Diminished Responsibility Post Codification: Lost Opportunities, Tensions and Gendered Applications

DOI10.3366/elr.2021.0693
Published date01 May 2021
Date01 May 2021
Pages173-191
Author
INTRODUCTION

This article maps the landscape of diminished responsibility in Scotland following codification of the plea. It focuses particularly on how the interaction between mental abnormality and voluntary intoxication has been understood. In addition to considering recent decisions by the Scottish appeal court, this article presents analysis from 29 unreported cases in which diminished responsibility was pled.

The examination which will follow is timely: an independent review of mental health law is currently being undertaken, questioning whether current mental health law promotes and protects human rights in Scotland.1 Concerns relating to access to diminished responsibility do not simply centre around appropriate convictions: the plea can and does act as an appropriate gateway to mental health care and treatment for those in need.

It will be concluded that the appeal court has adopted a narrow interpretation in relation to the interaction between mental abnormality and voluntary intoxication. This not only undermines the justifications which were made for placing diminished responsibility in statutory form, it moves the plea towards a position of being unable to appreciate the realities of mental health conditions and circumstances in which people offend. It will be shown that tensions exist between the appeal court's approach and the operation of the plea in practice, and that whilst operation in practice might offer more opportunity for access to the defence, it may also be perpetuating gender stereotypes about female offending.

THE DEVELOPMENT OF A STATUTORY PLEA Common law development

Described as “distinctively Scottish”,2 diminished responsibility developed throughout early 20th century caselaw – even if not always referred to by the same terminology.3 This development influenced legislation in other jurisdictions – notably England and Wales where it was introduced through the Homicide Act 1957 (although as Loughnan notes, the focus of attention at that time was on capital punishment rather than diminished responsibility).4

Historically, the plea required that a mental disease or a state of mind virtually bordering on insanity be shown.5 Modern formulation arose from Galbraith6 where it was accepted that the earlier authority of Savage7 had been misinterpreted in Connelly.8 In particular, misunderstanding had arisen regarding the requirement that the accused be suffering from a ‘mental disease’ and was required to satisfy the four criteria set out in Savage.9 Agreeing this point on appeal, it was clarified: that there must be an abnormality of mind and that this abnormality substantially impaired the accused's ability to control their conduct; that a mental disease was not required to satisfy the plea; and that the criteria in Savage did not need to be adhered to absolutely – instead only being an indication of what an accused would need to prove.

Reviews of the law in this area

Shortly before the decision in Galbraith, the Millan Committee published their Review of the Mental Health (Scotland) Act 1984, recommending amongst other things that the Scottish Law Commission be invited to review the defence of diminished responsibility.10 They noted that, in practice, the definition of diminished responsibility was “obscure, and difficult to apply in individual cases”.11 Thereafter, the Scottish Law Commission received instruction from Scottish Ministers that there existed a remit for them to consider:

The tests to establish insanity (either as a defence or as a plea in bar of trial) and the plea of diminished responsibility;

Issues of the law of evidence and procedure involved in raising and establishing insanity and diminished responsibility;

Recommendations for reform; and

Consequent upon any recommendations for reform, to consider what changes, if any, should be made to the powers of the courts to deal with persons in respect of whom insanity (either as a defence or as a plea in bar of trial) or diminished responsibility has been established.12

In the report which followed, the Scottish Law Commission proposed abolishing the common law test for diminished responsibility and introducing a statutory definition.13 In support of codification, they referred to the recent decision of Galbraith

We note that the decision in the Galbraith case did not purport to deal with every issue involved with the plea. In Galbraith the Court itself stated that its views were tentative and might have to be modified or refined in later cases. We accept that the general positive criteria for the plea as laid down in that decision have met with general approval. However the new test also excludes two specific conditions (voluntary intoxication and psychopathic personality disorder) from the scope of the plea, and these exclusions have been controversial. Indeed, the response to our proposals on the exclusions has led us to recommend that the law in relation to them should be clarified or altered. But it would be an undesirable approach to law reform to change part of the Galbraith test by statute while leaving the rest in its common law form. Moreover, as one of our consultees pointed out, the limits to the scope of the plea involve considerations of public policy, which are best addressed by the legislature.14

The Scottish Law Commission further noted that other legal systems which had introduced a plea of diminished responsibility had done so by statute and that a “statutory definition does not prevent judicial activism and creativity where that is required for legal development”.15
The introduction of a statutory definition

The statutory definition of diminished responsibility was subsequently introduced into Scots law following the Criminal Justice and Licensing (Scotland) Act 2010 (which inserted section 51B into the Criminal Procedure (Scotland) Act 1995):

A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on the grounds of diminished responsibility if the person's ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.

The wording of section 51B (1) confirmed that diminished responsibility would have no application in the context of attempted murder – referring to ‘murder’ only. The position in relation to attempted murder had been less clear under common law. In Blake it was commented

The state of mind of the accused may be such, short of insanity, as to reduce the quality of his act from attempted murder to assault. A man may suffer from some infirmity or aberration of mind or impairment of the intellect to such an extent as to render him not fully accountable in law for his actions. Such a man is described as being a man of diminished responsibility. If he has not been fully responsible for what he has done, he is guilty not of attempted murder but of assault.16

Shortly before the enactment of the 2010 Act, the Crown appeal of Kerr considered the issue again, concluding

We accept the submission on behalf of the respondent that the actus reus of murder and attempted murder differs in the sense that in the completed crime of murder the consequence is the death of the victim whereas that is not achieved in the attempted crime. However, it is clear that the mens rea for the crime of murder and attempted murder is identical.17

The court reserved its opinion in relation to the effect of the statutory provisions which were not yet in force,18 noting that neither the Scottish Law Commission's Report on Insanity and Diminished Responsibility, the statutory provisions contained within the 2010 Act, nor English law (where it is not accepted as a defence to attempted murder) were of any assistance when considering the question.19 The Scottish Law Commission's report itself was clear that the plea of diminished responsibility should not be extended beyond murder,20 but the discussion in Kerr illustrates that there is logic to concluding that evidence of diminished responsibility should give rise to an assault or aggravated assault conviction in the context of an attempted murder charge since the mens rea required for murder and attempted murder is identical.21 Nevertheless, this was not the position adopted by the 2010 Act
POST CODIFICATION CASES

The 2010 Act came into force in 2012. Since then, four appeal cases have been reported in which diminished responsibility has been the central issue. Three of these cases have been remitted to the appeal court by the Scottish Criminal Case Review Commission, further suggesting that closer examination of diminished responsibility cases post codification is appropriate.22 Three additional sentencing appeals have been reported since 2012 in which the appellant had submitted a plea of diminished responsibility.23

In addition, 29 unreported cases have been identified in which an accused sought to rely on diminished responsibility. These cases...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT