Homicide I: Murder – Voluntary Manslaughter, (Loss of Control and Diminished Responsibility) Flashcards
Is diminished responsibility a complete or a partial defence?
A partial defence that reduces the conviction to manslaughter.
On whom does the burden fall to prove on the balance of probabilities that the defendant was acting under diminished responsibility?
The defence (HA 1957, s2(2)).
Provides classic definition of abnormality of mind (predecessor to ‘abnormality of mental functioning’):
The Court of Appeal stated that a defendant would be suffering from an abnormality of the mind if he had a ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’.
R v Byrne [1960]
Post-natal depression and pre-menstrual syndrome held to count as ‘recognised medical condition[s]’ (within statutory elements of diminished responsibility).
R v Reynolds [1988]
Acute depression and battered woman syndrome/post-traumatic stress disorder held to count as ‘recognised medical condition[s]’ (within statutory elements of diminished responsibility).
R v Thornton (No 1)
Alcoholism could also be a cause of an abnormality of mind (counting as a recognised medical condition?) This would arise from ‘disease or injury’?
Watkins LJ considered the operation of diminished responsibility where, as it was in this case, the abnormality of mind was alleged to be linked to alcohol dependency. He was clear that, if the defendant was in a position to resist the urge to drink, or was able to stop drinking but chose to carry on, the defence was not available, even if there was evidence of an alcohol dependency syndrome.
R v Tandy [1989]
Held that hate, jealousy or bad temper would not come within the HA 1957, s2.
Fenton (1975)
Meaning of the word ‘substantial’ within s2(1)(b) of HA 1957 considered in this case: The Court of Appeal suggested that the new law on this issue does not differ from the law before the most recent amendments (R v Byrne, R v Simcox, R v Lloyd). They suggest that the word is open to two different interpretations:
1) ‘Substantial’ means any effect that is more than merely trivial.
2) ‘Substantial’ refers to an effect which ‘significantly or appreciably impairs… ability, beyond something that is merely more than trivial or minimal.’
The Court of Appeal suggested that the judgments in Byrne, Simcox and Lloyd all support the latter interpretation as being relevant to the issue in HA 1957, s2(1)(b), although they suggest that the test suggested in Lloyd is more ambiguous and may lead juries more to the first definition.
R v Golds [2014]
Provides one of two interpretations of word ‘substantial’ (favoured interpretation?): ‘Substantial’ refers to an effect which ‘significantly or appreciably impairs… ability, beyond something that is merely more than trivial or minimal.’
R v Simcox [1964]
What was the example given by the Law Commission in their Report No. 304 of an abnormality of mental functioning which substantially impaired D’s ability to ‘understand the nature of D’s conduct’?
A boy aged 10 who had been left to play very violent video games for hours on end for much of his life, loses his temper and kills another child when the child attempts to take a game from him. When interviewed, he shows no real understanding that, when a person is killed they cannot simply be later revived, as happens in the games he has been continually playing.
What were the 3 examples given by the Law Commission in their Report No. 304 of an abnormality of mental functioning which substantially impaired D’s ability to ‘form a rational judgment’?
1) A woman suffering from post traumatic stress disorder, consequent upon violent abuse suffered at her husband’s hands, comes to believe that only burning her husband to death will rid the world of his sins.
2) A mentally sub-normal boy believes that he must follow his older brother’s instructions, even when they involve taking part in a killing. He says, “I wouldn’t dream of disobeying my brother and he would never tell me to do something if it was really wrong”.
3) A depressed man, who has been caring for many years for a terminally ill spouse, kills her at her request. He says that he had found it progressively more difficult to stop her repeated requests dominating his thoughts to the exclusion of all else, so that “I felt I would never think straight again until I had given her what she wanted.”
What was the example given by the Law Commission in their Report No. 304 of an abnormality of mental functioning which substantially impaired D’s ability to ‘control him or herself’?
A man says that sometimes the devil takes control of him and implants in him a desire to kill, a desire that must be acted on before the devil will go away.
Where there is no evidence of the defendant suffering from ADS (alcoholism), a defendant might, at the time of the killing, suffer from both an abnormality of mental functioning and from the effect of alcohol taken before the killing. (Intoxication independent of the abnormality.)
The House of Lords suggested that it would be an impossible task for the jury simply to ignore the effect of the alcohol and decide whether the defendant, sober, would still have killed as a result of the abnormality. Instead, the jury must first consider the effect of the matters other than the alcohol and determine whether they amounted to such an abnormality of mental functioning as might have substantially impaired the defendant’s ability to do one of the things in the HA 1957, s2(1A). From that case, the jury should consider:
‘If the defendant was intoxicated at the time of the killing, the jury should then ask themselves: has the defendant satisfied you that, despite the drink,
1. he was suffering from mental abnormality; and
2. his mental abnormality substantially impaired his mental responsibility for his fatal acts?’
R v Dietschmann [2003]
The Court of Appeal acknowledged that understanding of the effects of ADS (alcoholism) had advanced since Tandy. As in Dietschmann, it was somewhat artificial to draw a distinction, where that defendant has ADS, between purely involuntary drinking and drinking where the defendant has some ability to stop. Instead, the jury must decide whether the ADS was a significant factor in leading the defendant to consume the alcohol, even if there was an element of voluntary choice either to start drinking or not to stop at some point. If they decide that it was a significant factor, they can conclude that the defendant’s responsibility was impaired as a result of the abnormality of mental functioning.
R v Wood [2008]
The Court of Appeal gave guidance as to how a judge should direct the jury in cases involving ADS.
- First, they pointed out that the jury must be satisfied that there was an abnormality of mind (which would now be an abnormality of mental functioning). Evidence of ADS may well assist the jury here. However, it would, depending on the evidence, be open to them to conclude that, notwithstanding the existence of the condition, at the time of the killing, the defendant was not suffering from an abnormality of mental functioning.
- Second, if the jury are satisfied that the defendant was suffering from an abnormality, they then need to be satisfied that this arises from a recognised medical condition. If there is clear evidence of ADS, then this requirement is likely to be satisfied. Any attempt to rely on voluntary and temporary drunkenness, even when based on habitual heavy binge drinking, will not be sufficient.
- Third, under the old law, the Court of Appeal directed that the jury must consider whether the ADS substantially impaired the defendant’s mental responsibility. The Court of Appeal suggested a number of factors that may assist the jury in deciding this:
(a) the extent and seriousness of the defendant’s dependency;
(b) the extent to which his ability to control his drinking was reduced;
(c) whether he was capable of abstinence and if so for how long; and
(d) whether he was choosing for some particular reason (such as a birthday) to decide to get drunk or to drink more than usual.
Without seeking to be prescriptive about considerations relevant to an individual case, the defendant’s pattern of drinking in the days leading to the day of the killing, and on the day of the killing itself, and notwithstanding his consumption of alcohol, his ability, if any, to make apparently sensible and rational decisions about ordinary day to day matters at the relevant time, may all bear on the jury’s decision whether diminished responsibility is established in the context of this individual defendant’s alcohol dependency syndrome.
R v Stewart [2009]
Any attempt to rely on voluntary and temporary drunkenness, even when based on habitual heavy binge drinking, will not be sufficient.
R v Dowds [2011]
Diminished responsibility is not available as a defence to a charge of attempted murder.
R v Campbell [1997]
