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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(6) (20 December 2005) URL: http://www.bailii.org/ew/other/EWLC/2005/177(6).html Cite as: [2005] EWLC 177(6) |
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PART 6
DIMINISHED RESPONSIBILITY AND
PROVOCATION
QUESTIONS AND PROVISIONAL PROPOSALS
(1) Do consultees agree that the effect of a successful plea of diminished responsibility should be to reduce "first degree murder" to "second degree murder" rather than to manslaughter?
[paragraphs 6.12-6.22]
(2) Do consultees agree that diminished responsibility should not be a partial defence to "second degree murder"?
[paragraphs 6.23-6.33]
(3) Should the current definition of diminished responsibility in section 2 of the Homicide Act 1957 be replaced?
[paragraphs 6.34-6.61]
(4) If the answer to (3) is "yes", should it be:
(a) replaced by the reformulation of the defence that we put forward for further consideration in our report Partial Defences to Murder?[1] or;
[paragraphs 6.34-6.61]
(b) replaced by a different definition?
[paragraphs 6.62-6.70]
(5) If the definition were to remain broadly as it is under section 2 of the Homicide Act 1957, should it at least be reformed to the extent of removing the need to show that an abnormality of mind had to arise from one of the causes stipulated in the section?
[paragraphs 6.39-6.41]
(6) Whatever the definition, should developmental immaturity ("youth") be added as a possible source of diminished responsibility, irrespective of whether the accused person's development was "arrested or retarded"?
[paragraphs 6.71-6.98]
(7) If your answer to (6) is "yes", should such a possibility be limited to children or young persons?
[paragraph 6.85]
(8) Is the provision of expert evidence in diminished responsibility cases satisfactory?
[paragraphs 6.99-6.116; see also Appendix F]
(9) If your answer to (9) is "no", in what ways should the system for providing such evidence be improved?
[paragraphs 6.99-6.116; see also Appendix F]
(10) Should provocation reduce "first degree murder" to "second degree murder" or to manslaughter?
[paragraphs 6.118-6.127]
(11) Should provocation, as a partial defence to "first degree murder", be reformed in the way that we recommended in our report Partial Defences to Murder,[2] namely that it should be available only when the defendant acts in response to gross provocation or in response to fear of serious violence towards him or herself or another, or a combination of both?
[paragraphs 6.118-6.127]
(12) If the answer to (11) is "no", how should the partial defence of provocation be reformed?
[paragraphs 6.118-6.140]
(13) Do consultees agree that a successful plea of provocation should have the same effect as a successful plea of diminished responsibility?
[paragraphs 6.141-6.143]
6.2 We are provisionally proposing that:
(1) A successful plea of diminished responsibility should reduce "first degree murder" to "second degree murder" but should not be a partial defence to "second degree murder".
[paragraphs 6.12-6.33]
(2) The definition of the defence of diminished responsibility should be reformulated as follows:
(a) A person who would otherwise be guilty of "first degree murder" is not guilty of "first degree murder" if, at the time of the act or omission causing death, that person's capacity to
(i) understand events; or
(ii) judge whether his or her actions were right or wrong; or
(iii) control him or herself,
was substantially impaired by an abnormality of mental functioning arising from an underlying condition, developmental immaturity, or both; and
(b) The abnormality, the developmental immaturity, or the combination of both, was a significant cause of the defendant's conduct in carrying out or taking part in the killing.
(c) "Underlying condition" means a pre-existing mental or physiological condition.[3]
[paragraphs 6.34-6.61]
(3) A successful plea of provocation should reduce "first degree murder" to "second degree murder" but should not be a partial defence to "second degree murder".
[paragraphs 6.118-6.127]
(4) The principles that should govern the partial defence of provocation are those that we recommended in our report Partial Defences to Murder.[4]
[paragraphs 6.118-6.127]
(5) Provocation and diminished responsibility should have the same effect, namely to reduce "first degree murder" to the same lesser crime of "second degree murder", so that the jury is not forced to choose between them when they are pleaded together.
[paragraphs 6.141-6.143]
DIMINISHED RESPONSIBILITY
Introduction
6.3 Section 2 of the Homicide Act 1957 provides:
(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 or 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.
(3) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
6.4 "Abnormality of mind" is not a psychiatric term. Consequently, its meaning has had to be developed by the courts in individual cases. It has been found to include schizophrenia, psychosis, psychopathy, and organic brain disorder. In exceptional cases, it may also include depression and pre-menstrual tension. Accordingly, a person pleading the defence might be:
(1) a mentally sub-normal boy cajoled into taking part in a murder by the dominating elder brother he idolises;(2) a woman physically and mentally abused by her partner over many years;(3) a severely depressed husband who has finally given in to his terminally ill wife's demands that he "put her out of her misery"; or(4) a highly dangerous sexual psychopath who finds it exceptionally difficult, if not impossible, to control perverted sexual desires.
6.5 A survey of public opinion conducted in 2003 by Professor Barry Mitchell revealed broad public support for treating in a tolerant way those who kill because of a serious mental abnormality, so long as the public remains adequately protected against dangerous offenders.[5]
6.7 The power to make a hospital order is particularly important. A court can make a hospital order if it is satisfied by medical evidence that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment, or mental impairment and that it is appropriate for him or her to be detained for medical treatment.[6] If the court is also satisfied that it is necessary to do so in order to protect the public from serious harm in the future, it may further order that the hospital order be without a limit on time.[7] his means that the defendant will only be discharged if a Mental Health Review Tribunal subsequently finds that it is safe to do so.
6.8 Research conducted by Professor Mackay[8] into 157 cases in which diminished responsibility was raised as a defence between 1997 and 2001 shows that of the 126 cases in which the defence was successfully pleaded [9] 62 (49.2%) resulted in the defendant being made the subject of a hospital order without limit on time.[10] In a further ten cases the defendant was sentenced to life imprisonment.
Our previous position on whether diminished responsibility should be retained as a partial defence to murder
6.9 In our consultation paper on Partial Defences to Murder[11] we asked whether consultees favoured the abolition of diminished responsibility as a partial defence to murder. Only one consultee favoured abolition of the defence if the mandatory life sentence were to be retained.
6.10 In our report, we recommended that, so long as there is a mandatory sentence of life imprisonment for all those convicted of murder, there should be a partial defence of diminished responsibility to reduce murder to manslaughter.[12]
Our current position
A partial defence to "first degree murder"?
6.12 After we published our report, the Victorian Law Reform Commission ("the VLRC") published a report[13] in which it considered whether it should recommend the introduction of a partial defence of diminished responsibility. The VLRC concluded that the defence should not be introduced in Victoria.[14] At the same time, it recommended that the partial defence of provocation should be abolished[15] partly because of the ease with which the plea could be used by violent and easily angered men. The VLRC's conclusion was an important one:
If provocation were to be abolished, in accordance with the Commission's recommendations, diminished responsibility could be used as a replacement defence. This may be of particular concern in cases involving men who kill their female partners at the end of a relationship. Since the Commission's view is that provocation should be abolished, in part because of the inappropriate use of the defence by men who kill in the context of sexual intimacy, it would be illogical to create a new defence which might have many of the same defects to take its place.[16]
6.13 Professor Susan Edwards has gone so far as to say of diminished responsibility as a partial defence:
Whichever way, reasonable man or unreasonable man, essentially what we have in this defence is moral culpability wrapped up in psychiatric nosology where instead anger, and rage and jealousy are the sickness.[17] 7
6.15 Further, Professor Mackay's findings do not support the view that the defence operates in England and Wales in a gender discriminatory fashion. His research reveals no actual bias in favour of male and against female defendants pleading diminished responsibility.[18] His findings are supported by those which we made as a result of studying judges reports on 510 male defendants convicted of murder between 1997 and 2003 and 184 female defendants convicted of murder between 1974 and 2003.[19]
… needs to take into consideration the effects of a domestic violence situation, which can lead to a woman not being able to control her physical acts with rational judgement due to an abnormality of mind brought on by continued and threatened abuse … . Despite its problems we do believe that there should be a defence of diminished responsibility if the definition is changed to be more of a use than a hindrance … .
6.17 Cases where the suspicion is that the offender killed out of jealousy or anger, seeking to dominate or punish a partner or former partner, need to be understood as ones in which the jury should be encouraged to take a robust approach to the issue of causation. Was the abnormality of mental functioning really a substantial cause of the defendant's conduct if other factors were at work? Or, were the other factors, jealousy, anger, a desire to dominate or punish, the real or predominant explanation, with the abnormality of mind being a minor background factor of inadequate moral significance to affect the verdict?
6.18 Those who commit intentional homicide only because of a severe mental disorder do not deserve to be labelled as "first degree murderers". In this respect Professor Mackay's findings in relation to the use of hospital orders are very significant. As noted above, in 49.2% of the cases in his study that resulted in a conviction of manslaughter on the grounds of diminished responsibility, the defendant was made the subject of a hospital order without limit on time.
6.19 Moreover, our research into 'lifers' released less than ten years after beginning their sentence shows that the influence of mental disorder at the time of the offence was sometimes a significant factor in the decision to release them early if they were not dangerous.[20] It would not be right to increase the numbers of offenders given the mandatory sentence only for them to be released within what may be (for good reasons) a relatively short period. Similarly, it would be a retrograde step if defendants who hitherto have been made the subject of a hospital order without limit on time had to receive the mandatory life sentence and rely on the Home Secretary's administrative powers to effect a transfer to a mental hospital.
Should diminished responsibility reduce "first degree murder" to "second degree murder" or to manslaughter?
6.21 Under the current law, diminished responsibility reduces murder to manslaughter. The offence of "first degree murder" that we are proposing would, unlike the current offence of murder, be confined to intentional killing. We believe that the seriousness of an intentional killing, even if there is powerful mitigation, is such that it would be wrong to permit diminished responsibility to reduce "first degree murder" to any lesser offence than "second degree murder". [Question 1]
6.22 Our provisional proposal is that the partial defence of diminished responsibility should reduce "first degree murder" to "second degree murder". [Provisional proposal 1]
A partial defence to "second degree murder"?
6.23 In our report on Partial Defences to Murder[21] we considered in detail the arguments for and against the retention of diminished responsibility as a partial defence to murder should the mandatory sentence of life imprisonment be abolished.[22] However, we declined to express a firm view, noting that although the preponderance of opinion was in favour of retaining the defence even if the mandatory sentence was abolished, it was not an overwhelming preponderance. We also observed that some respondents, although favouring the retention of the defence, expressed reservations about the way that it currently operates.[23]
… the vital importance of involving the community, by way of the jury, in making decisions on culpability and hence enhance community acceptance of the due administration of criminal justice (including acceptance of sentences imposed) … . Moreover, there is a greater likelihood that the community will accept a sentence imposed on the basis of mental impairment if it is the community itself, as represented by the jury, that has participated in the process of deciding whether that mental impairment has sufficiently reduced the accused's culpability. The alternative, that is a lower sentence imposed for murder where the sentencing judge considers there to be strong evidence of diminished mental capacity, would inevitably attract criticism, and public confidence in the criminal justice system would suffer as a consequence. There is also a risk that sentences for mentally impaired offenders may increase if they are sentenced for murder rather than manslaughter, which may result in an inappropriately harsh penalty in individual cases.[24]
It is therefore essential that factors which significantly affect that mental state be taken into account in determining degrees of culpability. People who kill while in a state of substantially impaired responsibility should not be treated as "murderers".[25]
There is essentially a profound mis-match between the thinking of law and psychiatry (and psychology) and particularly where the law is considering verdict. It is here that the law adopts a "binary" approach, rather than a more graded approach as occurs in its consideration of sentencing … . Once psychiatry is placed solely within sentencing hearings, rather than hearings directed towards jury decisions about verdict, the effect of the mismatch between legal and medical thinking is all but abolished. In taking account of medical information by way of "mitigation", or in pursuit of a sentence that reflects natural justice, a judge is not required to fit "dimensional" and "balanced" reality into one particular legal category or another.
6.27 We agree with this analysis. Further if, as the Royal College maintains, in many homicide cases psychiatrists "are pushed by the way the law is constructed into disagreement and convoluted argument", the value of a jury verdict becomes less obvious.
6.28 In addition, there is no logic in having a partial defence based on mental condition for "second degree murder" but not for other lesser offences. If the NSWLRC was correct in saying that the defence properly reflects different degrees of culpability then it should also apply to other offences. The reason it is a partial defence to only murder is because it was introduced, not to reflect different degrees of culpability, but in order to enable the courts to avoid imposing the mandatory sentence for murder in cases where there was powerful mitigation. For all other offences mitigation is exclusively a matter for the judge at the sentencing stage.[26]
6.30 We accept that sentences imposed for "first degree murder" and "second degree murder" would be likely to attract widespread scrutiny by the media and the public. However, we believe that the concerns expressed by the NSWLRC as to public confidence in sentencing can be addressed.
6.31 First, we believe that the public will recognise that "second degree murder", while a very serious offence, is not as serious as "first degree murder". They will therefore understand a judge imposing a lesser sentence for "second degree murder". By contrast in New South Wales there are no "degrees" of murder.
6.32 Secondly we envisage that, should our proposals for a new structure of homicide offences be implemented, the Sentencing Guidelines Council (chaired by the Lord Chief Justice of England and Wales), would issue sentencing guidelines for the offences of "second degree murder" and manslaughter that we are proposing. The public will be aware that the guidelines will only have been published after a process of wide consultation while the guidelines themselves will encourage and facilitate consistent sentencing.
6.33 Our provisional proposal is therefore that diminished responsibility should not be a partial defence to "second degree murder". [Question 2] [Provisional proposal 1]
Reformulating the definition of diminished responsibility
6.34 Turning to section 2 itself, the key issue is whether an abnormality of mind "substantially impaired [the defendant's] mental responsibility for the killing". The abnormality of mind must stem from one of the four causes set out in the section.[27] Section 2(2) places the burden of proof on the defence, but in practice, the plea is commonly simply accepted by the prosecution.[28]
6.36 The wording of section 2 has been heavily criticised by judges, psychiatrists, and academic lawyers. Buxton LJ has described it as "disastrous" and "beyond redemption".[29] The late Professor Griew said of it: "the wording is altogether a disgrace".[30] Some consider the idea of a "substantial impairment of mental responsibility" to be nonsensical. Either one was responsible for killing someone, or one was not. "Responsibility" cannot be either enhanced or diminished. It is capacity or culpability that can be enhanced or diminished, and that is doubtless how the "impairment of responsibility" wording is understood.
6.37 This is not a purely semantic issue. The reference to impairment of responsibility encourages tolerance of expert evidence on what should be in theory purely a jury question, namely whether the abnormality of mind substantially reduced the defendant's culpability.[31] Many psychiatrists regard their evidence as of primary relevance to sentencing decisions.[32]
6.39 The requirement that diminished responsibility must stem from an abnormality of mind that has one of the stipulated causes has been heavily criticised. [Question 5] Even if the basic definition of diminished responsibility is not changed we believe that this requirement should be abolished. The causes stipulated in section 2 have no defined or agreed psychiatric meaning and so doctors may disagree on the cause of an abnormality. That may not trouble the prosecution unduly in its decision whether or not to accept a plea if there is clear evidence that the defendant was affected at the time of the killing by a serious abnormality of mind. It may, however, confuse a jury at trial.
6.40 Suppose that the jury accepts that medical evidence shows that the defendant was suffering from paranoid psychosis that gravely diminished his or her responsibility at the time of the killing. Should it then really matter whether they have been properly directed to consider if they are also persuaded in law by that same evidence that the psychosis can be attributed either to inherent causes, or to inducement by disease?[33] As Dr Madelyn Hicks[34] put it to us:
[A]ttempting to specify the cause of mental disorders … is irrelevant, misleading, and in fact there are almost always multiple causes stemming from the interaction between genetic vulnerability and life events.
6.41 One study found that it was not uncommon for medical reports to fail to refer to the cause of an abnormality of mind altogether.[35] That is understandable. If the defendant was suffering from an abnormality of mind stemming from an underlying condition, it ought not to matter exactly what form the condition took, so long as it can be established, through medical evidence, that the abnormality of mind substantially impaired "responsibility". As the New South Wales Law Reform Commission puts it:
The requirement to identify a specified cause adds unnecessary complexity to the defence … the restriction of the defence to conditions arising from … listed causes appears quite arbitrary and may generate a high level of complexity and confusion in relation to the expert evidence which is led in diminished responsibility cases.[36]
Our provisional proposal, and the New South Wales solution
6.42 In New South Wales, the Crimes Amendment (Diminished Responsibility) Act 1997 largely adopts the recommendations that the NSWLRC made for reform of the diminished responsibility defence. The NSWLRC recommended a definition of diminished responsibility along the following lines:
A person, who would otherwise be guilty of murder, is not guilty of murder if, at the time of the act or omission causing death, that person's capacity to
(a) understand events; or(b) judge whether that person's actions were right or wrong; or(c) control himself or herself,
was so substantially impaired by an abnormality of mental functioning arising from an underlying condition as to warrant reducing murder to manslaughter.[37]
6.43 The first issue to consider is the one raised by the final and most important element, namely that the defendant's mental functioning must be "so substantially impaired … as to warrant reducing murder to manslaughter". The NSWLRC saw virtue in this provision, in that they believed it would make it clear that this was a matter of moral judgement for the jury on which they might legitimately differ from the opinion of experts[38] As the NSWLRC puts it:
Our reformulation requires the jury to decide whether murder should be reduced to manslaughter by considering the extent to which the accused's capacity to understand events, or to judge, or to control his or her actions, was affected by reason of an underlying condition.[39]
6.44 There is no 'ultimate issue' rule in New South Wales that prevents experts from giving evidence on whether the defendant's responsibility was diminished by substantial impairment of mental functioning. Even so, the NSWLRC believed its reformulation of the defence would make it clear that the ultimate issue was one of culpability for the jury, on which expert evidence would be irrelevant. Expert evidence would be relevant only to the nature of the defendant's abnormality of mental functioning (if any) and to whether it had the effect at the time of the offence of reducing the defendant's capacity to understand events.[40]
6.45 Along similar lines, the Butler Report recommended for England and Wales that the ultimate issue should be whether, "in the opinion of the jury, the mental disorder was such as to be an extenuating circumstance which ought to reduce the offence to manslaughter".[41]
6.46 We share the concerns of those who are uneasy with a test that, in effect, leaves an individual jury to set its own standard for reducing murder to manslaughter.[42] That is the inevitable consequence of linking the degree of mental impairment with the question as to whether the offence ought to be murder or a lesser offence. There is considerable judicial dislike of such unstructured discretion, which merges a question of law with a question of fact, being given to the jury.[43] Bluntly, it looks like a 'cop-out', in which the law ducks the question whether the reduction from murder to manslaughter is to be on moral or medical grounds or, if on some combination of these, on what combination.
6.47 This may leave the expert in an uncomfortable position, professionally, in giving evidence.[44] In any case where there is evidence of mental disorder, the expert may well feel that his or her evidence should be slanted towards a conclusion that gives the sentencer maximum flexibility, namely conviction for a lesser offence of homicide. That will inevitably entail trespassing on the jury's territory.
[the] person's capacity to understand events, or judge whether his actions were right or wrong, or control himself was substantially impaired by an abnormality of mental functioning arising from an underlying condition [a pre-existing mental or physiological condition …], and the abnormality was a significant cause of the defendant's conduct … . [45]
6.50 What about the re-definition of the "abnormality of mind" requirement? We have already indicated that we favour dispensing with the need to show that abnormalities of mind have a stipulated cause. The NSWLRC's proposal also dispenses with such a requirement.
6.51 The NSWLRC thought that "abnormality of mental functioning" was preferable to "abnormality of mind" because the latter phrase "is an ambiguous and not particularly meaningful term".[46] The NSWLRC, with the agreement of forensic psychiatrists and psychologists, thought that their preferred term "would instead expressly require experts to consider the way in which an accused's mental processes were affected by reason of some underlying or pre-existing condition".[47] 7
6.53 As the NSWLRC indicates, however, it is important to link any abnormality of mental functioning with the influence of some kind of "underlying condition". The need to show that the abnormality of mental functioning stems from an "underlying condition" is tied to the need for a plea of diminished responsibility to be backed by medical evidence, in that it is the pre-existing condition that must be recognised by medical science as a diagnosable entity. It is worth citing what the NSWLRC says about this in full:
By "abnormality of mental functioning", we are really referring to seriously disturbed mental processes, caused by an underlying condition, which affect the accused's capacity in [the relevant] respects, and not simply to any behaviour which seems unusual or bizarre. It is considered that, under this formulation, the defence might typically apply to people who, for example, suffer from severe depression or have an intellectual disability, or hypomanic people, but only if they can prove that by reason of these conditions, their capacity to judge, understand, or control their actions was substantially affected.[48]
6.55 For example, depression and post-traumatic stress disorder are prevalent mental health consequences of intimate-partner violence, of (in lawyers' terms)[49] cumulative provocation and other forms of ill-treatment leading up to – perhaps over many years – the killing.[50] These abnormalities of mental functioning have been shown to persist, in varying degrees of intensity, in about half of the number of women affected for up to a decade or longer after the women in question have left an abuser.[51] It would be unfortunate, to say the least, if the connection between the abuser's treatment of the defendant and her mental functioning were to give rise to an argument that the depression or post-traumatic stress disorder were not underlying conditions. We do not believe that a requirement that an abnormality of mental functioning stem from an "underlying" condition would create legal space for such arguments.
6.57 That brings us to the three ways in which the NSWLRC recommended that the effect of the abnormality of mental functioning should be described, namely in terms of an impact on the capacity to:
(a) understand events; or
(b) judge whether that person's actions were right or wrong; or
(c) control himself or herself.
6.58 The NSWLRC recognised that the inclusion of (c) might be controversial because of the well-known difficulty in distinguishing the claim 'he or she could not control his or her conduct' from the reality that 'he or she chose not to control his or her conduct'. Sir James Stephen expressed the same worry, in relation to the development of the insanity plea, over 100 years ago:
I should be sorry to countenance the notion that the mere fact that an insane impulse is not resisted is to be taken as proof that it is irresistible. In fact such impulses are continually felt and resisted, and I do not think they ought to be any greater excuse for crime than the existence of other motives, so long as the power of control or choice … remains.[52]
6.59 However, the NSWLRC decided to include (c) in order to avoid the unfair exclusion of, for example, "brain-damaged people, hypomanic people, or people suffering from auditory hallucinations".[53] We agree that, without (c), the definition would be too narrow.
6.60 It must be said that (a) and (b) are reminiscent of the terminology used in English law's outmoded definition of insanity. In order to fulfil this definition, a defect of reason must lead the defendant either not to know the nature or quality of the act (the first criterion), or that that act is wrong (the second criterion).[54] None the less, a "substantial impairment" of someone's capacity to understand events, for example, is not the same as an inability to understand them at all, as required by the insanity defence. So, the focus in (a) and (b) is not open to the same kinds of objections that have been levelled at the definition of insanity. The fact that the criteria of the NSWLRC have attracted widespread support from the medical profession shows that they are unlikely to be interpreted and understood in the restrictive way that similar criteria in the definition of insanity have been understood.
Other reform options and alternative definitions of diminished responsibility
German law
6.62 Whilst there are always problems when relying on translations of legal language, it is worth setting out the gist of articles § 20 and § 21 of the German Criminal Code to set alongside the NSWLRC's proposals. § 21 states that if, at the time of the commission of the offence, the perpetrator's ability to appreciate the wrongfulness of his or her conduct or his or her ability to act in accordance with such appreciation is substantially diminished because of one of the reasons indicated in § 20, his or her punishment may be mitigated.
6.63 § 20 refers to defendants who satisfy § 21 "by reason of a pathological emotional disorder, severe mental disturbance, severe mental retardation or some other severe mental abnormality". Arguably, this provision has been construed too generously in that "severe mental disturbance" can be proven by, for example, proof of severe intoxication. It must be remembered, however, that (as in French law) the primary relevance of this provision is to sentencing and not offence categorisation. It is the effect these conditions must have, as expressed in § 21, that is important.
The Mental Health Act 1983
6.64 It might adequately modernise the definition of diminished responsibility if the abnormality of mental functioning requirement (and the causes it must stem from) were replaced by, or defined in terms of, or a variation on, the formula employed in section 1(2) of the Mental Health Act 1983. This was the proposal in clause 56(1) of the Draft Criminal Code.[55]
6.65 The Draft Code defines a mental disorder as [serious] mental illness,
[severe] arrested or [very] incomplete development of mind, [serious] psychopathic disorder, and any other [severe] disorder or disability of mind.[56]
The Draft Code added, however, that intoxication was not to be regarded as falling within "any other disorder or disability of mind".
6.66 The Mental Health Act formula was not, of course, directed at the needs of the criminal justice system. However, an attempt to confine abnormality of mind or mental disorder within stricter bounds may run the risk that a legislative definition will become outmoded as medical knowledge about the mind develops.[57]
6.68 What is more, a less restrictive definition makes it easier to accommodate deserving cases that might have to be excluded if a stricter view was taken. These might include:
(1) a 'mercy' killing performed without the consent of the victim but while the offender was in a severe state of depression;
(2) the killing of an abuser by a battered woman who was similarly severely depressed;
(3) a case in which a very young person has killed in circumstances suggesting incomplete moral development of mental functioning.
It needs to be kept in mind, of course, that success in the plea still leaves the defendant facing a sentence of anything up to life imprisonment.
6.69 A less restrictive definition might also make the outmoded separate offence of infanticide redundant. This offence is committed when a mother kills her child whilst the child is still under 12 months old, whilst the balance of the mother's mind is disturbed by reason of incomplete recovery from the effects of child-birth, or by reason of the effects of lactation consequent upon birth.[58] The NSWLRC saw considerable merit in merging infanticide with diminished responsibility:
[W]e will be recommending that the offence/defence of infanticide be abolished in New South Wales, on the basis that it reflects outmoded and unsound medical and psychiatric concepts, is out of step with the jurisprudence of gender equality, and is arbitrarily restrictive … our recommended reformulation of the defence of diminished responsibility will be sufficient to accommodate cases justifiably falling within the existing infanticide provisions. Disorder such as depression or post partum paranoid psychosis, which may form the basis of a plea of infanticide, would be characterised under our recommended reformulation of diminished responsibility as an abnormality of mental functioning … .[59]
Children who kill
6.71 It would be appropriate to begin by citing a passage from a JUSTICE Working Party paper, in which the authors conclude:
The issue of how to deal with children who kill is an emotive one, which must seek to respect the suffering of the victim's family, maintain public confidence in the rule of law, and simultaneously demonstrate the state's responsibility to protect children and ensure their development, even though the child may have committed the most heinous of crimes. Achieving such a balance will never be easy.[60]
6.73 At present, the vast majority of those convicted of murder will, like adult murderers, serve a minimum of ten years in prison before being released on licence. Whatever changes may come about in the re-structuring of the law of homicide as it applies to younger offenders, it will be important that public confidence in the sentences given to juvenile offenders is maintained.
Reform of the partial defence of diminished responsibility
6.74 Section 2 of the Homicide Act 1957 does not make specific provision for children who kill. The omission is due to the fact that children's more limited capacity to know right from wrong, to understand the impact of their actions on others, to appreciate the true significance of 'killing', and so on, is explained by their very normality rather than an abnormality of mental functioning. Reduced capacity is (supposedly) reflected in the age of criminal responsibility rather than in the reach of the 'diminished' responsibility defence.
6.75 One argument against this robust view is that it is already the case that someone aged (say) 20, but with a mental age of ten, can plead diminished responsibility as they suffer from "arrested or retarded development of mind" under section 2 of the Homicide Act 1957. Logically, someone who is in fact ten years old should be able to plead that defence for the same essential reason, namely that their mental age may have substantially impaired their responsibility for the killing.
6.76 In permitting this to happen, the law would not be committing itself to the view that all those aged ten do not fully understand the consequences of what they are doing. It would simply be allowing a defendant to make this claim in particular cases when the claim was supported by medical evidence. In a previous response to the Law Commission, experts on child psychiatry have indicated that important light can be shed on children's sense of moral responsibility by clinical assessment.[61]
It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption … . As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 701-706 (4th ed. text rev. 2000).[62]
6.79 When we reviewed partial defences to murder, a number of our consultees said that it would be right to consider whether there is a case for special measures in the case of child defendants in murder and homicide cases, above and beyond the measures which already exist.[63]
6.80 In some instances, a child's culpability may be significantly less in respect of a killing that would attract severe censure if perpetrated by an adult. As between individual children, there may also be considerable variation in the rate at which moral development occurs. Even a child who admits intending "to kill" may not have understood the full significance of killing, still less of notions such as the sanctity of life. As Professor Bailey has put it, "[y]oung children may well appreciate the difference between right and wrong but yet not understand the seriousness of some forms of irresponsible behaviour".[64]
Even when adolescents' cognitive abilities are similar to adult capacities, theory suggests that they will deploy those abilities with less dependability in new, ambiguous, or stressful situations, because the abilities have been acquired more recently and are less well established.[65]
6.82 Some children who kill may be psychologically disturbed in a sense already captured by section 2 of the Homicide Act 1957.[66] However, the matter may not be so simple. We were told by a highly experienced psychotherapist who works with children who have committed violent crimes that there is a link between highly aggressive behaviour and lack of capacity for self-control in such children and their failure in childhood to form strong and healthy bonds with those close to them, often through neglect.[67] She told us, further:
At the moment, no distinction is made between those who are physiologically hyper-agitated, and those who are not. In the eyes of the law, all poor controls are symptomatic of poor moral judgment, unless there is a recognisable psychiatric disease … . However it is possible to ascribe poor behaviour control to a hyper-aroused physiological stress response, which in turn leaves no room for an objective judgment of right and wrong. The brain becomes all consumed with the stress, leaving no room for measured judgments of situations. The hyper-aroused state is an organic brain phenomenon and can be identified through hormonal tests and enhanced imagery of the brain through brain scanning … . There is some suggestion that [some of] these children begin to have diminished functioning in their frontal lobe, an area for finer judgments. Instead they operate from the more primitive parts of their brain, where the currency is one of self-centred survival at the expense of all others … . In this way, the child who has committed an act of violence could be described as having diminished responsibility due to the impact on the capacity to control arousal and stress responses.[68]
6.84 Accordingly we provisionally propose that "developmental immaturity" should become in itself a ground on which a verdict of diminished responsibility can be brought in, alongside or combined with an abnormality of mental functioning. [Question 6] [Provisional proposal 2]
6.85 If the above proposal is accepted, a question may arise over whether it should be possible to raise "developmental immaturity" as a source of diminished responsibility in the case of an adult. It can be argued that there should not be special rules which depend on a defendant's chronological age. Against that, it could be argued that the provision that we have in mind should be primarily intended for children and young people and that extending it to adults could provide too easy a partial defence to young aggressive adults who fail to control their emotions. [Question 7]
An alternative solution?
6.86 Some people have argued that, alternatively, the distinction between murder and manslaughter should be abolished in respect of young offenders, and a general "culpable homicide" offence should be put in their place. "Culpable homicide" would be committed whenever the defendant killed with the fault element for either murder or manslaughter.
6.87 The argument in favour of this solution is that it may be hard to tell whether very young offenders had a proper appreciation of the moral significance of their actions, in a way that engages the fine distinctions between murder and manslaughter. The argument is that there is likely to be a mismatch between the sophistication of the laws of homicide (both in terms of offence and defence), and the lack of sophistication of the defendant. A child must be capable of explaining the circumstances in which the crime was committed in a way that his or her lawyers can turn into an appropriate plea. That may not always be possible. As the European Court of Human Rights put it, speaking of the possibility of a fair trial for a young child:
The Court does not consider that it was sufficient for the purposes of Article 6(1) that the applicant was represented by skilled and experienced lawyers … it is highly unlikely that the applicant would … given his immaturity … have been capable … of co-operating with his lawyers and giving them information for the purposes of his defence.[69]
6.88 These observations are backed up by research that shows that, without a developed ability to take another person's perspective, the information given by a child may change each time an explanation for conduct is given to a person in authority. That would, of course, normally count against a suspect, ostensibly showing that they cannot be trusted. When a child is involved, this would be the wrong inference to draw. Furthermore, the child's inability to take another person's perspective may be equally likely to hamper his or her advisers in discovering the facts that should be relied on in making a defence.[70]
6.90 Moreover, it may be said that the more radical alternative tips the balance too far in favour of 'welfarist' considerations away from 'just deserts-based' considerations. This can be illustrated by considering the case of DPP v Camplin,[71] and a variation on it.
6.92 Suppose, however, that the 15 year old boy had raped the older man, gloated about it and then intentionally killed the older man. On the deserts-based view, the boy should be convicted of "first degree murder", if he has no other defence such as diminished responsibility. On the 'welfarist' view, however, the boy's seemingly much greater culpability makes no difference to the offence. The boy is still to be convicted of a lesser offence of homicide, simply because the boy is 15 years old.
6.93 Supporters of the second, 'welfarist', option will say that in this example the boy's greater culpability can be reflected in the sentence received. They might also argue that hard cases should not sustain bad law, and that in general younger defendants do not commit murder in circumstances manifesting this degree of culpability.
6.94 A more general reform of the law along the lines of this alternative has the backing of Victim Support. Victim Support has criticised the distinction between murder and manslaughter, as the existence of defences (like diminished responsibility) that take offenders from one category to the other, "serves only to create a situation where defendants have to find adversarial 'excuses' for their intent to kill".[72]
6.95 Nonetheless, we are not provisionally minded to adopt this alternative approach.
6.96 Suppose that anyone under the age of 18 who intentionally kills is guilty of culpable homicide, not murder or manslaughter. Under this approach someone who kills intentionally on his or her 18th birthday can be convicted of first degree murder and will receive the mandatory life penalty, but had that person committed an identical killing on the day before, they could have been convicted only of culpable homicide. That seems wrong.
6.97 Our provisional proposal is that evidence of developmental immaturity should become, in itself or in combination with evidence of abnormality of mental functioning, a potential basis for establishing a plea of diminished responsibility.
[Provisional proposal 2]
6.98 We are asking, further, whether an upper age limit should be put on the use of the developmental immaturity ground for establishing diminished responsibility.
[Question 7]
The role of the expert witness
6.99 Whichever side may have commissioned a particular expert, that expert's overriding duty is to the court. This is, in effect, a requirement imposed by Criminal Procedure Rule 1. Rule 1.1 states that "the overriding objective of this new code is that criminal cases be dealt with justly". Rule 1.2(1) says that "each participant, in the conduct of the case, must … prepare and conduct the case in accordance with the overriding objective" [emphasis added].
6.100 We have been assisted by Dr Madelyn Hicks[73] in setting out the broad range of issues and questions on which an expert should be asked to give evidence on a plea of diminished responsibility:
(1) The psychiatrist would explain the defendant's psychiatric and medical history and the diagnosis or diagnoses. The history would include when the defendant's conditions began, as this is relevant to the pre-existing or 'underlying' nature of the defendant's condition.
(2) The psychiatrist would specify what information was available and the information source (for example, the patient's report; hospital records; observations by the psychiatrist; and reports from family members or hospital staff).
(3) The psychiatrist would state what information there is in regard to the defendant's mental functioning at the time of the offence (understanding events; judging right and wrong; controlling himself). What do the clinical evidence and history suggest, if anything, about the defendant's mental functioning at the time of the event?
(4) The psychiatrist would offer clinical opinion and historical information as to the nature and degree of the relationship between mental functioning at the time of the event and the defendant's psychiatric conditions, if there is an adequate basis on which to offer such an opinion (in some cases there may not be adequate information for a confident clinical opinion on the relationship between a mental illness and a specific event).
6.101 The main – 'ultimate' – issue on which the jury must be satisfied is whether the defendant's mental abnormality "substantially impaired" his or her responsibility for the killing. The evidence suggests that, in practice, judges are prepared to permit, and psychiatrists are prepared to give, expert evidence on this ultimate issue.[74] This is for the simple reason that juries will lack sufficient guidance without such evidence. Too rigid an insistence that experts avoid seeking to shed light on the more-or-less substantial impairment of mental responsibility would mean, as Professor Mackay puts it, that:
the jury would have to make a finding of murder or manslaughter without the reassuring cushion of having had experts inform them that a diminished responsibility finding is appropriate.[75]
6.102 In practice, most successful pleas of diminished responsibility are successful because they are accepted by the prosecution. So, it might be suggested that the role of the jury in deciding whether the defendant was suffering from diminished responsibility should be questioned. There has always been a risk that the jury will be swayed in its judgment by factors pointing to a murder conviction that are in theory extraneous, such as a case's notoriety or the manner of the killing.[76]
Psychiatry and law can be seen as two disciplines, strictly originating at poles of a continuum but operating sometimes elsewhere on it. At one pole is psychiatry as medical science, operating through strict adherence to a scientific model and directed solely at patient welfare. At the opposite pole is law … concerning itself with justice and due process.[77]
6.104 Moreover, the timing and character of the medical examination of the defendant are dictated by the needs of the trial process. We have been informed that it can be hard to ensure proper observation and accurate diagnosis except when it is conducted over an extended period, whilst the defendant is in an environment favourable to medical observation and diagnosis. This cannot easily be done before trial, when the defendant is almost certain to be in prison. One or two prison interviews may not always prove to be a satisfactory means of reaching reliable conclusions about the defendant's mental functioning.[78] As one trial judge put it, "The difficulty lies … in the paucity of the evidence likely to be available at the time of the trial."[79]
Procedure in diminished responsibility cases
General considerations
6.105 Forensic psychiatrist Professor Maden has reminded us how enquiries into homicides committed by mentally ill individuals sometimes reveal how the absence of robust, 'joined-up' procedures may contribute to such tragedies:
[C]ommon findings from inquiries include: poor record keeping; failures of communication, between agencies or between present and former carers; a narrow view of the diagnosis of schizophrenia, so that the history is ignored if delusions or hallucinations are not present at a single interview; and delay in interviewing when relapse occurs, so that the patient becomes seriously unwell before anything is done … the inquiries do not reveal a picture of individuals struggling with the theoretical limits of risk assessment. In many cases the risk was all too obvious, the problem being a failure to communicate that risk, or to take appropriate action.[80]
[a] medical report should be obtained before bail is granted. In the case of a defendant who is in custody, the Crown Prosecution Service will assist the court in obtaining a medical report by submitting the committal papers to the Prison Health Care Service or to a nominated doctor once committal has taken place. Any information the police have about an accused person's psychiatric condition should be recorded in the police file which is passed to the prosecutor.[81]
6.108 At the present time, a number of initiatives have been undertaken to examine and improve the handling of expert evidence in trials, including criminal trials. Several such initiatives were recently identified by the Home Office's Trial Policy and Procedure Unit in the Office for Criminal Justice Reform.[82] Within the existing adversarial framework these initiatives may well lead to improvements in the way that expert evidence is dealt with in diminished responsibility cases, improvements that may allay fears that such evidence is either inadequate for trial purposes or not used in the most appropriate manner.
6.109 Under the Mental Health Act 1974 (Qld), the question of diminished responsibility may be determined either by the courts or by a Mental Health Tribunal.[84] The Tribunal is comprised of a Supreme Court judge and two psychiatric assessors.
6.111 Most controversially, if the Tribunal decides that the defendant was suffering from diminished responsibility at the time of the offence, criminal proceedings respecting a murder charge are discontinued (although proceedings respecting other offences may be continued). If the Tribunal finds that the defendant was not suffering from diminished responsibility at the time of the offence, the murder proceedings continue. The defendant will not be prevented from raising the defence of diminished responsibility at his or her trial. Evidence of the Tribunal's decision will not be admissible at the trial although medical reports submitted to it may be.
6.112 The NSWLRC rejected the Queensland model on the grounds that the Tribunal's power to discontinue criminal proceedings respecting the murder charge took too much power away from the jury:
In our view, the defence of diminished responsibility ought primarily to be left to the jury to consider within the trial process. The defence requires value judgements to be made regarding the extent of an accused's culpability for a very serious crime. As such, it should be the jury, within a publicly conducted hearing of the usual kind, and not a specialist panel of experts, which determines culpability.[85]
6.114 We accept, however, that there is likely to be little or no support for giving a Mental Health Tribunal power to discontinue murder proceedings even if the evidence of diminished responsibility is convincing. Such a power might be more defensible in cases where the defendant is unfit to plead or, more broadly, where there is evidence that the defendant was insane at the time of the offence. However, even when responsibility can be proved to have been diminished, an element of culpability remains. There must also be proof that the abnormality in mental functioning was causally relevant to the commission of the offence. Medical assessment alone is therefore not always adequate to dispose of diminished responsibility cases.
6.115 What remains attractive about the Queensland model is having the defendant's mental condition independently assessed by a Mental Health Tribunal, or other expert panel, prior to trial. As Dr Hicks put it to us:
It would be good for the judge to have a standing set of psychiatric assessors to provide expert opinion to the court prior to the trial, or after the trial for sentencing. The advantage to having assessors who are specifically trained and practised in offering opinions is that the opinion and report would be more specific and useful for the trial, and defendants would have a more uniform level of expertise available for their assessments. As it is, psychiatrists do not routinely know the clinical and legal issues being addressed. And defendants do not have a consistent level of expertise available to them.
6.116 A procedure along Queensland lines is followed in France. If the defendant's mental state is in doubt at the preliminary 'instruction', then the juge d'instruction can commission une expertise, an official examination of the defendant by one expert or by a panel of court-appointed experts. The report on the defendant is disclosed to both prosecution and defence well ahead of the trial. Each has the opportunity to procure une contre-expertise if they do not like the tenor of the expertise.[86] It is important to note, however, that in France the procedure in question is of more relevance to sentence than to liability and, therefore, can be employed in cases beyond murder. Under Article 122-1 of the French Penal Code, if it is proved that the defendant is suffering from diminished responsibility, "the court shall take this into account when it decides the penalty and determines its regime."
THE RELATIONSHIP BETWEEN INSANITY AND DIMINISHED RESPONSIBILITY
6.117 The relationship between insanity and diminished responsibility remains troubling. A defendant can hope to obtain a determinate sentence, albeit perhaps one of imprisonment, by pleading diminished responsibility.[87] In theory (although rarely, if ever, in practice), the prosecution can seek an insanity verdict to extinguish that hope.[88] Ironically, of course, the prosecution's task will be hampered not only by the higher standard of proof to be met but also by the narrow understanding of insanity in English law. Arguably, the prosecution's only option should be to accept a section 2 plea or to pursue a conviction for murder. We will not, however, be pursuing this issue in the absence of a full review of the law of insanity.
PROVOCATION AND DEFENSIVE HOMICIDE
Our previous proposals
6.118 We have recently completed a comprehensive review of the partial excuse of provocation, in the course of which we considered the introduction of a partial excuse of excessive force in defence.[89] We decided not to recommend the creation of a separate partial excuse for those who kill using excessive force, but to integrate such a plea into a re-modelled provocation defence.
(1) killed only in response to gross provocation; and/or
(2) killed only in response to a fear of serious violence[90] in circumstances where someone of the defendant's age and of an ordinary temperament might have reacted in the same or in a similar way.
6.121 Our provisional proposal is that, if the defence of provocation is reformed along the lines set out above, the effect of a successful plea should be the same as the effect of a successful plea of diminished responsibility, namely to reduce "first degree murder" to "second degree murder". [Question 10] [Provisional proposal 3]
6.122 We also had no cause to consider whether it would be inappropriate to retain a defence of provocation if the mental element in ("first degree") murder was restricted to an intent to kill. It might be said that it is one thing to claim that the receipt of gross provocation can partially excuse a spontaneously executed intent to do harm the jury regards as serious. It might be considered quite another thing to claim that such provocation can partially excuse acting on an intent to kill.[91]
6.124 First, on our proposals, the offence is to be reduced only to second degree murder, and not to manslaughter. This change would do more than the present law to mark the seriousness of an intentional killing, even when it was committed as a result of gross provocation.
6.125 Secondly, if the reforms we proposed for provocation were to be adopted, (a) the judge would be able to withdraw the defence from the jury when no reasonable jury would acquit, and (b) even when the defence was put to the jury, they would have to find that someone of the defendant's age, and of an ordinary temperament, might have reacted in the same or in a similar way. If the defence of provocation was restricted to intent-to-kill cases, the defendant would have to point to significantly more compelling reasons to ground a provocation defence. The judge would therefore be less inclined to leave the defence to the jury, in the first place.[92] Any jury considering the defence would, with guidance to this effect from the judge, also be less inclined than they might be at present to acquit of ("first degree") murder, if what had to be partially excused was an intentional killing.
6.127 Although defendants can make such a claim under the existing law, there is no real need to because the provocation defence itself is the normal avenue to take. Moreover, when this avenue is taken, the defendant will not be acquitted of murder unless the provocation met the criteria set out above. A claim of lack of intent, on the grounds of provocation that does not meet these criteria, is likely to met with well-justified scepticism amongst jurors.
The proposals of the Victorian Law Reform Commission
6.128 A modification by way of restriction to our proposals that appeals to some is restriction of the scope of the "provocation" plea, insofar as it remains called that, to limb (b) above, namely cases in which the killing was in response to a threat of serious violence. Such a proposal may seen even more appealing if the killing that must be excused was an intentional one.
6.129 The Victorian legislature has recently abolished its provocation defence, and substituted an offence (with a 20-year maximum sentence) below murder of "defensive homicide".[93] Defensive homicide is committed when someone kills another in the belief that it is necessary to do so in order to avoid defend him or herself, or another, from the infliction of death or really serious injury, in circumstances where that belief was genuine, but not based on reasonable grounds. Where the grounds for such a belief are reasonable, the defendant is to be acquitted altogether.[94] The lesser offence of defensive homicide is not an available option when the defendant was responding to lawful conduct.
6.130 Special provisions apply if the defensive homicide takes place in the context of "family violence". For example, in determining whether a belief in the need to use defensive force was actually held, it is stated that it may be relevant that the beliefs come to be formed in a context in which the defendant has endured a history of family violence.[95] Family violence is permitted to explain why someone who has used such force believed it to be necessary to do so, even though the harm threatened was not immediately going to be inflicted. It may also be used to explain why the defensive force used was excessive.[96] "Family member", "family violence" and "violence" are given specific definitions.[97]
6.132 Secondly, under the Victorian provision, the defendant must believe that his or her conduct "is necessary" in defence of him or herself or in defence of another. This is what theorists call a 'justificatory' belief, a belief that one is entitled, on the facts, to act as one does. When they have time to measure their response, it may be that those using defensive force hold such a belief. When someone reacts instinctively to a sudden and grave threat, however, it is unlikely that such a belief forms part of their motivation for acting. They are likely simply to be reacting spontaneously to a fear of serious violence, involving a basic 'excusatory' belief that an attack is imminent or under way. They should still fall within the scope of the lesser offence, in such cases. We believe that limb (b) of our reformed provocation defence rightly concentrates on the plain fear of serious attack (involving the excusatory belief).
6.133 Thirdly, under the Victorian provisions, it is only in the context of "family violence" that special attention is directed to the fact that someone may believe that the use of force is defensively necessary, even through they are not responding to an immediate threat. It is hard to see why such special attention would not equally be warranted when two long-term neighbours have been involved in a quarrel leading to a fatality, following years of cumulative abuse and provocation. Violence used by children who have been bullied throughout their time at school may be also come to be used in similar circumstances. Our proposals put all defendants who are victims of long-term abuse on an equal footing with victims of domestic violence. We believe this is the right approach.
6.134 It is true that the Victorian provisions say that the special attention to be paid to the history and background circumstances in cases of family violence is to be paid "without limiting the evidence that may be adduced" in other cases.[98] So, history and background circumstances may be relevant and admissible in 'neighbour' or 'bullying' cases as well. That being so, we do not believe it is justified for the legislation to concentrate on the instances where history and background circumstances have a bearing on cases involving family violence.
6.135 We find our view reinforced by the fact that the effect of the provisions is only to say that such evidence "may be relevant" (our emphasis) to whether or not defensive homicide has been committed.[99] A judge in England and Wales is already always under a duty to explain to the jury the full context in which a provoked killing has taken place, in so far as that context has emerged in evidence at the trial.[100] The form of this direction must be discussed with the advocates in advance, so that no potentially relevant matter is omitted.[101] It has also been recognised for some time now that the duty to explain the full context may be especially important when there has been a long and complex history of potentially provocative conduct.[102] None of this will change under our proposals.
6.137 For example, the Victorian provisions say that "violence", in relation to a child, is to include:
causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person by a family member; or putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring.[103]
6.139 Thus there seems to us to be no reason to distinguish sharply between the excusatory element in limb (a) (gross provocation) and the excusatory element in limb (b) (a fear of serious violence). Anger and fear are often mixed in people's responses. In some cases, it may be almost impossible to say whether the defendant's reaction was in essence predominantly fearful or predominantly angry. A jury should not have to distinguish between the two for the purposes of reducing first degree murder to a lesser offence.
6.140 Consequently, we are continuing to propose that the partial excuse of provocation should remain for those who, without acting out of a considered desire for revenge:
(1) killed only in response to gross provocation; and/or
(2) killed only in response to a fear of serious violence.
in circumstances where someone of the defendant's age, and of an ordinary temperament might have reacted in the same or in a similar way. [Question 11] [Provisional proposal 4]
THE RELATIONSHIP BETWEEN PROVOCATION AND DIMINISHED RESPONSIBILITY
6.141 At present, it is possible to plead provocation, or diminished responsibility, or both together, in seeking to reduce murder to (voluntary) manslaughter. If the partial defences are pleaded together, this may have the advantage that each plea can be evaluated by the jury in terms of the whole picture of what happened. If the defendant is relying mainly on diminished responsibility, the fact that he or she killed due to a loss of self-control may be explained by the provocation received, even if an abnormality of mental functioning was also a major causal factor. Conversely, if the defendant is relying mainly on provocation, having killed, for example, in response to persistent taunting about a mental abnormality, evidence (if any) of such an abnormality of mental functioning would shed light on the plausibility of the provocation plea.
6.142 We are of the view that it should continue to be possible to plead provocation and diminished responsibility together and that each, if successful, should lead to the same verdict, namely conviction of the same lesser homicide offence ("second degree murder", under our proposals). [Question 14] [Provisional proposal 5] Under this scheme, juries are not asked to make a decisive choice between the defences. Indeed, this might be too much to ask in some cases. Further, the question may unnecessarily split a jury that is otherwise agreed that the defendant should not be convicted of "first degree murder".[104]
6.143 Naturally, we acknowledge that there are difficulties with this course. First, the defendant bears the burden of proof when pleading diminished responsibility but not when pleading provocation, even though each defence currently has the same effect in reducing murder to voluntary manslaughter. This is something juries may in theory find hard to understand, but we do not believe that it gives rise to significant problems in practice. Secondly, there is a risk that juries will consider medical evidence bearing on the defendant's abnormality of mental functioning in relation to the objective condition of the defendant's provocation plea.[105] The risk that evidence admitted for one purpose may be used by the jury for another purpose is hardly a new problem in the criminal trial. It is best dealt with through the way in which the prosecution presents its case, and through a clear direction from the judge.
Note 1 Partial Defences to Murder (2004) Law Com No 290, para 5.97. [Back]
Note 2 Partial Defences to Murder (2004) Law Com No 290, para 1.13. [Back]
Note 3 This, apart from the reference to “developmental immaturity”, is the formulation that we put forward for consideration in Partial Defences to Murder (2004) Law Com No 290, para 5.97. The term “developmental immaturity” is the suggestion of Dr Madelyn Hicks, Consultant Psychiatrist, Honorary Lecturer, Institute of Psychiatry, King’s College London. [Back]
Note 4 Partial Defences to Murder (2004) Law Com 290, para 1.13. [Back]
Note 5 Partial Defences to Murder (2004) Law Com No 290, Appendix C, para 77. [Back]
Note 6 Mental Health Act 1983. s 37. In the cases of psychopathic disorder or mental impairment, the court must also be satisfied that the treatment is likely to alleviate or prevent a deterioration of the offender’s condition. [Back]
Note 7 Mental Health Act 1983, s 41(1). [Back]
Note 8 Partial Defences to Murder (2004) Law Com No 290, Appendix B. [Back]
Note 9 Of the 126, 118 were pleas of diminished responsibility that were accepted by the prosecution. Of the 157 cases that Professor Mackay studied, the prosecution refused to accept the plea in 36. In only 8 of the 36 did the jury return a verdict of guilty of manslaughter on the basis of diminished responsibility. Of the other 28 cases, the jury convicted the defendant of murder in 22 cases, while in six cases a verdict of manslaughter was returned but not on the basis of diminished responsibility. [Back]
Note 10 Partial Defences to Murder (2004) Law Com No 290, Appendix B, Table 12c. [Back]
Note 11 Consultation Paper No 173. [Back]
Note 12 Partial Defences to Murder (2004) Law Com No 290, para 5.11. [Back]
Note 13 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004). [Back]
Note 14 Ibid, 243 (recommendation 45). [Back]
Note 15 Ibid, 58 (recommendation 1). [Back]
Note 16 Ibid, para 5.131. It should be noted that there is no mandatory life sentence for murder in Victoria, making it easier to recommend that no partial defence, or lesser offence, should exist to accommodate a provoked killing or a killing attributable to diminished responsibility. [Back]
Note 17 S M Edwards, Sex and Gender in the Legal Process (1996) 402. [Back]
Note 18 We detailed the findings of his research in Partial Defences to Murder (2004) Law Com No 290 at paras 5.32-5.42. [Back]
Note 19 Partial Defences to Murder (2004) Law Com No 290, Appendix D. [Back]
Note 20 See Appendix E. [Back]
Note 21 Partial Defences to Murder (2004) Law Com No 290. [Back]
Note 22 Ibid, paras 5.18-5.46. [Back]
Note 23 Ibid, paras 5.23-5.31. [Back]
Note 24 NSWLRC Report on Partial Defences to Murder: Diminished Responsibility (1997) Report No 82, para 3.11. It did not, however, persuade the New Zealand Law Commission (“the NZLC”) when it was considering what defences should be available to abused women who kill: Report on Some Criminal Offences with Particular Reference to Battered Defendants (2001) Report 73. The NZLC did not recommend (para 140) introducing a partial defence of diminished responsibility. [Back]
Note 25 NSWLRC, Report on Partial Defences to Murder: Diminished Responsibility (1997) Report No 82, para 3.18. [Back]
Note 26 No consultee to the Partial Defences to Murder Consultation Paper who supported retention of diminished responsibility as a partial defence suggested that it should be extended to other offences. [Back]
Note 27 “[A] condition of arrested or retarded development of mind or any inherent causes or induced by disease of injury”. Immaturity and the effect of traumatic events other than those involving injury are not included. [Back]
Note 28 House of Lords, Report of the Select Committee on Murder and Life Imprisonment, Vol II – Oral Evidence, part 1 (1988-1989) 115. [Back]
Note 29 In evidence given to the Law Commission: Partial Defences to Murder (2004) Law Com No 290, para 5.43 n 40. [Back]
Note 30 E Griew, “Reducing Murder to Manslaughter: Whose Job?” (1986) 12 Journal of Medical Ethics 18, where it is also described as “quite shockingly elliptical”. Dr Madelyn Hicks, a Consultant Psychiatrist, has told us that “the drafting of this defence is very poor”. Dr B Mahendra, a Consultant Psychiatrist and Barrister, has commented: “The definition of mental disorder given in section 2(1) of the 1957 Act has been properly criticised. It appears to be outmoded and unnecessarily contentious at the same time”. [Back]
Note 31 E Griew, “The Future of Diminished Responsibility” [1998] Crim LR 75, 85. The Law Commission’s research revealed that 70% of psychiatrists are drawn into expressing a view on the “ultimate issue”: Partial Defences to Murder (2004) Law Com No 290, para 5.51. [Back]
Note 32 See the evidence of the Royal College of Psychiatrists, in: Partial Defences to Murder (2004) Law Com No 290, para 5.44. [Back]
Note 33 Sanderson (1994) 98 Cr App R 325. [Back]
Note 34 Consultant Psychiatrist, Honorary Lecturer, Institute of Psychiatry, King’s College London. [Back]
Note 35 S Dell, Murder into Manslaughter: The Diminished Responsibility Defence in Practice (1984) 39. [Back]
Note 36 NSWLRC, Partial Defences to Murder: Diminished Responsibility (1997) Report No 82, para 3.40. [Back]
Note 37 Ibid, para 3.43. [Back]
Note 38 Ibid, paras 3.42 & 3.57. [Back]
Note 39 Ibid, para 3.58. [Back]
Note 40 Ibid, para 3.63. [Back]
Note 41 Report of the Committee on Mentally Abnormal Offenders, (1975) Cmnd 6244, para 19.17. [Back]
Note 42 Partial Defences to Murder (2004) Law Com No 290, para 5.56. [Back]
Note 43 See the responses to it in Partial Defences to Murder (2004) Law Com No 290, para 5.55. [Back]
Note 44 A matter sensitively explored by psychiatrist Professor Nigel Eastman, “The Ethics of Clinical Risk Assessment and Management: Developing Law and the Role of Mental Health Professionals”, in N Gray, J Laing, and L Noaks, Criminal Justice, Mental Health and the Politics of Risk (2002) chapter 4. [Back]
Note 45 Partial Defences to Murder (2004) Law Com No 290, para 5.97 (punctuation altered). [Back]
Note 46 NSWLRC, Partial Defences to Murder: Diminished Responsibility (1997) Report No 82, paras 3.40 and 3.49. [Back]
Note 47 Ibid, para 3.50. [Back]
Note 49 See M Wasik, “Cumulative Provocation and Domestic Killing” [1982] Crim LR 29. [Back]
Note 50 See Jacquelyn C Campbell, “Health Consequences of Intimate Partner Violence” (2002) 359 The Lancet 1331, 1333. [Back]
Note 51 S Woods, “Prevalence and Patterns of Posttraumatic Stress Disorder in Abused and Postabused Women” (2001) 21 Issues in Mental Health Nursing 309. [Back]
Note 52 J F Stephen, A History of the Criminal Law of England, vol ii (1883) 172. [Back]
Note 53 NSWLRC, Partial Defences to Murder: Diminished Responsibility (1997) Report No 82, para 3.54. [Back]
Note 54 McNaughton’s Case (1843) A Car & Kit 130n. [Back]
Note 55 A Criminal Code for England and Wales (1989) Law Com No 177. [Back]
Note 56 The words “serious”, “very” and “severe” have been inserted as possible modifications to the wording of the Mental Health Act 1983. [Back]
Note 57 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), para 5.19. [Back]
Note 58 Infanticide Act 1938. The topic is considered more fully in Part 9 of this paper. [Back]
Note 59 NSWLRC, Partial Defences to Murder: Diminished Responsibility (1997) Report No 82, paras 3.40 and 3.23. [Back]
Note 60 JUSTICE, Children and Homicide: Appropriate Procedures for Juveniles in Murder and Manslaughter Cases (1996) 25. [Back]
Note 61 Royal College of Psychologists, response submitted to the Law Commission, Partial Defences to Murder (2004) Law Com No 290, para 3.133: “[When] children [are] facing criminal charges … certain assumptions are made about moral understanding. Moral development is also a crucial issue to be addressed within clinical psychology assessment and also within a psychiatric assessment of the child defendant. The moral development of children is a complex issue which has implications for both the understanding of the seriousness of the offence and the presence or absence of any subsequent empathy for the victim or remorse for the crime.” [Back]
Note 62 Roper v Simmons (2005) 112 SW 3d 397 (affd) per Kennedy J. [Back]
Note 63 Partial Defences to Murder (2004) Law Com No 290, paras 5.102-5.105. [Back]
Note 64 S Bailey, “Assessment of Criminal Responsibility in Minors: A Discussion Paper” (September 2005). [Back]
Note 65 T Grisso and R G Schwartz, Youth on Trial (2000) 158-159. [Back]
Note 66 JUSTICE, “Children and Homicide: Appropriate Procedures for Juveniles in Murder and Manslaughter Cases” (1996) 20. [Back]
Note 67 Ms Camila Batmanghekidjh, Director, Kids Company. See also JUSTICE, “Children and Homicide: Appropriate Procedures for Juveniles in Murder and Manslaughter Cases” (1996) 20. [Back]
Note 68 See further D J Smith, “Crime and the Life Course”, in M Maguire, R Morgan and R Reiner, The Oxford Handbook of Criminology (3rd ed 2002). [Back]
Note 69 V v UK (2000) 30 EHRR 121, [90]. See also M Ashford and A Chard, Defending Young People in the Criminal Justice System (2nd ed 2000. [Back]
Note 70 S. Bailey, “Assessment of Criminal Responsibility in Minors: A Discussion Paper” (September 2005), 9. [Back]
Note 72 Submission to the Law Commission, Partial Defences to Murder (2004) Law Com No 290. See Part 1 for further discussion. [Back]
Note 73 Consultant Psychiatrist, Honorary Lecturer, Institute of Psychiatry, King’s College London. [Back]
Note 74 See the discussion in R D Mackay, Mental Condition Defences in the Criminal Law (1995),192. [Back]
Note 76 See the discussion of the Sutcliffe and Nilsen cases in R D Mackay, Mental Condition Defences in the Criminal Law (1995), 193. [Back]
Note 77 Professor N Eastman, “The Ethics of Clinical Risk Assessment and Management: Developing Law and the Role of Mental Health Professionals”, in N Gray, J Laing, and L Noaks, Criminal Justice, Mental Health and Politics of Risk (2002), 53. [Back]
Note 78 See the case study contained in Appendix F of this Paper. [Back]
Note 79 Partial Defences to Murder (2004) Law Com No 290, para 5.30. [Back]
Note 80 A Maden, “Risk Management in the Real World”, in N Gray, J Laing, and L Noaks, Criminal Justice, Mental Health and the Politics of Risk (2002), 24-25. [Back]
Note 81 Mentally Disordered Offenders: Inter-Agency Working (1995), 16-17. The police may have arranged for the detained person to be medically examined under the PACE 1984 code of practice. A note of the assessment and advice ought to be in the CPS file. Under section 35 of the Mental Health Act 1983, a court may remand defendants to a specified hospital for a report on their medical condition. Section 35 can only be used if: (a) the court is satisfied by the evidence of a registered medical practitioner that the accused is suffering from a mental health problem of the kind set out in s1(2) of the Act; and (b) the court is of the opinion that it would be impracticable for a report on the accused’s mental health to be made if he were remanded on bail (an accused person can, of course, be remanded on bail with a condition of attendance at or residence in a hospital, for the purpose of medical assessment). In Home Office Circular 66/90, paragraph 10, the Home Office said that “in considering cases involving mentally disordered persons the Crown Court may wish to bear in mind its powers to obtain a medical report” by remanding on conditional bail or using s 35. [Back]
Note 82 Office for Criminal Justice Reform, Current Initiatives on Expert Witnesses (March 2005). [Back]
Note 83 Discussed by the Law Reform Commission of New South Wales, Report 82 (1997) – Partial Defences to Murder: Diminished Responsibility, paragraph 3.80-3.85. The NSWLRC rejected a wholesale adoption of the Queensland Model. [Back]
Note 84 In a case where the defendant pleads guilty at trial, but there is evidence of mental disorder, it is also possible for the court to enter a plea of mot guilty and refer the case to the Tribunal. [Back]
Note 85 New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report 82 (1997), para 3.84. [Back]
Note 86 See Appendix D. [Back]
Note 87 Hospital orders are made only in about 50% of cases in which the plea has been successful: N Lacey, C Wells, and O Quick, Reconstructing Criminal Law: Text and Materials (3rd ed 2003), 770. [Back]
Note 88 An insanity verdict in a murder case leads automatically to indefinite detention in a secure hospital. [Back]
Note 89 Partial Defences to Murder (2004) Law Com No 290. [Back]
Note 90 Such a provision can, if need be, be made sensitive to whether the person using the defensive force was him or herself responsible for provoking the threat of serious violence in the first place or unjustifiably put him or herself in a position where such threats might be made. In such circumstances, as when criminal gangs are in an armed tit-for-tat struggle for supremacy, the provision would have no application. [Back]
Note 91 It is, of course, currently impossible to say in what proportion of provocation cases the jury accepted that the defendant intended to kill. This is because a jury need only be satisfied that the defendant intended to cause serious harm in order to convict of murder. [Back]
Note 92 In due course, the Court of Appeal could issue a guideline judgment setting out the kinds of cases in which the defence should, and should not, be put to the jury. [Back]
Note 93 Crimes (Homicide) Act 2005 (Vic), s 6 (new section 9AD of the Crimes Act 1958 (Vic)). [Back]
Note 94 Ibid, s 6 (new section 9AC of the Crimes Act 1958 (Vic)). [Back]
Note 95 Ibid, s 6 (new section 9AH(2) of the Crimes Act 1958 (Vic)). [Back]
Note 96 Ibid, s 6 (new section 9AH(1) of the Crimes Act 1958 (Vic)). [Back]
Note 97 Ibid, s 6 (new section 9AH(4) of the Crimes Act 1958 (Vic). [Back]
Note 98 Crimes (Homicide) Act 2005 (Vic), s 6 (new section 9AH(2) of the Crimes Act 1958 (Vic)). [Back]
Note 99 Crimes (Homicide) Act 2005 (Vic), s 6 (new section 9AH(2) of the Crimes Act 1958 (Vic)). [Back]
Note 100 See Judicial Studies Board, Model Directions (provocation). [Back]
Note 101 Humphreys [1995] 4 All ER 1008 (CA). [Back]
Note 102 Rowlands, The Times 12 January 2004 (CA). [Back]
Note 103 Crimes (Homicide) Act 2005 (Vic), s 6 (new section 9AH(4) of the Crimes Act 1958 (Vic)). [Back]
Note 104 See Part 2 of this Paper. [Back]
Note 105 See R Mackay, “Pleading Provocation and Diminished Responsibility Together” [1988]. [Back]