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‘NEW VERSUS OLD DIMINISHED
RESPONSIBILTY’
Professor Nigel Eastman
Professor Emeritus of Law and Ethics in Psychiatry
St George’s University of London
Founder Member, Forensic Psychiatry Chambers
MENTAL DISORDER AND VERDICT/SENTENCE
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Historical recognition of relevance, in natural justice
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Information from a discipline, medicine, with different purposes and
constructs from law
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Legal purposes and constructs, justice
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Medical purposes and constructs, welfare
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Legal ‘artifices’ v. medical ‘reality’
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Legal v. medical method, adversarial v. investigative
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Law variously ‘reflects’/does not medical constructs
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‘Translation’ as an exercise in ‘construct relations’
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An ‘impossible’ translation ?
Defences, partial defences and charges with mental concepts embedded...
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capacity to have formed specific intent
insanity
automatism
infanticide
provocation (Holley modification of ‘reasonable man’)
duress (Bowen)
loss of self control ?
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diminished responsibility
– ‘old DR’
– ‘new DR’
MEDICAL PERSPECTIVE ON ‘NEW’ VERSUS
‘OLD’ DR
‘OLD DIMINISHED RESPONSIBILITY’
Homicide Act 1957
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The defendant “shall not be convicted of murder if he was suffering from
such abnormality of mind (whether arising from a condition or 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 or being a party to the killing”
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Significance of ‘two limbs’
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One is ‘almost medical’
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The other is not
Abnormality of mind is
“A state of mind so different from that of ordinary human beings that the
reasonable man would term it abnormal.
It appears to be wide enough to cover the mind’s activities in all its aspects,
not only the perception of physical acts and matters and the ability to form a
rational judgement whether an act is right or wrong, but also the ability to
exercise will-power to control physical acts in accordance with that rational
judgement”.
(Byrne [1960])
Includes medically therefore...
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disorders of cognition, perception, affect, volition and consciousness.
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[as categorisation of mental malfunctions]
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defined ultimately for ‘welfare’, not legal purposes
Within …
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diagnostic categories of psychosis, neurosis, personality disorder, learning
disability, plus brain disorder.
Categories of symptoms may occur across diagnoses
[Not that one category will necessarily occur within one diagnosis or condition]
Examples
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A depressive illness (mood disorder) can be so severe that there are also
cognitive symptoms, either or both of the ability to think (retarded thought)
or/and the content of thought (eg delusions of worthlessness, or guilt or of
bodily deterioration), the manner of thought.
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Or in personality disorder, characterized by impulsive harm to self or others
(volitional dysregulation), there may be mood disturbance (eg unstable
mood).
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Or an individual with either a severe personality disorder (mood and
volitional disorder), or mental illness (mood disorder), may also experience
‘dissociation’ of consciousness.
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Or an individual may be learning disabled (cognitive disability) and also
suffer disturbance of thought content (for example, delusions) or mood
disturbance.
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And so on…
And
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Individual may have more than one diagnosis
Legally accepted clinical examples
under ‘old’ DR
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Psychosis (most obviously)
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‘Reactive depression’ (Seers [1984]; Reynolds [1988])
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‘Pre-menstrual syndrome’ (Craddock [1981])
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Elements of ‘battered woman syndrome’
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‘Chronic post traumatic stress disorder’, severe anxiety symptoms
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Learning disability
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Personality disorder (Byrne [1960])
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‘Substance dependence syndrome’, but must have been ‘brain damage’ or
‘irresistible craving’ if intoxicated (Tandy, modified in Stewart, Wood)
Advantages and Critique of ODR
Advantages:
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? Allows for ‘natural justice’
– because broadly defined
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[medical-legal benign conspiracy]
Disadvantages:
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Too loosely defined
– No standardised and defined medical diagnosis required
– [Although must be some psychiatric evidence to suggest presence of
abnormality of mind (Dix [1981])]
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Uncertain law/results?
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Inter-case inconsistency?
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[Not reflective of medical ‘disabilities’; morally rather than medically based]
How Played Out…
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Diagnosis often not the issue (often agreement on ‘first limb’) (the ‘almost
medical’ limb)
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Moral/legal inference often the issue (within ‘second limb’) (the ‘nonmedical’ limb)
Legal determining of ‘substantial impairment of
mental responsibility’
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Moral/legal, clearly not medical
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‘Less than total, more than trivial’ impairment (Lloyd [1966])
• Jury decision
• ‘Balancing’ abnormality of mind against other factors
• Room ++ for jury variation (a search for ‘natural justice’?)
And
• ? Should be ‘no comment’ on ultimate issue by experts, merely description
of nature of mental state abnormalities, and extent of impact
Because of
• contested data
• contested narrative
• need to ‘balance’ factors
• ‘translation’ from medical to moral/legal
Avoiding ‘the thirteenth jury person’
Diagnosis relevance to ‘substantial impairment’
No explicit ‘causation’ element, but …
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Nature of diagnosis (ie may be almost ‘obvious’), eg severe psychosis
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Evident ‘connections’ between ‘abnormality’ and killing
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Absence of other factors better ‘connected’ with killing (‘understandable’ in
ordinary terms despite disorder; cp cultural factors)
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Absence of ‘violent personality’
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Violence when previously ‘abnormal of mind’ (?)
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‘Absence’ of substances (but Dietschman; see also Tandy, Wood, Stewart)
Killing solely from mental abnormality, or
‘triggered’?
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Compare ‘pure abnormal killing’ (eg uncomplicated severe psychosis) and
‘triggered abnormal killing’
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‘Abnormality of mind’ as vulnerability to ‘triggering’ (‘fragile bone syndrome’)
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[Second limb of ‘diminished’ incorporating ‘vulnerability’]
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‘Cross over’ with ‘provocation’
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Diminished and provocation as legally ‘incongruous’
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Diminished and provocation as psychologically plausible (common)
A discontinuous spectrum with provocation
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Aspects of ‘abnormality of mind’ (ODR) as ‘woundability’ characteristics
(Holley) (provocation)
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A psychological ‘spectrum’ from ‘extreme diminished’ to ‘extreme
provocation’
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? Juries searching for ‘natural justice’ ‘in between’ diminished and
provocation, ‘unspecified manslaughter’
REFORM PROCESS
Reasons for reform included…
Law Commission
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Intention to ‘modernise’ and bring DR more in line with current psychiatric
and psychological knowledge
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[Psychiatry/medicine informing legal development (eg see Law
Commission, ‘Partial Defences to Murder’, 2004, quoting Royal College of
Psychiatrists re ‘coincidence of fear and anger’)]
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Perhaps more to ‘objectify’, or at least ‘clarify’ or make more ‘reliable’ the
defence
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Home Office/MoJ process
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Legislation
‘NEW DIMISHED RESPONSIBILTY’
Coroners and Justice Act 2009
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(1) A person (“D”) who kills or is a party to the killing of another is not to be
convicted of murder if D was suffering from
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an abnormality of mental functioning which:
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(a) arose from a recognised medical condition,
and
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(b) substantially impaired D’s ability to do one or more of the things
mentioned in subsection (1A),
and
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(c) provides an explanation for D’s acts and omissions in doing or being a
party to the killing.
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(1A) Those things (re ‘substantial impairment of mental ability’) are:
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(a) to understand the nature of D’s conduct;
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(b) to form a rational judgment;
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(c) to exercise self-control.
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(1B) For the purposes of subsection (1)(c), an abnormality of mental
functioning provides an explanation for D’s conduct if it causes, or is a
significant contributory factor in causing, D to carry out that conduct.”
Summary of Medical Perspective on NDR
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Reflects greater specificity of qualifying medical conditions, through
effectively tying defence into accepted international classifications of mental
conditions and avoiding ‘idiosyncratic diagnoses’ (DSM IV).
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Narrowing of the ambit of the defence, from a medical perspective (to only
the three ‘disabilities’)
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Broadening of the defence also? (dependent upon interpretation of
‘substantial’ disability)
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Explicit requiring of a ‘causal’ element
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Arguably a greater role for medical evidence, versus the role of the jury
How May Expert Medical Evidence Play Out
Under New DR?
Inevitably strays into matters of legal interpretation of the Statute
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The ‘vagueness’ of ODR had its merits in allowing/encouraging juries to
weigh medical evidence against other evidence, towards determining a
‘moral calculus’
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NDR offers far more specificity/complexity? [? Appeals ++]
Distinguish 2 issues
– Medical translated into legal: ‘what is it?’
– Role of doctors versus jury: ‘who decides?’
‘abnormality of mental functioning’ (amf) arising from ‘a
recognised medical condition’ (rmc)
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‘abnormality of mental functioning’ clearly includes ‘the mind in all its
aspects’ (R v Byrne) (albeit restricted in terms of particular ‘disabilities’)
But …
Who decides presence of each?
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Re ‘recognised medical condition’, ? for experts; distinguish contested
– diagnosis per se
– data (medical and ordinary)
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Re 'abnormality of mental functioning‘; ? should be solely for experts to
determine (if there is medical unanimity), in that the abnormality of mental
functioning must arise from a 'recognised medical condition'.
However
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if the amf is read necessarily in conjunction with consideration of alleged
resultant ‘impairment of ability(s)’, there might then be obvious room for
rejection by a jury of unanimous medical evidence
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because there may be ordinary evidence of exercising the ability (see
below)
substantial impairment of ability to…
understand (D’s) conduct
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Very rare, even in severe psychotic illness defendant will not have
‘understood’ his own conduct.
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[Equivalent to ‘not knowing the nature or quality of (one’s) actions’ (within
M’Naghten), such that most psychotic defendants will not qualify]
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Surprisingly, NDR does not allow for the defendant who substantially cannot
‘understand the victim’s conduct’, which is likely often to be relevant to
psychotic defendant (eg, paranoid).
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Some deluded defendants may, however, come within a different ‘disability’
(eg ‘to form a rational judgment’ or ‘to exercise self control’).
form a rational judgment
Could be narrowly or broadly interpreted, with different implications for the
types of amf and rmc to which it might relate.
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Narrowly interpreted, could be restricted to psychotic disorders which result
in ‘delusions’, or to certain types of brain damage or degeneration (in a
‘M’Naghten mode’).
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Interpreted more broadly, it might include serious non-psychotic (neurotic)
conditions which result in distortion of the manner of reasoning, the ‘way of
weighing’; eg ‘reasoning originating in psychopathology’.
Legal interpretation of ‘substantial’ will likely set the threshold in terms of the
breadth of interpretation.
exercise self control
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Potentially a broad concept applicable to a wide variety of psychotic,
neurotic, learning disability, personality disorder and brain conditions.
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Although clearly a psychotic person might be disabled in this way (albeit he
may not be), so might a defendant with a neurotic depressive illness, or a
woman with ‘pre menstrual syndrome’, for example.
Here again, the word ‘substantial’ is likely to be important in limiting successful
NDR to cases where the ‘disability’ is ‘more than trivial’
[NB Compare with ‘loss of self control’, ? ‘impaired inhibition’]
Provides an explanation…(meaning) caused, or was a
significant contributory factor in causing…
What does ‘causes’ mean?
? ‘scientific’ standard
? ‘legal’ meaning
Compare ‘narrative’ approach
And
? Distinguish
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‘balancing’ mental disorder against other factors (ODR)
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‘threshold’ approach (NDR)
Finally ‘who decides?’
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Once the test of amf arising from a rmc and substantial impairment of one of
the three specified abilities is accepted by the jury…
then,
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if there is unanimous expert evidence that the amf also provides an
explanation of the killing,
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? the fact of competing explanations being contenders (as under ODR)
logically falls away from possible jury consideration.
Or
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Does ‘significant contributory factor’, or ‘provides an explanation’, allow jury
to ignore unanimous medical evidence, because of consideration of other
contributory factors (as in ODR)?
Summary of a Medical Perspective on NDR
Again
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NDR requires tighter specification of the mental disorder presented as its
basis,
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of its impact on abilities
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and of its causal contribution to the killing than effectively did ODR.
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The introduction of causation also ? infers the potential for explicit reference
to the role of ‘triggers’ acting upon the amf.
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NDR appears to downgrade/?abandon the flexibility of ‘balancing’ of the role
of mental abnormality against other factors, in favour of a ‘threshold’
approach to the role of such abnormality.
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There is also apparently no room for ‘translation’ from medical description
into moral implications
BUT
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The Court of Appeal will decide
Albeit...
Adherence to the ‘right of jury’ ultimately to decide. ‘whatever the medical
evidence’ might be said to run counter to the essence of the reform of DR...
... which was clearly aimed at increasing the objectivity of the defence,
including by basing it upon recognised medical disabilities.
PARADIGM CASE EXAMPLES
Case 2: Depressive illness (neurotic) plus taunts and jealousy
Case 4: Personality disorder plus alcohol
Attempts to ‘work through’ medico-legally, sometimes with alternative
interpretations of the Statute
Case 2: Depressive illness (neurotic) plus
taunts and jealousy
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Sixty year old D killed his wife in an explosive attack after marital discord for
four years of a 15 year marriage
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He was 20 years her senior
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Serious suicide attempt immediately thereafter
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Had occasionally hit her earlier in the marriage
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Evidence suffering from a (neurotic) depressive illness for four years, on
medication.
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Clear evidence his illness became more severe prior to the alleged offence,
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Attempted suicide four weeks prior to the offence, admitted under the
Mental Health Act.
Medically related evidence:
Exhibited symptoms of a ‘major depressive episode’ (DSMIV)
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(1) depressed mood; (2) diminished interest and pleasure in almost all
activities; (3) weight loss; (4) insomnia; (5) agitation; (6) loss of energy; (7)
thoughts of worthlessness and inappropriate guilt; (8) diminished
concentration; (9) recurrent thoughts of death; (10) and recurrent suicidal
ideation. The symptoms caused clinically significant distress.
However,
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able to continue work as a lorry driver
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some witnesses say he was sometimes ‘laughing and joking’ during the
days before the offence.
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Mood had lifted three weeks before the killing, after his overdose, when his
wife said she would stay with him; she then recanted and D’s mood again
deteriorated.
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Overall, severity of expression of D’s illness was ‘bound up’ with his marital
difficulties and, specifically, with whether his wife was prepared to stay with
him.
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Concurrent with the onset of his depressive illness D had become impotent,
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about which his wife frequently complained.
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Loss of libido is a common symptom of depressive illness per se, also a
side effect of some anti-depressant medications.
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She also often complained he was ‘too old’ and ‘always depressed’.
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She allegedly repeated all of these complaints immediately before D killed
her, and told him that him she intended to leave the next morning.
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D had also became aware that V was having an affair just before his
overdose.
Legal Implications
Substantive Law (only)
ODR
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D’s depressive illness can be abnormality of mind…
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and both psychiatrists would likely accept this;
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although ? the jury might take evidence of him being able to work, and
‘laugh and joke’, as a basis for rejecting such medical opinion.
second limb...
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D’s illness could be seen as of such severity that there could properly be
robust medical evidence towards reasonable jury conclusion that there was
substantial impairment of mental responsibility…
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because depressive illness results in cognitive distortion, also distortion of
judgement, plus a somewhat diminished threshold for violence (most
commonly towards self but also towards others).
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A jury might reasonably address the second limb also in terms of ‘triggers’ of
D’s allegation that V frequently complained about his impotence, that he
was ‘too old’, and ‘depressed all the time’, which she repeated immediately
before the killing
However,
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V also had told D she was going to leave him in the morning
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The jury are invited by the Crown to conclude that he killed her ‘because
she threatened to leave’ and ‘because of jealousy’ and ‘a tendency towards
violence’ (prior to becoming ill)
Hence
Jury carry out a ‘balancing’ exercise (of factors)
NDR
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‘Major
depressive episode’, is a recognised medical condition, which can
give rise to an abnormality of mental functioning (as described above),
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and is likely to be reported as such by both psychiatrists in relation to the
case.
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arguably, there was substantial impairment of D’s ability to exercise control
(though not of his ability to understand (D’s) conduct or of his ability to form
a rational judgement (on a ‘narrow interpretation’, perhaps there was on a
‘broad interpretation’).
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The amf arising from a rmc could be seen as providing an explanation of the
offence;
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and the alleged taunts by V could also be seen as ‘playing upon’ his amf
arising from a rmc.
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Again, both doctors are likely to agree on this.
However,
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V’s alleged taunts of D also provide an explanation per se of the offence
(see below);
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and, there are other explanations of the offence, such as ‘jealousy’, his
previous violence, and D’s refusal to accept losing V.
Now:
provides an explanation…
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could be read as ‘the most likely explanation’,
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so the jury could (as in ODR) be invited to ‘compare explanations’ (which is
‘most likely’)
But
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(meaning) caused, or was a significant contributory factor in causing…
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suggests the amf need only (on a ‘threshold’ approach) be one contributory
factor
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which implies that, since both doctors likely will (necessarily?) agree that it
did, the jury is (potentially) very clearly led towards a DR verdict (compared
with under ODR)
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But interpretation of the causal element is, again, for the Court of Appeal
CASE 4 Personality Disorder
!
Happy legal hunting!
www.forensicpsychiatrychambers.com
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