Loss of Control and Diminished Responsibility

Domestic, Comparative and International Perspectives

Alan Reed, Michael Bohlander

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409431756
• eBook ISBN: 9781317103295
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book provides a leading point of reference in the field of partial defences to murder and with respect to the mental condition defences of loss of control and diminished responsibility in general. The work includes contributions from leading specialists from different jurisdictions. Divided into two parts, the first provides an analysis from the perspective of the UK, looking at particular concerns such as domestic violence, revenge and mixed motive killings, mistaken beliefs. The second part presents a comparative and international view to provide a wider background of how alternative systems treat issues of human frailty short of full insanity (loss of control, diminished responsibility) in the context of the criminal law.

1 The New Diminished Responsibility Plea More than Mere Modernisation?

Ronnie Mackay

DOI: 10.4324/9781315593012-1

Introduction

A new diminished responsibility plea was introduced into English law by s. 52 of the Coroners and Justice Act 2009. It received Royal Assent on 12 November 2009. The reformed plea was the culmination of work done by both the Law Commission and the Ministry of Justice. What is important, however, is to assess the potential impact of the new plea and, in particular, whether it merely modernises the old s. 2 or goes further than this. Certainly, the former has been the consistent view of the government and the Ministry of Justice. Most recently in the circular dealing with the new plea issued by the Criminal Policy Unit of the Ministry of Justice it is stated that ‘It replaces the existing definition of the partial defence with a new, more modern one.’¹ A similar view was expressed by Maria Eagle MP, the Parliamentary Under Secretary of State saying ‘it is really just a clarification of the way in which that defence works’.² In essence, therefore, the official view has been that the old s. 2 was in need of clarification and modernisation. Clarification, as the old plea did not explain what was involved in the substantial impairment of the defendant’s mental responsibility; modernisation because the defence was not drafted with the needs and practices of medical experts in mind, so was out of step with current psychiatric thinking. However, rather than merely update the old s. 2, the new plea introduces a number of new concepts and as such could be regarded as a radical departure from its former self. It is important then to understand why such an approach was adopted.

1 Ministry of Justice, Partial defences to murder: loss of control and diminished responsibility; and infanticide: Implementation of Sections 52, and 54 to 57 of the Coroners and Justice Act 2009 (MoJ Circ. No 13, 2010). 2 Coroners and Justice Bill, Public Bill Committee, 3 February 2009.

The New Plea

The new plea for England and Wales³ is contained in s. 52 of the Coroners and Justice Act 2009 which provides as follows:

3 Section 52 was implemented on 4 October 2010. Section 53 makes identical provision for Northern Ireland.

• 52 Persons suffering from diminished responsibility (England and Wales)
• (1) In section 2 of the Homicide Act 1957 (c. 11) (persons suffering from diminished responsibility), for subsection (1) substitute—
• (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—
  1. arose from a recognised medical condition;
  2. substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A); and
  3. provides an explanation for D’s acts and omissions in doing or being a party to the killing.
• (1A) Those things are—
  1. to understand the nature of D’s conduct;
  2. to form a rational judgement;
  3. to exercise self-control.
• (1B) For the purposes of subsection (1)(c), 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.

It is interesting to compare this with the old plea which provided:

Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility in doing or being a party to the killing.

What is immediately apparent is that other than the words ‘abnormality’ and ‘substantially impaired’, very little of the old plea remains and gone is any reference to the term ‘responsibility’. Contrast this with the new plea in Scotland contained in s. 168⁴ of the Criminal Justice and Licensing (Scotland) Act 2010 which provides:

4 New s. 51B of the Criminal Procedure (Scotland) Act 1995 as inserted by the Criminal Justice and Licensing (Scotland) Act 2010, s. 168.

A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.⁵

5 Royal Assent was received on 6 August 2010 but the provision has yet to be implemented.

From a cursory glance at all three provisions the following tentative conclusion might be drawn, namely that the Scottish provision bears more likeness to the old s. 2 than to its newly reformed counterpart and in that respect seems more akin to an update or clarification than the new s. 2. What then influenced the shape of our new diminished responsibility plea? To answer this we need to consider the role of the Law Commission.

The Role of the Law Commission

Prior to the enactment of the new s. 2 the Law Commission gave full consideration to the question of reforming diminished responsibility first in relation to its work on partial defences to murder⁶ and finally in connection with its work on murder.⁷ In the former the Commission described past reform proposals which again did not seem to represent any radical departure from the original plea. More importantly, the Commission, drawing on the results of the empirical research it had commissioned, concluded:

6 Law Commission, Partial Defences to Murder (Law Com. CP No 173, 2003); and Law Commission, Partial Defences to Murder (Law Com. No 290, 2004). 7 Law Commission, Murder, Manslaughter and Infanticide (Law Com. No 304, 2006) paras 5.83–5.142.

Our view is that for the time being, and pending any full consideration of murder, s2 should remain unreformed. There appears to be no great dissatisfaction with the operation of the defence and this is consistent with our consideration of the results of Professor Mackay’s investigation of the defence in practice.⁸

8 Law Com. No 290, 2004 (n. 6) para. 5.86. My empirical study can be found at App. B of that Report.

Despite this clear conclusion that no reform was required the Commission under the heading ‘A signpost for the future’ stated:

That said, we should not be shy about putting forward our thinking as to how a partial defence of diminished responsibility might be framed, were it to continue to be a defence under a reformed law of murder. We put forward our tentative suggestion as a “stalking horse” against which the wisdom of having any such defence may be judged.⁹

9 Website: Ibid., para. 5.93.

In making this suggestion the following remark is significant in terms of what reform proposal in particular seems to have influenced the Commission: ‘We see some attraction in the part of the version proposed by the New South Wales Law Reform Commission.’¹⁰ The Commission continued its consideration of diminished responsibility as part of its work on murder with the result that its ‘tentative suggestion’, after further consultation, was reformulated into the following recommended definition:

10 Website: Ibid., para. 5.76.

1. a person who would otherwise be guilty of first degree murder is guilty of second degree murder if, at the time he or she played his or her part in the killing, his or her capacity to:
   1. understand the nature of his or her conduct; or
   2. form a rational judgement; or
   3. control him or herself,

was substantially impaired by an abnormality of mental functioning arising from a recognised medical condition, developmental immaturity in a defendant under the age of eighteen, or a combination of both; and (b) the abnormality, the developmental immaturity, or the combination of both provides an explanation for the defendant’s conduct in carrying out or taking part in the killing.¹¹

11 Law Com. No 304, 2006 (n. 7) para. 5.112.

This proposal was then considered by the Ministry of Justice. In doing so the Ministry of Justice concluded that it was an appropriate vehicle for reform, with the result that, after parliamentary scrutiny, we now have a new diminished responsibility plea modelled on the Law Commission’s proposal, subject to the exclusion of ‘developmental immaturity’. As mentioned above, however, it seems clear that the work of the New South Wales Law Commission was an important factor in the overall thinking behind our new plea. Accordingly, it seems pertinent to consider this work together with why reform was felt necessary in that jurisdiction and what impact the reformed plea has had.

The Development of Diminished Responsibility in New South Wales

The defence of diminished responsibility exists in four Australian jurisdictions. They are New South Wales, Queensland,¹² the Australian Capital Territory,¹³ and the Northern Territory.¹⁴ The defence was first introduced into New South Wales in 1974 under s. 23A of the Crimes Act 1900. It was then identical to our original s. 2 of the Homicide Act 1957. However in 1993, in the case of R v. Chayna, Gleeson CJ expressed dissatisfaction with the plea and called for its possible reform saying:

12 Criminal Code 1899 QLd s. 304A: ‘When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.’ 13 Crimes Act 1900 s. 14: (1) A person on trial for murder shall not be convicted of murder if, when the act or omission causing death occurred, the accused was suffering from an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent cause or whether it was induced by disease or injury) that substantially impaired his or her mental responsibility for the act or omission. 14 14 Criminal Code – NT, s. 159:

159. Trial for murder – partial defence of diminished responsibility

(1) A person (the defendant) who would, apart from this section, be guilty of murder must not be convicted of murder if:

1. the defendant’s mental capacity was substantially impaired at the time of the conduct causing death; and
2. the impairment arose wholly or partly from an underlying condition; and
3. the defendant should not, given the extent of the impairment, be convicted of murder.

(2) Expert and other evidence may be admissible to enable or assist the tribunal of fact to determine the extent of the defendant’s impairment at the time of the conduct causing death.

(3) If the defendant’s impairment is attributable in part to an underlying condition and in part to self-induced intoxication, then, for deciding whether a defence of diminished responsibility has been established, the impairment must be ignored so far as it was attributable to self-induced intoxication.

(4) The burden of establishing a defence of diminished responsibility is a legal burden and lies on the defence.

(5) A defendant who would, apart from this section, be liable to be convicted of murder must be convicted of manslaughter instead.

(6) In this section: mental capacity, of a defendant, means the defendant’s capacity to:

1. understand events; or
2. judge whether his or her actions are right or wrong; or
3. exercise self-control.

underlying condition means a pre-existing mental or physiological condition other than of a transitory kind.

The fact that, as the present case shows, there can be such conflicting expert opinion about the application to a given case of the legal principles of diminished responsibility is a matter of concern … it appears to me that the place in the criminal law of s 23A is a subject that is ripe for reconsideration. ((1993) 66 A Crim R 178 at 189 and 191)

Later in 1997 concerns were expressed about the scope of the plea following the conviction of Graham Cassel for diminished responsibility manslaughter, a plea whic...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Preface
• Introduction
• 1 The New Diminished Responsibility Plea More than Mere Modernisation?
• 2 The Modern Partial Defence of Diminished Responsibility1
• 3 Loss of Self-Control under the Coroners and Justice Act 2009: Oh No!
• 4 The Model of Tolerance and Self-Restraint
• 5 The Serious Wrong of Domestic Abuse and the Loss of Control Defence
• 6 Loss of Self-Control When His Anger is Worth More than Her Fear
• 7 Feminism, ‘Typical' Women, and Losing Control
• 8 Sexual Infidelity Killings Contemporary Standardisations and Comparative Stereotypes
• 9 Killing in Response to ‘Circumstances of an Extremely Grave Character' Improving the Law on Homicide?
• 10 The View from Ireland
• 11 Partial Defences to Murder in Scotland An Unlikely Tranquillity
• 12 Anglo-American Perspectives on Partial Defences Something Old, Something Borrowed, and Something New
• 13 Provoking a Range of Responses The Provocation Defence in British Overseas Territories and Crown Dependencies
• 14 A Comparative Analysis of English and French Defences to Demonstrate the Limitations of the Concept of Loss of Control
• 15 When the Bough Breaks – Defences and Sentencing Options Available in Battered Women and Similar Scenarios under German Criminal Law
• 16 Partial Defences to Murder in New Zealand
• 17 Abnormal Mental State Mitigations of Murder The US Perspective
• 18 The Conflation of Provocation and Justification An Analysis of Partial Defences to Murder in Islamic Law
• 19 Provocation and Diminished Responsibility in Dutch Homicide Law
• 20 Partial Defences Due to Loss of Control and Diminished Responsibility under Spanish Criminal Law
• 21 Between Lack of Responsibility and Dangerousness Determinism and the Specificity of the French Criminal Law on Lack of Intellectual Insight and Loss of Control
• 22 Diminished Responsibility and Loss of Control The Perspective of International Criminal Law
• Index