diminished responsibility in English law
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In
English law English law is the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Blac ...
, diminished responsibility is one of the partial defences that reduce the offence from
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person w ...
to
manslaughter Manslaughter is a common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black ...
if successful (termed "voluntary" manslaughter for these purposes). This allows the
judge A judge is a person who presides over court A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a State (polity), state. In th ...

judge
sentencing discretion, e.g. to impose a hospital order under section 37 of the
Mental Health Act 1983 The Mental Health Act 1983 (c.20) is an Act of the Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body A legislature is an assembly Assembly may refer to: Organisations and meeting ...
to ensure treatment rather than punishment in appropriate cases. Thus, when the ''
actus reus ''Actus reus'' (), sometimes called the external element or the objective element of a crime, is the Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was ...
'' (
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Latin
for "guilty act") of death is accompanied by an objective or constructive version of ''
mens rea ''Mens rea'' (; Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively called Dog Latin Dog Latin, also known as Cod Latin, macaronic Latin, mock Latin, or Canis Latinicus, refers to the creation of a phrase In every ...
'' (Latin for "guilty mind"), the subjective evidence that the defendant did intend to kill or cause
grievous bodily harm Grievous bodily harm (often abbreviated to GBH) is a term used in English criminal law English criminal law concerns Offence (law), offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a ...
because of a mental incapacity will partially excuse his conduct. Under s.2(2) of the
Homicide Act 1957 The Homicide Act 1957 (5 & 6 Eliz.2 c.11) is an Act of Parliament, Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive mali ...
the burden of proof is on the defendant to the
balance of probabilities Burden of proof is a legal duty that encompasses two connected but separate ideas that apply for establishing the truth of facts in a trial before tribunals in the United States: the "burden of production" and the "burden of persuasion." In a leg ...
. The
M'Naghten Rules The M'Naghten rule (pronounced, and sometimes spelled, McNaughton) is any variant of the 1840s jury instruction in a criminal case when there is a Insanity defense, defence of insanity: The rule was formulated as a reaction to the acquittal i ...
lack a volitional limb of "irresistible impulse"; diminished responsibility is the volitional mental condition defence in English criminal law.


The statutory provision

Section 2 of the
Homicide Act 1957 The Homicide Act 1957 (5 & 6 Eliz.2 c.11) is an Act of Parliament, Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive mali ...
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 The Parliament of the United Kingdom is the supreme legislative body A legislature is an assembly Assembly may refer to: Organisations and ...
, 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
5
5
of 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 owing to the fact that 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
2
2
Elias 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''


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
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