Diminished Responsibility
This is a partial defence that is only relevant to the crime of murder. To raise this defence, the defendant must admit guilt to the lesser charge of manslaughter. Subsequent sentencing is not restricted.
Section 2 of the Homicide Act 1957 as amended by Section 52 of the Coroners and Justice Act 2009:
A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—
(a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of:
(i)to understand the nature of D’s conduct;
(ii)to form a rational judgment;
(iii)to exercise self-control.
(c) and provides an explanation for D’s acts and omissions in doing or being a party to the killing.
[an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.]
“Abnormality of mind due to a recognised medical condition”
- ‘Recognised medical condition’ is yet to be defined but ICD-10 and DSM-IV are recognised by the courts as helpful guides: R v Dowds [2012] EWCA Crim 281
In Dowds, the ‘imperfect fit’ of medical diagnostic classifications and matters of law was noted. It provided examples of conditions in the ICD-10 or DSM-IV that may be challenged, suggesting conditions such as Intermittent Explosive Disorder, “may well be a medically useful description of something which underlies the vast majority of violent offending, but any suggestion that it could give rise to a defence…would, to say the least, demand extremely careful attention. In other words, the medical classification begs the question whether the condition is simply a description of (often criminal) behaviour, or is capable of forming a defence to an allegation of such.”
- Where there is an abnormality due to intoxicants, this is only valid where there is involuntary consumption or long-term damage secondary to intoxicants.
The definition of involuntary consumption in relation to addiction in was clarified in R v Wood [2009] 1 WLR 496 and R v Stewart [2009] 1 WLR 2507 as an “irresistible craving or compulsion”. The presence of a dependency syndrome is not by itself sufficient (R v Stewart [2009] 1 WLR 2507), nor is acute intoxication (R v Dowds [2012] EWCA Crim 281 Court of Appeal)
- Where both mental illness and voluntary intoxication are present, the former must satisfy the remaining limbs of the defence, without the contribution of the latter.
R v Gittens (1984) 79 Cr App R 272
“…the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the defendant’s mind, the abnormality of mind arising from [mental illness] nevertheless substantially impaired his mental responsibility for his fatal acts.”
R v Dietschmann [2003] 1 AC 1209
“…you may take the view that both the defendant’s mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him.”
R v Joyce and Kay [2017] EWCA Crim 647
Kay was suffering from a schizophrenic illness and heroin use. Dependency was rejected by the jury. It was held that the psychotic condition was stable and “there was no medical evidence available to him that his underlying illness was of such a degree that, independent of drug or alcohol abuse, it impaired his responsibility substantially”.
- Drug-induced psychosis alone, or in combination with a prodromal state, has not be accepted: R v Lindo [2016] EWCA Crim 1940
Lindo killed a stranger and was found to be bizarre on arrest. He informed police he had taken cocaine, MDMA and cannabis. The psychosis lasted a matter of days, however there was evidence of a prodromal state. Psychiatric evidence was contested as regards whether this amounted to a recognised medical condition, and this issue was left to the jury. At appeal, it was found a drug-induced psychosis alone would not suffice, and a drug-induced psychosis combined with a prodromal state was also not deemed to be sufficient.
- Adjustment disorder has been accepted
Despite the nebulous concept, adjustment disorder has been accepted as a recognised medical condition on multiple occasions. The sentencing outcomes, however, have differed markedly dependent on the circumstances of the case.
R v Brown | [2011] EWCA Crim 2796
Brown killed his ex-wife in a premeditated fashion and attempted to dispose of the body. In his sentencing remarks, the judge described it as “a mild disorder that rarely led to violence” and noted it had “disappeared almost immediately after the killing”. Though the jury’s finding was that responsibility was diminished, it was found by the judge (and at appeal) his culpability remained substantial for the crime of manslaughter, and the significant prison sentence passed reflected this.
In contrast, Webb was an elderly man who killed his wife in a manner amounting to “reluctant assistance in the light of her determined wishes”. Diminished responsibility was accepted on the basis of adjustment disorder with prominent depressive features. He was sentenced to two years imprisonment; at appeal this was reduced to 12 months suspended imprisonment, “so that this lonely old man may receive the help that he will need to come to terms with the disaster that has overtaken him”.
R v Blackman [2017] EWCA Crim 190
Blackman, a Royal Marine, killed a badly wounded insurgent in Afghanistan. He was convicted of murder, but an appeal was allowed on the basis of new psychiatric evidence – that he suffered from a moderate adjustment disorder. The court noted “exceptional stressors” including exhaustion, isolation, and perceived lack of leadership and support from superiors. It was accepted the adjustment disorder substantially impaired his ability to form a rational judgement and exercise self-control.
“Substantially impaired their mental ability”
The phrase ‘substantially impaired’ takes on its ordinary meaning and is up to the jury (R v Golds [2016] UKSC 61).
Sentencing
Even if the defence of diminished responsibility is accepted, the defendant may still be found to retain a significant degree of responsibility: R v Joyce and Kay [2017] EWCA Crim 647
This considered the level of residual culpability where Joyce was suffering suffering from a psychotic relapse of paranoid schizophrenia, but had a long history of substance misuse and had used spice and alcohol on the day of the killing. Diminished responsibility was accepted, but a long sentence given; the appeal was against the latter.
“First, we consider residual culpability or responsibility. It is for the judge, not the experts, to decide on the level of responsibility retained albeit she no doubt found considerable assistance in the expert reports. At least two of the doctors were of the opinion that the appellant was to a degree culpable. He may have limited insight into his condition but he knew of the impact on his mental state of certain substances such as ‘spice’, and he knew how aggressively he might react. Yet he chose to take them. There was no evidence of dependency. On the contrary the medical evidence suggested he was capable of refraining from taking illegal drugs and alcohol when his funds ran out and he was perfectly capable of refraining from taking spice.
In those circumstances the judge was entitled to find that the appellant retained what she called a significant degree of responsibility.”