Diminished Responsibility

11 Key excerpts on "Diminished Responsibility"

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  Anglo-American Insanity Defence Reform

  The War Between Law and Medicine

  • Faye Boland(Author)
  • 2019(Publication Date)
  • Taylor & Francis

    (Publisher)

  The above discussion reveals that, despite its hasty introduction, the operation of the Diminished Responsibility defence has been successful in all cases except where intoxication and Diminished Responsibility combine - where its only failing is that it is sacrificed to the supposed lesser evil of excluding evidence of intoxication or treating a defendant under its effects more harshly. In the course of demonstrating the merits of the defence, this Chapter has examined the Diminished Responsibility defence in relation to the other criminal law defences of automatism and insanity. In reality, however, the defence applies across a vast spectrum of human behaviour.

  An “abnormal state of despair” induced by the need to care for an imbecile child or by a diagnosis of cancer in a beloved relative, leading in each case to a “mercy killing”; “a reactive depressed state” associated with the breaking of an engagement or the discovery of unfaithfulness in a spouse; “mixed emotions of depression, disappointment or exasperation” causing a “lack of control” over the defendant’ actions in similar circumstances; inability to hold down a job; even an attempt at suicide after the commission of the offence charged - all of these have been adduced as at least contributory evidence of Diminished Responsibility.195

  Substantially Impaired Mental Responsibility

  An aspect of the Diminished Responsibility defence which has not gone without criticism is the requirement of substantial impairment of mental responsibility. This requirement has led to a wealth of academic commentary, most of which has done nothing to elucidate its meaning.196 This difficulty of interpretation stems from the fact that section 2 is elliptical “almost to the point of nonsense”.197 If as suggested by Griew,198 the irreconcilable words “impaired..mental” and “responsibility” are forced apart, the section begins to make sense: He had an abnormality of mind (of appropriate origin). This had a substantial adverse effect upon one or more relevant functions or capacities (of perception, judgment, feeling, control).199 In the context of the case this justifies the view that culpability is substantially reduced. The outcome is diminished liability: manslaughter.200 Its elliptical nature explains the confusion in the House of Commons during the debates on the Homicide Bill and such expressions of discomfort as: “the Bill is just as far from clear to many of us who have been considering it for that considerable length of time”.201 Haste in passing this legislation undoubtedly hindered clarification of section 2 in Parliament, and is discussed in detail in Chapter Five above

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  The Mind of the Criminal

  The Role of Developmental Social Cognition in Criminal Defense Law

  • Reid Griffith Fontaine(Author)
  • 2012(Publication Date)
  • Cambridge University Press

    (Publisher)

  14 See Fradella, supra note 6 (reviewing and discussing the recent history of diminished capacity and insanity). Diminished (Social-Cognitive) Capacity 73 the presumed general capacity of rationality, is arguably central to multiple excuse-based defenses that remain firmly grounded in modern criminal juris- prudence and active criminal law. Legal insanity is an excuse-based affirmative defense that states that where, due to (nonculpably formed) mental disease or defect, one who is unable to understand or appreciate the wrongful nature of her act at the time it is com- mitted, that person will not be held responsible or punishable for said act. Statements of the defense have varied by jurisdiction and the scope of the defense’s application has fluctuated considerably across history. Nevertheless, even in its most general form, and according to its broadest set of guidelines, the underlying notion that the defendant needed to have been unable to com- prehend that her act was naturally unjust at the time of its commission has remained evident. There is an obvious conceptual overlap between the doctrines of dimin- ished capacity and insanity. Perhaps one simple and fair distinction between the two may be drawn from the specificity of their statements. That is, insanity may be viewed as a specific and more severe form of the more general condition of diminished capacity. 15 Where there is serious cogni- tive dysfunction or impairment that, although it may be relevant to the degree to which the actor understood the nature of her action or was able to prevent herself from performing it, does not satisfy the specific mental scenario reflected by the insanity defense, diminished capacity may apply. Similar to insanity, the effect of diminished capacity is the reduction of criminal responsibility and punishment.

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  Loss of Control and Diminished Responsibility

  Domestic, Comparative and International Perspectives

  • Alan Reed, Michael Bohlander(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  2

  The Modern Partial Defence of Diminished Responsibility1

  Rudi Fortson QC DOI: 10.4324/9781315593012-2

  1 The author expresses his thanks to Professor David Ormerod (Queen Mary University, London) and to Nicola Wake (Sunderland University) for their comments in the preparation of this chapter. The usual caveats apply.

  General Principles and Overview

  Introduction

  Lord Bingham articulated (extrajudicially) one of the most powerful reasons for the existence of the partial defences to murder, namely, that defendants must be ‘neither over convicted nor under convicted’ and must be punished appropriately.2 The purpose of this chapter is to discuss the concept of Diminished Responsibility as a partial defence to murder, having regard to its origins and development, and to consider the legal issues that now arise under s. 2 of the Homicide Act 1957 as amended and revised by s. 52(1) of the Coroners and Justice Act 2009.

  2 Law Commission, Murder, Manslaughter and Infanticide (Law Com. No 304, 2006) para. 1.64.

  The concept of ‘Diminished Responsibility’ has a long history in Scotland, helpfully summarised by the Lord Justice-General (Rodger) in Galbraith v. HM Advocate.3 The concept can be traced back to 1873,4 which has been variously described by Scottish judges as ‘Diminished Responsibility’,5 ‘full responsibility to partial responsibility’,6 ‘partial responsibility’,7 ‘lessened responsibility’,8 and ‘partial insanity’.9 In Galbraith, the court said that, following Caldwell v. HM Advocate,10 the expression ‘Diminished Responsibility’ seems to have taken root and it observed that ‘[even] in England the phrase “Diminished Responsibility” does not actually appear in the body of s2 of the Homicide Act 1957 but finds a toe-hold in the side-note’.11 But whereas the body of the original s. 2(1) of the Homicide Act 1957 does at least refer to ‘responsibility’, the revised s. 2(1) does not. In Scotland, from a date to be appointed, s. 51B of the Criminal Procedure (Scotland) Act 1995 makes explicit reference to ‘Diminished Responsibility’.12 The history of Diminished Responsibility in England is short. In 1956, the then Home Secretary introduced a clause in the Homicide Bill, which was to become s. 2 of the Homicide Act 1957, to provide a new defence to those who ‘although not insane in [the] legal sense, are regarded in the light of modern knowledge as insane in the medical sense and those who, not insane in either sense, are seriously abnormal, whether through mental deficiency, inherent causes, disease or injury’.13

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  Guilt

  Its Meaning and Significance

  • John G. McKenzie(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  A court of law has two basic functions: it has to prove whether or not the crime was committed by the accused; and it has to assess the measure of responsibility and culpability for what he has done if he is proved guilty. The conflict between psychiatrist and lawyer ranges round the latter function. The state of the man’s mind when he committed the act, argues the psychiatrist, must be the final factor in assessing responsibility and culpability. How far that is true we must return to later.

  Now, the lawyer is not primarily concerned as to whether the accused experiences guilt-feelings or not. Indeed if he does not feel the evil of suffering, that is often taken as a sign of the accused’s criminal nature. The lawyer is concerned primarily with the objective fact: Did the prisoner commit the act on which he is charged? If so, then he is guilty. But guilt in this sense must not be equated with responsibility or culpability. If the problem of guilt involved no more than that of proving whether the accused did or did not the act, then the task of the lawyer would be comparatively easy. But it is not so simple as that. Culpability and responsibility also have to be proved, or the lack of responsibility has to be proved by the defence, if such a plea is entered. The now accepted concept of ‘Diminished Responsibility’ implies that there are gradations of responsibility; so also does the law relating to children under a certain age who are not supposed to be able to envisage the ‘nature or quality’ of the act.

  The McNaghten Rules

  How does the court assess responsibility in a criminal charge? In Britain and America that court is largely bound by what is known as the McNaghten Rules.1

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  Mental Health Law 2EA Practical Guide

  • Basant Puri, Robert Brown, Heather McKee, Ian Treasaden(Authors)
  • 2017(Publication Date)
  • CRC Press

    (Publisher)

  However, the number of successful Diminished Responsibility pleas has reduced in recent years to a range of 13−35 per year, reflecting a less sympathetic view by the courts (and probably society) to this group of mentally abnormal offenders. Those who commit multiple homicides now rarely succeed in making this plea. Retrospective mental state assessment for the time of the offence The psychiatrist carries out a retrospective mental state examination for the time of the offence when assessing if the defendant is not guilty by reason of insanity (McNaughton Rules) or if Diminished Responsibility applies. In the McNaughton Rules, the legal concept used is disease of mind . In Diminished Responsibility, the legal concept used is abnormality of mental functioning . From case law: • mental functioning = reason, memory, understanding • disease = organic/functional, permanent/temporary, treatable/not treatable, is ‘internal’ ( R v. Quick (1973)) and/or ‘manifests in violence and is prone to recur’ ( Bratty v. A.G. in Northern Ireland (1961)). It can also include epilepsy ( R. v. Sullivan (1983)). Criticism of McNaughton Rules and Diminished Responsibility McNaughton Rules These rules are now almost obsolete. Points against them include the following: • Hardly anybody is mad enough to fit the rules (Lord Bramwell). Even McNaughton would not have been. • The rules assume a doctrine that mind is made up of separate independent compartments, of which cognition is most important (a Victorian view). • The rules are too unfair, as abnormal mental states do not fit into rigid categories. • The rules ignore the importance of emotional disturbance and failure of will when cognition is normal. Diminished Responsibility The most important points in favour of this are: • It allows for an overall assessment of the person.

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  Criminal Law

  • Joel Samaha(Author)
  • 2016(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 222 CHAPTER 6 • DEFENSES TO CRIMINAL LIABILITY II she generally admits that she committed. In contrast, diminished capacity focuses on a defendant’s capacity to commit a specific intent crime. If specific intent is estab- lished it doesn’t excuse punishment. Instead, punishment is based on the general intent crime the defendant was capable of committing. Evidence to demonstrate such a lack of specific intent is not equivalent to evidence to establish Diminished Responsibility. (144) Most states reject both types of diminished capacity. California is one example. The legislature abolished diminished capacity, mostly because of public hostility to it: The defense of diminished capacity is hereby abolished. In a criminal action . . . evi- dence concerning an accused person’s . . . mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged. . . . (California Penal Code 2003, § 25) The statute doesn’t eliminate diminished capacity altogether. It provides that “diminished capacity or a mental disorder may be considered by the court [but] only at the time of sentencing.” In practice, diminished capacity and Diminished Responsibility apply only to homi- cide. Most of the cases involve reducing first- to second-degree murder. In very few cases, defendants are allowed to introduce evidence to reduce murder to manslaughter.

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  Understanding Criminal Behaviour

  Psychosocial Perspectives on Criminality and Violence

  • David W Jones, David Jones(Authors)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  A particular group like this are those who have been variously described as psychopaths, sociopaths, or as suffering from ‘antisocial personality disorder’. They have caused considerable deliberation amongst lawmakers (Jones 2016). Whilst the medical status of the personality disorders themselves remains contested, they are often found in conjunction with less controvertible difficulties and diagnoses such as drug abuse, homelessness, self-harm (Haw et al. 2006), depression and psychotic illnesses (Blackburn et al. 2003). As a group, those diagnosed with personality disorders can often be distinguished through their socially and emotionally deprived backgrounds. These latter issues are pursued more fully in the following chapters. The rest of this chapter consists of the following three sections:

  The first section presents a brief history of the notion of criminal responsibility as it relates to mental disorder. The idea that the presence of ‘insanity’ offered a legal defence has a long history, certainly far longer than many of our modern psychiatric notions of mental illness. Despite the long history, fundamental disagreements about the nature of insanity still exist. It is possible to trace some debate between those who have argued that insanity can only be understood in terms of impairments to cognitive and rational thought processes and those who have argued that the concept should also include disorders of emotions. It can be argued that the model that emerged from the nineteenth century was one that privileged a cognitive understanding of insanity. Difficulties in operationalising the insanity defence, however, led to the introduction of the option that someone might be found guilty of taking the life of another but with ‘Diminished Responsibility’ for the act because of the presence of some kind of mental disorder. The accused would then be convicted not of murder but of the lesser charge of manslaughter.

  The second section explores the medical and legal definitions of insanity and Diminished Responsibility for taking the life of others that were ushered in by the 1959 Mental Health Act in England and Wales. It is argued that despite the apparent turn to medical expertise, the legal system remains highly ambivalent about the status of these experts and their categories. Debates over the revision of the Mental Health Act in England and Wales that occurred in the twenty-first century reflect some of these considerable difficulties.

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  The Verdict of the Court

  Passing Judgment in Law and Psychology

  • Jenny McEwan(Author)
  • 2003(Publication Date)
  • Hart Publishing

    (Publisher)

  203 J Gunn, A Maden and M Swinton,‘Treatment Needs of Prisoners with Psychiatric Disorders’ (1991) 303 British Medical Journal 54. 204 Ibid ., 55. 205 H Rollin, ‘Nineteenth Century Doctors in the Dock’ (1981) 283 British Medical Journal 171. 206 Pachy (1961) The Guardian 14 November. flimsiest of evidence’ juries will avoid murder convictions in sympathetic cases. 207 Judges are just as compassionate. A father who was found guilty of manslaughter by way of Diminished Responsibility having drowned his severely handicapped son in a river, was told by the trial judge, ‘I hope that in the passage of time you will be able to forget about this matter’. 208 In cases like this, members of the med-ical profession are required to join lawyers and jurors in manipulation of the sys-tem to achieve the desired result. Diminished Responsibility has accordingly been diagnosed in the case of the mildest of personality disorders, such as morbid jeal-ousy 209 and pre-menstrual tension, 210 in ‘cases which would hardly have attracted the label had it not been for the offence’. 211 Dell notes the success of the defence in cases where elderly men have killed their physically or mentally ill wives. If the defendant exhibits no signs of mental illness, doctors nevertheless may argue that it can be inferred from the circumstances that anxiety had caused abnormality of mind at the time of the killing. 212 Diminished Responsibility, like infanticide, relies heavily upon the compliance of psychiatrists. Indeed, ‘the role of psychia-trists in providing the means to the end is often unacceptable and may stretch conscience to the limit’. 213 These defendants represent no threat to the citizen’s perception of the world as a safe place, any more than does the mother who kills her baby. The tribunal of fact can afford to be compassionate. Magistrates and jurors are not at risk of infanticide, and they are unlikely to be subject to an unwanted mercy killing.

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  The Wiley International Handbook on Psychopathic Disorders and the Law

  • Alan Felthous, Henning Saß, Alan Felthous, Henning Saß(Authors)
  • 2020(Publication Date)
  • Wiley-Blackwell

    (Publisher)

  Indeed, by having proved the presence of personality disorder‚ the defendant may thereby have been made to appear more “dangerous” to the court than might otherwise have been the case, thus increasing the likelihood of imposition of a dis- cretionary life sentence. There may therefore be little or no “advantage” to such defend- ants, even when they do successfully avoid conviction for murder. The greatly reduced willingness of specialist forensic psychiatric services to take personality disordered offend- ers further results in penal rather than mental health sentencing. In England‚ jury deliberations are confidential and protected as such by law. When a plea of Diminished Responsibility has failed‚ it is not therefore possible to know whether this was because the presence of “abnormality of mind” or “abnormality of mental function- ing” was not accepted, whether the jury decided that whatever mental abnormality there was did not result in substantial impairment of responsibility or was in any case not a sig- nificant factor contributory to the killing. Where the plea has been successful, however, it is clear that both (under the unreformed defense), or all (under the reformed defense) ele- ments have been met. Overall, in the context of mentally disordered offenders whose mental disorder is that of personality disorder, it is readily apparent that Diminished Responsibility, as opposed to insanity, is far more able to accommodate the notion that at least some are less respon- sible for their actions than the ordinary person in the street, and the more so since reform of the defense. From a psychiatric perspective, the link between insanity, abnormality of mind, or abnormality of mental functioning, on the one hand and criminal responsibility on the other is not as clear as legal processes might imply, or hope, particularly where the underly- ing condition is one of personality disorder.

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  Crime, Reason and History

  A Critical Introduction to Criminal Law

  • Alan Norrie(Author)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  It no longer requires proof of an angry provoked response, though it still requires loss of control, and what this may entail is unclear. Its impact may be to permit the law to break away from its long-standing pathologisation of women experiencing domestic violence, though time will tell (see further Norrie, 2010b, esp 285–6; below, Chapter 11, pp 320–2). (c) Limits to compassion and pragmatism Removing the need for outright fraud and collusion between lawyers and psychiatrists on M’Naghten, the mitigatory plea of Diminished Responsibility permits a general blurring of the line between psychiatric diagnosis and legal compassion. 31 Most of the time, the two professions get on extremely well. In around 85 per cent of cases, the prosecution accepts a plea of Diminished Responsibility, and therefore the defence’s psychiatric evidence (Mackay, 2000, 62). We have already noted the tendency of lawyers and psychiatrists to approach the test with ‘compassionate pragmatism’ so that the ‘mercy killer’ experiencing intense social and psychological pressures is included with the diagnosed psychopath in the same legal category. 32 At the same time, the law retains the option of relying on its hard and fast legal tests when practical political circumstances, like those in the case of 31 A comparable use of the Diminished Responsibility plea is provided by the issue of premenstrual tension: Sandie Smith (1982), and see Edwards, 1988. Luckhaus (1985) argues that while PMT, like infanticide, has been constructed by the medical profession and imposed upon women, it does reflect, in distorted fashion, real experience. 32 Some (eg Dell, 1984), suggest that the only raison d’être of the Diminished Responsibility defence is to get around the mandatory sentence for murder; were that to be abolished, it would no longer be required because disposal would be left to the discretion of the judge.

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  Forensic Psychology

  • Matthew T. Huss(Author)
  • 2013(Publication Date)
  • Wiley

    (Publisher)

  In either case, the person is referred to as acquitted, just as someone who is found not guilty of a crime. As described in Chapter 1, U.S. criminal law requires mens rea, a guilty mind, for someone to be found guilty or held responsible for most crimes. Mens rea refers to someone intentionally committing a criminal act with a guilty or wrongful purpose. This standard also is expressed in the Latin phrase actus non facit reum nisi mens sit rea (“the act will not make a person guilty unless the mind is also guilty”). An act and the mental state must be present for someone to be guilty of many crimes. In instances in which someone lacks mens rea or it is reduced, criminal responsibility is eliminated or diminished. In the case of insanity, it is the presence of a mental illness that can remove criminal responsibility. Insanity is viewed as a legal compromise to a moral dilemma because society believes it is inappropriate for people who do not know what they are doing or who cannot control their behavior to be punished. As a result, insanity focuses on an individual’s mental state at the time of the criminal act and is often referred to as mental state at the time of the offense, or MSO. It is important to remember that insanity refers to someone’s mental state at the time of the criminal act, while competency focuses on someone’s mental state during the adjudication process. One misconception, among many misconceptions that we will discuss in this chapter, is that insanity is a mental illness or is equated with mental illness. Even though the presence of a mental illness or mental defect is central to the different laws that define insanity, insanity is not identical to mental illness. Insanity is a legal term, not a psy- chological or psychiatric term. You will not find the term insanity listed in the DSM with the diagnostic criteria alongside it as you would other mental illnesses. Someone may suffer from a mental illness and not be insane.

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