LAW03: Criminal Law (Offences against the Person).

There are 3 special defences* that apply only to

murder and will, if successful, reduce the charge of
murder to voluntary manslaughter.

Instead of the D receiving a mandatory life sentence

the judge has discretion as to what sentence should
be imposed (anything up to life).
*for the purposes of the examination only diminished responsibility and loss of control need
to be studied.
Diminished responsibility was introduced by
the Homicide Act 1957 and did not exist in
English law until that time.

The defence is set out in s. 2(1) Homicide Act

1957 as amended by s. 52 Coroners and
Justice Act 2009.
"A person who kills or is party to a killing of another is not to be
convicted of murder if he was suffering from an abnormality of mental
functioning which:

a) Arose from a recognised medical condition;

b) Substantially impaired D's ability to:
• Understand the nature of his conduct; or
• Form a rational judgement; or
• Exercise self-control; and
c) Provides an explanation for D's acts and omissions in doing or being
party to the killing."
 What is an abnormality of mental
functioning?

It is likely that the courts will use the old

definition of "abnormality of mind" in Byrne
(1960) to define this.
The courts defined abnormality as:
" … a state of mind so different
from that of ordinary human
beings that the reasonable man
would term it abnormal."
D was a sexual psychopath who
strangled a woman and
mutilated her body. Medical
evidence stated that because of
his condition he was unable to
control his perverted desires.
The D's conviction for murder
was quashed and a conviction
for manslaughter was
substituted instead.
 The cause of the abnormality of mental functioning must be a recognised medical
condition.
There must be medical evidence given at the trial to prove this.
The term recognised medical condition is wide enough to cover both psychological and
physical conditions such as:
• Mental deficiency – Speake (1957);
• Pre-menstrual tension – Smith (1982);
• Chronic depression – Gittens (1984);
• Battered women's syndrome – Ahluwalia (1993);
• Bipolar disorder, paranoid depression, schizophrenia etc;
• Physical conditions such as epilepsy, sleep disorders or diabetes.
The abnormality of mental functioning must substantially
impair the D's mental responsibility for his acts or
omissions.
Byrne states that the question of whether impairment
was substantial or not is one of degree and for the jury to
decide.
Lloyd (1967) stated that 'substantial' does not mean
'total' or 'trivial' but means something in between.
 The D's ability to do one of 3 things must be substantially impaired …

• To understand the nature of his conduct; or

• To form a rational judgement; or
• To exercise self-control..

These 3 points were originally decided in Byrne and then incorporated

into the Coroners and Justice Act 2009.
This will be where the D is in an automatic state and therefore does not know what
he is doing.

It also covers situations where the D is suffering from delusions and believes, for
example, that he is killing the devil when he is actually killing a person.

It would also cover situations where the D has severe learning difficulties and their
mental age is so low that they would not understand what they were doing.
Even if the D does know the nature of his conduct he may
not be able to form a rational judgement about his acts or
omissions.

Ds that suffer from paranoia, schizophrenia or battered

women's syndrome, for example, may not be able to
make a rational judgement about their behaviour.
 This was the situation in Byrne.

The D was a sexual psychopath and the medical

evidence was that his condition meant he was unable
to control his perverted desires. This is why he was
allowed a defence of diminished responsibility.
The D must prove that the abnormality of mental functioning provides an explanation
for his acts or omissions.

There must be a causal link between the abnormality and the killing.
Did the abnormality of mental functioning cause the killing?

s. 1B of the Homicide Act 1957 states:

"… 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."
The defence of diminished responsibility
becomes more complicated if the D is
also intoxicated at the time of the killing.

The first point to note is that intoxication

on its own cannot support a defence of
diminished responsibility.
 The D's conviction for
murder was upheld on the
basis that voluntary acute
intoxication is not capable of
founding the defence of
diminished responsibility.
The D and his girlfriend, V,
were binge drinkers and D,
in a drunken state, stabbed
V 60 times and killed her.
D was convicted of murder
but appealed on the grounds
that his 'acute intoxication'
should have been submitted
to the jury as a possible
defence of diminished
responsibility.
There can be difficulties when the D
has some abnormality of mental
functioning but is also intoxicated at
the time he does the killing.
 D was convicted of murder and
appealed. The HL allowed the
appeal and voluntary manslaughter,
based on diminished responsibility,
was substituted.
As long as D satisfied the criteria of
diminished responsibility the affect
of the intoxication is ignored.
D was upset as he believed the V
was acting disrespectfully
towards the D's recently deceased
aunt. D killed V.
Psychiatrists agreed that D was
suffering from an adjustment
order in the form of 'depressed
grief reaction'.
They disagreed on whether this
had substantially impaired his
mental responsibility as he was
also intoxicated at the time of the
killing.
 So, the jury need to decide:

1. If the D had an abnormality of mental functioning arising from a recognised

medical condition;

2. Whether the abnormality substantially impaired D's ability to understand the

nature of his conduct, form a rational judgement or exercise self-control;

3. Whether the abnormality was a significant factor in causing D to kill V.

There is a recognised medical condition called Alcohol Dependency
Syndrome (ADS) which means that a person has no control over
their drinking.
Under the old law, in the case of Tandy (1989), the CA held that
where the D is unable to resist drinking (it is involuntary) a defence
of diminished responsibility could be available.
This decision was criticised for not considering whether alcoholism
is a disease or not.
 The judge directed the jury that if they
found the D had suffered brain damage
as a result of ADS then diminished
responsibility was available …
… but, if they didn't think the ADS had
caused brain damage then diminished
responsibility would not be available.
D, after drinking heavily,
went to the V's flat. D claimed
he had fallen asleep when he
awoken by the V trying to
perform oral sex on him. D
repeatedly hit V with a meat
cleaver and killed him.
Medical experts agreed that
the D was suffering from ADS
but disagreed as to whether it
had damaged D's brain or not.
 The CA set out a 3 stage test for juries to consider in these
circumstances:
1. Was the D suffering an abnormality?
Just having ADS would not be enough to satisfy the
defence. The nature and extent of the ADS would
have to be considered.

2. If so, was D's abnormality caused by ADS (a recognised

medical condition)?

3. If so, was D's mental responsibility substantially impaired?

The basic criteria of diminished responsibility are applied
with the ADS simply being the recognised medical condition
that caused the abnormality of mental functioning.