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Voluntary Manslaughter - Diminished Responsibility

Diminished responsibility is one of three special defences which exist solely for the offence of
murder. It is contained in the Homicide Act 1957 as modified by the Coroners and Justice Act
2009. Where the defence of diminished responsibility is successfully pleaded, it has the effect of
reducing a murder conviction to manslaughter. The three special defences of diminished
responsibility, loss of control and suicide pact differ from general defences in that they do not
apply to all crimes and also the effect is to reduce criminal liability rather than to absolve the
defendant from liability completely.
Diminished responsibility is set out in s.2 of the Homicide Act 1957 as amended by s.52 of the
Coroners and Justice Act 2009. To rely on the defence, the defendant must be able to
demonstrate the following:
An abnormality of mental functioning caused by a recognised medical condition.
Which provides an explanation for the defendant’s acts or omissions in being party to the killing.
Which substantially impaired his/her mental ability to either:
a) Understand the nature of their conduct or
b) Form a rational judgment or
c) Exercise self–control
1. 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. 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
Some examples of what has been held to constitute an abnormality of the mind include:
Jealousy (R v Miller 1972,even unfounded jealousy R v Vinagre 1979)
Battered woman syndrome (R v Hobson 1997, R v Ahluwalia 1993)
Pre-menstrual tension (R v Smith 1982, R v Reynolds 1988)
Epilepsy (R v Campbell 1997)

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Chronic depression (R v Seers, R v Gittens 1984)

In each case the defendant must demonstrate that the characteristic was excessive when
compared to that experienced by a reasonable person.
Further important points:

• The Act does not state by whom the condition needs to be medically recognized but it was
assumed by the government that the phrase ‘recognized medical condition’ would
encompass the ‘physical, psychological and psychiatric conditions’ recognized by
‘accepted classificatory systems’.
• The accepted classificatory systems include the World Health Organization’s ICD-10
classification of diseases and the Diagnostic and Statistical Manual of Mental Disorders
(DSM) published by the American Psychiatric Association.
• These include both functional and organic conditions; psychoses including schizophrenia,
mood disorders such as mania and depression and neuroses such as the phobias and
post-traumatic stress disorder, conditions like dementia and epilepsy. Although normal
jealousy might not amount to a recognized condition, morbid or pathological jealousy
might.
2. The abnormality must provide an explanation for D’s 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 D's 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:
R v Tandy [1989] 1 WLR 350
R v Wood [2009] 1 WLR 496
R v Stewart [2009] 1 WLR 2507
The same approach is applied where the defendant is intoxicated by prescription drugs:
R v O'Connell [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
R v Dietschmann [2003] 1 AC 1209
Acute voluntary intoxication (binge drinking) alone is not capable of founding the defence of
voluntary intoxication:

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R v Dowds [2012] EWCA Crim 281

3.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
The substantial impairment must be in relation to one of the three above-mentioned specified
abilities, not in relation to general characteristics of the accused.
I. D’s ability to understand the nature of his/her conduct: The Law Commission
recognized that this might mean, in such types of cases, ‘to prove diminished responsibility
D would have to show that he or she was “borderline insane” (para. 5.138)’. The Law
Commission gave the following illustration of this limb: a boy aged 10 who has been left
to play 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.
II. D’s ability to form a rational judgment: The Law Commission gave following illustrations
of this limb;
a. 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.
b. a mentally sub-normal boy believes that he must follow his brother’s instructions,
even when they involve taking a 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”.
c. a depressed man who has been caring for many years for a terminally ill spouse,
kills her, at her request. He says that he has found it progressively more difficult to
stop her repeated requests dominating his thoughts to the exclusion of all else, so
that ‘I felt like I would never think straight again until I had given her what she
wanted’.
III. D’s ability to exercise self-control: This is not the same as loss of self-control defence
under S. 54 of the Coroners and Justice Act. The Law Commission gave the following
illustration of this limb: 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.
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 defendant’s mental ability was not impaired.
R v Campbell [1997] 1 Cr App R 199
Under the old law the question of whether an impairment was substantial was for the jury to decide
in a ‘broad commonsense way’ and not by the medical experts (Byrne [1960]); (Hill [2008]);

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(Khan {Dawood} [2010]). It was also held that the impairment must be more than ‘trivial’ or
‘minimal’ but need not be ‘total’ (Lloyd [1967]). A similar approach is likely to be considered in
respect of the new legislation.
Alcohol, drugs and diminished responsibility

• In Di Duca [1959] it was held that the transient effects of intoxicants do not constitute an
abnormality of the mind from one of the specified causes and thus cannot diminish
responsibility. This is also true of the amended defence.
• A state of intoxication is not an abnormality of mental functioning arising from a recognized
medical condition.
• However, where there are two causes of the abnormality of the mind, recognized
psychiatric illness in addition to intoxication, the former being within the scope of the
defence and the latter being not, the defendant may nonetheless succeed in the defence
even if he would or may not have killed if he was sober. The fact that D was intoxicated
does not disentitle him from pleading diminished responsibility.
• Alcohol dependency syndrome is a recognized medical condition under both DSM and
WHO’s ICD-10 classifications, but there are a number of different criteria for its diagnosis,
and different patients may show different symptoms of it. Therefore, it does not necessarily
follow from that fact that the defendant suffered from alcohol dependency syndrome that
he has established the necessary abnormality of mental functioning. In Stewart [2009] it
was held that whether D is suffering from a mental abnormality will depend upon the ‘jury’s
findings about the nature and extent of the (alcohol dependency) syndrome’. Stewart was
decided under the old law but it is likely that this approach to the question of alcohol
dependency syndrome constituting mental abnormality will continue to be followed.
The reference to the Law Commission in the notes hereinabove is to the Commission’s 2006
report titled ‘Murder, manslaughter and infanticide’, Law Com No. 304 para 5.83-5.142 wherein
the reform of the law in this area was recommended.

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