Introducing a New Diminished Responsibility Defence for England and Wales
| Author | Louise Kennefick |
| Date | 01 September 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00869.x |
| Published date | 01 September 2011 |
LEGISLATION
Introducing a New Diminished Responsibility Defence
for England andWales
Louise Kenne¢ck
n
A divisive law from the outset, the diminished responsibility defence has con-
tinued to arouse criticism since its i nceptionover ¢¢ty years ago under section 2
of the Homicide Act1957. Increasing pressure from academics,practitioners, and
mental health professionals, among others, to restructure the law has resulted in
a reformulation of the wording of section 2 under the unassuming auspices of
section 52 of the Coroners and Justice Act 2009. This paper examines the new
de¢nition of diminished responsibility on two levels: the broader context and
structural signi¢cance of the Act and section 52’s place within it; and, the tech-
nical detail of the section itself. In so doing, consideration is given as to whether
the new law appeases the critics of the old, in addition to whether the Govern-
ment has succeeded in bringing to bear its objectives of clarity, fairness and
e¡ectiveness.
INTRODUCTION
The legislative de¢nition ofdiminished responsibility has been‘an easy target for
any critic’
1
since its inception under section 2 of the Homicide Act 1957.
2
Calls
for its reform have resonated for over half a century, with alternative drafts mate-
rialising from a miscellany of sources, most notably, the Butler Report,
3
the Criminal Law Revision Committee,
4
the Law Commission
5
and several
n
PhD candidate and Government of Ireland Scholar, University College Cork. The research for this
paper is generouslyfu ndedby the Iri sh ResearchCouncil for the Humanities and Social Scie nces.I am
grateful toProfessor Caroline Fennell, to Dr Darius Whelan, and to the anonymousreviewer for their
comments on an earlier draft of this paper.
1P. R. Glazebrook,‘Dealing with Mentally Disordered O¡enders’(197 6) 35 Cambridge Law Journal 9, 12 .
2For example,Sparks opines that: ‘. . . it seems clear that, on balance, the practical e¡ectsof s ection 2
to date havebeen unsatisfactory in certain respects; that these ill e¡ects would have been avoidedif
the lawhad not been passed in its present form; and that there is no wayof insuring that they will be
avoidedin future, so long as the law remains as it now is,’ R.Sparks,‘Diminished Responsibility in
Theory and Practice’(1964)27 MLR 9, 24. Griew is less sympatheticin h is description of section 2,
which he calls ‘elliptical almost to the point of nonsense’, E. Griew, ‘Reducing Murder to Man-
slaughter:Whose Job?’(1986) 12 JMedE 18,19. For Lady Wootton, the de¢nition is essentially
illogical, B.Wootton,‘Diminished Responsibility:A Layman’sView’(1960)76 LQR 224,236.
3Committeeon MentallyAbnormal O¡enders, Report Cm 6244 (1975).
4Criminal Law Revision Committee: O¡ences Against the Person,FourteenthReportCm7844(1980)at[93].
5Partial Defences to Murder, Law Commission Report No 290 (2004) and Murder, Manslaughter and
Infanticide, Law Commission ReportNo 304 (2006).
r2011The Author.The Modern Law Review r2011The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(5) 750^766
academiccommentators.
6
Discourse came to a head in November 2009, when the
partial defence became the most recent subject of what has been described as the
Government’s ‘protracted’
7
review of the law of murder.
As a result, the de¢nition of diminished responsibility in England andWales
has been reformed signi¢cantly under the unlikely framework of the Coroners
and Justice Act 2009.
8
Although largely concerned with reform of coroner law,
section 52of the Act introduces replacement wordingfor diminished responsibil-
ity which,as we will see, di¡ersconsiderably from the old law. Thepurpose of the
Act,in the particular context of its application to thecriminal law, is to updatethe
latter in order to ‘improve its clarity, fairness and e¡ectiveness.’
9
It is accepted that
such values are largely employed as guiding principles, with greater importance
naturally being attached to responding to long held criticisms in the area. That
said, consideration as to whether the Government has adequately applied such
values in its reshaping of the law, too, plays its part in an examination of the new
de¢nition of diminished responsibility.
Clarity, fairness and e¡ectiveness are worthy ideals in the criminal law. As Ash-
worthpoints out, principles based on clarityare essential to therule of law,‘insofar
as theyconduce to predictability, consistency andaccountability in decision-mak-
ing.’
10
Of course, such order is only of bene¢t if it aligns with the inherent legal
conceptof fairness, particularly in terms of procedure, labelling and disposal.And
neither clarity nor fairness is of any real use if the criminal law is not e¡ective, or
capable of realising the objective it was implemented for.
To determine whether the Government’s approach under section 52 adheres to
the values so propounded, in addition to whether the critics have been a nswered,
this paper examines the potential impact of the new law in two respects. In the
¢rst instance, consideration is a¡orded tothe context in whichthe criminal justice
elementof the Act has emerged, in addition to the structure it has taken.Secondly,
an examination of the substantive content of section 52 of the Act will focus on
how the new law has replied to criticism of the oldwording of the defence.
CONTEXTAND STRUCTUREOF CRIMINAL JUSTICE REFORM
UNDERTHE ACT
Changes to the law of diminished responsibility stem from a request by the
Home Secretary in 2003 for the Law Commission to consider and report on the
6For example, R. D. Mackay, ‘Diminished Responsibility and Mentally Disordered Killers’ in
A. Ashworthand B. Mitchell (eds), Rethinking English Homicide Law (Oxford: OUP, 2000) 55.
7Editorial,‘Adjustingthe Boundaries of Murder:Partial Defences and Complicity’ [2008]Crim L R
829,829.
8The Act received Royal Assent on12 November 2009.The Commencement Date for s 52 was 4
October 2010 (Commencement No.4).For a detailed review of the wording of the de¢nition, see
R. D. Mackay, ‘The Coroners and Justice Act 2009 ^ Partial Defences to Murder (2) The New
Diminished Responsibility Plea’ [2010] Crim L R 290.
9Coroners and Justice Act 2009, Explanatory Notes at [14]. This echoes the Law Commission’s
emphasis on bringing‘order,fairness and clarity to the law of homicide’,Law Commission Report
(2006), n 5 above at [2.4].
10 A. Ashworth,‘Principles, Pragmatismand the Law Commission’s Recommendationson Homicide
Law Reform’ [2007] Cr im L R 333, 344.
Louise Kenne¢ck
751
r2011The Author.The Modern Law Review r2011The Modern Law ReviewLimited.
(2011) 74(5) 750^766
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