for drink or drugs causes an abnormality of mind. This must be distinguished from the situation in which the abnormality of mind causes a craving for drink or drugs . ''R v Tandy'' held that where a defendant could show that she was suffering from an abnormality of the mind, that it was induced by disease (namely alcoholism), and that it substantially impaired her responsibility for her actions, then the defence of diminished responsibility would be made out. In the actual case, the craving for alcohol did not render the use of alcohol involuntary. The defendant was in control when she began drinking, and the state of mind in which she killed her daughter was merely induced by the alcohol. In ''R v Dietschmann'', the House of Lords held that where a defendant suffers from an abnormality of mind within s2(1) also consumes alcohol before the killing, the jury should find him or her guilty of manslaughter if they are satisfied that, notwithstanding the alcohol consumed and its effect, the abnormality of mind substantially impaired the mental responsibility for the fatal acts. The sub-section does not require the abnormality of mind to be the sole cause of the defendant’s acts; even if the defendant would not have killed if he had not consumed alcohol, the causative effect of the alcohol does not prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for the fatal acts. ''Dietschmann'' was later applied by the Court of Appeal in ''R v Hendy''.''R v Hendy''


See also

* Killing of Richard Challen


References

*Boland, F. (1995). "Diminished Responsibility as a Defence in Irish Law". 5 ''Irish Criminal Law Journal'' 193. *Boland, F. (1996). "Diminished Responsibility as a Defence in Irish Law: Past English Mistakes and Future Irish Directions". 6 ''Irish Criminal Law Journal'' 19. *Butler Committee (1975) ''The Butler Committee on Mentally Abnormal Offenders'' (London: HMSO) Cmnd 6244. *Dell, S. (1982). "Diminished Responsibility Reconsidered". ''Criminal Law Review'' 809. *Griew, E. (1986). "Reducing Murder to Manslaughter: Whose Job?" 12 ''Journal of Medical Ethics'' 18. *Griew, E (1988). "The Future of Diminished Responsibility". ''Criminal Law Review'' 75. {{English criminal law navbox English criminal law England and Wales Mental health law in the United Kingdom Criminal defenses Forensic psychology