HOMICIDE

Diminished Responsibility

Diminished Responsibility
Where a defendant causes the death of a victim, intending to kill or cause serious injury, he may still be convicted of manslaughter rather than murder if he can establish one of three special defences. These defences apply only to murder, not to attempted murder or manslaughter or any other crime, and are partial defences in so much as they lead to a conviction for manslaughter (and thus to a possible but not mandatory life sentence) rather than acquittal. The three special defences are diminished responsibility, loss of control and suicide pact. Manslaughter of this type is commonly known as voluntary manslaughter, to distinguish it from involuntary manslaughter where a person kills another without meaning to cause death or serious injury. Although the law has changed recently with the introduction of the Coroners and Justice Act 2009 the cases discussed here can still help us out with some of the definitional issues that we are faced with and will almost certainly be referred to in subsequent new cases.

Homicide Act 1952 s.2

Where a person kills ... 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 for his acts and omissions in doing ... the killing.

Homicide Act 1952 s.2 (as amended)

The new law is set out in s.2 of the Homicide Act 1957 as ammended by s.52 of the Coroners and Justice Act 2009. To rely on the defence, the defendant must be able to demonstrate the following: 1. An abnormality of mental functioning caused by a recognised medical condition.

2. Which provides an explanation for the defendants acts or omissions in being party to the killing. 3. Which substantially impaired his/her mental ability to either: a) b) c) Understand the nature of their conduct or Form a rational judgment or Exercise selfcontrol

Abnormality of the mental functioning caused by a recognised mental condition.

Prior to the Coroners and Justice Act 2009, the Homicide Act 1957 referred to abnormality of the mind. The change of wording in this respect was simply to clarify the law and is not expected to make any changes to the applicability of the defence. Thus the case law under the Homicide Act is still helpful in determining what may count as an abnormality of the mental functioning.

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The question of whether the defendant is suffering from an abnormality of the mental functioning is for the jury to decide after hearing medical evidence. The jury are not bound to follow medical opinion it is ultimately their decision as to whether the defence should succeed. A notorious example of the jury ignoring medical opinion was present in the trial of Peter Sutcliffe (the Yorkshire ripper) where the medical opinion was unanimous that the defendant was a paranoid schizophrenic, yet the jury refused to allow him the defence. Abnormality of the mental functioning is assessed by reference to what a reasonable man would regard as abnormal. It has a wide meaning and encompasses the inability to exercise will power and control. R v Byrne (1960) 2 Q.B. 396 D strangled a young woman V and mutilated her body. At his trial for murder he brought medical evidence to support his claim that since childhood he had suffered violent and perverted sexual desires that he found it difficult and sometimes impossible to resist. The Court of Criminal Appeal quashed Ds conviction for murder and substituted manslaughter; lack of self-control due to an abnormality of mind is capable of constituting diminished responsibility, and the question should have been put to the jury. R v Reynolds (1988) unreported, CA A 19-year-old woman D battered her mother to death with a hammer and was convicted of murder. Allowing her appeal and substituting manslaughter (for which she was put on probation), the Court of Appeal said D was temporarily unbalanced after the secret birth of her baby, and post-natal depression could be enough to create diminished responsibility. R v Ahluwalia [1992] 4 All ER 889, CA A woman D had entered into an arranged marriage and had been very badly treated by her husband. He had been violent and abusive towards her; he had threatened to kill her and had once tried to run her down; and he had taunted her about his affair with another woman. One evening D poured petrol over his bed as he slept and set light to it. The Court of Appeal quashed Ds original conviction for murder, and at the retrial Ds plea of diminished responsibility resulting from the newly-acknowledged battered woman syndrome was accepted. Some examples of what has been held to constitute an abnormality of the mind include: Jealousy: R v Miller (1972) unreported An elderly woman became convinced that her husband (of forty years marriage) was having an affair with his secretary, and stabbed him to death with a carving knife while he slept. Her plea of diminished responsibility was accepted, and she was put on probation for three years on condition that she spent at least a year in hospital. Even unfounded jealousy (R v Vinagre (1979)). Battered woman syndrome: R v Ahluwalia [1992] 4 All ER 889, CA (above) and R v Hobson (1997)
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Pre-menstrual tension: R v Smith (1982) & R v Reynolds (1988) Epilepsy: R v Campbell (1997) Chronic depression: R v Seers (1984) 79 Cr App R 261, CA

Diminished Responsibility

A man D killed his wife a month after she had left him taking their two children. Psychiatrists agreed he had been suffering from reactive depression but disagreed as to whether this had been sufficient to impair his responsibility. [Several witnesses testified that D had publicly declared his intentions: the prosecution said this showed premeditation, but the defence said it showed Ds mental abnormality because no normal person would do such a thing!] Drake J directed the jury that diminished responsibility was something bordering on insanity, and the jury convicted. Allowing Ds appeal, Griffiths LJ said such a direction could not be justified by the words of the statute. R v Gittens [1984] 3 All ER 252, CA D was charged with murdering his wife and step-daughter while suffering from depression combined with the effects of drink and drugs. The trial judge told the jury they had to decide whether it was depression or intoxication that was the substantial cause of Ds state of mind, and they convicted of murder. The Court of Appeal substituted a verdict of manslaughter; Lord Lane CJ said the jury should have been directed to disregard the effect of the drink and drugs and then consider whether the effect of the other cause(s) was enough that it substantially impaired Ds responsibility for his acts. In each case the defendant must demonstrate that the characteristic was excessive when compared to that experienced by a reasonable person.

The abnormality must provide an explanation for Ds act or omission in being party to the killing.
This is an issue of causation - S. 1B Homicide Act 1957 states that an abnormality of the mental functioning provides an explanation for Ds Conduct if it causes or is a significant contributory factor in causing D to carry out that conduct. This follows from the old law under S.2 Homicide Act 1957 which required the abnormality to be caused by an arrested or retarded development of the mind or any inherent causes or induced by disease or injury. This was interpreted by the courts as meaning that the abnormality must be caused by an inside source and that outside factors causing the abnormality such as alcohol or drugs could not be taken into account unless the abnormality was as a result of the disease of alcoholism or drug addiction or long term damage caused by the intake of such intoxicants:

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R v Tandy [1989] 1 All ER 267, CA

Diminished Responsibility

An alcoholic D was charged with the murder of her 11-year-old daughter, but claimed diminished responsibility due to her having drunk a whole bottle of vodka. The Court of Appeal dismissed Ds appeal against a conviction for murder: drunkenness is not an abnormality of mind, and only if alcoholism had reached such a state that the brain had been injured, or the drinking was purely involuntary, might a defence of diminished responsibility succeed. If D simply failed to resist an impulse to drink - even if only the first drink was voluntary - she could not avail herself of this defence. R v Wood [2008] EWCA Crim 1305) After a days heavy drinking, a man D killed in a frenzied attack another man V who made sexual advances to him. It was agreed by the psychiatrists that D was a chronic alcoholic, and the question was whether the judge had directed the jury correctly on the question of diminished responsibility. Allowing Ds appeal against his conviction for murder, the Court of Appeal said the decision in Dietschmann must modify the rule in Tandy: it cannot be a rule of law that a decision to drink is necessarily a voluntary choice if made by a chronic alcoholic. A man suffering from alcohol dependency syndrome may be incapable of making a truly voluntary choice whether or not to drink, and may therefore be involuntarily intoxicated.: R v Stewart [2009] 1 WLR 2507 Court of Appeal The appellant was a chronic alcoholic sleeping rough in Marble Arch. He killed a man in the course of a fight. He raised the defence of diminished responsibility. The trial judge in his direction to the jury stated: the disease relied upon here is alcoholism, or its technical expression alcohol dependency syndrome. Crucial, you may think critical, to that particular issue is whether the defendant had the capacity to resist the impulse to consume alcohol: whether the defendant had the capacity to resist the impulse to consume alcohol. In other words, was his consumption of alcohol totally involuntary. The jury rejected the defence and convicted him of murder. He appealed on the grounds of a misdirection. The same approach is applied where the defendant is intoxicated by prescription drugs: R v OConnell 1997 Crim LR 683 Where there exists an abnormality of the mind in addition to intoxicants, the legal position was stated in R v Gittens and affirmed in R v Dietschmann: R v Gittens (1984) 79 Cr App R 272 (also above) The appellant attacked and killed his wife with a hammer and then raped and killed his daughter. At the time of the killing he suffered from severe depression. He had attempted suicide and had been hospitalised and on prescribed medication. On a visit home from hospital he consumed a quantity of alcohol and also took some prescription pills whilst his wife was out. On her return he

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and his wife had a violent argument and he killed her with a hammer. He was convicted on the two counts of murder. The evidence of three doctors called on behalf of the appellant at his trial was that he suffered from an abnormality of mind due to inherent causes which substantially impaired his mental responsibility. Two of the doctors considered that the abnormality of mind was due to a depressive illness and the third considered that the abnormality of mind was due to a disorder of his personality induced by psychological injury. The doctor called on behalf of the prosecution agreed that the appellant was suffering from an abnormality of mind, but in his view that abnormality was brought on by drink and drugs and was not inherent and was not the result of an illness. The judge directed the jury: Of course you have a further consideration in this case: that drink combined with taking the sleeping tablets certainly may have had something to do with his acts of killing in this case. I do not think there is any dispute about that on the part of any of the doctors. It may have played some part in what he did, but what you have to decide here is what was the substantial cause of his conduct. Was it the abnormality of mind from which he suffered that substantially impaired his mental responsibility, an abnormality of mind arising, of course, from inherent causes or from disease or injury, not an abnormality of mind arising from the taking of drink - for that does not help? As I say, you ask yourselves what was the substantial cause of his conduct. If it be substantially the abnormality of mind arising for those reasons other than drink or drugs, why, then, the defence of diminished responsibility has been established. The jury convicted of murder on both counts and the defendant appealed. Held: The murder convictions were substituted for manslaughter convictions on the grounds of diminished responsibility. The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section. Then the jury should consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendants mental responsibility within the meaning of substantial set out in R v Lloyd [1967] 1 QB 175. Therefore four points clearly emerge from the judgment of the Court of Appeal in Gittens: (i) Where a defendant suffers from an abnormality of mind arising from arrested or retarded development of mind or inherent causes or induced by disease or injury and has also taken drink before the killing, the abnormality of mind and the effect of the drink may each play a part in impairing the defendants mental responsibility for the killing. (ii) Therefore the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the defendants mind, the abnormality of mind arising from a cause specified in subsection 2(1) nevertheless substantially impaired his mental responsibility for his fatal acts. (iii) Accordingly it is not correct for the judge to direct the jury that unless they are satisfied that if the defendant had not taken drink he would have killed, the defence of diminished responsibility

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must fail. Such a direction is incorrect because it fails to recognise that the abnormality of mind arising from a cause specified in the subsection and the effect of the drink may each play a part in impairing the defendants mental responsibility for the killing. (iv) The direction given by the judge in R v Turnbull (Launcelot) 65 Cr App R 242 should not be followed. R v Dietschmann [2003] 1 AC 1209 The appellant had been having a relationship with his aunt who was much older than him and was a drug addict. The appellant was sentenced to imprisonment for an offence he had committed and the relationship continued during his stay in prison. She wrote to him every day and visited him. Unfortunately his aunt died whilst he was in prison. A month before she died, the aunt gave him a watch. He reacted badly to the death of his aunt and had attempted suicide. He was released from prison a month after her death and began drinking heavily. He was also prescribed prozac by his doctor. Two weeks after his release, he was drinking with two men at the home where he was staying. They were dancing and the watch given to him by his aunt fell off his arm. The appellant accused Nicholas Davies of breaking it. He then punched and kicked him to death in a violent attack. He was convicted of murder and appealed. Held: His conviction for murder was substituted for a manslaughter conviction. Lord Hutton set the appropriate direction to be given to juries where there exists an abnormality of the mind in addition to intoxication: Assuming that the defence have established that the defendant was suffering from mental abnormality as described in section 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendants mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him. Acute voluntary intoxication (binge drinking) alone is not capable of founding the defence of voluntary intoxication: R v Dowds [2012] EWCA Crim 281 Court of Appeal The appellant, a 49 year old college lecturer, killed his partner in a frenzied knife attack whilst he was heavily intoxicated. Both he and his partner were habitual binge drinkers and there had been numerous violent exchanges between the couple, most of which had been initiated by her and

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occurred whilst they were intoxicated. He reported her death to the police two days after the killing and claimed that he had no recollection of the events but accepted that he had killed her. He did not assert that he was alcohol dependant. He could exercise choice over when he drank and would not drink during the week. However, once he had started drinking he was unable to stop. The trial judge ruled that his voluntary and temporary drunkenness was not capable of founding the defence of diminished responsibility. The appellant appealed contending that the World Health Organisation lists acute intoxication in its International Classification of Disease and it was therefore a medically recognised condition and thus satisfied the requirement in s.2(1)(a) Homicide Act 1957 as amended by s.52 Coroners and Justice Act 2009. Held: Appeal dismissed. Voluntary acute intoxication, whether from alcohol or other substance, is not capable of founding diminished responsibility. Hughes LJ: The re-formulation of the statutory conditions for diminished responsibility was not intended to reverse the well established rule that voluntary acute intoxication is not capable of being relied upon to found diminished responsibility. That remains the law. The presence of a recognised medical condition is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility.

Which substantially impaired his/her mental ability

The defendant must show that the abnormality of the mind must have substantially impaired his mental ability to either: Understand the nature of their conduct or Form a rational judgment or To exercise self control This is a question for the jury to decide after hearing medical evidence. It is not necessary to show a complete loss of control, however, any evidence of planning on the part of the defendant may be used to show the defendants mental ability was not impaired. R v Campbell [1987] 84 Cr App R 255 The appellant killed a female hitch hiker he had picked up when she refused his sexual advances towards her. She wanted to go to Oxford from London. He picked her up in his car on his way home from a hockey match. He pulled up in a remote spot and made a pass at her. She hit him in the eye and he punched her in the throat. She began gurgling and blood came from her mouth. Realising the force at which he must have struck her he panicked and began to strangle her. He eventually killed her by hitting her with his hockey stick around the throat. The appellant had frontal lobe damage and epilepsy. At his trial he raised the defence of provocation which was rejected by the jury and he was convicted of murder. The defence of diminished responsibility was not advanced at trial as medical opinion was that his abnormality of the mind had not substantially impaired his mental responsibility due to his ability to recall events lucidly and the length of time of the sustained attack. He later appealed on the grounds of diminished responsibility advancing medical opinion that the effect of his epilepsy and frontal lobe damage was to affect his functions of judgment, control of

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the emotions, control of impulses, and forward planning. The appellant had suffered from absence seizures, lasting for anything from a few seconds to about half a minute, almost continuously. Such seizures lead to a change in the intellect and a reduction of the appellants ability to appreciate the circumstances surrounding him and to process information. While there will be gaps between these seizures, the appellant would have had a very imperfect understanding of what was happening around him while he is subject to one of them. The effect of the electrical discharges of the brain which occur during such seizures is to interrupt conscious thought processes and affect emotional control in a profound way. Having studied the available evidence of what the appellant did and said at the time, both doctors were of the clear opinion that at the time of the killing the appellant had been suffering an abnormality of mind of such significance as seriously to diminish his responsibility for the act that he carried out. Held: The appellants conviction for murder was quashed and a retrial ordered. The evidence was admissible as the defence had not been advanced at trial due to a lack in medical knowledge rather than for tactical reasons.

Raising diminished responsibility on appeal

If the defendant did not raise the defence of diminished responsibility at trial, the appeal courts are reluctant to admit fresh evidence relating to diminished responsibility: R v Andrews [2003] EWCA Crim 2750 Court of Appeal The appellant, a former dresser to the Duchess of York, was convicted of murdering her partner after she had beat him over the head with a cricket bat and stabbed him. The relationship between the appellant and deceased was stormy. She claimed that he was violent towards her and had raped her. The prosecution alleged that the killing was due to him telling her that he would not marry her. At her trial she advanced the defences of self defence, diminished responsibility and accident. Medical evidence to substantiate the diminished responsibility was to the effect that she had significant fluctuating depressive symptoms enhanced by a hormonal condition, polycystic ovary syndrome. The relationship with Thomas Cressman which she described was likely to have enhanced her sense of low self-esteem and re-awakened unpleasant memories of her childhood when she suffered abuse. Dr Turners view was that during the critical weekend it was likely that she was affected by her depressive symptoms and her hormonal status. The main thrust of the trial, however, was self defence. There were various discrepancies given by the appellant in the course of her trial and the jury convicted her of murder. After her conviction she was referred for psychiatric assessment and where the full extent of her abuse as a child was revealed and also new evidence of violence from her first husband. The psychiatrist diagnosed post traumatic stress disorder in addition to depression and an abnormal personality structure. The appellant sought to use the new evidence in an appeal. Held: The Court of Appeal refused to admit the fresh evidence. Kennedy LJ: In Ahluwalia [1993] 96 Cr App R 133 this court at 142 emphasised the need for any available relevant evidence to be advanced at trial. The same applies to expert evidence sought to be relied upon in support of defences which are advanced at trial. In that case Lord Taylor CJ said that this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism. So we do, at the same time acknowledging the expertise of those professionals who have only come into contact with the appellant since her conviction. We do not exclude the

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possibility that a professional who comes late into the field in support of a defence which was advanced at trial may have something to say which requires this court to exercise its powers under section 23, but for the reasons we have given this is not such a case. Here, as in almost every case, there was room for only one trial, at which the appellant had a full and proper opportunity to put forward her defence. Accordingly we found no substance in either of the first two grounds of appeal. In the case of R v Ahluwalia [1993] 96 Cr App. R. 133 Case summary Lord Taylor CJ stated: Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth. Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism. In deciding whether to admit fresh evidence the court must have regard to S. 23 of the Criminal Appeal 1968 which provides: (1) For purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice -(c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -(a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. The court is particularly reluctant to allow fresh evidence if the decision not to raise the defence of diminished responsibility was made for tactical reasons as oppose to reasons relating to the capacity to instruct the defence: R v Erskine and Williams [2009] EWCA Crim 1425 Court of Appeal Erskine was convicted in Jan 1988 on seven counts of murder. He had killed and sexually

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assaulted 7 elderly people. Williams was convicted of taking part in killing his girlfriends father after she had told him that her father had sexually abused her. Both the appellants sought to admit fresh medical evidence to raise the defence of diminished responsibility. Held: Fresh evidence was allowed in Erskine since the evidence was compelling that his mental responsibility was substantially impaired at the time of the killing and he lacked the capacity to instruct counsel to raise the defence and was wrongly advised not to. His convictions for murder were quashed and substituted with manslaughter convictions and he was subject to an indefinite hospital order. The court did not allow fresh evidence in Williams. The issue of taking diminished responsibility to trial was considered but rejected by Williams and his legal advisors for tactical reasons. Also the fresh evidence was less convincing. Lord Judge CJ gave guidance for admitting fresh evidence to advance the defence of diminished responsibility at appeal: If reference to earlier decisions or historical analysis happens to be required, the present judgment, where the vast majority of all the relevant decisions have been collected, will normally suffice. We emphasise that the provisions of s.23 do not require any further judicial exegesis; the court will positively discourage references to previous decisions which exemplify but do not alter the principles identified by Lord Bingham in Pearson. The court will normally expect the parties to provide a detailed analysis of the facts to assist it in the application of the statutory test, including an analysis of the following: i) The psychiatric and/or psychological evidence or other information in relation to the appellants mental state which was available at the time of trial. ii) The evidence which has become available since the trial, and an explanation why it was not available at trial. iii) The circumstances in which the appellant sought to raise on the appeal (a) the evidence available at the time of the trial and (b) evidence that has become available since the trial iv) The reason why such evidence or information as was available at the time of the trial was not adduced or relied on at trial. This will ordinarily include details of the advice given, the reasons for the appellants decision at trial and, subject to paragraph , any relevant evidence of the mental condition in the period leading up to and at the time of the trial and its impact on his decision making capacity. v) The impact of the fresh evidence on the issues argued at trial and whether and the extent to which it involves a re-arguing of issues considered at trial. vi) The extent to which the opinions of the experts are agreed and where they are not. These heads of analysis will not all necessarily apply in every case; in some cases additional areas of analysis may be required. However, any such analysis should suffice to assist and inform the court in its task of applying the provisions of s.23 (1) of the 1968 Act.

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R v Neaven (2006) EWCA Crim 955 Court of Appeal

Diminished Responsibility

The appellant at the age of 22 stalked and then fatally stabbed a man who had given evidence against him in a previous trial for wounding and criminal damage for which the appellant had been sentenced to 12 months imprisonment. The appellant had psychiatric problems dating back to his mid-teens. He had been excluded from school because of his violent outbursts and suffered long term personality disorder. He was dependant on alcohol and drugs. He had made several suicide attempts due to his intrusive thoughts of killing his girlfriend. A month before the killing the appellant told his psychiatrist he was having violent fantasies and experienced sexual arousal from violence. At his trial he advanced a plea of self-defence. His counsel discussed the issue of diminished responsibility but the defendant and his counsel believed that if this was also raised it would prejudice the outcome with regards to self-defence and reveal that he was dangerous. He therefore refused the prosecution access to his medical records. The jury rejected his plea of self-defence and convicted him of murder. The appellant later admitted that the self-defence plea was fabricated. After his conviction he was seen by a psychiatrist who diagnosed schizophrenia. The appellant appealed raising the diagnosis as fresh evidence to found a defence of diminished responsibility. The prosecution contended that the decision not to raise the defence at trial was a tactical one and therefore the new evidence should not be admitted. Held: The new evidence was allowed. The evidence that the appellant was schizophrenic was not available at trial. The new medical evidence was also indicative that the appellant would not have been in a position to make a rational judgment as to instruct counsel to omit the defence of diminished responsibility. His conviction for murder was quashed and substituted with manslaughter. The court reviewed existing authorities and gave the following guidance: (1) That the obligation on a defendant to advance his whole case at trial, and the scepticism directed towards tactical decisions, remain fundamental. (2) That it therefore takes an exceptional case to allow it to be in the interests of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However, subject to this, (3) each case turns on its own facts. Therefore, (4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (in the absence of opposition from the appellant himself see Kooken) to admit it. (5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendants illness itself. (6) The emergence only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of offence. In this connection it may be observed that only in the special case of Kooken was clear and undisputed fresh evidence on appeal of a good defence of diminished responsibility to the killing not acted upon in this court. R v Diamond [2008] EWCA Crim 923 Court of Appeal In 1997, at the age of 19, the appellant killed and dismembered the body a 17 year old. The appellant had a history of serious violent offences. The appellant instructed counsel not to raise the defence of diminished responsibility wishing to run his defence on the sole ground denying the killing. He had previously been acquitted of two separate offences by denying any involvement
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(which he had later admitted to carrying out). The jury did not accept his version of events and he was convicted of murder and sentenced to life imprisonment. His violence continued in prison and he was sent for psychiatric assessment which revealed that he was suffering from paranoid schizophrenia. He applied for leave to appeal which was refused. He then applied to the Criminal Cases Review Commission but still did not admit the killing. This was refused. He then reapplied admitted the killing but wishing to raise the defence of diminished responsibility. The Commission referred the case to the Court of Appeal. Held: The appeal was dismissed. The decision not to run the defence of diminished responsibility at trial was a tactical one. The medical reports at the time of trial stated the appellant had significant personality problems but no evidence of mental illness. The diagnosis of schizophrenia came four years after the killing and the medical report was written a further 3 years later. The Court of Appeal therefore attached greater weight to the medical evidence given at the time of trial. He was given competent and clear advice in 1998 in the period leading up to the trial that it would be in his own interests to undergo an assessment and to consider the defence of diminished responsibility. However, the probability is that, having obtained acquittals in 1995 and 1996, the self interest in obtaining an acquittal was the dominant motive in his decision to plead not guilty. There was no evidence that any lack of insight brought about by his schizophrenia played a material role in his decision. R v Hendy [2006] EWCA Crim In 1992, at the age of 16, the appellant stabbed and killed a complete stranger. He had been out at a party drinking with friends when he kicked a friend in the face. He immediately appologised and shouted I dont deserve to live. I should be dead. He then tried to jump in front of a car but was held back by his friends. The friends took him back into the house. He then said I always hurt the people I like I might as well be dead. The police were called and took the appellant home. Later that night the appellant took a knife and went and stabbed a man in an alleyway about 100 yards from his home in an unprovoked attack. At his trial he admitted the killing and raised the defence of diminished responsibility. He had suffered a head injury in early childhood. Medical experts differed in their assessment of his mental condition. The jury convicted him of murder. He appealed against his conviction on two grounds: 1. That the psychiatric evidence given at trial for the prosecution was flawed and fresh evidence demonstrates that he was suffering from a personality disorder at the time of the killing. 2. That the judges direction relating to the effect of alcohol on the defence of diminished responsibility was wrong in that it was in line with that stated in R v Atkinson [1985] Crim LR 314 and R v Egan [1992] 95Cr. App. R whereas the correct direction at the time was that stated in R v Gittens [1984] Crim LR 554. Held: 1. Fresh evidence as to the appellants mental responsibility was accepted as the age of the offender at trial made it very difficult to diagnose a personality disorder and also the new medical evidence came from a psychiatrist who had treated him for many years post trial. The case of R v Andrews was therefore distinguished. LJ Gage: judges direction to the jury was thus erroneous.

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Diminished Responsibility

We are acutely conscious of the fact that Professor Taylors evidence is based on a retrospective assessment of the appellant. However, unlike in Andrews the retrospective evidence is given by a doctor who treated the appellant for a number of years post-trial. In the circumstances, it seems to us that it is in the interests of justice that we should receive it. 2. R v Dietschmann [2003] 2 Cr. App. Rep. 54 did not represent a change in the law but simply affirmed the law as stated in R v Gittens [1984] Crim LR 554. Thus the Court of Appeal in R v Atkinson [1985] Crim LR 314 and R v Egan [1992] 95Cr. App. had taken a wrong turning. The trial R v Martin [2002] 2 WLR 1 Court of Appeal Tony Martin lived alone on an isolated farm called Bleak House. The farm and surrounding buildings were dilapidated and appeared to be derelict. Consequently the farm was subject to numerous break-ins. On the night of Aug 20th 1999 Freddie Barras (aged 16) and Brendan Fearon (aged 30) broke into the farm. Tony Martin armed with a 12 bore shot gun went downstairs and fired indiscriminately at where he thought the disturbance came from. He shot both the intruders killing Barras by a gunshot wound to the back. At his trial his plea of self defence was rejected by the jury and he was convicted of murder. He appealed on the grounds that his personality disorder should be taken into account in assessing whether he had used reasonable force for the purposes of self defence. Held: Whilst the personality disorder could not be considered for the purposes of self defence, it did amount to an abnormality of the mind which substantially impaired his mental responsibility for the killing. Since the psychiatric reports had not been considered by the jury his conviction for murder was quashed. The courts are more willing to admit fresh evidence relating to diminished responsibility where there have been advances in medical opinion since the time of trial: R v Ahluwalia (1993) 96 Cr App R 133 Court of Appeal The appellant poured petrol and caustic soda on to her sleeping husband and then set fire to him. He died six days later from his injuries. The couple had an arranged marriage and the husband had been violent and abusive throughout the marriage. He was also having an affair. On the night of the killing he had threatened to hit her with an iron and told her that he would beat her the next day if she did not provide him with money. At her trial she admitted killing her husband but raised the defence of provocation however, the jury convicted her of murder. She appealed on the grounds that the judges direction to the jury relating to provocation was wrong and she also raised the defence of diminished responsibility. Held: The judges direction on provocation was correct. The Duffy direction was good law and the judge had directed the jury on the issue of the abuse suffered by the appellant and thus the jury would have considered the affect of this in reaching their verdict. The appeal on the grounds of provocation was therefore unsuccessful. However, the appeal was allowed on the grounds of diminished responsibility. The Court did, however, stress that it was exceptional that fresh evidence would be allowed. Lord Taylor CJ: Ordinarily, of course, any available defences should be advanced at trial.
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Diminished Responsibility

Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth. Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism. Under s.2(2), the burden of proving diminished responsibility rests on the defendant. R v Ali, R v Jordan [2001] 1 All ER 1014, CA DD were (separately) convicted of murder, and appealed on the grounds that s.2(2) of the Homicide Act 1957 violated their Convention rights by placing on them the burden of proving diminished responsibility. Rejecting their appeals, Lord Woolf CJ said the common law principle that the burden of proof lies on the prosecution can be displaced, as in this case, by clear statutory words. It would be very difficult for the prosecution to prove that a defendant was not suffering diminished responsibility, particularly if the defendant refused to cooperate in a psychiatric assessment, and s.2 strikes a fair balance between the rights of the individual defendant and the need to protect the public. Diminished responsibility is sui generis, and must not be treated as if it were synonymous with some kind of temporary (or permanent) insanity. The prosecution may sometimes accept a defendants plea of guilty to manslaughter, even (on occasion) where his mental state does not strictly meet the statutory definition. R v Cox [1968] 1 All ER 386, CA D was accused of murdering his wife; there was overwhelming evidence of diminished responsibility, and after a full trial the judge directed the jury accordingly. On Ds appeal against his sentence of life imprisonment (which was varied to a hospital order) Winn LJ said obiter that in cases where the medical evidence plainly points to diminished responsibility, it is perfectly proper for the prosecution to accept a plea to manslaughter on that basis and avoid the trouble and expense of a trial for murder. R v Price (1971) unreported A boy of six had the mental capacity of a baby and a short life expectancy. His father D placed the boy in a river and watched him float away; the boy drowned. D pled guilty to manslaughter on the basis of diminished responsibility, and was put on probation for a year on condition that he underwent such treatment as a doctor may prescribe for the next few weeks or so. R v Robinson [1990] Independent 7/7/90, Saville J A woman D killed her husband by attacking him with a hammer and then strangling him. He had frequently been violent towards her, putting her in hospital from time to time, and she returned from hospital to find he had been having an affair with another woman. The prosecution said she had
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Diminished Responsibility

been subjected to a degree of provocation which goes well beyond that which might be thought to be extreme. The judge accepted her plea of manslaughter because of diminished responsibility and put her on probation for two years. R v Skerton (1994) unreported, Auld J A 25-year-old man D tried to commit suicide after his wife left him, by sitting in a closed car with his two sons and breathing the exhaust fumes; the baby died and the 4-year-old and D survived. D pled guilty to manslaughter by diminished responsibility resulting from reactive depression, and causing grievous bodily harm; charges of murder and attempted murder were abandoned, and D was sentenced to five years imprisonment. R v Hampson (1999) unreported A man D who battered his wife to death with a hammer pled guilty to manslaughter by reason of diminished responsibility. The court accepted that Ds wifes constant nagging had caused a depressive illness, and sentenced him to six years imprisonment. R v Lawson (2001) unreported A young woman V had been seriously depressed for some years, and had tried several times to commit suicide. When she was sent home from hospital (for possessing cannabis) after two suicide attempts in a week, her father gave her two bottles of tranquillisers, which she swallowed, put a plastic bag over her head with her cooperation, and finally smothered her with a pillow. His plea to manslaughter by reason of diminished responsibility was accepted by the prosecution, and the judge suspended a sentence of two years imprisonment. R v Bailey (2002) unreported A 74-year-old man D killed his wife, who was in severe pain from motor neurone disease. Ds plea of guilty to manslaughter by reason of diminished responsibility was accepted by the prosecution, and the judge made a three-year community rehabilitation order. The Law Commission in their report Law Com 290 (2004) noted these and other similar cases, but said that while the mandatory life sentence for murder remains in place, they are not persuaded that the acknowledged infelicities of the current formulation presently cause injustice in practice. If the case goes to trial, whether the defendant was suffering diminished responsibility is a matter of fact for the jury to decide. They will normally be guided by the medical evidence, but they are at liberty to make their own decision. R v Lloyd [1966] 1 All ER 107n, CA A man D killed another and was charged with murder. The doctors agreed that D had been depressed and that his responsibility had been impaired, but doubted whether this impairment had been substantial. Ashworth J directed the jury that diminished responsibility required substantial impairment, and the jury convicted of manslaughter. The verdict was upheld by the Court of Appeal.

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Walton v R [1978] 1 All ER 542, PC (Barbados)

Diminished Responsibility

A young man D was driving home with his girl friend and her mother when he stopped the car. He flagged down another car, and when it stopped he shot and killed the passenger for no apparent reason. At Ds trial for murder two psychiatrists and a psychologist gave evidence on his behalf, but the jury rejected his claim of diminished responsibility and convicted of murder. Dismissing Ds appeal, the Privy Council said the jury were entitled to reject the expert evidence if they chose. Upon an issue of diminished responsibility, said Lord Keith, the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the accused before, during and after it, and any history of mental abnormality. R v English (1981) unreported A woman who killed was allowed to bring evidence to show that pre-menstrual tension had impaired her responsibility sufficiently for this defence to be admitted. R v Sutcliffe (1981) unreported After a long police investigation D was identified as the Yorkshire Ripper and charged with the murders of about a dozen young women over a period of several years. D claimed to have been acting on a mission from God, and there was strong medical evidence to show he was a paranoid schizophrenic, but his plea of diminished responsibility was not accepted by the jury and he was found guilty of murder. R v Butters (2001) unreported A man stabbed his wife to death four days after their wedding. He claimed to have been suffering diminished responsibility, having not slept for three nights after coming off temazepan. The jury rejected this defence, and D was convicted of murder. R v Wragg (2005) unreported A man D was acquitted of murder but pled guilty to manslaughter by reason of diminished responsibility. He had suffocated his 10-year-old son, who suffered from Hunter syndrome (a degenerative and fatal disease) and had said he wanted to die. Rafferty J imposed a sentence of two years imprisonment, suspended for two years, saying there was nothing to be gained from sending D to prison but that she would not have been so lenient had Ds wife (the boys mother) not been complicit in the killing.

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