Diminished Responsibility (Summary)

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 the 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.

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 is 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.

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 be 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 would give rise to a defense. In this instance, it was decided that it would 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 guilty 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.

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 is 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 led the defendant to kill and the fact that he was drunk at the time was not sufficient to raise the defense of diminished responsibility.

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 illness 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.

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 appeal 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 © 2019 by Dyarne Jessica Ward

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