Diminished Responsibility Post Codification: Lost Opportunities, Tensions and Gendered Applications
DOI | 10.3366/elr.2021.0693 |
Published date | 01 May 2021 |
Date | 01 May 2021 |
Pages | 173-191 |
Author |
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.
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.
Described as “distinctively Scottish”,
Historically, the plea required that a mental disease or a state of mind virtually bordering on insanity be shown.
Shortly before the decision in
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.
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.
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. InThe 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.
We accept the submission on behalf of the respondent that the
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.
In addition, 29 unreported cases have been identified in which an accused sought to rely on diminished responsibility. These cases...
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