VOL MAN- Diminished resp

• Diminished responsibility

  One of the 3 partial defences to murder
• Diminished responsibility


  Where D claims he/she should not be held to the same standard as a 'normal' person because of his/her medical condition
• Diminished responsibility


  Section 2 of the Homicide Act 1957 but updated by Section 52 of the Coroners and Justice Act 2009
• Diminished responsibility


  In a nutshell, the defence provides that a person cannot be found guilty of murder if he was suffering from such mental abnormality as not to be responsible for his actions
• Diminished responsibility


  If pleaded successfully, reduces D's liability from murder to voluntary manslaughter
• Old law of diminished responsibility

  Defined broadly and imprecisely to apply where D's 'abnormality of mind' substantially impaired their 'mental responsibility'
• Old law of diminished responsibility


  Although the definition offered the courts and juries flexibility in deciding cases fairly, it also led to the defence being used widely and it being grossly abused
• Four elements of diminished responsibility


  • D must demonstrate an abnormality of mental functioning – s.2(1)
  • The abnormality must have arisen from a recognised medical condition – s.2(1)(a)
  • The abnormality must have substantially impaired D's ability to - s.2 (1) (b): Understand the nature of her conduct; s.2(1A)(a) or Form a rational judgement; s.2 (1A) (b) or Exercise self-control. s.2 (1A) (c)
  • The abnormality must provide an explanation (or cause) of the killing. s.2(1) (c)
• Burden of proof for diminished responsibility

  D has the burden of proving the 4 elements of the partial defence of DR, on the balance of probabilities
• Some debate as to whether this reverse burden of proof violated D's right to a fair trial under Article 6 ECHR. Held in Wilcocks [2016] EWCA Crim 2043, that it was compatible.
• Article 6(2) ECHR: Innocent until proven guilty?


  D is arguably at a disadvantage by having to prove the defence – not the case for LOC
• Abnormality of mental functioning


  Signifies a move towards medical/psychiatric definitions in attempt to standardise application of this area of the law
• Abnormality of mental functioning


  • Byrne [1960] 2 QB 396- wide enough to cover the mind's activities in all its aspects, including ability to exercise will power to control physical acts in accordance with rational judgment
  • D's abnormality of mental functioning is so different from that of ordinary human beings that the reasonable person would term it abnormal
• Bunch [2013] EWCA Crim 2498 – medical evidence is required for DR to succeed
• Recognised medical condition


  When considering whether a medical condition is 'recognised' or not, the Court will have regard to documents such as: World Health Organization's International Statistical Classification of Diseases and Related Problems, American Medical Association's Diagnostic and Statistical Manual
• Recognised medical condition


  The court can also consider medical conditions not on the lists, but are supported by a reliable body of expert opinion
• Recognised medical condition


  Can be psychiatric or physical conditions. No requirement of seriousness. As long as defence elements are satisfied, even mild depression will be sufficient
• Proof of a recognised medical condition needed
• Doctors will need to be called as expert witnesses for both prosecution and defence – failure to prove a recognised condition will result in a murder conviction
• Conditions that could cause someone to kill


  • Psychopathy
  • Paranoia
  • Epilepsy
  • Depression
  • PMT
  • Post Natal Depression
  • PTSD
  • Aspergers Syndrome
  • Battered woman's syndrome
• Recognised medical conditions


  • 'Othello' syndrome (accepted, albeit with criticism from Lawton LJ, in Vinagre [1979] 69 Cr App R 104)
  • post traumatic stress disorder (PTSD)
  • 'Battered woman's syndrome' – not known about in the UK until the early 1990s, but now successfully used in several cases
• Not included – unhappiness, anger, paedophilia, or developmental immaturity
• Recognised medical conditions


  • Ahluwalia (1993) 96 Cr App R 133
  • Thornton [1996] 1 WLR 1174
• Recognised medical conditions


  • Paranoid personalities will also open the potential for a defence of diminished responsibility – Martin [2002] 2 WLR 1
• After Mr Martin's trial and conviction for murder, his defence team instructed another distinguished psychiatrist to see Mr Martin and prepare a report. He conducted two lengthy interviews and concluded that Mr Martin suffers from, and was suffering at the time of the offence, from a longstanding paranoid personality disorder which can be classified as an abnormality of the mind. His conviction was reduced to voluntary manslaughter.
• Recognised medical conditions


  • Dowds [2012] EWCA Crim 281 - Voluntary acute intoxication was not capable of being relied upon for diminished responsibility
• Abilities that must be substantially impaired


  • Understand the nature of the conduct
  • Form a rational judgment
  • Exercise self-control
• Substantial impairment


  D must demonstrate the substantial impairment relates to one of the 3 abilities above. Each is capable of medical assessment
• Substantial impairment


  Ultimately a question for the jury, but relatively straight forward if medical evidence is uncontested
• Substantial impairment


  'Substantial' is not defined in the CJA 2009
• Substantial impairment


  Does not require total destruction of capacity and blame
• Substantial impairment


  • Ramchurn [2010] EWCA Crim 194 provided that 'substantial' only meant 'more than trivial'
• Substantial impairment


  • In Golds [2016] UKSC 55, it was held that the merely 'more than trivial' approach is not correct. It is not the law that any impairment beyond 'trivial' will suffice for the defence to succeed
• Substantial impairment


  The jury should use their own common sense to determine the meaning of the word 'substantial' (see para 43 of the judgment)
• Understand the nature of his/her conduct


  DR is satisfied by D's substantial impairment to understand the nature of his/her conduct. Covers situations where D is an automatic state and does not know what she is doing. Also covers situations where D suffers from delusions e.g. believes she is killing the devil, when she is in fact killing another person. Could relate to those suffering with severe leaning difficulties with a low mental age, so they do not understand the nature of their conduct.
• Form a rational judgment


  Perhaps the most likely route within DR for an abused person who kills their abuser or for so-called mercy killer. The pressure of the circumstances may substantially impair D's ability to make rational decisions.
• Exercise self-control


  Potential to be interpreted widely. Where D is incapable of exercising the standard of self-control/self-restraint of a 'normal' person. Difficulty in distinguishing between cases where D has chosen not to control his conduct and where there is actual impairment of their ability to exercise self-control.
• Causal link between abnormality and killing


  Must be a causal link between D's abnormality and the killing. It can be challenging for D to prove the causal effect of an abnormality of mental functioning upon her choice of conduct.
• Causal link between abnormality and killing

  What about cases where there are multiple causes or motivations? The abnormality can be the substantial cause, without being the sole cause of the killing.
• Causal link between abnormality and killing


  S.2 (1) (c) provides that the abnormality must provide an explanation for the killing. S2.(1B) an 'explanation' will be found 'if it causes or is a significant contributory factor in causing, D to carry out the conduct'.