Diminished responsibility in English law
Encyclopedia
In English law
, diminished responsibility is one of the partial defences that reduce the offence from murder
to manslaughter
if successful (termed "voluntary" manslaughter for these purposes). This allows the judge
sentencing discretion, e.g. to impose a hospital order under section 37 Mental Health Act 1983
to ensure treatment rather than punishment in appropriate cases. Thus, when the actus reus
(Latin
for "guilty act") of death is accompanied by an objective or constructive version of mens rea
, the subjective evidence that the defendant did intend
to kill or cause grievous bodily harm
because of a mental incapacity will partially excuse his conduct. The burden of proof is on the defendant to the balance of probabilities. The M'Naghten Rules lack a volitional limb of "irresistible impulse"; diminished responsibility is the volitional mental condition defence in English criminal law.
states:
The defence has recently been amended by s. 52 of the Coroners and Justice Act 2009. For commentary, see MacKay,"The Coroners and Justice Act 2009 - partial defences to murder(2) The new diminished responsibility plea". Criminal Law Review 2010.
cannot be a defence to manslaughter or any other crime of basic intent, and the fact that a defendant might have been drunk at the time of committing a murder is also irrelevant to support a plea of diminished responsibility because it is an "external" not an "inherent cause" within s2. In R v Gittens (1984) QB 698 a defendant who suffered from depression killed his wife and stepdaughter after drinking and taking drugs for medication. The direction to a jury facing both diminished responsibility and drunkenness should be:
and if the answer to that is yes,
The more chronic forms of alcoholism and the long-term use of heroin and cocaine (see R v Sanderson (1994) 98 Cr. App. R. 325) can become a relevant factor where a craving for drink or drugs causes an abnormality of mind. This must be distinguished from the situation in which the abnormality of mind causes a craving for drink or drugs . R v Tandy (1989) 1 AER 267 held that where a defendant could show that she was suffering from an abnormality of the mind, that it was induced by disease (namely alcoholism), and that it substantially impaired her responsibility for her actions, then the defence of diminished responsibility would be made out. In the actual case, the craving for alcohol did not render the use of alcohol involuntary. The defendant was in control when she began drinking, and the state of mind in which she killed her daughter was merely induced by the alcohol. In R v Dietschmann , the House of Lords held that where a defendant suffers from an abnormality of mind within s2(1) also consumes alcohol before the killing, the jury should find him or her guilty of manslaughter if they are satisfied that, notwithstanding the alcohol consumed and its effect, the abnormality of mind substantially impaired the mental responsibility for the fatal acts. The sub-section does not require the abnormality of mind to be the sole cause of the defendant’s acts; even if the defendant would not have killed if he had not consumed alcohol, the causative effect of the alcohol does not prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for the fatal acts. Dietschmann was later applied by the Court of Appeal in R v Hendy .
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, diminished responsibility is one of the partial defences that reduce the offence from murder
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
to manslaughter
Manslaughter in English law
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...
if successful (termed "voluntary" manslaughter for these purposes). This allows the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
sentencing discretion, e.g. to impose a hospital order under section 37 Mental Health Act 1983
Mental Health Act 1983
The Mental Health Act 1983 is an Act of the Parliament of the United Kingdom which applies to people in England and Wales. It covers the reception, care and treatment of mentally disordered persons, the management of their property and other related matters...
to ensure treatment rather than punishment in appropriate cases. Thus, when the actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
(Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "guilty act") of death is accompanied by an objective or constructive version of mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
, the subjective evidence that the defendant did intend
Intention in English law
In English criminal law, intention is one of the types of mens rea that, when accompanied by an actus reus , constitutes a crime.-The standard definitions:...
to kill or cause grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
because of a mental incapacity will partially excuse his conduct. The burden of proof is on the defendant to the balance of probabilities. The M'Naghten Rules lack a volitional limb of "irresistible impulse"; diminished responsibility is the volitional mental condition defence in English criminal law.
The statutory provision
Section 2(1) of the Homicide Act 1957Homicide Act 1957
The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice , reforming the partial defence of provocation, and by introducing the partial defences...
states:
- Where a person kills or is party to a 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.
The defence has recently been amended by s. 52 of the Coroners and Justice Act 2009. For commentary, see MacKay,"The Coroners and Justice Act 2009 - partial defences to murder(2) The new diminished responsibility plea". Criminal Law Review 2010.
The effect of the abnormality
The abnormality of mind must substantially impair, but need not totally impair, the defendant's mental responsibility. As in Byrne, the defendant may understand the nature and quality of what he is doing, and/or know that it is wrong, and may have some degree of control over himself. In R v Egan (1992) 4 AER 470, it was held that "substantial" impairment was the kind of word that could be interpreted in a broad common sense way. Hence, it meant that there was:- ...more than some trivial degree of impairment which does not make any appreciable difference to a person's ability to control himself, but it means less than total impairment.
The relationship to drunkenness and drug taking
DrunkennessIntoxication defense
General intent crimes do not require an intent to break the law, just an unlawful act and an intent to act in such a fashion. Specific intent crimes, however, require a certain mental state to break the law. One such offense, for example, is residential burglary...
cannot be a defence to manslaughter or any other crime of basic intent, and the fact that a defendant might have been drunk at the time of committing a murder is also irrelevant to support a plea of diminished responsibility because it is an "external" not an "inherent cause" within s2. In R v Gittens (1984) QB 698 a defendant who suffered from depression killed his wife and stepdaughter after drinking and taking drugs for medication. The direction to a jury facing both diminished responsibility and drunkenness should be:
- Would the defendant have killed as he did if he had not been drunk?
and if the answer to that is yes,
- Was he suffering from diminished responsibility when he did so?
The more chronic forms of alcoholism and the long-term use of heroin and cocaine (see R v Sanderson (1994) 98 Cr. App. R. 325) can become a relevant factor where a craving for drink or drugs causes an abnormality of mind. This must be distinguished from the situation in which the abnormality of mind causes a craving for drink or drugs . R v Tandy (1989) 1 AER 267 held that where a defendant could show that she was suffering from an abnormality of the mind, that it was induced by disease (namely alcoholism), and that it substantially impaired her responsibility for her actions, then the defence of diminished responsibility would be made out. In the actual case, the craving for alcohol did not render the use of alcohol involuntary. The defendant was in control when she began drinking, and the state of mind in which she killed her daughter was merely induced by the alcohol. In R v Dietschmann , the House of Lords held that where a defendant suffers from an abnormality of mind within s2(1) also consumes alcohol before the killing, the jury should find him or her guilty of manslaughter if they are satisfied that, notwithstanding the alcohol consumed and its effect, the abnormality of mind substantially impaired the mental responsibility for the fatal acts. The sub-section does not require the abnormality of mind to be the sole cause of the defendant’s acts; even if the defendant would not have killed if he had not consumed alcohol, the causative effect of the alcohol does not prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for the fatal acts. Dietschmann was later applied by the Court of Appeal in R v Hendy .