Diminished responsibility guide

A guide in approaching question in Criminal Law

1. “The new law on diminished responsibility does not differ from the previous law it replaces.”
Critically Discuss this statement.

Question Analysis
Diminished Responsibility
 Past Law – s 2 HA 1957
 New Law
Differences/ Similarities.


Subject Matter of Content Analysis

1. The difference between DR and insanity (purpose: to provide some context and
general distinction between two defences of similar nature- max 2 para)
a. Consider the requirement for insanity – see the The M'Naghten Rule
b. Explain the Diminished Responsibility applies when the case cannot be
brought under the The M'Naghten Rule

2. Origin of diminished responsibility:
a. S 2, Homicide Act 1957 (explain what is DR under HA 1957)
i. The mind of the accused has been affected by
1. Abnormality of mind OR
2. inherent causes OR
ii. induced by disease or injury OR retarded development
iii. The abnormality of mind or inherent causes has substantially
impaired the mental responsibility
iv. Act or omission in doing or being a party to the killing
b. Vingre case – there must be clear evidence of mental imbalance – medical
reports ( R v Dix (1981), R v Matheson (1958) and R v Bailey (1977)
c. What it means by abnormality of mind? – explaination given by Lord Parker
CJ in R v Byrne [1960] – state of mind so different from that of ordinary
human beings that that the reasonable man would term it abnormal. Factors
to look at:
i. Anything affecting perception of the accused;

2. ii. Ability to form rational judgment – whether the act is right or wrong
iii. Ability to exercise will power to control physical acts in accordance
with rational judgment.
iv. Byrne’s case recognised the inability to control impulses is abnormality
of the mind.
d. Direction to Jury
i. R v Seers (1984) - Court of Appeal stated that Byrne’s direction should
be given to the jury.
ii. Limitation of s 2 defence – the accused must bring their abnormality of
mind within the meaning in section 2 HA 1957. If not, they will not be
able to use the partial defence and may be convicted of murder in the
absence of any other defence.
iii. Look R v Tandy (1988) and R v Inseal [1992]
iv. If there two causes – one can come under s 2 (X) and the other
cannot(Y) – then the judge has to direct the jury to disregard evidence
relating to the other (Y). – held in R v Fenton (1975)
e. The abnormality of mind must substantially impair mental responsibility
i. This is a matter of fact to be left to the jury
ii. R v Byrne – Lord Parker CJ explained
1. Medical evidence is relevant;
2. But medical evidence must show that firstly there was
impairment of mental responsibility and second it must show
that the impairment was substantial.
3. R v Campbell, the Court of Appeal stated that whether the
abnormality of the mind substantially impaired the accused
mental responsibility cannot be decided on medical evidence
alone. All evidence on the incident on trial should be
considered.

3. New Law – s 52, Coroners and Justice Act 2009
a. Purpose – to clarify the type of mental abnormality which can be ground for
DR and the means by which to establish the defence in court.
b. Under the new law – burden is on the defendant to prove the defence on a
balance of probabilities. (Same as the old law)
c. Elements of s 52 CJA 2009:
i. Abnormality of mind –
1. Arise from a recognized medical condition (same/different?)

3. 2. Substantially impair the D’s ability to do one or more of the
things mentioned in 52(1A) and
a. 52(1A) –
 Understand the nature of conduct(same/different?)
 To form rational judgment (same/different?)
 To exercise self-control (same/different?)
3. DR explains the D’s Acts and omissions in doing or being a
party to the killing. – argue is a issue of causation. Therefore if
the DR could not be said to be a cause of the D’s act or omission,
then the DR fails as a defence.
d. First condition in s 52 – Abnormality of mental functioning arising from a
recognised mental condition
i. S 52 does not define ‘abnormality of mental functioning’ – then need to
depend on caselaw for definition.
ii. But case law must fit within the test given in s 52(1A) (which of the old
cases fit? Explain)
e. Second condition in s 52 – Recognized mental condition
i. Under the old law, there was no requirement that the defendant’s
mental abnormality resulted from a recognised medical condition so
long as it was caused by some ‘inherent’ condition. –(Comment – it is
flexible). Under old, recognised medical condition is a requirement in
law. What if the condition by the accused is not recognised yet?
ii. Recognised medical conditions can be found in authoritative
classificatory lists, including the World Health Organization’s
International Classification of Diseases and the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders.
(Comment: Is the list exhaustive?)
iii. Some old law cases recognised under new law (Analysis – first whether
same as old law? Second does this make the new law the same as the old law
(Argue)?):
1. Arrested or retarded mental development.
2. Depression (R v Gittens (1984)).
3. Bipolar (R v Inglis [2010] EWCA Crim 2269).
4. Paranoid schizophrenia (R v Sutcliffe (1981)).
5. Brain damage.
6. Psychopathy (Byrne (1961)).
7. Paranoid personality disorder (Martin (2002)).

4. 8. Postnatal depression (Reynolds (1998)).

4. Special situations: Alcohol and Drugs:
a. Old law distinguished between binge drinking and chronic alcoholism. This
separation is likely to be continued. Consuming alcohol or drugs is not a
medical condition - R v Fenton (1975).
b. Application of new law - R v Dowds [2012] EWCA Crim 281, (2012) MHLO
18, the Court of Appeal concluded that voluntary acute intoxication, whether
from alcohol or another substance, is not capable of founding diminished
responsibility. However, the abnormality of mental functioning does not have
to be the sole cause of the killing so long as it ‘provides an explanation’ for
D’s participation in the killing. So a person who kills due to the combined
effect of intoxication and a recognised mental condition may still have a
defence (R v Dietschmann [2003] 1 All ER 897 (Old law), disapproving R v
Egan [1992] 4 All ER 470) (Old Law). (Focus of analysis – why Egan was
disapproved?).
c. Under the old law, chronic alcoholism could ground the defence as it was
inherent to the defendant (R v Wood [2009] 1 WLR 496 Court of Appeal; R v
Stewart [2009] 1 WLR 2507). This is likely to continue to be the law, since
chronic alcoholism is a recognised medical condition and its effect, which is
well known, is to provoke irresistable cravings for alcohol and consequently a
reduced capacity for self control and foming rational judgements.
d. Example – R v Wood - Wood is a typical case of this nature, involving a
homeless alcoholic who, heavily intoxicated, killed an associate who had
made a homosexual advance. The trial judge gave the misleading impression
to the jury that the defendant’s consumption of alcohol had to be entirely
involuntary to count as an internal pathology capable of grounding the
defence. The defendant’s appeal was allowed for misdirection. The President
of the Queen’s Bench rejected the trial judge’s proposition to the effect that
‘unless every drink consumed that day by the appellant was involuntary, his
alcohol dependency syndrome was to be disregarded’.

5. DR must provide an explanation for the killing
a. The new provision requires that the abnormality must provide an
explanation for the defendant’s acts and omissions in doing or being a party
to the killing.

5. b. The standard the reason must achieve - Section 52(1B) of the Coroners and
Justice Act 2009 states that an explanation will be provided if ‘it causes, or is a
significant contributory factor in causing, D to carry out that conduct’.
Whether it does provide an explanation for the killing is a question for the
jury which, in cases involving multiple causes – for example depression and
intoxication (see R v Gittens) or chronic alcoholism and intoxication (see
Wood) – could prove a bit of a challenge.
Conclusion:
6. Are the laws the same?
a. Where are they similar?
b. Where are they different?
c. Does the difference reflect a significant change? Your reasons.