Category Archives: Law

Crime XXXXI – Involuntary Manslaughter IV

It’s normally difficult to convict a doctor for involuntary manslaughter and in most instances all the doctor has to do is to established that he or she was acting in a manner that was reasonable or in a manner that is accepted by some recognized school of medicine. The law without doubt favors medical practitioners and that is because doctors need some degree of flexibility and they may not be able to perform their duties efficiently if they were constantly afraid of being sued and therefore to be successful in a case against a doctor the defense not only has to establish that the doctor’s actions were out of the norm but was off the mark by some degree. That exception however does not apply to nurses and those that administer anesthetics.

In R v Bateman (1925) a doctor was charged with manslaughter for causing the death of a woman in his care who died during childbirth. It was held that in order for the doctor to be convicted of manslaughter the scope of negligence or the negligent act must not be something that may be defined as trivial or shortsightedness but must be an act that goes well beyond that or negligence that could be described as serious. The doctor was found to be not guilty.

In cases like R v Bateman (1925) it is also worth looking at the time when the incident occurred i.e. in 1925 when the medical facilities were nothing like they are today and if the facts were to reoccur in this day and age the judge might decide differently.

With regards to dangerous driving one might well ask the question what level of dangerous driving is required to obtain a conviction and the answer is as long as the act does not fall with the scope or sphere of the de minimis rule i.e. as long as the act cannot be described as trivial or inconsequential than the accused will be held liable.

Therefore the prosecution is not looking at the severity of the accused’s act but rather seeks to establish that the negligent act of the accused cannot be dismissed as minor, trivial or inconsequential. In R v Hennigan (1971) the accused was driving too fast and as a result drove into the side of another car. Two passengers were killed in the accident that followed and the accused was held to be guilty. As long as the act of the accused can be deemed or termed as being dangerous then the accused will be liable.

In R v Stone and Dobinson (1977) we once again examine the duty that arises when there is a voluntary undertaking of responsibility i.e. when the accused has on his or her own accord decided to care for someone who is ill who is no longer able to care for his or her self. The accused invited his sister to live with him and his mistress because she was unable to take care of herself.

The accused and his mistress failed to take care of his sister in the manner that was required and she died as a result. The accused and his mistress were found to be guilty.

In this particular instance the accused himself needed a carer because he was elderly and could not live on his own but the court nevertheless decided that he and his mistress were guilty. The bottom-line here is if one chooses to care for another than he or she will be held liable or accountable for not carrying out his or her duties diligently or in the manner that was required.

The test for reckless driving was laid down in the case of R v Lawrence (1981). In R v Lawrence (1981) the accused was riding his motorbike and while doing so he ran into a pedestrian who was subsequently killed as a result of the accident. The accused was charged. The court held that in order for the rider or the driver to be guilty of manslaughter the following criteria or requirements must be satisfied:-

1) The accused was riding or driving in a manner that created an obvious and serious risk to other road users and property.

2) The rider or the driver by riding or driving in the manner he or she did, did not give thought to the risk or having given it some thought dismissed it.

The accused was found to be not guilty.

Copyright © 2018 by Dyarne Ward

Crime XXXX – Involuntary Manslaughter III

If the accident or the mishap that deprived the victim of his or her life was caused by the victim then the accused would not be found to be guilty of manslaughter. Let’s say for example that a driver gives someone he or she knows a lift in his or her car and the passenger for some reason or other interferes with the steering wheel and that in turn causes an accident and the passenger who interfered with the steering wheel dies as a result of the accident. In such an instance the driver would not be found guilty of manslaughter.

In R v Jones (1870) the accused was the driver of a horse drawn cart and while he was driving the passenger decided to tamper with the horses while the horses were pulling the cart and as a result the driver lost control of the cart and an accident ensued and the passenger died.

The accused was charged with reckless manslaughter but was subsequently acquitted on the grounds that the accident was caused by the inappropriate act of the passenger and not by the carelessness or the recklessness of the driver.

When it comes to weapons, especially guns or even bows loaded with arrows or crossbows for the matter, if the weapon is pointed at the victim, even if it is done in a playful manner or during horseplay and the weapon subsequently goes off and kills the victim than it would be regarded as reckless manslaughter. In R v Jones (1874) the accused pointed a gun at the victim, convinced at the time that the gun wasn’t loaded and the gun subsequently went off and killed the victim. The accused was charged and convicted of manslaughter.

In these type of instances, the lack of intent is about the only thing that could save the accused from being convicted of murder. If the prosecution could in some way establish intent, say for example if they could adduce evidence that the accused had a grudge against the victim or the accused had threatened the victim during an argument than there is a real likelihood that the accused may be convicted of murder.

As we have said earlier reckless manslaughter often involves grossly negligent acts or acts the accused could have done without. Say for example that the accused throws a box out the window of his or her flat or apartment and the box subsequently hits a passerby below and kills him or her than the accused would be found guilty of reckless manslaughter. In R v Franklin (1883) the accused threw a box from a pier and the box hit a swimmer who drowned as a result. The accused was charged and convicted of manslaughter.

Earlier on we have looked at omissions from the perspective of criminal law and found that a failure to act in the manner that is required, especially when there is a duty imposed by statute or common law, would most certainly render the accused liable or accountable.

In R v Gibbins and Proctor (1918) for example the accused and his wife, his daughter’s stepmother, failed to feed the accused’s 7-year-old daughter and as a result the child died from starvation. There was a clear discernible intention to kill because his wife hated her stepdaughter and the court held that where there is a common law duty imposed on the parent or parents, a failure to comply with the duty or if a breach of that duty results in death than the parent(s) will be guilty of murder.

Let’s now look at instances or situations where a failure to act as a reasonable human being would lead to sanctions or punishment being imposed on the accused. In R v Instan (1893) the accused was living with her aunt. Her aunt was taken ill and as a result was unable to take care of herself any longer. The accused neglected to feed her and neglected to call for medical assistance or provide her with the relevant medication and as a result her aunt died. The accused was charged and convicted for reckless manslaughter.

In R v Pittwood (1902) the defendant was employed to man the gate at a level crossing and he went off for lunch without closing the gate during which time a man on a horse pulled cart attempted to cross the railway track and was hit by an oncoming train. The accident resulted in the death of the driver and the horse that was pulling the cart. The defendant was charged in court for failing to carry out his duties and was found guilty of reckless manslaughter.

Copyright © 2018 by Dyarne Ward

Crime XXXIX – Involuntary Manslaughter II

In R v Swindall and Osborne (1846) the accused was driving his cart down a street, racing with another driver, the winner being the driver of the cart that reached the intended destination first. While they were racing one of the carts ran over a pedestrian who was killed in the accident that followed. The accused was arrested and charged with reckless manslaughter. The accused was convicted.

An accused however would not be convicted of manslaughter if he or she can prove or the defense can establish that even if the accused had not been careless or negligent, death would have been the end result anyway.

In R v Dalloway (1847) the accused, the driver of a horse drawn cart was driving his cart down a road when a child suddenly ran out in front of the cart and was hit by it. The accused was not holding the reins at the time the cart was travelling down the street and as a result deprived himself of the means of preventing or stopping an accident. The accused was charged in court.

During the trial, the accused adduced evidence to show that even if he had been holding on to the reins, the accident would still have occurred and the child would still have suffered fatal injuries. The court acquitted the accused and found him to be not guilty.

When it comes to driving in poor conditions or hazardous conditions it is up to the person who is in control of the vehicle to take the necessary precautions. For example, if one were to drive fast on a wet and slippery road then the chances are high that one would lose control of one’s vehicle.

In R v Longbottom (1849) the accused was driving his cart down a quite path that was somewhat isolated in the late evening, faster than normal, and his cart hit and killed the victim. During the trial, the defense argued that the victim was partly to blame because he was walking down a remote path at a time when visibility was poor. The court dismissed the argument and the accused was convicted of manslaughter.

Those responsible for maintaining roads are not liable in criminal law, though depending on the facts or the circumstances there may be an action in tort, if faults on the road cause an accident. In R v Pocock (1851) the victim was driving his cart down a street when his cart ran into a pothole. The victim was thrown off the cart and died as a result. An action was brought against the trustees who were responsible for maintaining the road on the basis that, had the roads been maintained in good order, the accident would not have happened or occurred. The court dismissed the case and found for the trustees.

An accused is not guilty of manslaughter if the accident that resulted was beyond his control. In R v Bennett (1858) the accused kept materials used in the manufacture of fireworks in his house. Thieves broke into his house and set off some of the fireworks. One of the rockets landed on the opposite house and set the house alight. The victim, an occupant of the house was killed in the fire that ensued and the accused was charged accordingly but the court decided that, based on the facts of the case and the evidence that was presented, the accused was not guilty.

In R v Benge (1865) the accused, a prisoner, was in charge of a group of prison workers who were working on a railway track. The accused had misread the train timetable and had assumed that the train would arrive a couple of hours later than when it actually did arrive and as a result at the time the train came through there were workers on the track.

As a precaution however, the accused had sent one of the workers ahead and the worker was supposed to stand 1000 meters away from the others and was supposed to signal the driver the moment he saw the train appear.

The worker however only went half the distance but he did signal the driver as soon as he saw the train approaching. The driver however wasn’t paying much attention and hence did not have enough time to stop. The accused was charged in court.

During the trial, the defense claimed that the accused wasn’t entirely to blame and both the driver and the worker who was sent ahead were also equally to blame but the accused was found guilty of manslaughter nonetheless.

Copyright © 2018 by Dyarne Ward

Crime XXXVIII – Involuntary Manslaughter I

Involuntary manslaughter occurs when death results from the overtly negligent or careless act of the accused i.e. the accused kills another without the intention to kill or lacks the mens rea for murder i.e. premeditation or intent and it normally occurs when death results from an act that is callous and reckless.

In R v Walker (1824) the accused was driving his horse drawn cart down a street recklessly calling out to the pedestrians as he did so to get out of the way. The cart ran over a passerby, who died as a result and the accused was arrested and tried.

Because the accused lacked the mens rea to kill, his act though careless and reckless was not done with the intent to kill and therefore lacked the prerequisite for murder. The accused was convicted of manslaughter instead.

Similarly, in R v Martin (1827) where the accused had given a child a wrong drink or a drink that was not suitable for the child, as a result of which, the child died, the accused was convicted of manslaughter. Clearly the accused did not intend to kill the child despite that being the end result of an extremely careless act.

In R v Rigmaidon (1833) the accused neglected to securely fasten a cask to the back of a cart and the ropes that were holding the cask in place became undone during the journey. The cask fell off the back of the cart and killed two women and the accused was convicted of manslaughter.

Likewise, in R v Mastin (1834) the accused was galloping down a street and his horse crashed into the victim, who was seated on another horse, presumably his own, and the resultant crash caused the victim his life. The accused was convicted of manslaughter.

From the cases that we have seen so far, it is fair to surmise that reckless manslaughter occurs when the overtly careless act of the accused results in the death of another. In all the above cases, the element of premeditation or the intent to kill or bring about the death of another isn’t there as opposed to when the accused walks down the street with a knife in his hand with the intention to kill someone or the first person that he comes across see R v Hendy (2006).

In both instances, the victims are strangers i.e. someone the accused does not know or is not related or connected to the accused in any way. However, it is not the intention of the accused to bring about death of another, despite that being the consequence of his or her actions, in the former. In the latter, the accused intends to bring about the death of another regardless of who it is and the comparison clearly allows us to distinguish between murder, voluntary manslaughter and involuntary manslaughter.

A negligent act done while the accused is drunk can also give rise to a conviction of involuntary manslaughter provided that there was no intention to kill or the prosecution cannot establish an intention to kill.

In R v Walters (1834), both the accused and the victim were drunk. The accused was standing on the deck of a ship and the victim was standing on a boat and the accused and the victim had an argument. The accused kicked the boat with his foot and as a result the victim lost his balance and fell into the water and subsequently drowned. The defendant was convicted of manslaughter.

To some extent it is also possible to say that reckless manslaughter, in the absence of any other inherent reasons that caused the accused to act in the way or manner that he or she did, is the result of an act that the accused could have done without.

Driving down the street for example is something that can be done with care and caution and if one adopts the attitude of defensive driving i.e. not only driving with care but driving while trying to anticipate the mistakes of other road users, it would certainly reduce the number of convictions for reckless manslaughter.

In R v Timmins (1836) we are once again confronted with a situation where death has resulted from the reckless driving of the accused. The accused in the case drove his carriage exceedingly fast, competing with another driver and as a result he lost control of the carriage. The carriage overturned and an innocent passenger was killed. The accused was convicted of manslaughter.

Copyright © 2018 by Dyarne Ward

Crime XXXVII – Diminished Responsibility VI

In R v Hendy (2006) the accused a 16-year-old had without doubt some sort of mental impairment as a result of a head injury that he suffered from as a child. He was callous and reckless and gave little though of his own safety and at times had endangered his own life. On the night of the incident the accused had been drinking heavily and had attempted to take his own life but he was stopped by friends. That night once he’d returned home, still drunk, he walked out into an alley with a knife and stabbed a man to death. The accused was arrested.

At the trial it was held that the accused did not have to show that the mental impairment would have caused him to kill, under the circumstances, as per R v Egan and the court followed the decision in R v Dietschmann (2003). In addition to that if the accused satisfies the conditions of S. 2 of the Homicide Act 1957 the verdict that would be returned is that of manslaughter.

When it comes to diminished responsibility the more bizarre the crime the higher the chances or the probability that the accused will have a conviction of murder reduced to that of manslaughter and the reason for this is that a normal man or an ordinary man or a reasonable man for the matter will not be able to envisage these crimes, let alone commit them and therefore it stands to reason that the accused was most likely suffering from some sort of mental impairment or damage to the mind, at the time he or she committed the act.

In R v Byrne (1960) the accused strangled a young woman to death at the YMCA. After killing her he mutilated her body. At his trial, evidence was submitted that the accused suffered from an impairment of the mind that induced sexual perverseness. He had been suffering from the condition since a young age. The jury convicted for murder. The accused appealed and the appealed was allowed.

In R v Fenton (1975), the accused after he’d been drinking heavily shot a policeman and drove off in his car to a club where he shot and killed more people, 3 more to be precise. The accused was charged with murder and he raised the defense of diminished responsibility. Because the accused was suffering from an inherent mental disability he was convicted for manslaughter instead of murder.

Someone who suffers from a mental illness or other conditions like acute depression can also raise the defense of diminished responsibility if the killing was done on compassionate grounds. In Price (1971), The Times, 22 December 1971, the accused allowed his terminally ill son to drown. The accused was arrested and charged but he was convicted not of murder but of manslaughter and the killing of his son was not seen as murder because the accused had allowed him to drown out of compassion and the accused’s decision was linked to his long-term depression.

In R v Sanderson (1994) the accused hit his girlfriend over the head with a wooden stave. At the trial the defense adduced evidence to show that the accused suffered from acute paranoia, in addition to being a drug user, and the paranoia coupled with the drugs had prompted the accused to kill his girlfriend. The accused was tried and it was held that the accused was guilty only of manslaughter and despite the fact that he was on drugs the accused’s abnormality of mind was inherent and something that he had suffered from since he was child

The defense of diminished responsibility is different to the defense of insanity and the former is reliant on satisfying the conditions of S2 of the Homicide Act 1957 while the latter is reliant on the M’Naghten rules as per R v Rose (1961) (Privy Council).

In R v Rose (1961) (Privy Council) the accused was a prisoner who stabbed a supervisor for refusing to give him the key to the gates. He was tried and the judge directed the jury in accordance with the rules for insanity (the M’Naghten rules). The accused was convicted. The accused appealed and the appeal was allowed.

Finally, Battered Women’s Syndrome (BWS) is a mental illness that was recognized as such in Britain in 1994 and an accused who commits murder while suffering from BWS can successfully raise the defense of diminished responsibility see R v Hobson (1997).

Copyright © 2018 by Dyarne Ward

Crime XXXVI – Diminished Responsibility V

In R v Ahluwalia (1993), the accused was constantly abused by her husband. The type of abuse included beating her daily and taking her money. In addition to that he was also having an affair with another woman. On the night of the incident, after subjecting his wife to verbal abuse, the accused threatened to beat her up the following morning.

Once the victim was asleep the accused doused her husband with petrol and set him alight. She was arrested and tried for murder. She raised the defense of provocation but the defense of provocation in line with the decision in R v Duffy (1949) was denied. The accused was convicted for murder and the accused appealed raising the defense of diminished responsibility. The appeal was allowed on the grounds of diminished responsibility however the judge did stress that under normal circumstances both defenses should be raised in the first instance otherwise the defense might exhaust one defense before attempting another. It was decided that the accused was not guilty of murder and a retrial was ordered.

In R v Sanderson (1994) the accused hit his girlfriend over the head with a wooden stave. At the trial the defense adduced evidence to show that the accused suffered from acute paranoia, in addition to being a drug user, and the paranoia coupled with the drugs had prompted the accused to kill his girlfriend. The accused was tried and it was held that the accused was guilty only of manslaughter and despite the fact that he was on drugs the accused’s abnormality of mind was inherent and something that he had suffered from as a child and regardless of the fact whether he was on drugs or not, the abnormality of mind, under the circumstances, would have most likely have caused him to act or react in the manner that he did.

In R v Hobson (1997) we once again consider the implications of BWS or Battered Women’s Syndrome. At the initial trial the accused was charged with killing her husband. Her husband was an alcoholic and he often abused his wife while he was drunk. The accused stabbed him with a knife and during her trial she raised the defense of provocation and self-defense. The defense of provocation was rejected as was the defense of self defense and the accused was convicted of murder.

The initial trial was in 1992. In 1994 BWS or Battered Women’s Syndrome was recognized as a mental illness in Britain and the accused appealed. Her appeal was successful. A retrial was ordered and the accused’s conviction for murder was substituted with that of manslaughter.

Where the accused commits murder because of the side-effects of drug taking the accused cannot rely on the defense of diminished responsibility. In instances where the accused suffers from a mental illness or an impairment of the mind and further aggravates the situation by taking drugs and other illegal substances the situation is similar to that of the accused who suffers from a mental illnesses and then goes on to kill another while he or she is drunk see R v Connell (1997).

The question that is to be asked is if the mental illness was sufficient to constitute an abnormality of the mind without taking into account the fact that the defendant had been drinking and would that abnormality of mind have driven the accused to kill without the influence of alcohol? see R v Egans (1992).

The test in R v Egans (1992) however was reversed in R v Dietschmann (2003). The accused who was very close to his aunt received news that she had died while he was in prison. He reacted badly to the news and attempted suicide and was put on medication. Following his release from prison, still unable to come to terms with his aunt’s death he started drinking heavily and two weeks after his release he was drinking with some friends when an argument broke out and the accused rather brutally kicked the victim, one of the friends who was drinking with him, to death. The accused was charged and convicted for murder. The accused appealed.

It was held that being drunk does not give rise to the defense of diminished responsibility and it only does so if the alcohol has caused some sort of permanent damage to the mind. However it is also possible to say that the defendant would not have killed had it not been for the alcohol and while alcohol does not cause an abnormality of the mind unless there is permanent damage done as a result of excessive drinking, it does alter the characteristics of the accused. The appeal was allowed and a retrial was ordered.

Copyright © 2018 by Dyarne Ward

Crime XXXV – Diminished Responsibility IV

Diminished responsibility and insanity are not the same thing see R v Rose (1961) (Privy Council). In R v Seers, the accused suffered from chronic depression and stabbed his wife. The accused was charged with murder and at the trial the judge directed the jury that they should only find the accused guilty of manslaughter if his depression bordered on insanity. The accused appealed on the grounds that the judge had erred in his direction and the court in line with R v Byrne (1960) held that in order for the defense of diminished responsibility to be raised the accused had to establish abnormality of mind as per S.2 of the Homicide Act (1957). The accused was found to be guilty of manslaughter.

It is normally a good idea to produce medical evidence when raising the defense of diminished responsibility and while the jury may refuse to take into account or consider the medical evidence, they can do so if they find that the medical evidence has been tampered with see Walton v The Queen (1978) (Privy Council) or if the interests of the public are better served by a conviction see R v Sutcliffe (1981), they would normally take into account the medical evidence that has been presented.

In R v Reynolds 1988 the accused was suffering from post-natal depression, after she’d had a baby without the knowledge of her family and during an argument with her mother, she clubbed her mother to death with a hammer. At the trial, the accused raised the defense of diminished responsibility and the defense produced medical evidence to support her claim. The accused was convicted of manslaughter instead of murder and her defense was successful.

R v Tandy (1989) once again supports the presumption that excessive drinking or alcoholism in itself is not sufficient to raise the defense of diminished responsibility in a murder trial unless the excessive drinking has induced an abnormality of mind within the meaning of S. 2 of the Homicide Act (1957).

In R v Tandy (1989) the accused strangled her 11-year-old daughter to death after she complained to the accused that she had been sexually abused by her stepfather. The accused had been drinking heavily just prior to the incident and at the time of the incident she was very drunk. The accused was tried and convicted for murder. The accused appealed but the appeal was dismissed.

In assessing whether the defense of diminished responsibility can be successfully raised there are two principles to be considered. Firstly, if there are no other factors to be considered, unequivocal and un-contradictory medical evidence favorable to the accused should be accepted and the direction to the jury should be as such and secondly when there are other factors to be considered the medical evidence though unequivocal and un-contradictory should be considered in light of those factors or those circumstances as per R v Sanders (1991).

In R v Sanders (1991) the accused killed his wife with a hammer because she was having an affair with another man. The accused was a diabetic and because of his illness had lost sight in one eye which caused him to sink into depression. The accused was tried and convicted and the accused appealed on the grounds of diminished responsibility. The appeal was dismissed and the accused was held to be guilty of murder based on the principles stated above.

In R v Egans (1992) we once again examine if killing a person while in a state of drunkenness will allow the accused to raise the defense of diminished responsibility. The accused entered a home with the intention to rob and stumbled across an elderly widow. He attacked her and she died as a result of the injuries sustained. He had been drinking heavily prior to committing the act and the accused suffered from an inherent mental disability that was similar to a development disorder.

The court applied the test in R v Gittens (1984) and decided that the question that was to be asked is if the mental illness was sufficient to constitute an abnormality of the mind without taking into account the fact that the defendant had been drinking and would that abnormality of the mind have driven the accused to kill without the influence of alcohol? It was decided that the abnormality of the mind would not have lead the defendant to kill and the fact that he was drunk at the time was not sufficient to raise the defense of diminished responsibility.

Crime XXXIV – Diminished Responsibility III

Earlier on we had said that excessive drinking or consumption of alcohol alone while it may impair the accused’s ability to think and reason clearly will not fall under the category of diminished responsibility but what if the accused suffers from depression and commits murder while he or she was drunk or after he or she had been drinking excessively?

In R v Fenton (1975), the accused after he’d been drinking heavily shot a policeman and drove off in his car to a club where he shot and killed more people, 3 more to be precise. The accused was charged with murder and raised the defense of diminished responsibility.

Under S. 2 of the Homicide Act 1957 excessive drinking will only give rise to a defense if “it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary”.

In situations where the consumption of alcohol will not give rise to a defense but the defendant suffers from some type of mental impairment the court will ignore or set aside the fact that the accused had been drinking and look solely at the mental illness to determine if that mental illness was substantial enough to constitute an abnormality of mind that give rise to a defense. In this instance, it was decided that it did and the accused was convicted of manslaughter.

In Walton v The Queen (1978) (Privy Council) the accused shot and killed a passenger in a car. The accused was charged and convicted of murder and the accused appealed. The appeal was dismissed and the court held that the accused was guilty of murder.

The jury when deciding whether to convict for murder or otherwise is entitled to take into account not only the medical evidence that is submitted by the doctors but also of all the facts surrounding the death and the jury can if it chooses, ignore the medical evidence if it finds that the medical evidence is not entirely convincing.

Medical evidence in most instance is conclusive, in this day and age anyway, but a jury can if it chooses to, ignore it, especially if it feels that the medical evidence may have been tampered with.

In R v Vinagre (1979) the accused suspected that his wife was having an affair with a plainclothes policeman though there was no evidence to suggest that they were having an affair and in a fit of jealousy the accused stabbed his wife 34 times thereby killing her.

The accused was charged and the trial judge accepted the plea for diminished responsibility and hence his life imprisonment was reduced to 7 years. Overall however unfounded jealousy is not a defense and it only becomes a defense under diminished responsibility when it creates a clear mental imbalance.

In addition to that jealousy can only be raised as a defense in an existing relationship or in a relationship that is very much alive. It is almost impossible to plead jealousy if the relationship had ended and the accused is still for some reason or other possessive of his former girlfriend or ex-partner.

In R v Sutcliffe (1981), the case concerns the trial of Peter Sutcliffe the Yorkshire ripper. There was overwhelming medical evidence that was presented to corroborate the contention of the defense that the accused was a paranoid schizophrenic. The judge however ruled in line with the decision in Walton v The Queen (1978) (Privy Council) that the jury were entitled to disregard the medical evidence and the jury accordingly returned a verdict of guilty of murder or guilty of multiple murders.

R v Gittens (1984) reaffirms the decision R v Fenton (1975). In R v Gittens (1984) the accused who was suffering from depression, beat his wife to death after which he returned home and killed his stepdaughter. At the time, he’d been drinking while he was, at the same time, on medication for his depression and often the two don’t agree i.e. anti-depressants don’t go well with alcohol and can easily raise the level of intoxication.

The accused was held to be guilt of manslaughter and the test to be applied was whether the mental illness was sufficient to drive the accused to kill without the consumption of alcohol.

Copyright © 2018 by Dyarne Ward

Crime XXXIII – Diminished Responsibility II

In R v Lloyd (1966) the accused strangled his wife. The accused was arrested and charged. At the trial, the defense brought to light the fact that the accused suffered from a mental abnormality but there was no evidence to indicate that the mental abnormality that he suffered from would impair his ability to reason.

The trial judge directed the jury to the effect that they should decide based on the evidence that was presented to them if the mental abnormality constituted substantial impairment or otherwise. If the jury found that that the mental impairment was substantial then they should convict for manslaughter, otherwise they should convict for murder.

The jury convicted for murder and the accused appealed on the grounds that “abnormality of mental functioning” as per S. 2 (1) of the Homicide Act (1957) meant that the mental impairment should be more than trivial and not substantial in the ordinary sense of the word. His appeal was based on the premise that the level of mental impairment that was required to escape a conviction for murder need only be more than trivial and that the trial judge had erred in his direction to the jury.

The appeal was dismissed and it was decided that the trial judge had not erred in his direction. The jury is to decide whether the mental impairment that the accused in a murder trial raises on a charge of murder was substantial or sufficient to allow the accused to successfully raise the defense of diminished responsibility based on the evidence that is presented.

Now what if the killing is done out of love or compassion? If the accused suffers from a long term mental illness like depression than that is sufficient to raise the defense of diminished responsibility and the accused will not be guilty of murder but rather manslaughter.

In Price (1971), The Times, 22 December 1971, the accused allowed his terminally ill son to drown. The accused was arrested and charged but he was convicted not of murder but of manslaughter and the killing of his son was not seen as murder because the accused had allowed him to drown out of compassion and the accused’s decision was linked to his long-term depression. This type of killing is known as mercy killing or killing on compassionate grounds.

Is this type of killing different from infanticide in cases where the mother knows for certain that the child will not have a good life ahead or will have a life that is filled with hardship, especially when the mother suffers from depression which is an extremely common illness? That is for a court to decide but I don’t think it is too different.

In the United States alone over 17% of the population suffer from depression. These include young mothers who come from broken or dysfunctional homes. Many teenage mothers have either been physically or sexually abused themselves and from personal experience I can say for certain that the percentage of women that are abused is much higher than what is commonly perceived.

Just to thrown in some statistics, over 75% of the women I’ve dated and women that I have met as friends have complained, and it started from a very young age, that they were abused in some way, shape or form and as a result they get depressed and some of them resort to medication and the abuse is normally by a parent or parents or someone either or both parents are close to including relatives or family friends or someone the parent or parents have brought into their lives. From this aspect, the findings of various agencies with regards to sexual abuse is correct.

None of these women can be described as failures in life and some of them went on to have successful careers but the reason I point this is out is because the statics don’t really tell the true story and I’m of the belief that many of these figures have been watered down.

Abortion for example is something that many women go through and while most of us may think that it is a simple procedure, it is something that can have long term or lasting effects and women, some of them anyway, don’t really seem to get over it and it sometimes leaves a lasting impression that later manifests into a mental illness like depression. So, when it comes to things like diminished responsibility or mental illnesses like depression it is best to keep an open mind.

Copyright © 2018 by Dyarne Ward

Crime XXXII – Diminished Responsibility I

The defense of diminished responsibility is raised when an accused is tried for murder and the defense puts forward the argument that at the time the accused committed the act he or she had lost, albeit temporarily, his or her ability to think and reason. It could either be due to a permanent illness see R v Smith (Morgan) (2000) or it could be due to an illness that makes itself obvious or apparent in temporary fits and seizures see R v Campbell (1997).

In R v Dunbar (1958) the accused entered a room occupied by an 84-year-old lady while she was sleeping to steal some money. The lady woke up and the accused fearing that the lady would recognize him picked up a bottle of lemonade that was close by and hit her with it and the injuries that she sustained subsequently led to her death. The accused was tried and convicted for murder.

At the trial, the accused raised the defense of diminished responsibility and he appealed on the grounds that the trial judge had misdirected the jury on the standard of proof required to raise the defense of diminished responsibility. His appeal was successful and it was held that the standard of proof required to establish diminished responsibility was “a preponderance of probability”.

Intoxication or the state of being drunk is not sufficient to raise the defense of diminished responsibility. In R v Di Duca (1959) the accused for a conviction of murder raised the defense of diminished responsibility contending that the state of being drunk had reduced his capacity to think and reason. The judge refused to accept that drunkenness fell under the category of diminished responsibility and the jury convicted accordingly. The accused appealed and the appeal was dismissed. The accused was sentenced to death.

In R v Byrne (1960) the accused strangled a young woman to death in the YMCA. After killing her he mutilated her body. At his trial, evidence was submitted that the accused suffered from an impairment of mind that induced sexual perverseness. He had been suffering from the condition since a young age. The jury convicted for murder and the accused appealed.

The appeal was allowed. Abnormality of the mind covers all areas and aspects of the mind and it need not be equated to or does not need to correspond with madness. The mind is vast, and to date science has not yet uncovered its full potential and neither has it been able to provide a complete and exhaustive list of mental illnesses. Therefore, a lot depends on the facts. The burden of proving or establishing diminished responsibility lies with the defense.

S. 2 of the Homicide Act (1957) sheds more light on the subject. S. 2 (1) 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 recognized medical condition,

(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are—

(a) to understand the nature of D’s conduct;

(b) to form a rational judgment;

(c) to exercise self-control.

S.2 (2) On a charge of murder, it shall be for the defense to prove that the person charged is by virtue of this section not liable to be convicted of murder and S. 2 (3) a person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.

In R v Rose (1961) (Privy Council) the accused was a prisoner who stabbed a supervisor for refusing to give him the key to the gates. He was tried and the judge directed the jury in accordance with the rules for insanity (the M’Naghten rules). The accused was convicted and the accused appealed.

The appeal was allowed. It was decided that an accused may well be able to appreciate the gravity and consequences of his act and may know that the act was wrong but despite that he is unable to control or curb his actions.

This type of mental impairment (R v Rose (1961) (Privy Council)) is similar to that of those who suffer from impulse control disorders. Kleptomaniacs for example are unable to stop themselves from stealing despite the fact that they know the act is wrong and more often than not they are afraid of getting caught but despite that they continue to steal.

Copyright © 2018 by Dyarne Ward