Law Commission for England and Wales Murder, Manslaughter, and Infanticide (Law Com No 304, 2006) para 5.107. R v Campbell (1987) 84 Cr App R 255; see also Mackay ‘Diminished Responsibility and Mentally Disordered Killers’ 77. Although the term ‘mental responsibility’ appeared to be a precise and technical component of the defence and, thus, at least partially within the purview of expert witnesses (S C Hayes ‘Diminished Responsibility: The Expert Witness’ Viewpoint’ in S Yeo (ed) Partial Excuses to Murder (Sydney: Federation Press, 1991) 145, 155), as the Butler Committee pointed out, ‘mental responsibility…is either a concept of law or a concept of morality; it is not a clinical fact relating to the defendant’ (Butler Report para 19.5; see also Mackay ‘Diminished Responsibility and Mentally Disordered Killers’ 62; B J Mitchell, ‘Putting Diminished Responsibility Law into Practice: A Forensic Psychiatric Perspective’ (1997) 8(3) Journal of Forensic Psychiatry 620, 621; G Williams Textbook of Criminal Law (London: Stevens, 1978) 624. 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. My analysis of the historical development of diminished responsibility leads me to conclude that diminished responsibility relies on an idea of difference that is most accurately thought of as one of kind rather than one of degree and I suggest that approaching it this way generates a closer understanding of the doctrine than existing accounts provide. As I suggest in Chapter 2, useful insights are to be gained by viewing diminished responsibility (and infanticide) as Janus‐faced, both partially exculpatory and partially inculpatory, or sliding between my two subcategories of exculpatory and non‐exculpatory mental incapacity doctrines. The lack of consideration given to diminished responsibility may have reflected the English commentators’ preoccupation with the M'Naghten Rules in these decades. As the Court stated in Wood, ‘the culpability of the defendant in diminished responsibility manslaughter may sometimes be reduced almost to extinction, while in others, it may remain very high’: R v Wood [2010] 1 Cr App R (S) 6, 15. In 1994, the Court of Appeal heard the case of Sanderson (R v Sanderson (1994) 98 Cr App R 325), in which the cause of Sanderson's ‘abnormality of mind’ was disputed: Sanderson's defence counsel adduced psychiatric evidence that he suffered from paranoid psychosis while the prosecution adduced evidence that Sanderson's paranoia was the result of drug abuse. Part 7 - Mental Disorder and Unfitness for Trial Section 168 - Criminal responsibility of persons with mental disorder. Covers the M'Naghten rule which is also a dominant rule in US legal doctrine. (20) (p.249) (1) This article takes an abolitionist position towards insane automatism (or 'the insanity defence'). Understanding diminished responsibility to connote a qualitative rather than a quantitative difference takes seriously the notion of abnormality, which has been a consistent feature of the doctrine over time, and helps to account for the significance of expert medical evidence in decision‐making around diminished responsibility. Diminished responsibility is one of three special defences which exist for the criminal offence of murder. (p.244) (7) liability for punishment is something that can be impaired.123 But, as Richard Sparks points out in a widely‐cited analysis, ‘to say that we are less willing to blame…a man if he does something wrong surely does not mean “we are willing to blame him less, if he does something wrong”’.124 Even if liability could be said to be impaired, it is not clear precisely how a defendant's diminished capacity reduces his or her culpability. (57) incapacity excuse defendants because of their incapacity, not because that incapacity causes criminal acts. We said. In this respect, diminished responsibility is similar to insanity, and may be contrasted with intoxication, for instance. In the decades since the decision in Cox, decision‐making in relation to diminished responsibility has altered such that the majority of diminished responsibility pleas are now accepted by the prosecution.96. (6) What was clear was that the abnormal ‘state of mind’ had to pertain at the time of the killing (recently, this temporal connection has been replaced with a quasi‐causal requirement, as I discuss below). Insanity (total loss of control/sanity). (126) Divided into two parts, the first provides an analysis from the perspective of the UK, looking at . ‘ “Diminished Responsibility” in Theory and Practice’ 16. The idea that diminished responsibility affected the ‘quality’ of a defendant's act, from which it was difficult to disentangle the actor him or herself, would give mental disorder (and, eventually, expert medical evidence) an enhanced position in the doctrine. Bringing together previously disparate discussions on criminal responsibility from law, psychology, and philosophy, this book provides a close study of mental incapacity defences, tracing their development through historical cases to the ... The factors enumerated by Lord Alness were regarded as cumulative in nature, and the test for diminished responsibility became difficult to satisfy.30 This strict approach to diminished responsibility has been revised in recent decades, with the High Court in Galbraith concluding that, in order to be successful, a diminished responsibility plea did not require that all the Savage conditions be met or that the defendant's condition amount to one bordering on insanity.31. It is also not surprising to ... ... crimes. See Walker Crime and Insanity in England (Vol 1) 142. Criminal Behavior explores crime as a developmental process from birth through early adulthood. It further examines the role that legal, political, and criminal justice systems play in the development of criminal behavior. (67) (34) (97) See also R v Wood [2009] 1 WLR 496. (146) The CLRC considered this formulation to be insufficiently tight and advocated a version that required that the specified ‘mental disorder’ be ‘a substantial enough reason to reduce the offence to manslaughter’ (para 93). A manslaughter conviction attracts sentencing discretion. McLean (1876) 3 Couper 334, 336, extracted in Gordon The Criminal Law of Scotland 461. This is not to deny legal actors their status as experts—but it is to suggest that these individuals are lay vis‐à‐vis mental incapacity. WriteWork has over 100,000 sample papers", "I turned what i thought was a C+ paper into an A-". As I discuss in Chapter 3, in relation to the decision‐making around mental incapacity more generally, legal actors can be seen to be lay when it comes to the issue of mental incapacity, although they are in different subject positions when compared with lay people. A man who threw his 11-month-old son into a river has been found guilty of manslaughter by diminished responsibility. Hire the right lawyer near . Baby Zakari Bennett-Eko died after he was pulled from the River Irwell in . Theft by housebreaking was a capital charge but one for which the death penalty was no longer considered appropriate: see Gordon The Criminal Law of Scotland 461. (134) (130) But I suggest this scholarly understanding has obscured another, deeper sense of difference connoted by diminished responsibility—difference in kind. This becomes apparent when we take a step back to think about knowledge rather than evidence. In the years immediately following the Homicide Act 1957, diminished responsibility was a frequently successful plea.117 As the Law Commission concluded, the figures indicate that there has been ‘a consistent fall in the successful use of diminished responsibility in recent years’.118 Various reasons for the decline have been offered, including that there has been less use for diminished responsibility since the suspension of the death penalty in 1965 (for those types of murder to which it had continued to apply), or that its territory shrunk with the expansive approach to the partial defence of provocation, which prevailed from the 1980s until the early 2000s (I discuss the relationship between diminished responsibility and provocation in the final section of this chapter).119 It is also possible that jurors R v Byrne [1960] 2 QB 396, 403 per Lord Parker CJ. Mackay found that these reports were commissioned in approximately equal numbers by the prosecution and defence (Appendix B para 25). Covers the M'Naghten rule which is also a dominant rule in US legal doctrine.. (2003, March 12). Gordon The Criminal Law of Scotland 453. L Farmer Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law 1747 to the Present (Cambridge: CUP, 1997) 153–4. Perhaps the most well‐known instance of a judge rejecting an agreement to accept a plea to manslaughter on the basis of diminished responsibility occurred in the case of the ‘Yorkshire Ripper’. ‘Substantially impaired’ has been held to mean that the requisite impairment need not be total, but must be more than ‘trivial or minimal’.70 In relation to the types of capacities that must be affected—encompassing cognitive and volitional capacities—which are spelled out here for the first time, it is notable that each of the elements appears to be inspired by Byrne.71, The third component of diminished responsibility, ‘substantial impairment’, is the centre of gravity of the doctrine. As a result of changes in the way in which the claims to diminished responsibility are decided, there has been a shift in the balance of decision‐making in diminished responsibility cases toward the prosecution, who determines whether to contest a plea of dimin See Chapter 6 for a discussion in the context of insanity. See State v. McVey, 376 N.W.2d 585, 587 (Iowa 1985). R v Cox [1968] 1 WLR 308, 311. As a result, Lord Deas’ direction in Dingwall was ‘less remarkable’ than it would have been in England. (120) (88) See, for example, Griew ‘The Future of Diminished Responsibility’ 82; Horder Excusing Crime 155; Smith and Wilson, ‘Impaired Voluntariness and Criminal Responsibility’ 89. C R Williams, 'Development and Change in Insanity and Related Defences' (2000) 24 MULR 711. Various accounts of the role expert evidence plays in relation to diminished responsibility have been offered. The procedural rule that only the defence may raise diminished responsibility parallels the rule relating to raising automatism, and both rules may be interpreted as products of presumptions made in the criminal law. Law Commission for England and Wales Murder, Manslaughter, and Infanticide (Law Com No 304, 2006) para 5.111; see also Law Commission for England and Wales Partial Defences to Murder (Law Com No 290, 2004) Appendix B para 28). (at least under the old version of the doctrine) of so‐called ‘mercy killers’ who raise diminished responsibility.76. Culpable homicide was distinct from manslaughter in English law, which, since the sixteenth century, had denoted killings in the absence of premeditation, such as those committed ‘in the heat of passion.’ See J M Beattie Crime and the Courts in England 1660–1800 (Oxford: OUP, 1986) 79–80 and J M Kaye, ‘The Early History of Murder and Manslaughter’ (1967) 83 Law Quarterly Review 365, 369–70. Again, as I discuss in Chapter 2, this qualitative difference is both a requirement of the doctrine and a construction of the individuals (‘diminished’, ‘disabled’, ‘impaired’) who seek to rely on it. Found inside – Page 297In order to find a middle option between full responsibility and full punishment, which used to result in death by hanging, and not guilty by reason of insanity, England borrowed from Scotland the principle of diminished responsibility ... This significance is in part a practical one. Insanity and diminished responsibility defense are linked at their ideological hip by men rea. (118) (p.254) The defense is named after Daniel M'Naghten. The Judicial Studies Board specimen direction on diminished responsibility made reference to the caused nature of the defendant's conduct. See, for example, Mitchell ‘Putting Diminished Responsibility Law into Practice’ 631–2; W Wilson Criminal Law: Doctrine and Theory (London: Longman, 2003) 247. Wasik ‘Partial Excuses in Criminal Law’ 530, A Norrie ‘The Coroners and Justice Act 2009—Partial Defences to Murder (1) Loss of Control’ [2010], A Ashworth ‘The Doctrine of Provocation’ [1976], Manifest Madness: Mental Incapacity in the Criminal Law, 1 The Terrain of Mental Incapacity in Criminal Law, 2 Putting Mental Incapacity Together Again, 3 ‘Manifest Madness’: The Intersection of ‘Madness’ and Crime, 4 Dynamics of Inclusion and Exclusion: Unfitness to Plead and Infancy, 5 Incapacity and Disability: the Exculpatory Doctrines of Insanity and Automatism, 6 Knowing and Proving Exculpatory Mental Incapacity, 8 Gender, ‘Madness’, and Crime: the Doctrine of Infanticide, 9 Differences of Degree and Differences of Kind: Diminished Responsibility. These machinations hint at the profound significance of the normal/abnormal distinction for the criminal law and the disruption that flows from any blurring of the boundaries between these two states. * Diminished responsibility: schizophrenia and voluntary intoxication R v Joyce and Kay [2017] EWCA Crim 647 — "These two appeals have been heard together because each involves a consideration of the judgments in R v Stewart [2009] EWCA Crim 593, [2009] 2 Cr App .
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