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You are here: BAILII >> Databases >> The Law Commission >> Partial Defences to Murder (Consultation Paper) [2003] EWLC 173(7) (15 October 2003) URL: http://www.bailii.org/ew/other/EWLC/2003/173(7).html Cite as: [2003] EWLC 173(7) |
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PART VII
THE DEVELOPMENT OF THE DEFENCE OF DIMINISHED RESPONSIBILITY IN ENGLISH LAW
Introduction
7.1 Section 2 of the Homicide Act 1957 Act[1] provides as follows:
(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;[2]
7.2 In introducing the clause (in the Homicide Bill) which was to become section 2(1) the Home Secretary remarked:(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
7.3 Supporting the clause, Mr Rees-Davies MP referred to the defence of diminished responsibility in Scots law:A new defence will be open to those who, although not insane in [the] legal sense, are regarded in the light of modern knowledge as insane in the medical sense and those who, not insane in either sense, are seriously abnormal, whether through mental deficiency, inherent causes, disease or injury.[3]
7.4 It is a precondition to the application of the partial defence that the prosecution has proved beyond reasonable doubt that the defendant is otherwise liable for murder. The prosecution must therefore prove that the defendant caused the death of another human being by a voluntary act or omission and either intended to kill or to cause grievous bodily harm.[5]The Scots, with their very admirable common sense, have an anomaly which lawyers cannot defend but which works out in practice.[4]
7.5 In order to discharge the burden of proof, the defendant must prove on a balance of probabilities that:
(1) at the time of the killing, he was suffering from an "abnormality of mind";
(2) the "abnormality of mind" arose from one of the causes listed within the parenthesis in section 2(1); and
7.6 The terminology of section 2(1) together with the way it has been judicially interpreted[6] means that the scope of the partial defence (in the context of murder) is much wider than the complete defence of insanity.[7] Whereas insanity is confined to certain cognitive disorders, diminished responsibility covers volitional disorders, for example uncontrollable urges and extreme emotional states, as well as states of cognitive disorder which fall outside the terms of the M'Naghten Rules.(3) the abnormality of mind which arose from one or more of the legally recognised causes, "substantially impaired his mental responsibility" for the killing.
7.7 As a partial defence, diminished responsibility reduces liability from murder to manslaughter. Two consequences flow from this. The first is that the mandatory sentence for murder is avoided so that the sentencing judge has a discretion with regard to the most appropriate sentence. Importantly, however, a life sentence can be imposed for manslaughter and this is not an uncommon outcome in cases where a successful defence of diminished responsibility has been founded on a condition which is likely to continue.
7.8 The second consequence relates to the "labelling" of offenders. Those who successfully plead the defence are convicted of the less stigmatic offence of "manslaughter". The justification for this is that if the defence is successful the defendant will have proved on a balance of probabilities that, although having the intention to kill or to cause grievous bodily harm, his mental responsibility for his conduct was substantially impaired.
7.9 It is doubtful, however, whether Parliament was motivated to a significant extent by a desire to achieve fair and accurate labelling of offenders. If that had been a primary concern, there is no logical reason why the defence should have been restricted to murder and not made available for attempted murder. D1 assaults P1 intending to kill him. P1 dies. D1 successfully pleads diminished responsibility and is convicted of manslaughter rather than murder. D2, of similar mental abnormality to D1, assaults P2 intending to kill him. P2 survives. D2 is charged with attempted murder. He is precluded from pleading diminished responsibility[8] and carries the stigma associated with a verdict of attempted murder.[9] In 1957, as now, he would have been liable to a sentence of life imprisonment but not the death sentence. It seems therefore that the dominant explanation for the restriction of the defence to murder is that in 1957 murder was the only offence, apart from high treason and piracy, which attracted the death sentence.
The structure and language of section 2(1)
7.10 Writing in 1988, Professor Griew criticised the subsection in the following terms:
7.11 Professor Griew's criticism is that the statutory language results in a defence which is conceptually confused and flawed. The language employed should have referred to substantial impairment of the defendant's capacity which in turn results in a reduced culpability and criminal liability.The phrase "substantially impaired his mental responsibility for his act in doing … the killing" is … improperly elliptical. The word "responsibility" serves a double function. Following "impaired … mental" it suggests a condition of the defendant – perhaps his capacity to comprehend and (so far as his "mind" affects the matter) to conform to the requirements of the law. Preceding the phrase "for his act in doing … the killing" it suggests the social consequences of that condition – an assessment of culpability and, in the context of a murder charge, the outcome of that assessment in a decision on the level of liability … Parliament, it is submitted, has clumsily compacted two ideas – those of reduced (impaired) capacity and of reduced (diminished) liability. The former presumably justifies the latter by virtue of a third idea – that of reduced culpability.[10]
7.12 In 1975 the Report of the Committee on Mentally Abnormal Offenders[11] commented on the evidence which it had taken from judges to the effect that section 2(1) embodies a concept which is "easier to grasp than to define".[12] The evidence of the judges is summarised as suggesting that the partial defence:
might be broadly, if not wholly accurately in law, expressed by saying that, if the jury think on the evidence before them that the defendant has shown recognisably abnormal mental symptoms and that in all the circumstances it would not be right to regard his act as murder in the ordinary sense, it is open to them to bring in a verdict of manslaughter.[13]
Of course, what one jury might conclude were circumstances justifying a conviction for manslaughter, another jury might not.
Directing juries on the meaning of section 2(1)
7.13 Section 2(1) contains a number of expressions – "abnormality of mind", "inherent causes", "disease", "injury" and "mental responsibility" – which are not defined by the 1957 Act. It was not long before the Court of Criminal Appeal had to consider how trial judges should direct juries on their meaning. The early cases addressed the phrase "abnormality of mind".7.14 In Spriggs[14] the Court of Criminal Appeal held that in directing the jury the trial judge should do no more than recite the words of the subsection. According to Lord Goddard CJ:
7.15 By contrast, in Walden[16] the basis of the appeal was that the trial judge had "attempted to define or re-define what Parliament had already defined in section 2(1) … ." In dismissing the appeal, the Court of Criminal Appeal held that the decision in Spriggs did not preclude the trial judge from pointing out by way of illustration or explanation the sort of thing that the jury could look for to see if the case came within the subsection. Spriggs had merely decided that it was a sufficient direction if the judge had done no more than draw the attention of the jury to the words of the subsection.The judge put the case to the jury in the only way it can be put, and it is not the duty of the judge to enter into metaphysical distinctions …[15]
7.16 To the extent that there was a tension between Spriggs and Walden, the issue was clarified in Terry[17] where Lord Parker CJ stated:
it is not sufficient merely to refer to the words of the section … [A] proper explanation of the terms of the section as interpreted in
Reg v Byrne ought to be put before the jury.[18]
Acceptance of a plea of guilty to manslaughter on the grounds of diminished responsibility
7.17 After some initial uncertainty,[19] the position was clarified in Cox.[20] Winn LJ stated:
7.18 As a result jury involvement in such cases became comparatively rare.[22] Nevertheless, ten years after Cox, disquiet at the practice of accepting guilty pleas to manslaughter was still being expressed. Thus, in Vinagre[23] Lawton LJ stated:that there are cases where, on an indictment for murder, it is perfectly proper, where the medical evidence is plainly to this effect, to treat the case as one of substantially diminished responsibility and accept, if it be tendered, a plea to manslaughter on that ground, and avoid a trial for murder.[21]
… pleas to manslaughter on the grounds of diminished responsibility should only be accepted when there is clear evidence of mental imbalance.[24]
The elements of the defence
"Abnormality of mind"
7.19 In Matheson[25] the uncontradicted and unchallenged medical evidence was that the defendant, who was charged with a particularly gruesome murder, was not insane within the meaning of the M'Naghten Rules but that "his mind was so abnormal as substantially to impair his mental responsibility." He was convicted of murder. On appeal, a conviction for manslaughter was substituted. Lord Goddard CJ stated:The weight to be afforded to the medical evidence on the issue
7.20 In Byrne[27] Lord Parker CJ stated:If, then, there is unchallenged evidence that there is abnormality of mind and consequent substantial impairment of mental responsibility, and no facts or circumstances appear that can displace or throw doubt on that evidence, … a verdict of murder is unsupported by the evidence … . This decision … in no way departs from what has been said in other cases, that the decision is for the jury and not for the doctors; it only emphasises that a verdict must be supported by evidence.[26]
7.21 Professor Glanville Williams was of the opinion that Byrne was inconsistent with Matheson.[29] This, with respect, is doubtful. In each case, the court was adamant that it was for the jury to decide whether or not the defendant was suffering from an "abnormality of mind".[30] It must reach its verdict on the evidence, but it is only bound to accept a medical opinion that the defendant was suffering from an abnormality of mind if it is unchallenged or there is no material on which to reject it.[31] Here a number of points are pertinent. First, where there is a contested issue of diminished responsibility in England and Wales there will in practice always be medical evidence from the prosecution. Second, medical evidence in support of a defence of diminished responsibility will almost inevitably be based to a greater or lesser degree on a history given to the expert by the defendant. If the jury disbelieves that history (for example, because it is inconsistent with evidence as to the nature and circumstances of the killing or with actions or statements of the defendant before, at the time of and after the killing) the result will be to weaken or destroy the medical opinion based on it. Third, if the jury accepts that the defendant was suffering from an abnormality of mind, it is then for the jury to decide whether this substantially impaired the defendant's mental responsibility.Whether the accused was at the time of the killing suffering from any "abnormality of mind" in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into account all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.[28]
7.22 The term "abnormality of mind" is not based on either legal or medical concepts and, accordingly, expert witnesses and juries may encounter difficulties in interpreting it. For expert witnesses, the exact meaning of "mind" may engender disagreement. Further, the term "abnormality of mind" would seem to assume an ascertainable range of "normal" functioning of the mind beyond which a mind is "abnormal". The difficulty is in pinpointing with any precision the boundary between the normal and the abnormal. Although based on neither legal nor medical concepts, the term itself is a legal concept which has been judicially interpreted and developed.Judicial interpretation of the meaning of "abnormality of mind"
7.23 According to Professor Mackay:
7.24 The leading authority is Byrne.[33] B had strangled a young woman and then mutilated her body. The uncontradicted and unchallenged medical evidence was that he was a sexual psychopath suffering from an abnormality of mind which arose from a condition of "arrested or retarded development of mind" or "inherent causes", and that he was afflicted with violent and perverted sexual desires which he found impossible or difficult to control. Save for when under the influence of his sexual desires, he was in other respects normal. All the doctors agreed that the killing was perpetrated when under the influence of his perverted desires and that, while not legally insane, he was partially insane in the medical sense.Although the term has received a much wider interpretation than "disease of the mind" within the M'Naghten Rules, it has not received the same degree of judicial scrutiny.[32]
7.25 The trial judge directed the jury that if they were of the view that B found it very difficult or even impossible to resist putting his desires into practice but that, apart from his sexual addictions and practices, he was "normal in every other respect", those findings of fact would not bring him within the scope of the defence. B was convicted of murder.
7.26 In allowing the appeal, the Court of Criminal Appeal contrasted the defences of insanity and diminished responsibility. The test under the M'Naghten Rules was described as "rigid". It related solely to a person's intellectual ability. If he had the intellectual ability to appreciate the physical act he was doing and that it was legally wrong, his inability to control his physical acts by the exercise of his will was irrelevant. By contrast, according to Lord Parker CJ, the term:
7.27 Commenting on this very broad interpretation, Professor Mackay stated:"Abnormality of mind," which has to be contrasted with the time- honoured expression in the M'Naghten Rules "defect of reason," means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It … [is] wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgement.[34]
7.28 The formulation in Byrne has exerted a continuing influence on the law of diminished responsibility. The term "abnormality of mind" is capable of encompassing the mind's capacity:This dictum has had a profound effect on the development of diminished responsibility, for by permitting psychiatric evidence of sexual psychopathy to be admitted as a form of abnormality of mind, irresistible impulse was introduced into English law.[35]
(1) to perceive one's acts or omissions;
(2) to evaluate whether one's acts or omissions are right or wrong; and
7.29 Thus, unlike the defence of insanity, diminished responsibility extends to volitional defects and not merely to defects of understanding or cognition. It is possible for a defendant successfully to plead diminished responsibility even if at the time of the killing he was capable of making a rational judgment provided he proves that, for reasons other than a bare propensity towards anti-social behaviour, he lacked the capacity to act in accordance with that judgment. Where the mental disorder relates to understanding or cognition, the test is a less severe one than that which must be satisfied to prove insanity by virtue of "defect of reason".(3) to control one's acts or omissions.
7.30 The formulation reflects the difficulty in attempting to describe with precision the boundary between the normal and the abnormal. It reflects the legislative assumption that "ordinary human beings" all possess a state of mind which can be described as normal. "Abnormality of mind" is no more and no less than a state of mind "so different" from the normal that the reasonable person would describe it as "abnormal". The formulation does serve an important function, however, even though it is a very imprecise test. Mental states such as anger, jealousy, temper, exasperation, feeling depressed, love and compassion are emotions and propensities, often ephemeral, to which all ordinary people are susceptible. The reasonable person would not classify them as abnormal, even when such emotions are heightened. Thus, a motorist who kills because he has lost his temper with another motorist is not able to plead diminished responsibility. The more difficult question is the extent to which distinctive mental conditions associated with or arising from extreme forms of common emotional states are, and ought to be, capable of founding the defence.[36] The Butler Report provided the following commentary:
7.31 In expressing some unease, the authors of the report further observed:[C]ases which have been felt to merit sympathetic consideration have resulted in more lenient disposal. The main examples relate to killing in compassion or from jealousy. There have been several cases where a father has killed his severely handicapped infant; he is charged with murder, medical evidence of a reactive depression is given, the verdict is one of diminished responsibility … . There have also been cases of morbid jealousy where an elderly woman has killed her husband, rightly or wrongly believing that he is being unfaithful, and where again the sentence, after a verdict of diminished responsibility, has been a probation order.[37]
Sometimes depression and jealousy can properly be diagnosed as mental disorders; but the distinction between conditions which can be so diagnosed and normal depression or normal jealousy may be one of degree only, and the effect of the present law is to put strong pressure on the psychiatrist to conform his medical opinion to the exigency of avoiding a very severe sentence, fixed by law, for a person for whom everyone has the greatest sympathy.[38]
7.32 When the Homicide Bill was being debated at Committee stage, an amendment was proposed which would have deleted from the Bill the words that now appear in parenthesis in section 2(1). In objecting to the proposed amendment the Attorney General stated:Does the defendant have to prove that the abnormality of mind is such that he is "partially insane" or "bordering on insanity"?
7.33 In Byrne[40] Lord Parker CJ stated, without any hint of criticism, that the Court of Criminal Appeal had previously approved directions given to juries which had followed those given in Scottish cases. He said that they involved directing the jury with reference to a mental state whichWe want to do two things by the inclusion of those words. First, we want to indicate that the serious abnormality of mind must in some way be similar to the Scottish phrase, 'bordering upon insanity'.[39]
7.34 The reference to partial insanity, even in a popular sense, is initially difficult to reconcile with the width of the interpretation which the court accorded to the phrase "abnormality of mind". The dictum is understandable, however, in the context of Byrne where the medical evidence was that B's condition could be described as one of partial insanity. In the earlier case of Walden[42] Paull J, after referring to insanity in the specific context of the M'Naghten Rules, referred to a defendant "being on the borderline between sane and insane". In upholding the conviction for murder, the Court of Criminal Appeal stated that:in popular language (not that of the M'Naghten Rules) a jury would regard as amounting to partial insanity or being on the borderline of insanity.[41]
7.35 In Rose[44] the trial judge had directed the jury that they had to assess the degree of the defendant's abnormality by reference to the borderline between legal sanity and legal insanity as laid down in the M'Naghten Rules. The Privy Council held this to be a misdirection and, in delivering its opinion, Lord Tucker stated:the judge was only giving an illustration of the sort of thing which the jury might consider in deciding whether upon the facts the case came within the section.[43]
7.36 One such case was Seers[46] where the abnormality of mind was reactive depression and the issue was its severity. Quashing the conviction for murder, the Court of Appeal held that the trial judge should not have directed the jury by reference to a test of "partially insane or on the borderline of insanity".[47][We] would not, however, consider that the Court of Criminal Appeal [in Byrne] was intending to lay down that in every case the jury must necessarily be directed that the test is always to be the borderline of insanity … If, however, insanity is to be taken into consideration, as undoubtedly will usually be the case, the word must be used in its broad popular sense. It cannot too often be emphasised that there is no formula that can safely be used in every case – the direction to the jury must always be related to the particular evidence that has been given and there may be cases where the words "borderline" and "insanity" may not be helpful.[45]
7.37 Recent developments in Scots law are instructive. Since HM Advocate v Savage[48] a state of mind bordering on insanity has been required. In Galbraith v HM Advocate (No 2)[49] a Full Bench of the High Court cited Seers with approval and held that there is no requirement in Scots law that the defendant's state of mind at the time of the killing must have bordered on insanity.
The aetiology of "abnormality of mind"
Introduction
7.38 The "abnormality of mind" must arise "from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury", the words contained in parenthesis in section 2(1).7.39 The words constitute a reconstruction of section 1(2) of the Mental Deficiency Act 1927. In a withering assessment, Professor Griew commented:
7.40 It is questionable whether Professor Griew was correct in asserting that in the 1927 Act the words plainly meant "however arising or caused". During the debate on the Mental Deficiency Bill its proposer contrasted the wording of the Bill with that of a Government Bill of the previous Session which had not proceeded. The previous Bill had referred to "arrested or incomplete development of mind innate or induced after birth by disease, injury or other cause". The framers of the Bill which became the 1927 Act deliberately omitted the reference to the phrase "other cause" because it was felt that its inclusion would provoke opposition on the ground that the provision would be regarded as unduly wide.[51] The words were intended, therefore, to be ones of limitation but with an important difference compared with the function they perform in the 1957 Act. In the 1927 Act the words "from inherent causes or induced by disease or injury" qualify and limit the concept of "arrested or incomplete development of mind" whereas in the 1957 Act they, together with the phrase "arrested or retarded development of mind", qualify and limit the meaning of "abnormality of mind".It was a remarkably inept reconstruction of the definition of "mental defectiveness" in section 1(2) of the Mental Deficiency Act 1927 … In 1957 the same words are used; but their reorganisation drastically changes the function of the "whether … " formula. In view of the history, the phrase "whether arising from inherent causes or induced by disease or injury" in the 1927 Act seems plainly to mean "however arising or caused". The 1957 parenthesis, on the other hand, is intended for limitation rather than the avoidance of doubt. Not everything that might be called an "abnormality of mind" is to be capable of founding a diminished responsibility defence. The terms "inherent causes" "disease" and "injury", which need no explanation in the 1927 context, thus acquire a crucial significance in 1957.[50]
7.41 Nevertheless, the content of the debate at the Committee stage of the Homicide Bill substantially vindicates Professor Griew's interpretation of the parenthesis. An amendment was moved which would have included, in what became section 2(1) of the Act, the phrase 'abnormality of mind (howsoever arising)'. The amendment was defeated. In opposing it, the Attorney General stated:
7.42 Those moving the amendment had maintained that the words which became the parenthesis in section 2(1) were unnecessary because a "mere outburst of rage or jealousy" would not in any event amount to an "abnormality of mind". This, it is submitted, is the better view. Scots law has no equivalent provision, and Chalmers has commented:We want to exclude the mere outburst of rage or jealousy … especially if he were a bad tempered man.[52]
It would … be mischievous to suggest that, because this proviso has not been incorporated into Scots law by Galbraith, such motivations might provide a foundation for a defence of diminished responsibility.[53]
The need for, and the weight to be afforded to, medical evidence
7.43 In Byrne[54] Lord Parker CJ stated:
The aetiology of the abnormality of the mind … does, however, seem to be a matter determined on expert evidence.[55]
Lord Parker was contrasting the determination of the question whether the defendant was suffering from an "abnormality of mind" with that of determining what was its aetiology.
7.44 Although in practice a psychiatric report may express the view that a defendant suffered from abnormality of mind within section 2 (1), without specifying under which of the terms specified in parenthesis in the subsection, it is for the defendant to show that the abnormality fell within one of the specified categories. This was confirmed in Dix,[56] in which the Court of Appeal rejected a submission that the words in parenthesis are descriptive of all forms of abnormality of the mind. Having considered Byrne, the court concluded that:
while the subsection does not in terms require that medical evidence be adduced in support of a defence of diminished responsibility, it makes it a practical necessity if that defence is to begin to run at all.[57]
Judicial analysis and interpretation of the aetiological components
7.45 There has been very little systematic analysis of the aetiological components by the English courts.[58] When the Court of Appeal has attempted to embark on such an analysis,[59] its conclusions have been called into question.[60]Introduction
7.46 In addition to the lack of any systematic analysis, Professor Griew has noted that the:
7.47 The difficulty which results from this lack of elucidation is that, although the defence cannot succeed in the absence of medical evidence relating to the aetiology of the defendant's "abnormality of mind", the words in parenthesis refer to legal and not to medical concepts. Dell found that, because the four specified aetiologies had no defined or agreed psychiatric meaning, different doctors classified the same conditions in many different ways.[62] Since they are legal concepts, it is to the courts that practitioners need to look for guidance.courts (perhaps advisedly) have offered no real elucidation on the parenthesis.[61]
7.48 An explanation for the paucity of judicial guidance is to be found in the Butler Report. The authors suggested that underlying the application of section 2 was a benevolent conspiracy involving psychiatrists, trial judges and prosecutors:
the medical profession is humane and the evidence is often stretched, as a number of witnesses remarked. Not only psychopathic personality but reactive depressions and dissociated states have been testified to be due to "inherent causes" within the section.[63]
The individual aetiological components
7.49 In order to understand the provenance of the phrase, it is necessary to trace briefly the legislative history of the first part of the twentieth century in relation to "mental deficiency". The Mental Deficiency Act 1913 distinguished between four classes of mental defective, namely "idiots", "imbeciles", "feeble-minded persons" and "moral defectives". The distinctions between the first three classes reflected the severity of the mental defectiveness. The last class incorporated persons whose mental defectiveness, of whatever severity, was coupled with "strongly vicious or criminal propensities". Whatever class a person fell into, only those who were mentally deficient "from birth or from an early age" came within the scope of the 1913 Act. The characteristics shared by all persons legally classified as either "idiots" "imbeciles" or "feeble- minded" were, first, that they had never possessed a normal degree of intellectual capacity and, second, that their lack of normal intellectual capacity was permanent and not susceptible of cure. The 1913 Act did not, however, contain a general legal concept to define or describe the first of those characteristics."Arrested or retarded development of mind"
7.50 The lack of such a concept was rectified by the Mental Deficiency Act 1927[64] in which the phrase "arrested or incomplete development of mind" is first employed.[65] Its function was to define the meaning of "mental defectiveness". An important departure from the 1913 Act was in removing the requirement that the condition of mental defectiveness had to exist "from birth or from an early age". It sufficed if it existed before the age of eighteen years. During the course of the Second Reading of the Bill it was emphasised that persons were susceptible not only at an early age but throughout life to disease,[66] illness or injury resulting in "mental defectiveness". Examples were given of encephalitis, meningitis, epileptic fits and having a brick dropped on one's head.[67] If the logic of the argument had been applied there would have been no age limit, but, according to the proposer of the Bill, "to avoid opposition to the Bill we had better put the age as low as possible".[68]
7.51 By contrast, in an insane person faculties which were originally normal had been impaired by "disease of the mind". In theory, the mental defective could not rely on the defence of insanity because his faculties had not been impaired by "disease of the mind" as opposed to failure of development. Evidence given to the Royal Commission on Capital Punishment revealed, however, that the defence of insanity was not being denied to mental defectives merely because their condition could not be said to be due to "disease of the mind".[69] It appears from the Royal Commission's Report that the consensus was that defect of intelligence in an idiot or imbecile was so gross that, assuming he was found fit to plead, a jury would usually have no difficulty in finding that he did not know the nature and quality of his act or did not know that it was wrong.[70] This was not so, however, in the case of the feeble-minded defendant. According to the Report, the defects of reason or self-control of the feeble-minded defendant:
7.52 The Royal Commission recommended that the M'Naghten Rules should be abrogated, or at least amended, so that the defence of insanity could be founded on the basis of "mental deficiency" as well as "disease of the mind". By "mental deficiency" the Royal Commission clearly meant "arrested or incomplete development of mind". This recommendation for reformulating the M'Naghten Rules was not implemented, but instead Parliament afforded legal recognition to "mental deficiency" in the form of "arrested or retarded development of mind" by introducing the new defence of diminished responsibility.although so great that it would not be right to hold him morally responsible for his actions, will not bring him within the ambit of the M'Naghten Rules as they now stand or justify a jury in returning a verdict of guilty but insane.[71]
7.53 We consider here the concept of "disease or injury" before "inherent causes" because of the implications of obiter dicta[72] in the judgment of Roch LJ in Sanderson.[73] If those dicta are correct the meaning of both "disease" and "injury" has been circumscribed, although whether this has resulted in a corresponding widening of the meaning of "inherent causes" is unclear."Induced by disease or injury"
7.54 There is no doubt that "disease or injury" includes organic or physical disorders such as physical deterioration of the brain (even if the result of prolonged substance abuse), epilepsy, pre-menstrual syndrome and post-traumatic stress disorder.
7.55 On the other hand, in Di Duca[74] the Court of Criminal Appeal considered it to be "very doubtful" if the transient effect of alcohol, even if producing a toxic effect on the brain, could amount to an "injury" within the meaning of the section. Di Duca was a case where the defendant killed the deceased while in a temporary state of voluntary intoxication.[75] By contrast, it is clear that alcoholism can constitute a "disease" within the meaning of section 2(1).[76]
7.56 It is unclear, as a result of Sanderson,[77] whether functional disorders such as neurosis, psychosis and personality disorders are within the meaning of "disease or injury". In Sanderson[78] S, aged 22, killed his partner following a stormy relationship. He suspected her of being unfaithful and there was a violent argument in the course of which he struck her more than 100 times. The medical evidence adduced on his behalf was that he had had an unhappy childhood marked by hostility and aggression from his father. In addition, from the age of ten years he had used controlled drugs, graduating from class B to class A. At the time of the killing he was a regular user of both heroin and "crack" cocaine.
7.57 A psychiatrist called on by the defence testified that S was suffering from "abnormality of mind" arising from "inherent causes". More precisely, the abnormality of mind consisted of a paranoid psychosis which manifested itself by his forming incorrect and abnormal beliefs about people.[79] The condition was present irrespective of the drug abuse. It arose, it was said, from inherent causes – his upbringing – although it could have been exacerbated by his use of cocaine. Nevertheless, even if there had been no drug abuse, there was an abnormality of mind and it affected his ability to control himself. The psychiatrist for the Crown maintained that S was suffering from paranoia induced by the taking of cocaine. The Court of Appeal was of the view that the trial judge's directions might have confused the jury and, accordingly, substituted a verdict of manslaughter. However, Roch LJ, in delivering the judgment of the court, said:
7.58 Professor Mackay perceives two difficulties. First, applying the dictum, a "disease of the mind" within the meaning of the M'Naghten Rules will not automatically be a "disease" within the meaning of section 2(1). He suggests that the resulting confusion is undesirable and that it would be preferable to characterise functional mental illnesses as both "diseases" and "inherent causes" for the purposes of section 2(1).[Counsel for the appellant] submitted that "disease" in the phrase "disease or injury" in section 2(1) meant "disease of the mind" and was apt to cover mental illnesses which were functional as well as those which were organic. This interesting and difficult question does not, in our view, require an answer in this case … We incline to the view that the phrase "induced by disease or injury" must refer to organic or physical injury or disease of the body including the brain, and that that is more probable, because Parliament deliberately refrained from referring to the disease of, or injury to, the mind but included as permissible causes of an abnormality of the mind "any inherent cause" which would cover functional mental illness.[80]
7.59 The second difficulty, according to Professor Mackay, is:
7.60 We share Professor Mackay's doubt as to whether a reactive depression of sufficient severity and duration to constitute a functional mental illness should be classified as an "inherent cause", as would appear to be the logic of Sanderson.[82] We agree, however, with the Court of Appeal that the question whether "disease" in section 2(1) includes functional mental illnesses is difficult. We prefer the view that it does, but the law on the point is not clear.the notion that "injury" must refer to "organic or physical injury". If this is correct then how is psychological injury to be classified? … what is being suggested is that "injury" can no longer be of a non-organic nature, and this will make it more difficult in future to bring the reactive depression mercy-killing cases … within the bracketed clauses. This surely cannot have been the court's intention and yet in such cases it will be very difficult to find another acceptable cause within section 2(1) … . Nor could reactive depression easily fall within "inherent cause", as it is neither long standing nor hereditary but rather due to a reaction to a major emotional upset.[81]
7.61 The expression does not as a general rule include external factors such as a traumatic event or other environmental influences. The dictum in Sanderson is to the effect that functional mental illnesses are covered. Thus, a paranoid psychosis of the type suffered by Sanderson could be said to have arisen from an inherent cause. It is more doubtful if reactive depression can be said to be an "inherent cause" as it is a reaction to a major emotional upset. By contrast, endogenous depression is within the meaning of the expression."Inherent causes"
7.62 There are two conflicting views about the concept of "mental responsibility" in section 2(1). One is that it has a strong ethico-legal connotation, equivalent to culpability, and that the issue is one exclusively for the jury, not for doctors. This is the dominant view.[83]"Mental responsibility"
7.63 The alternative view focuses on the presence of the word "mental" describing "responsibility". The adherents to this view contend that this requires the court to consider the general health of the defendant's mind and that this is the domain of psychiatry.
7.64 In practice, psychiatrists frequently testify not only on the diagnosis of the defendant's mental health but also on what is termed the "ultimate issue": whether the plea of diminished responsibility should or should not succeed. They proffer an opinion as to whether the defendant's "mental responsibility" was "substantially impaired". This was noted in the Butler Report:
7.65 Professor Griew suggested reasons why the courts have been prepared to indulge, even encourage psychiatrists to give evidence in relation to the "ultimate issue". He said that amongst them:It is either a concept of law or a concept of morality; it is not a clinical fact relating to the defendant … . It seems odd that psychiatrists should be asked and agree to testify as to legal or moral responsibility. It is even more surprising that courts are prepared to hear that testimony. Yet psychiatrists commonly testify to impaired "mental responsibility" under section 2. Several medical witnesses pointed out to us that the difficulty is made worse by the use of the word "substantial".[84]
7.66 Professor Mitchell found a degree of discomfort amongst most of those interviewed over the role they were being expected to play. They felt that they had no special knowledge or expertise which enabled them to make a judgment on a matter which they thought should be decided by the jury.[86] There is, however, some evidence to suggest that their willingness to proffer their own views on the "ultimate issue" is of assistance to juries. In giving evidence to the House of Lords Select Committee on Murder and Life Imprisonment, the Director of Public Prosecutions, commenting on suggestions for reformulating section 2(1), stated:undoubtedly, has been the convenience of the expert opinion as a device for stretching the scope of the section – for humanely using it to produce a greater range of exemption from liability for murder than its terms really justify … . But there is no getting away from the fact that the use of this stretching device has depended upon the willingness of psychiatrists to assert their own views of the proper borderline between murder and manslaughter.[85]
the phrase "mental responsibility" means nothing that a doctor could or should pronounce on. On the other hand, if the revised wording were introduced the demarcation between the jury's function and the psychiatrist's function would become infinitely clearer, but a result of that would be that the psychiatrist would give very much less assistance to the jury than he does under the theoretically much less satisfactory state of the law as it stands for the moment. So there are proposals for reform, but whether these proposals for reform would in fact improve the situation rather than cause a deterioration it is difficult to say because it is undoubtedly true that juries do derive immense assistance from the medical profession in their approach to the very difficult topic of diminished responsibility.[87]
7.67 Whether there is "impairment" of "mental responsibility" and whether it is "substantial" is a matter of fact for the jury. It is not susceptible to any objective or scientific test. This was noted by Lord Parker CJ in Byrne:[88]"Substantial impairment"
7.68 Although the issue is not susceptible to any objective or scientific test, again it has been the practice for psychiatrists to address it in their testimony. Professor Mitchell, perhaps unsurprisingly, found that his respondents derived little assistance from the case law. That said, it seems that they were relatively sanguine about being asked and expected to testify on the issue:This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant, but the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called "substantial", a matter upon which juries may quite legitimately differ from doctors … . [T]he step between "he did not resist his impulse" and "he could not resist his impulse" is … one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common-sense way.[89]
7.69 The little case law that there is establishes that the impairment need not be total but it must be more than trivial or minimal.[91] Since it is a question of fact, the judge may withdraw the issue from the jury if, in his or her view, there is no evidence from which a reasonable jury could conclude that the defendant's mental responsibility was substantially impaired.[92]Rather, they tended to talk about the individual's degree of (ir)rationality or ability to exercise will power, choice and self-control. A large proportion said they felt reasonably confident about impairment in cases of psychosis, but found personality disorder and (to a slightly lesser degree) depression more difficult, apparently because the latter cases tended not to show a marked contrast with "normal, healthy" people. Indeed, some felt it was not infrequently a matter of adopting a common-sense approach, simply reflecting how different the killer was from ordinary individuals, or (emphasising the importance of a causal link between illness and offence) whether he or she would have killed if there had been no signs of disorder or depression.[90]
7.70 The research of Professor Mitchell and the evidence of the Director of Public Prosecutions to the House of Lords Select Committee on Murder and Life Imprisonment, to which we have referred,[93] suggests unease amongst expert witnesses and the existence of a paradox. The paradox is that while it is recognised that as a matter of principle the expert witness should not be testifying in relation to the question whether or not there was "substantial impairment of mental responsibility" at the time of the killing, it is felt that the concept is so difficult for juries that they require the assistance of expert testimony.[94]
Alcohol, drugs and diminished responsibility
Introduction
7.71 Delivering the judgment of the Court of Appeal in Dietschmann[95] Rose LJ enunciated the following statement of principle which was subsequently cited with approval by Lord Hutton in the House of Lords:[96]
7.72 For the sake of clarity, in examining this general rule we make a distinction between abnormality of mind and its aetiology.The general rule that drink does not give rise to an abnormality of mind due to inherent causes was authoritatively established in
R v Fenton … and confirmed in R v Gittens … . In line with those authorities, R v Tandy … established that drink is only capable of giving rise to a defence under section 2 if it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary.[97]
7.73 The starting point is Di Duca.[98] The Court of Criminal Appeal held that on the evidence, which showed no more than a transient state of intoxication, the jury could not properly have concluded that the defendant was suffering from an "abnormality of mind". The authorities clearly establish, therefore, that a transient state of drunkenness cannot constitute an "abnormality of mind"."Abnormality of mind"
7.74 By contrast, the courts have recognised that a desire for alcohol (or drugs), if sufficiently strong, is capable in itself of amounting to an "abnormality of mind". In Fenton[99] Lord Widgery CJ acknowledged that, while a state of self-induced intoxication is not an "abnormality of mind", the evidence with regard to the defendant's desire for alcohol or drugs may entitle a jury to conclude he was suffering from an "abnormality of mind":
7.75 That left open the question what degree of craving was required. In Tandy[101] Watkins LJ stated obiter:cases may arise where the accused proves such a craving for drink or drugs as to produce in itself an abnormality of mind.[100]
7.76 This is not a helpful test because it is difficult to see how any doctor can say as a matter of medical science whether a person is capable of saying "no" to the offer of a drink.[103]for a craving for drinks or drugs in itself to produce an abnormality of mind, within the meaning of section 2(1) of the Act of 1957, the craving must be such as to render the accused's use of drink or drugs involuntary.[102]
7.77 In Di Duca[104] the Court of Criminal Appeal considered that it was "very doubtful" if the transient effect of drink, even if it did produce a toxic effect on the brain, constituted an "injury" within the meaning of section 2(1)."arising from … any inherent causes or induced by disease or injury"
7.78 In Tandy[105] T was an alcoholic who, after consuming nearly a bottle of vodka in the course of a day, strangled her daughter. At her trial she pleaded diminished responsibility on the basis that she was suffering from an "abnormality of mind" which consisted of, not an irresistible craving for alcohol as referred to by Lord Widgery CJ in Fenton,[106] but grossly impaired judgment and emotional responses. On her behalf it was submitted that this "abnormality of mind" was induced by "disease", namely alcohol dependence syndrome (alcoholism) and that this had substantially impaired her mental responsibility for the killing.
7.79 The court accepted that alcoholism may constitute a disease within the meaning of section 2(1). However, there was a separate issue of causation, ie whether the defendant's abnormality of mind was induced by her alcoholism.
7.80 The critical issue on the appeal concerned the trial judge's direction to the jury regarding the taking of the first drink. His direction had been that, provided the jury were of the view that T had no choice over whether or not to have the first drink, the "abnormality of mind" – the impaired judgment and emotional responses – would have been induced by "disease". If, however, the taking of the first drink was not involuntary, then the whole of the subsequent drinking on the day of the killing was voluntary and the "abnormality of mind" was not induced by "disease". This direction was approved by the Court of Appeal. Watkins LJ stated that it was for T to establish three elements, the second of which was that the "abnormality of mind" – the grossly impaired judgment and emotional responses - was induced by disease, namely the disease of alcoholism. He continued:
7.81 Professor Mackay is very critical of this passage. In his view:The principles … are … as follows. [T] would not establish the second element of the defence unless the evidence showed that the abnormality of mind at the time of the killing was due to the fact that she was a chronic alcoholic. If the alcoholism had reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgment and emotional responses, then the defence of diminished responsibility was available to her … . Further, if [T] were able to establish that the alcoholism had reached the level where although the brain had not been damaged to the extent just stated, [T's] drinking had become involuntary, that is to say she was no longer able to resist the impulse to drink, then the defence of diminished responsibility would be available to her … because if her drinking was involuntary, then her abnormality of mind at the time of the act of strangulation was induced by her condition of alcoholism.[107]
7.82 There is much force in this criticism. Even if the jury had found that the taking of the first drink was not "involuntary",[109] the reality was that it was not the taking of the first drink alone which resulted in T's grossly impaired judgment and emotional responses on the day in question. Her condition was the result of a whole day's drinking. It might be though that the analysis of the Court of Appeal is artificial but the underlying public policy is clear. If a person voluntarily takes a drink, knowing or believing that it will result in an uncontrollable craving for more alcohol, the defence of diminished responsibility will not be available.What the court has done is to develop the "craving for drink" dictum contained in Fenton in such a way that it is almost impossible to satisfy. It is one thing to say that the accused may be suffering from an abnormal craving for drink, but quite another to require that before such a craving can be established, the first drink in the relevant series must be shown to have been consumed "involuntarily".[108]
Pre-existing mental disorder and self-induced intoxication
7.83 In Fenton[110] F had consumed a large quantity of drink. In the course of the evening he killed four people. He pleaded guilty to manslaughter by reason of diminished responsibility but was convicted of four counts of murder.7.84 All the medical witnesses agreed that F was suffering from an "abnormality of mind". These experts said that there were four factors which in combination had brought him to breaking point and caused him to kill. One factor was an excessive intake of alcohol. The trial judge, contrary to F's submission that all the factors had to be taken into account, directed the jury that they would have to convict F of murder if they were satisfied that the combined effect of the factors, excluding the intake of alcohol, was insufficient to amount to a substantial impairment of his mental responsibility. In upholding the convictions for murder, the Court of Appeal approved the direction. More importantly, the court also held that the trial judge had been correct in leaving the issue to the jury even if they were of the view that the killings would not have occurred had F not had so much to drink.
7.85 Fenton[111] was subsequently approved in Gittens.[112] The Court of Appeal explained what had been established in Fenton:
7.86 The law as stated was clear and sensible. On the one hand voluntary consumption of drink and/or drugs was not to be taken into account as a factor which diminished responsibility. As Simester and Sullivan explain:The jury should be directed to disregard what … the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section. Then the jury should consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendant's mental responsibility within the meaning of "substantial" set out in Lloyd … .[113]
As a matter of policy, it would be unacceptable if self-induced conditions were to improve a defendant's prospects of a successful defence.[114]
On the other hand, the mere fact that the defendant had imbibed alcohol or drugs should not automatically disentitle him from relying on the defence.
7.87 In two subsequent Court of Appeal decisions,[115] it was held that the defendant could successfully rely on the defence only if he could satisfy the jury that the killing would still have occurred even if he had not taken the drink or drugs. However, those authorities were disapproved by the House of Lords in Dietschmann.[116]7.88 In Dietschmann D killed the victim while he (D) was heavily intoxicated. He was also suffering from a mental abnormality which all the medical witnesses described as an adjustment disorder arising from a depressed grief reaction to the death of his aunt with whom he had a close physical and emotional relationship. D was convicted of murder following a direction to the jury that D had to satisfy them that if he had not taken the drink he would have killed as he did and that he would have been under diminished responsibility when he did so. The House of Lords held that this was misdirection.
7.89 Lord Hutton, having stressed that the case did not involve alcohol dependence syndrome, stated:
7.90 Lord Hutton addressed the policy argument submitted on behalf of the Crown, namely that self-induced intoxication cannot constitute a defence to a criminal charge. Lord Hutton said that the policy of the criminal law in relation to persons suffering from mental abnormality is to be found in the words of section 2(1) and that:the meaning to be given to the subsection would appear on first consideration to be reasonably clear … . [I]f the defendant satisfies the jury that, notwithstanding the alcohol he had consumed and its effect on him, his abnormality of mind substantially impaired his mental responsibility for his acts in doing the killing, the jury should find him … guilty of manslaughter. I take this view because 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. In my opinion, even if the defendant would not have killed if he had not taken drink, the causative effect of the drink does not necessarily prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for his fatal acts.[117]
a brain-damaged person who is intoxicated and who commits a killing is not in the same position as a person who is intoxicated, but not brain-damaged, and who commits a killing.[118]
Conclusion
7.91 Generally speaking, although section 2(1) can properly be criticised as conceptually flawed, it seems to have operated in practice broadly as intended, ie in producing convictions for manslaughter rather murder in the case of those who kill while in a significantly abnormal (and not self-induced) mental state. The judicial approach to the subsection has been essentially pragmatic. It is interesting to note that the leading authority on the subsection remains the Court of Appeal's decision in Byrne. In contrast to provocation, the House of Lords has had occasion to visit the subsection on only one occasion in almost fifty years7.92 In Part XII we invite consultees to consider whether the defence should be retained (particularly if the other principal partial defence, ie provocation, and the mandatory sentence are abolished). We also invite consultees to consider whether it should be revised. From time to time there have been suggestions for clarifying the wording of the statutory test. We are particularly concerned about the second limb and the role of psychiatrists in relation to it. A possible avenue would be to reformulate the test in terms of causation. The focus would no longer be on whether there was "substantial impairment of mental responsibility" but rather on whether the defendant's "abnormality of mind" was a significant cause of his acts or omissions in doing or being a party to the killing. Such an approach would be consistent with Dietschmann[119] and would clarify the role of the expert witness. The medical expert would be expected to testify as to the "abnormality of mind" and, from the medical viewpoint, whether it caused or materially contributed to the killing. Both matters would properly be within the domain of expert testimony. In Part XII we invite comments on various possible versions.
Note 1 In this Part referred to as “the 1957 Act”. [Back] Note 2 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 3 Hansard (HC) 15 November 1956, vol 560, col 1154. (emphasis added) [Back] Note 4 Hansard (HC) 15 November 1956, vol 560, col 1213. [Back] Note 5 In Matheson [1958] 1 WLR 474, 478 Lord Goddard CJ observed “an abnormal mind is as capable of forming an intention and desire to kill as one that is normal; it is just what an abnormal mind might do.” See also Rose v The Queen [1961] AC 496 at p 508. [Back] Note 6 See paras 7.22 – 7.31. [Back] Note 7 Insanity, of course, is not confined to proceedings for murder. [Back] Note 8 Campbell [1997] Crim LR 495. [Back] Note 9 Admittedly, not so great a stigma as being convicted of murder. [Back] Note 10 E Griew, “The Future of Diminished Responsibility” [1988] Crim LR 75, pp 81–82. [Back] Note 11 (1975) Cmnd 6244; in this Part referred to as “the Butler Report”. [Back] Note 12 Ibid, at para 19.4. [Back] Note 14 [1958] 1 QB 270. [Back] Note 15 Ibid, at pp 276–277. (emphasis added) [Back] Note 16 [1959] 1 WLR 1008. [Back] Note 17 [1961] 2 QB 314. [Back] Note 18 Ibid, at p 322. [Back] Note 19 Initially, in Matheson [1958] 1 WLR 474 the Court of Criminal Appeal, consisting of five judges, had laid down a rule of practice that a plea of guilty to manslaughter on the ground of diminished responsibility should not be accepted by the Crown. It appears, however, that between 1957 and 1962 there were a number of cases where defendants had to sit through hours of evidence of what they had done while in a state of mental imbalance. This caused judicial consternation. [Back] Note 20 [1968] 1 WLR 308. [Back] Note 21 Ibid, at p 310. (emphasis added) [Back] Note 22 Exceptionally, a trial judge may refuse to accept a plea to manslaughter even where the Crown is disposed to accept it. An example is the case of Peter Sutcliffe, who is sometimes referred to as the “Yorkshire Ripper”. Despite all the psychiatrists being of the view that he was a paranoid schizophrenic and ought to be convicted of manslaughter, he was convicted of murder. He was later transferred to Broadmoor as everybody agreed that he was psychotic. [Back] Note 23 (1979) 69 Cr App R 104. [Back] Note 24 Ibid, at pp 106–107. In Vinagre the view of the psychiatrists to the effect that the defendant was suffering from a condition, colloquially known as “Othello syndrome”, was not in dispute. In that sense the medical evidence was plain and unequivocal. Lawton LJ’s real concern was that such a condition should be deemed capable of constituting “abnormality of mind”. [Back] Note 25 [1958] 1 WLR 474. [Back] Note 26 Ibid, at p 479. (emphasis added) The law report does not indicate whether or not the defendant gave evidence at his trial. In fact he did not and so the jury would not have observed his demeanour in the witness box. Interestingly, it was in Matheson that the court laid down the rule of practice that the prosecution should not accept a plea of guilty to manslaughter but that the issue should be left to the jury. [Back] Note 27 [1960] 2 QB 396. [Back] Note 28 Ibid, at p 403. (emphasis added) [Back] Note 29 Criminal Law: The General Part (2nd ed 1961) p 546. [Back] Note 30 Where Matheson goes further is in appearing to suggest that unchallenged medical evidence in relation to the issue of substantial impairment of the defendant’s mental responsibility must be accepted by the jury. [Back] Note 31 In Walton [1978] AC 788 the Privy Council held that the judge was under no obligation to instruct the jury that they had to accept uncontradicted, but not unchallenged, medical evidence. In that case the defence called three medical witnesses with different results. The prosecution did not call medical evidence but challenged the defendant’s principal medical expert in detailed cross-examination. Lord Keith (at p 794) described the “quality and weight” of the medical evidence in that case as falling “a long way short” of that in Matheson. [Back] Note 32 RD Mackay, “The Abnormality of Mind Factor in Diminished Responsibility” [1999] Crim LR 117 at p 118. [Back] Note 33 [1960] 2 QB 396. [Back] Note 34 Ibid, at p 403. (emphasis added) [Back] Note 35 RD Mackay, “The Abnormality of Mind Factor in Diminished Responsibility” [1999] Crim LR 117 at p 118. [Back] Note 36 For example, morbid jealousy. In Vinagre (1979) 69 Cr App R 104 the Crown, and the trial judge, accepted a plea of guilty to manslaughter on the grounds of diminished responsibility. The basis of the plea was that the defendant killed his wife as a result of “Othello syndrome”, in other words “morbid jealousy for which there is no cause”. The appeal related to the sentence of life imprisonment which the trial judge had imposed. Although the appeal succeeded, Lawton LJ expressed obvious distaste for the fact that the plea had been accepted. He was of the view (at p 106) that “however much the concept of the Othello syndrome may have entered modern psychiatric medicine, it is not one which appeals to this court”. [Back] Note 37 The Butler Report at para 19.7. [Back] Note 39 Hansard (HC) 27 November 1956, vol 561, col 320. [Back] Note 40 [1960] 2 QB 396. [Back] Note 41 Ibid, at p 404. (emphasis added) [Back] Note 42 [1959] 1 WLR 1008. [Back] Note 43 Ibid, at p 1012. [Back] Note 45 Ibid, at pp 507–508. [Back] Note 46 (1984) 79 Cr App R 261. [Back] Note 47 Accordingly, the dictum of Lord Keith in Walton [1978] AC 788, 793, that “what the jury are essentially seeking to ascertain is whether at the time of the killing the defendant was suffering from a state of mind bordering on but not amounting to insanity” must be treated with caution. [Back] Note 50 E Griew, “The Future of Diminished Responsibility” [1988] Crim LR 75 at p 77. (emphasis added) [Back] Note 51 Hansard (HC) 18 March 1927, vol 203, col 2322. [Back] Note 52 Hansard (HC) 27 November 1956, vol 561, col 320. [Back] Note 53 J Chalmers, “Abnormality and Anglicisation: First Thoughts on Galbraith v HM Advocate (No 2)” (2002) 6 Edin LR 108 at p 115. [Back] Note 54 [1960] 2 QB 396. [Back] Note 55 Ibid, at p 403. [Back] Note 56 (1981) 74 Cr App R 306. [Back] Note 57 Ibid, at p 311. [Back] Note 58 Australian courts, by contrast, have displayed a greater willingness to analyse the components. The New South Wales Law Reform Commission in its Report on Partial Defences to Murder, Diminished Responsibility (1997), para 3.39, provided the following illustration of the complexity which has resulted:
For example, where an accused relies on an “inherent cause”, the condition must be shown to be permanent, though not necessarily hereditary, but when either disease or injury is relied on as the cause of the abnormality, it need not be permanent, although it must be more than ephemeral or of a transitory nature … Where an inherent cause is relied on, it is sufficient to prove that the accused suffered from an “inherent abnormality”, without having to prove the cause of the abnormality as a separate element. However, where one of the other two causes is relied on, the cause must be established as a separate element from the abnormality. [Back] Note 59 Sanderson (1994) 98 Cr App R 325. [Back] Note 60 R D Mackay, “The Abnormality of Mind Factor in Diminished Responsibility” [1999] Crim LR 117. [Back] Note 61 E Griew, “The Future of Diminished Responsibility” [1988] Crim LR 75 at p 78. (emphasis added) [Back] Note 62 S Dell, Murder into Manslaughter (1984) p 39. [Back] Note 63 The Butler Report at para 19.5. [Back] Note 65 The 1957 Act substituted “retarded” for “incomplete”. [Back] Note 66 As opposed to “disease of the mind” within the meaning of the M’Naghten Rules. [Back] Note 67 Hansard (HC) 18 March 1927, vol 203, col 2319. [Back] Note 68 Hansard (HC) 18 March 1927, vol 203, col 2322. [Back] Note 69 Royal Commission’s Report (1953) Cmd 8932 at para 344. [Back] Note 70 According to the Royal Commission’s Report, ibid, at para 348, crimes of violence were rarely, if ever committed by idiots or imbeciles. [Back] Note 71 Ibid, at para 345. [Back] Note 73 (1994) 98 Cr App R 325. [Back] Note 74 (1959) 43 Cr App R 167. [Back] Note 75 There is no authority in English law as to whether a toxic effect on the brain caused as a result of involuntary intoxication is capable of amounting to an “injury” for the purposes of section 2(1). [Back] Note 76 Tandy [1989] 1 WLR 350. [Back] Note 77 (1994) 98 Cr App R 325. [Back] Note 79 This is reminiscent of Daniel M’Naghten. [Back] Note 80 (1994) 98 Cr App R 325, 336. [Back] Note 81 R D Mackay, “The Abnormality of Mind Factor in Diminished Responsibility” [1999] Crim LR 117 at pp 122–123. [Back] Note 82 (1994) 98 Cr App R 325. [Back] Note 83 According to the research of Professor Barry Mitchell, out of 19 psychiatrists interviewed, only one did not adhere to the dominant view; see B Mitchell, “Putting diminished responsibility law into practice: a forensic psychiatric perspective” (1997) 8 Journal of Forensic Psychiatry 620 at p 625. [Back] Note 84 The Butler Report at para 19.5. [Back] Note 85 E Griew, “The Future of Diminished Responsibility” [1988] Crim LR 75 at p 84. [Back] Note 86 B Mitchell, “Putting diminished responsibility law into practice: a forensic psychiatric perspective” (1997) 8 Journal of Forensic Psychiatry 620 at p 625. [Back] Note 87 HL Paper 20-v (1988-89) para 464. (emphasis added) [Back] Note 88 [1960] 2 QB 396. [Back] Note 89 Ibid, at pp 403–404. [Back] Note 90 B Mitchell, “Putting diminished responsibility law into practice: a forensic psychiatric perspective” (1997) 8 Journal of Forensic Psychiatry 620 at p 627. [Back] Note 91 Lloyd [1967] 1 QB 175. [Back] Note 92 Campbell (1986) 84 Cr App R 255. [Back] Note 93 Para 7.66, above. [Back] Note 94 A view shared by one of the psychiatrists we have spoken with. [Back] Note 95 [2001] EWCA Crim 2052. [Back] Note 96 [2003] 1 AC 1209, 1214. [Back] Note 97 Emphasis added. [Back] Note 98 (1959) 43 Cr App R 167. [Back] Note 99 (1975) 61 Cr App R 261. [Back] Note 100 Ibid, at p 263. (emphasis added) [Back] Note 101 [1989] 1 WLR 350. [Back] Note 102 Ibid, at 273. (emphasis added) [Back] Note 103 Consider the example of an alcoholic who is faced with the choice of having a drink and missing the chance of a lift to his home which is ten miles away and in a village without public transport, or accepting the lift and saying “no” to the offer of a drink. [Back] Note 104 (1959) 43 Cr App R 167. [Back] Note 105 [1989] 1 WLR 350. [Back] Note 106 (1975) 61 Cr App R 261. [Back] Note 107 Ibid, at p 356. [Back] Note 108 R D Mackay, Mental Condition Defences in the Criminal Law (1995) p 197. [Back] Note 109 It does not necessarily follow from the jury’s verdict that they did so find. It is possible that they convicted T because they were not satisfied that T’s mental responsibility had been “substantially impaired”. [Back] Note 110 (1975) 61 Cr App R 261. [Back] Note 112 (1984) 79 Cr App R 272. [Back] Note 113 Ibid, at p 277. [Back] Note 114 Criminal Law: theory and doctrine (2nd ed 2003) p 586. [Back] Note 115 Atkinson [1985] Crim LR 314 and Egan (1992) 95 Cr App R 278. [Back] Note 116 [2003] 1 AC 1209. [Back] Note 117 Ibid, at pp 1216–1217. (emphasis added) [Back]
