8 th ANNUAL NATIONAL PROSECUTORS CONFERENCE SATURDAY, 19 MAY 2007 DUBLIN CASTLE CONFERENCE CENTRE Isobel Kennedy, SC Law Library ~ Defence of Diminished Responsibility
1.GENERAL 8 th Annual National Prosecutors Conference 19 May 2007 - Dublin Castle DIMINISHED RESPONSIBILITY Isobel Kennedy, SC The defence of diminished responsibility is a statutory defence. It was introduced into our law by virtue of the Section 6 of the Criminal Law (Insanity) Act 2006. 1 The defence is a partial defence and is in the form of a statutory concession to the offence of Murder. If successful the defence operates to reduce the offence of Murder to one of Manslaughter rather than leading to an acquittal. Sections 5(4), 6 and 19 of the Criminal Law (Insanity) Act 2006 are the relevant sections in relation to diminished responsibility and provide respectively as follows:- 5(4) - Where on a trial for murder the accused contends (a) - that at the time of the alleged offence he or she was suffering from a mental disorder such that he or she ought to be found not guilty by reason of insanity, or (b) - that at that time he or she was suffering from a mental disorder specified in Section 6(1)(c), the court shall allow the prosecution to adduce evidence tending to 1 Number 11 2006 1
prove the other of those contentions, and may give directions as to the stage of the proceedings at which the prosecution may adduce such evidence. 6. (1) Where a person is tried for murder and the jury or, as the case may be, the Special Criminal Court finds that the person (a) did the act alleged, (b) was at the time suffering from a mental disorder, and (c) - the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act, the jury or court, as the case may be, shall find the person not guilty of that offence but guilty of manslaughter on the ground of diminished responsibility. (2) Subject to Section 5(4), where a person is tried for the offence specified in subsection (1), it shall be for the defence to establish that the person is, by virtue of this section, not liable to be convicted of that offence. 2
(3) A woman found guilty of infanticide may be dealt with in accordance with subsection (1). 19. (1) Where in any proceedings for an offence the defence intends to adduce evidence as to the mental condition of the accused, notice of the intention shall be given to the prosecution within 10 days of the accused being asked how he or she wishes to plead to the charge. (2) Where the notice referred to in subsection (1) is not given within the period specified in that subsection, then, without prejudice to any other provision of this Act, evidence shall not, without leave of the court, be adduced by the defence during the course of the trial for the offence concerned as to the mental condition of the accused. (3) A notice referred to in subsection (1) shall be in such form as rules of court provide. It does not seem that manslaughter on the ground of diminished responsibility can be charged on the indictment and therefore the accused must be indicted for murder regardless of any view that the defence. However, I do not see any reason as to why a plea to manslaughter if offered, could not be accepted where it is absolutely clear on the proposed medical evidence that the accused was at the 3
time of the killing suffering from a mental disorder which caused a substantial diminution of responsibility. In the English decision of Cox, Winn LJ said (at p. 310): that there are cases where, on an indictment for murder, it is perfectly proper, where the medical evidence is plainly to this effect, to treat the case as one of substantially diminished responsibility and accept, if it be tendered, a plea to manslaughter on that ground, and avoid a trial for murder. 2 Any acceptance of a plea to manslaughter would need to be based on very clear cut medical evidence and it would of course be essential that the requirements under section 6 (1) (a), (b) and (c) of the Act be present. 2. REQUIREMENTS UNDER THE ACT In order for the defence to lie there must be evidence from which the jury or the Special Criminal Court can find that the accused killed the deceased and at the time of the killing was suffering from a mental disorder insufficient to justify a finding of not guilty by reason of insanity, but which disorder substantially diminished his responsibility for the act. 3 2 [1968] 1 WLR 308 3 Section 6(1) (a), (b) and (c) of the 2006 Act. 4
A mental disorder is defined under section 1 of the Act of 2006 as follows: mental disorder includes mental illness, mental disability, dementia or any disease of the mind but does not include intoxication. Intoxication is defined under the same section as: intoxication means being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances; 4 The definition of a mental disorder under the 2006 Act is quite limited and this can be seen when contrasted with the definition of a mental disorder under the Mental Health Act 2001which defines a mental disorder in section 3 as a mental illness, severe dementia or significant intellectual disability and further defines each of the three above categories. 5 4 Section 1 of the 2006 Act. 5 3. (1) In this Act mental disorder means mental illness, severe dementia or significant intellectual disability where (a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or (b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to 5
The definition of a mental disorder under the Mental Health Act 2001 is relevant to the issue of treatment once a person is found not guilty by reason of insanity or is not fit to be tried but does not apply to diminished responsibility. At this time it is difficult to say what type of mental disorder will be covered by the definition under the act. The definition section is as stated above quite limited and does not further define or expand on what is meant by mental disorder. Therefore it will be very much for the psychiatrists to opine as to whether somebody will come within the definition and then of course for the jury to take that evidence into consideration along with all the evidence in coming to a decision as to whether the accused was suffering from a mental disorder at the time and as to whether that disorder substantially diminished the accused s mental responsibility. Disease of the mind has been retained in the definition of mental disorder which is of course different to abnormality of the mind as included under section 2 of the Homicide Act 1957. 6 Abnormality of the mind has been defined as as admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.(2) In subsection (1) mental illness means a state of mind of a person which affects the person s thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons; severe dementia means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression; significant intellectual disability means a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person. 6 Section 2 of the Homicide Act 1957 which introduced the defence of diminished responsibility into English law and provides: 2(1) - Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent caused or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.(2) - On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of 6
state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. R v. Byrne. 7 3. INTOXICATION The definition of mental disorder specifically excludes intoxication. Intoxication itself is given a wide definition and includes the effects of drugs as well as alcohol. It can be anticipated that intoxication may feature in cases where diminished responsibility is raised. In the Tandy case 8 the accused strangled her child after consuming alcohol. She was an alcoholic and was clearly suffering from an abnormality of the mind at the time of the killing. The Court of Appeal upheld the murder conviction on the Trial Judge s direction the abnormality had to be caused by the disease, namely alcoholism for the defence to succeed and not the voluntary ingestion of alcohol. If the alcoholism has reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgment and emotional responses per Watkins LJ at page 356. Alcoholism might still have provided a defence if the jury had found that the intoxication was not voluntary. The case raised the issue of the first drink of the day and as to whether it was not involuntary and if so then the entire day s drinking was not involuntary. The relevance of this decision is that the abnormality of the mind must be caused by the disease; i.e.; alcoholism. Watkins LJ stated succinctly as follows; if her drinking was involuntary then her abnormality of mind at the time of the act of strangulation was induced by her condition of alcoholism. No doubt this issue will raise its head in this jurisdiction also. murder. 7 [1960] 2 Q.B. 396 at 403. 8 [1989] 1 WLR 350. 7
4. PROCEDURE and TRIAL The first step for the Defence legal team must be to notify the prosecution of an intention to adduce evidence as to the mental condition of the accused; i.e.; indicating an intention to adduce evidence in support of the defence of diminished responsibility. Section 19(1) of the Act states that such notice shall be given to the prosecution within 10 days of the accused being asked how he or she wishes to plead to the charge and that if such notice is not given, evidence shall not, without leave of the court be adduced by the defence as regards the mental condition of the accused. Such notice shall be in such form as rules of court provide, however, at the time of this paper no such rules were in force. In the meantime the practice has been for the Defence Solicitors to notify the Prosecution by letter 10 days in advance of trial of the intention to call such evidence. It should be noted that on a practical level, it would be preferable if such notice were served far in advance of the 10day period to enable the Prosecution to have the accused psychiatrically assessed and to consider any issues such as organic brain injury which may be relevant in any given case. However, it should be noted that the Act is silent in respect of diminished responsibility as to any requirement for a Consultant Psychiatrist to give evidence (as is required for issues of insanity) or indeed any medical or expert evidence, but it would be difficult to succeed in the defence without such evidence. There does not seem to be any requirement under the Act for the Defence to furnish the prosecution with their psychiatric reports or in 8
fact to make an accused person available for psychiatric examination. This raises practical issues regarding disclosure on the part of the Defence and the ability of the Prosecution to adduce evidence to rebut any Defence contention of diminished responsibility. On a practical note it may be necessary for the prosecution in instances of late notification or where the Defence have failed to provide their expert s report to apply to the Court to have the trial adjourned. As the onus is on the Defence in relation to the proof of diminished responsibility (set out hereunder), an argument could be made that the Defence should disclose the report/s. The Prosecution would of course have to disclose in accordance with the usual guidelines. A Defence at trial should establish the facts on which the medical evidence is based and the prosecution should investigate the basis of any such defence which would include careful examination of any medical reports. Since a jury or the Special Criminal Court must find that the accused did the alleged act, much of the evidence will either run as a matter of course or will be admitted by the Defence. Any expert whom it is proposed to call should be present for all the evidence. At the conclusion of the Prosecution case, the Defence will then call evidence on the issue. It should be noted that Psychiatrists are sometimes permitted to base their opinion on hearsay, ie; matters they have been told by the accused without proof by admissible evidence. However, the strict view is that as expressed in Cross on 9
Evidence, 5 th edition at page 446: A doctor may not state what a patient told him about past symptoms as evidence of the existence of those symptoms because that would infringe the rule against hearsay, but he may give evidence of what the patient told him in order to explain the grounds on which he came to a conclusion with regard to the patient s condition. The Prosecution may then call evidence in rebuttal. 5. ONUS OF PROOF Section 6(2) clearly places the onus of proof on the Defence where the accused contends for diminished responsibility. The section provides as follows: Subject to section 5(4), where a person is tried for the offence specified in subsection (1), it shall be for the defence to establish that the person is, by virtue of this section, not liable to be convicted of that offence. 10
It is clear therefore that the onus of proof rests on the Defence and the standard of proof accordingly is on the balance of probabilities. The same position applies in England under section 2 of the Homicide Act, 1957. R. v. Dunbar. 9 Statute may expressly place the burden of proof on the Defence to prove a particular issue. Section 5(4) of the Act is very similar to section 6 of the Criminal Procedure (Insanity) Act, 1964. 10 Under section 6 where an accused person is charged with murder and raises diminished responsibility or insanity, the court shall allow the prosecution to call evidence tending to prove the other of those issues. In that instance the burden of proof rests with the prosecution to prove the other contention beyond reasonable doubt. Section 5(4) provides for this type of situation. 6. WILL IT ALWAYS BE NECESSARY FOR THE PROSECUTION TO CALL EVIDENCE IN REBUTTAL? The trial should proceed in the ordinary way notwithstanding notification of an intention to raise diminished responsibility. The 9 [1998] 1 Q.B. 1 10 Section 6 provides: Where on a trial for murder the accused contends (a) that at the time of the alleged offence he was insane so as not to be responsible according to (b) law for his actions; or that at the time he was suffering from such abnormality of mind as is specified in subsection (1) of section 2 of the Homicide Act 1957 (diminished responsibility), the court shall allow the prosecution to adduce or elicit evidence tending to prove the other of those contentions, and may give directions as to the stage of the proceedings at which the prosecution may adduce such evidence. 11
onus remains on the prosecution to proof all issues beyond reasonable doubt. At the close of the prosecution case, the defence, if continuing to rely on diminished responsibility will usually call medical evidence. Should it transpire that such medical evidence is very weak and does not raise the issue, it is arguable that the prosecution could make an application to the trial Judge that the issue should not be permitted for the jury s consideration. Should the prosecution call evidence in this type of instance in rebuttal, it will have the effect of conceding that there is a case to answer. This would be more likely to apply in cases where there is no evidence of a mental disorder. It must be anticipated however, that the threshold for the defence will be very low indeed. 7. A JURY QUESTION For the Defence to succeed the jury or the Special Criminal Court must be satisfied that at the time of the killing, the accused was suffering from a mental disorder which diminished substantially his responsibility for the act. Where medical experts differ it is for the jury to resolve the issue. The jury must assess all the evidence in the trial. A mental disorder alone is insufficient, it must, as stated above be such as causes a substantial diminution in the accused s responsibility for the act. Whether it does so is a question for the 12
jury. On this issue in the decision of Byrne 11 Lord Parker at page 404 said: is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant, but the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called substantial, a matter upon which juries may quite legitimately differ from doctors. What is the meaning of substantially? In R v. Lloyd 12 at pp. 181, 66 the court approved the following direction on the words substantially impaired which was given by the trial Judge: your own common sense will tell you what it means. This far I will go. Substantial does not mean total, that is to say the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between and Parliament has left it to you to say on the evidence: was the mental responsibility impaired, and, if so, was it substantially impaired? 11 See note 7 12 [1967] 1 Q.B. 175, Cr.App.R. 61, CCA. 13
The courts in England have said that guidance should be given to the jury as to the meaning of substantial and that it should be done by giving one of the two meanings approved in Lloyd; (a) that the jury should approach the word in a broad common sense way or (b) that the word meant more than some trivial degree of impairment but less than total impairment. In a recent case before Carney J., a direction was given in terms of (b) above. Medical evidence is desirable from a defence point of view and will certainly be required to deal with the issue of a mental disorder. Should expert witnesses be permitted to give evidence as to whether such disorder existing at the time of the offence substantially diminished the accused s responsibility? In England it seems that medical witnesses are allowed by the court to do so. In Campbell 13 it was held that the judge rightly did not put the defence to the jury where the medical evidence showed an abnormality of the mind but did not deal with the issue of substantial impairment. However, in giving this evidence does the expert usurp the jury function? To make the defence work however, it may be that medical experts will give evidence of the existence of a mental disorder at the relevant time which diminished the responsibility of the accused and it will be for the jury to assess all the evidence and consider whether they are 13 (1986) 84 Cr App R 255 14
satisfied as to the existence of a mental disorder which substantially diminished the accused s criminal responsibility. The terms of section 6 do suggest that the jury (or the Special Criminal Court) is the fact finder on all issues; i.e.; that the accused did the act alleged, and was suffering from a mental disorder at the time and that this disorder diminished substantially his responsibility for the act. Therefore it may be that the medical experts will give the evidence but that the jury will be advised to assess the evidence and to reject or accept same before returning a verdict. 9. VERDICTS Section 6 seems clear that should the jury return a verdict of not guilty of murder but guilty of manslaughter that the verdict should be recorded as one of not guilty of murder but guilty of manslaughter on the ground of diminished responsibility. This verdict will of course be relevant to the issue of sentence and will be particularly relevant in circumstances where other defences are also in issue. This brings us back to the issue as to whether, if the prosecution were to accept a plea of guilty to manslaughter, should that plea be entered on the aforementioned basis? Again the act seems clear on this and it seems that the correct plea would be on the ground of diminished responsibility. Finally, it also appears that an accused could reply to the charge at trial, as above and should the plea be unacceptable to the prosecution proceed to trial in the usual way. 15