(6) Insanity. R v Smith (Morgan) [2001] 1 Cr App R 31. (70) 2.2 Relation of Diminished Responsibility To Insanity. How can a criminal record affect your life? The McNaghten rules do not apply in Scotland. Lord Deas did not regard mental abnormality as affecting criminal responsibility in a unique way.21 Thus, it was in a rather indeterminate way that an impaired ‘mental constitution’ was held to warrant conviction of culpable homicide as opposed to murder. The concept of defense by insanity has existed since ancient Greece and Rome. 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. ‘ “Diminished Responsibility” in Theory and Practice’ 16. (106) R v Smith (Morgan) [2001] 1 Cr App R 31, 58. 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. Insanity, automatism and diminished responsibility are examples of said defences. Despite suggestions by some legal academics, 2 that the defence of insanity should be abolished due to the absence of mens rea , or at least should be abolished as a separate defence, 3 it can be argued that, in most cases, the defence is crucial to . This led juries to try to encourage the royal prerogative through the practice of issuing ‘verdicts of guilty with a recommendation as to mercy or mitigation of sentence’ to reflect any extenuating circumstances of the defendant: Scottish Law Commission Insanity and Diminished Responsibility (Discussion Paper 122, 2003) para 3.1 and Scottish Law Commission Insanity and Diminished Responsibility (Report 195, 2004) para 3.1. I take up this point in the next subsection, concerning the specific kind of impairment which must result from ‘a recognised medical condition’. (41) (82) (Not Insanity. With particular reference to Arlie Loughnan's concept of 'manifest madness', it argues that mentally ill defendants are poorly served not only by the insanity defence as currently formulated, but by any defence which focuses on . The Judicial Studies Board specimen direction on diminished responsibility made reference to the caused nature of the defendant's conduct. 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 first of these was the Scots law on insanity, which encompassed a notion of partial insanity, providing that a ‘penalty should be reduced in proportion to the degree of impairment of responsibility—the worse the accused's mental condition the less the sentence’.2 A defendant's partial insanity could be taken into account via particular sentencing practices, and it was these practices which formed the second aspect of the Scots criminal law that facilitated the development of a doctrine of diminished responsibility. Essay by Even within the bounds of the offence of murder, diminished responsibility is not available as a (partial) defence to a charge of attempted murder: R v Campbell [1997] Crim LR 495. The M'Naghten insanity defense, also called the right-wrong test, is the most common insanity defense in the United States.It is also the oldest and was created in England in 1843. appear to be a multifaceted gender bias in the operation of diminished responsibility. This temporal connection meant that the defendant's ‘abnormality of mind’ must have been operative or in some way pertained at the time of the killing, but did not mean that it precipitated the killing (the stricter requirement). Of the cases in which the plea was contested by the prosecution (23 per cent), only 22 per cent were successful (Appendix B para 21). The Criminal Law of Scotland 460–1. to impose a hospital order under section 37 of the Mental Health Act 1983 to ensure treatment rather than punishment in appropriate cases. This chapter takes up the Janus-faced nature of diminished responsibility with the aim of exposing what kind of difference is encoded in the diminished responsibility doctrine, or, to put it another way, analysing what kind of difference diminished responsibility makes to the individual who raises it. Divided into two parts, the first provides an analysis from the perspective of the UK, looking at . Mackay posits that the new phraseology may work to prevent the ‘benevolent conspiracy’ between the court and experts that was possible under the obscure wording of the old diminished responsibility doctrine.63, In its previous incarnation (under the tripartite aetiology that applied until 2009), diminished responsibility was interpreted so as to exclude those who might be regarded as culpable for their diminished condition. Mackay's study found that expert witnesses were commenting on the issue of ‘substantial impairment of mental responsibility’ in 69 per cent of cases (Law Commission for England and Wales Partial Defences to Murder (Law Com No 290, 2004) Appendix B para 32; see also Law Commission for England and Wales Murder, Manslaughter, and Infanticide (Law Com No 304, 2006) para 5.118; see also Griew ‘The Future of Diminished Responsibility’ 82; Mitchell ‘Putting Diminished Responsibility Law into Practice’ 622. Drawing upon a wide variety of legal, psychiatric and philosophical sources, this is a timely contribution to a controversial and complex topic. Mackay found that there were 78 cases in which the diminished responsibility defence was successful in 1992 but only 49 in 1996 (Mackay ‘The Abnormality of Mind Factor in Diminished Responsibility’ 117). Women are over‐represented among defendants granted the plea.112 In addition, the prosecution is more likely to accept a plea of diminished responsibility for women defendants than for men.113 Women are also more likely than men to be granted the plea at trial.114 Once granted a diminished responsibility plea, women are more likely to be sentenced to probation or supervision orders as opposed to prison sentences.115 The gender bias in the operation of diminished responsibility suggests an underlying consensus about gender, violence, and mental abnormality in both legal processes and lay attitudes and beliefs.116. This mismatch between their original purpose and that to which they were put in the 1957 Act leads Griew to label the causes ‘a remarkably inept reconstruction’ of the 1927 Act: E Griew ‘The Future of Diminished Responsibility’ [1988] Criminal Law Review 75, 77. It was this looser type of connection that seems to have been envisaged at the time of the development of the Scots plea of diminished responsibility. Insanity (total loss of control/sanity). These formal qualities are, on the one hand, that ‘madness’ is constructed as it is dispositional, and, on the other hand, that it can be ‘read off’ conduct by different participants in the criminal justice process. (80) Concern with these kinds of cases was perhaps behind the Criminal Cases Review Commission (CCRC) submission to the Law Commission, in which they called for the abolition of diminished responsibility (Murder, Manslaughter, and Infanticide (Law Com No 304, 2006) para 5.91). (4) Advances in sleep medicine have revealed a high prevalence of parasomnias across all ages. With the growing interest for diagnosing and management of parasomnias in sleep medicine, a practical guide to parasomnias is greatly needed. Keywords: If successful, it results in a conviction for culpable homicide for which there is no mandatory . The use of the aetiology of mental ‘abnormality’ to exclude consideration of intoxication and merely transient abnormal conditions (and to circumscribe consideration of alcoholism) for the purposes of diminished responsibility represents an attempt to delimit the exculpatory scope of diminished responsibility. In R v James; R v Karimi [2006] 1 Cr App R 440, the Court of Appeal held that Holley, rather than Smith (Morgan), represented the English law. 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. In formulating this proposal, both the Butler Committee and the CLRC focused on the practical advantages of pleading diminished responsibility, including that the indictment accurately reflected the trial outcome; that a trial for murder would not further damage the accused's mental state; and that decision‐making would not be left to the jury when the Crown's own evidence pointed to diminished responsibility (Butler Report para 19.19; CLRC Fourteenth Report para 95). The phrase ‘abnormality of mental functioning’ had been proposed by the Law Commission, on the basis that psychiatrists prefer ‘mental functioning’ to ‘mind’.46 The Law Commission's reasoning suggests that this new phraseology represents an update of the law, but not one that is intended to radically change diminished responsibility. These are framed by chapters that examine the history and conceptual underpinnings of Macaulay's Code, consider the need to revitalize the Indian Penal Code, and review the current challenges of principled criminal law reform and ... In Byrne, Lord Parker CJ stated that, with regard to the issue of the defendant's ‘abnormality of mind’, ‘medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence including the acts or statements of the accused and his demeanour’.99 Lord Parker CJ went on to state that: They [the jury] are ‘not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it, [bearing in mind that] the question involves a decision not merely as to whether there was some impairment…but whether such impairment can properly be called ‘substantial’, a matter upon which juries may quite legitimately differ from doctors.100, The balance between lay people and medical experts evoked in Byrne fell away within a short period of time following the introduction of diminished responsibility into England and Wales. In Byrne, the first diminished responsibility case to go before the Court of Criminal Appeal, ‘abnormality of mind’ was interpreted to encompass psychopathy, thus ensuring that volitional incapacity could found a claim of diminished responsibility. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. diminished responsibility, legal doctrine, Scotland, nineteenth century. (118) Covers the M'Naghten rule which is also a dominant rule in US legal doctrine. In a way that prefigures the recent changes to the way in which unfitness to plead is decided, which I discuss in Chapter 4, the rule permitting the prosecution to accept a plea of diminished responsibility in (what are at least formally) unequivocal cases means that the issue of the defendant's mental abnormality is in the hands of legal actors and medical professionals. The term ‘mental responsibility’ had no antecedents in either English or Scots law and had been the subject of significant criticism. The 1957 version of diminished responsibility did not specify a particular connection between a defendant's ‘abnormality of mind’ and his or her ‘acts or omissions in doing or being party to the killing’. In Byrne, which involved a defendant who had killed a woman and mutilated her body, all the medical evidence suggested that Byrne was a sexual psychopath who had impulses that were very difficult or impossible to control. See also R v Wood [2009] 1 WLR 496. Mitchell concluded that survey participants accepted expert evidence when it was ‘clear and unequivocal’ but also expressed ‘some cynicism or skepticism about the reliability of psychiatric evidence’ in relation to diminished responsibility (Law Commission for England and Wales Partial Defences to Murder (Law Com No 290, 2004) Appendix C para 77). Griew suggests that reliance on expert psychiatric and psychological evidence is a device for stretching the scope of s 2(1) in practice: ‘The Future of Diminished Responsibility’ 84. (78) In the decades since diminished responsibility was first introduced to England and Wales, the ambiguity surrounding the doctrine (does it relate to the actor or the act?) N Lacey ‘Responsibility and Modernity in Criminal Law’ (2001) 9(3) Journal of Political Philosophy 249, 261. (40) As the parliamentary debates at the time diminished responsibility was introduced indicate, they were intended to circumscribe the scope of the otherwise broad phrase, ‘abnormality of mind’. The defendant's abnormal mental state was one such extenuating circumstance. In another study, Mackay found that each of the three defendants in homicides described as ‘mercy killings’ was successful in arguing diminished responsibility: Law Commission for England and Wales Partial Defences to Murder (Law Com No 290, 2004) para 5.40. 07 Nov. 2021. Under these conditions, it is possible that some diminished responsibility claims which are accepted by the prosecution would have been rejected by a jury (Mackay ‘Diminished Responsibility and Mentally Disordered Killers’ 63), effectively enlarging the scope of the plea. (31) (60) It is possible to mount a critique of the introduction of a quasi‐causal requirement to diminished responsibility on several bases. The doctrine of diminished responsibility provides a mitigating defense in cases in which the mental disease or defect is not of . In a way that reflected a ‘black and white’ approach to impaired control, this approach to alcoholism meant that unless the defendant was wholly incapable of resisting the impulse to drink, he or she could not plead diminished responsibility on the basis of his or her disease.66 However, in the recent decision of Stewart, the court recognized that, even in the If the prosecution adduces evidence of diminished responsibility (because the defence has raised insanity), the standard of proof is beyond all reasonable doubt: see R v Grant [1960] Crim LR 424. In short, Loss of Control requires the following criteria to be met; the defendant’s acts and omissions in doing or being party to the killing resulted from the defendant’s loss of control, the loss of self-control had a qualifying trigger (fear of serious violence from the victim OR things said or done that gave the defendant a justifiable sense of being seriously wronged) and whether a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have acted in the same way. Loss of control and diminished responsibility. In relation to the standard of proof, diminished responsibility differed from the now‐defunct provocation defence: in raising provocation, the defence bore only an evidential burden of proof: Attorney‐General for Jersey v Holley [2005] 2 AC 580, 612. The link was not copied. "The distinction between insanity, automatism and diminished responsibility in the Laws of England and Wales. In most cases, ... ... . It is contained in the Homicide Act 1957 as modified by the Coroners and Justice Act 2009. (117) * 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 . In the study commissioned by the Law Commission, Mackay found a total of 366 expert reports in the court files of 157 diminished responsibility cases (Law Commission for England and Wales Partial Defences to Murder (Law Com No 290, 2004) Appendix B para 24). R v Walden [1959] 1 WLR 1008, 1012. 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. But, when examined as a whole, and taking into account the ways in which diminished responsibility is proved (with close reliance on expert evidence and clinical diagnoses), diminished defendants can be seen to be constructed as different in kind, rather than degree. According to some writers, like the former partial defence of provocation, diminished responsibility owes its existence not so much to the mandatory penalty but to the structure of the law of homicide. As reflected in the House of Lords decision of R v Smith (Morgan) [2001] 1 Cr App R 3, under this approach, the objective part of the provocation test was interpreted such that particular characteristics of the defendant (including, in that case, depression) could be attributed to the reasonable man for the purposes of determining the degree of self‐control that could be expected of him. Despite the conclusion of the Royal Commission, diminished responsibility was introduced into the law of England and Wales within the space of a few years. But the precise way in which ‘the state of mind of a prisoner…might…be an extenuating circumstance, although not such as to warrant an acquittal on the ground of insanity’24 remained indeterminate. The Court in Campbell reasoned that because s 2(1) of the Homicide Act 1957 provides that ‘it shall be for the defence to prove’ diminished responsibility, and because ‘the judge's knowledge of the evidence available in relation to the issue of diminished responsibility will inevitably be limited’, it should be left to defence counsel to choose to run the defence (at 259–60). Here, it is useful to recall my discussion of the kind of difference shared by mental incapacity doctrines. Don Grubin. In the year after Byrne, in the Court of Criminal Appeal decision of Rose, the trial judge's direction to the effect that ‘abnormality of mind’ was to be understood ‘in terms of the borderline between legal insanity and legal sanity’ was labelled a ‘serious and vital misdirection’: Rose v R [1961] AC 496, 508 per Lord Tucker. With regard to diminished responsibility, I suggest that, in making the defendant the subject of specialist language of pathology via the evidence adduced, expert knowledge assists in constructing the diminished defendant as abnormal. As the Savage decision suggests, by this point in time, diminished responsibility was conceptualized ‘as doing something to the “quality of the act” as if it were an exculpatory plea and not a plea in mitigation of sentence’.32 But I suggest that this constitution as an exculpatory plea rather than a plea in mitigation was contingent. The bracketed causes were modelled on the definition of ‘mental defectiveness’ in the Mental Deficiency Act 1927, s 1(2). Search for more papers by this author. I discuss the significance of moral culpability in relation to intoxication in Chapter 7. Because legal actors—including judges, prosecution, and defence counsel—rely on lay knowledge of mental incapacity, the role of lay knowledge in criminal process does not begin and end with lay adjudication, meaning that its significance is not coterminous with decision‐making by a jury, for instance. 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. In the wake of the publication of the Royal Commission report, a group of barristers and Members of Parliament formed the Heald Committee to push for change in the criminal law. Exposing the significance of moral culpability in the law relating to intoxication, those individuals whose ‘abnormality of mind’ and impaired mental responsibility arose from intoxication fell without the boundaries of diminished responsibility.64 The courts also prevented intoxication from supplementing the presence of other factors that, in combination, might have brought the defendant within the bounds of diminished responsibility.65 But, unlike intoxication, the disease of alcoholism (or alcohol dependency syndrome) had been held to be an ‘inherent cause’ for the purposes of diminished responsibility. (36) (p.231) Examination of case law (e.g., appellate decisions) involving PTSD reveals that when offered as a criminal defense, PTSD has received mixed treatment in the judicial system. A range of pedagogical features help with the preparation for exams and suggest numerous ways to improve marks. Written by an experienced teacher and examiner, the book focuses on the needs of students to pass their exams. In O’Connell (R v O’Connell [1996] EWCA Crim 1552), the defendant had been taking a sleeping drug on prescription. This report address the issue of intoxication from alcohol or other drugs and its bearing on the criminal liability, if any, of a person charged with an offence, whether it is alleged that the defendent committed the offence or that he/she ... diminished responsibility, the Royal Commission recommended against introducing diminished responsibility into the English and Welsh law, although it observed that diminished responsibility operated satisfactorily in Scotland.35. It is through this component of diminished responsibility that the doctrine has been able to accommodate a range of levels of culpability because, if the plea is granted, the impairment is thought to satisfy a certain threshold.72 In normative criminal law scholarship, the requirement that the defendant's ‘abnormality of mental functioning’ be ‘substantially impaired’ is regarded as the moral‐evaluative aspect of diminished responsibility.73 So, approached from this perspective, in effect, the doctrine requires that the defendant's ‘abnormality’ is of such consequence in the context of the offence that his or her ‘legal liability for it ought to be reduced’.74 As this suggests, and as several commentators note, in practice, the scope of diminished responsibility expands and contracts depending on the morality of the case,75 or on the basis of the sympathy the defendant elicits, perhaps accounting for the success You may also need to consider non-insane automatism in this area (where a person lacks culpability due to an external, rather than internal, event). insanity, non-insane automatism, diminished responsibility and infanti cide. The focus of this article is non-insane automatism, but it is as well to consider all three defences. Found inside66 Dunn v. W 2013 SLT (Sh Ct)2. * Criminal Procedure (Scotland) Act 1995, s 307(1). ... “The connection between mental disorder and the act of killing in the defence of diminished responsibility” (2013)49 Irish Jurist 202. In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were "diminished" or impaired..
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