What is Diminished Responsbility?
DR is a special defence known as a 'partial defence' thereby meaning if the defendant satisfies the jury on the balance of probabilities there is not a complete acquittal but the conviction is reduced from Murder (The unlawful killing, of a reasonable person in being, under the Queen's Peace with malice aforethough express or implied.) to Manslaughter. This defence is outlined in the Homicide Act 1957. However, before the act came into force where a mental abnormality of mind arised there was a test for insanity but was heavily criticised as the test is narrow and not for everyone.
What is the Definition of Diminshed Responsibility?
DR is defined in the Homicide Act 1957 -
'Where the defendant is suffering from an arrested or retarted development of the mind, from any inherent cause induced by a disease or an injury which substantially impairs is responsibility'
This therefore means that the defendant MUST be suffering from an abnormality of the mind which is recognised and not from a transient state of mind (Di Duca) nor from intoxication alone or an external factor (Hill v Baxter - Automatism)
In the case of Bryne where defendant was a sexual psychopath who couldnt control his desires held that an abnormality of the mind is, ' a state of mind that all reasonable people would consider the condition abnormal.' and that it must be 'partial insanity.'
Seers however, said that such comparisions to insanity should be avoided as it is not helpful and said the defence should only be available to those on the borderline of insanity.
There are a range of disorders that can be considered on the basis of DR such as,
-> Post - traumatic stress
-> Chronic depressive illness etc.
In the case of Hobson 1994 the courts outlined that Battered Woman Syndrome is available under the defence of DR.
What was intepretated within the courts on the basis of 'substantial impairment ?'
Bryne said it is for the jury to decide.
Lloyd however, said substantially impairment means not trivial, minimal nor total but in between. A02: This can be criticised to say what amounts to 'in between' as individual jury panels may consider it differently therefore creating confusion and inconsistency in this area of the law and no binding precedent.
Seers on the other hand defined it as, not total nor absoluate but more than trivial.
Can intoxication itself satisfy for the defence of DR?
The answer is NO.
Gittens had depression at at the moment of killing he had taken several of his anti depressants and was intoxicated with drink. He then clubbed his wife to death and strangled his step daughter. He was convicted of murder but his conviction was quashed. This was due to the decision made by the jury.
Therefore, in order to satisfy for the defence the burden of proof is on the defendant so he has to prove that he would have done the killing anyway even if he had not been intoxicated.
In Dietschmann the House of Lords said this was wrong. Lord Hutton said that the meaning of S 2 (1) is reasonably clear. It simply meant that if the defendant satisfied the jury that not with standing the alcohol his abnormality of the mind substantially impaired his actions in to do the killing meaning he should be guilty of manslaughter rather than murder.
Lord Hutton, also pointed out that s2(1) does NOT require for the abnormality of the mind to be that of a sole cause in doing the killing. He then outlined three points from the decision in Gittens.
(1) The AOMind and Drink might each play a part in impairing the defendant's responsibility. (2) The jury would have to consider even without the drink the AOMind had an effect which impaired his mental responsibly for his fatal acts.
(3) It is NOT correct for the judge to appoint the jury if unless they were satisfied that if the defendant had NOT taken the drink he would have killed, the defence may fail.
If the brain has been injured by the use of alcoholism then the defence of can be used this was stated in Tandy. The courts held that whereby the defendant is unable to resist drinking, he is doing this involuntarily therefore this may amount to DR. The trial judge had to consider whether her acts where due to the effect of alcoholism or the drink itself. The Court of Appeal dismissed her appeal as Tandy had not shown that brain was injured therefore substantially impairing her responsibility.
This case was criticised as it didn't consider whether alcoholism is a disease or not.
This was later resolved in Wood whereby, if the brain is damaged due to long term alcohol abuse the defendant can use the defence of DR however, if he has drank voluntarily he cannot.
Therefore, after this case the courts held that in Dietschmann and Tandy alcoholism that is has an effect on the brain clearly is a disease however, it is for the jury to decide as to whether it was involuntarily and the effect of any alcohol consumption by the defendant as a result of his dependency.
What are the problems with this defence?
Even though DR has provided the a more satisfactory defence than insanity there are still problems within the law.
-> In Lloyd substantially impairment was defined as not trivial, minimal nor total but in between this can be criticised to say what amounts to 'in between' as individual jury panels may consider it differently therefore creating confusion and inconsistency in this area of the law and no binding precedent.
-> Medical Evidence must be used in order to prove the defendants state of mind and as two doctors need to supply evidence and often the whole case turns on conflicting about evidence about the defendant's mental condition as there will be evidence which supports and or goes against stating that it does meaning which opinion is taken into account?
-> The burden of proof is on the defendant however in all other defences the defendant must only raise the issue and the prosecution must disprove it and this should also apply to DR.
-> Under the European Convention Human Rights it states that everyone should be presumed to be innocent with a criminal offence until proven guilty. However, as the burden of proof is on the defendant there may be a breach under this act.
-> There are also problems where wording is not reasonably clear.