Pragmatism Preserved? The Challenges of Accommodating Mercy Killers in the Reformed Diminished Responsibility Plea
| Author | Matthew Gibson |
| Published date | 01 June 2017 |
| Date | 01 June 2017 |
| DOI | http://doi.org/10.1177/0022018317702801 |
| Subject Matter | Articles |
Article
Pragmatism Preserved? The
Challenges of Accommodating
Mercy Killers in the Reformed
Diminished Responsibility Plea
Matthew Gibson
Liverpool Law School, University of Liverpool, Liverpool, UK
Abstract
This article examines the operation of the reformed English diminished responsibility plea in
mercy killer cases. In particular, it makes three claims. First, it predicts that—like its pre-
decessor—the revised doctrine will be stretched, where necessary, to accommodate these
offenders. This is because (i) normative arguments remain for convicting them of manslaughter
instead of murder and (ii) other partial defence routes will usually be unavailable. Secondly, it
contends that such pragmatism will now be facilitated by a disconnect between (i) the defence’s
post-reform narrowing and (ii) its ongoing interpretive flexibility. Thirdly, given that dis-
connect, it suggests that this pragmatism will be problematic. Notably, it will (i) compromise
the plea’s newfound coherence and (ii) exacerbate unfair labelling of mercy killers. Ultimately,
and more broadly, these difficulties reinforce recent calls for further homicide law reform.
Keywords
Homicide, murder, voluntary manslaughter, partial defences, diminished responsibility, mercy
killers, law reform, Homicide Act 1957,Coroners and Justice Act 2009
Introduction
Some murders pose exculpatory dilemmas for the criminal law. Partial defences may apply in such
instances, permitting convictionand sentencing for ‘voluntary’ manslaughter instead of murder. Through-
out England, Walesand Northern Ireland, the Coroners and Justice Act 2009 (the 2009 Act) implemented
major changes to the partial defences of diminished responsibility and provocation, updating the former
and replacing the latter with ‘loss of control’. These reforms came into force on 4 October 2010.
1
Corresponding author:
Matthew Gibson, Liverpool Law School, University of Liverpool, Liverpool L69 3BX, UK.
Email: m.j.r.gibson@liverpool.ac.uk
1. Stationery Office, The Coroners and Justice Act 2009. Commencement No. 4, Transitional and Saving Provisions. Order 2010
(SI 2010/816) (Stationery Office: London, 2009).
The Journal of Criminal Law
2017, Vol. 81(3) 177–200
ªThe Author(s) 2017
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DOI: 10.1177/0022018317702801
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This article is exclusively concerned with diminished responsibility. In particular, it examines the
operation of the reformulated plea in mercy killer cases. Prior to reform, the defence was infamous for its
charitable accommodation of these offenders. Such accommodation prospered because of the doctrine’s
inherent flexibility. That flexibility, without which many mercy killers would have failed diminished
responsibility, contrasted with the in flexibility of other defences—chief ly provocation. Diminished
responsibility thereby became a pragmatic plea in these proceedings. Following reform, this article
assesses the future of that pragmatism. In doing so, it makes three claims. First, it predicts that dimin-
ished responsibility will continue to be stretched, where necessary, to protect these offenders. This is
because (i) normative arguments remain for convicting them of manslaughter instead of murder and (ii)
other partial defence routes will usually be unavailable. Secondly, it contends that such pragmatism will
now be facilitated by a disconnect between (i) the defence’s post-reform narrowing and (ii) its ongoing
interpretive flexibility. Thirdly, given that disconnect, it suggests that this pragmatism will be proble-
matic. Notably, it will (i) compromise the defence’s newfound coherence and (ii) exacerbate unfair
labelling of mercy killers. Ultimately, and more broadly, these difficulties reinforce recent calls for
further homicide law reform.
The focus of the first claim—that diminished responsibility will retain a pragmatic protection role in
many of these cases—is neglected in the literature. Various scholars have proposed new domestic partial
defences for these individuals. Others have suggested that loss of control might assist such offenders.
Nonetheless, few commentators have considered the impact on mercy killers of the unavailability of
these options. This contextual approach—acknowledging the existing partial defences landscape—is
important, particularly given normative support for manslaughter verdicts in these proceedings. It
reveals why pragmatic use of the new diminished responsibility plea by mercy killers cannot be dis-
counted. Meanwhile, the substance of the second claim—that the defence can still be defined so as to
maintain pragmatic protection, albeit at the cost of its narrower profile—exposes an undiagnosed dis-
connect between the plea’s official tightening and its unofficial interpretive scope. That disconnect will
have fundamental implications for not only policymakers and law reformers but also mercy killers
themselves. These implications are acknowledged, respectively, in the third claim—that ongoing prag-
matic use of diminished responsibility will undermine its new coherence and aggravate unfair labelling
of these offenders. Such implications connect with more overarching reform debates about homicide law
and its treatment of mercy killers.
The article constructs the first claim over three arguments. Initially, it highlights normative reasons
for accommodating mercy killers in voluntary manslaughter.
2
Here, it considers the mitigating functions
of partial defences to murder, linking these with the circumstances of mercy killers. Next, under the old
plea, it explains how and why diminished responsibility (and not provocation) came to be a pragmatic
provider of that mitigation. Lastly, against the backdrop of current homicide law, it predicts that these
defendants will carry on using diminished responsibility to obtain mitigation. As before, this use will
regularly be pragmatic: where a mercy killer falls outside the plea, it will be manipulated to accom-
modate them where other defences—notably loss of control—are inaccessible.
Subsequently, the second claim is split across two arguments. To begin with, it charts the 2009 Act’s
narrowing of the defence. It explains that this narrowing stems from a ‘medicalisation’ of the plea,
before exploring, in turn, the doctrinal, conceptual and philosophical features of that process. Thereafter,
it shows that, despite this narrowing, diminished responsibility remains capable of flexible interpretation
so as to achieve pragmatic access in practice.
The third claim is also framed over two arguments. At first, it contends that pragmatic use of the new
diminished responsibility defence will compromise the defence’s legal integrity in ways not experienced
under its predecessor. Then, it argues that such use will continue to label mercy killers unfairly, albeit to
2. The article does not make the bolder normative claim that mercy killers deserve complete protection in the criminal law.
Nevertheless, it acknowledges this idea below: see ‘(b) Post-2009 Act’.
178 The Journal of Criminal Law 81(3)
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