Recognising Acute Intoxication as Diminished Responsibility? A Comparative Analysis

Published date01 February 2012
Date01 February 2012
Recognising Acute Intoxication as
Diminished Responsibility? A
Comparative Analysis
Nicola Wake*
‘J’ai le vin mauvais!’1
Abstract This article provides an analysis of the extent to which acute
intoxication may or may not satisfy the ‘recognised medical condition’
requirement under s. 2 of the Homicide Act 1957, as amended by s. 52 of
the Coroners and Justice Act 2009. It is argued that jurisprudential au-
thorities clarifying the parameters of the ‘recognised medical condition’
requirement are urgently needed. In the interim period the importation of
the novel terminology remains open to conjecture. The author argues that
‘acute intoxication’ potentially satisfies the revised plea and utilises the
position adopted in Scotland, New South Wales and New Zealand to
demonstrate this proposition. The latter jurisdiction has never had a
formal diminished responsibility plea, although it has been identified that
evidence of a defendant’s mental abnormality was often used to reduce a
murder conviction to one of voluntary manslaughter via the legal conduit
of provocation. Following the demise of the provocation defence, how-
ever, issues pertaining to provocative conduct and/or a defendant’s mental
abnormality fall to be considered by the sentencing judge, but only in
restricted circumstances. The recent implementation of a tripartite sen-
tencing regime in New Zealand means that the alcohol-dependent and/or
provoked defendant who kills will not have such mitigation considered if
they have previously committed a qualifying offence under the scheme.
The position in New Zealand is set against the Legal Aid, Sentencing and
Punishment of Offenders Bill 2010–11 which proposes a ‘two-strike’
system for a variety of offences including voluntary manslaughter. It is
submitted that this type of scheme has potentially significant conse-
quences for the alcohol-dependent defendant who may not have had
appropriate treatment for his mental abnormality following a first
Keywords Acute intoxication; Alcohol; Diminished responsibility;
Manslaughter; Murder
* Senior Lecturer in Law, University of Sunderland; e-mail: nicola.wake@
The author expresses her thanks to Professor Alan Reed (University of
Sunderland) and Ben Livings (Senior Lecturer, University of Sunderland) for their
invaluable comments on earlier drafts of this article. The opinions expressed
within this article are the author’s own.
1 See F. Dostoevsky, Crime and Punishment, 3rd edn (Bantam Dell: New York, 2003)
71The Journal of Criminal Law (2012) 76 JCL 71–98
The partial defence of diminished responsibility2was radically altered by
s. 52 of the Coroners and Justice Act 2009,3and fundamental reformula-
tions became effective on 4 October 2010.4The new provision was
designed to align the mitigating doctrine with developments in diag-
nostic practice.5To raise the revised plea successfully, the defendant
must now prove, on the balance of probabilities,6that at the time of the
killing he was suffering from an abnormality of mental functioning
arising from a recognised medical condition.7This denitional change
may have more far-reaching consequences than initially anticipated.8
The Royal College of Psychiatrists considered that the recognised med-
ical condition requirement would encourage reference within expert
evidence to diagnosis in terms of one or two of the accepted internation-
ally classicatory systems of mental disorders (WHO ICD10 and AMA
DSM).9Both the WHO ICD10 and AMA DSM identify several different
mental and behavioural disorders arising from psychoactive substance
2 To raise the concessionary defence successfully under the old law the defendant
must have been able to prove, on the balance of probabilities, that he was
suffering from such abnormality of mind (whether arising from a condition of
arrested or retarded development of mind or any inherent causes or induced by
disease or injury) as substantially impaired [Ds] mental responsibility for his acts
and omissions in doing or being a party to the killing (Homicide Act 1957, s. 2).
3 R. Mackay, The Coroners and Justice Act 2009Partial Defences to Murder (2)
The New Diminished Responsibility Plea [2010] Crim LR 290. See also R. Mackay
and B. Mitchell, Loss of Control and Diminished Responsibility: Monitoring the
New Partial Defences (2011) 3 Archbold Review 5; C. Withey, Loss of Control
(2010) Criminal Law and Justice Weekly, 3 April 2010, available at: http://www., accessed 29
November 2011; Rudi Fortson QC, Homicide Reforms under the CAJA 2009,
Criminal Bar Association of England and Wales Seminar, October 2010, available
16thOct2010_R_Fortson_submitted_v.7.pdf, accessed 29 March 2011; L. Kenneck,
Introducing a New Diminished Responsibility Defence for England and Wales
(2011) 74 MLR 750. See generally, R v Inglis (2011) 75 JCL 105, commentary by
P. Dargue, Court of Appeal: Mercy Killers and the Sentencing RulesAn Uneasy
Fit?; H. Howard and M. Bowen, Untness to Plead and the Overlap with Doli
Incapax: An Examination of the Law Commissions Proposals for a New Capacity
Test (2011) 75 JCL 380.
4 Subsections (1), (1A) and (1B) of s. 2 of the Homicide Act 1957 were substituted
and inserted by s. 52(1) of the Coroners and Justice Act 2009 (see the Coroners
and Justice Act 2009 (Commencement No. 4, Transitional and Saving Provisions)
Order 2010 (SI 2010 No. 816), art. 5.
5 Ministry of Justice, Murder, Manslaughter and Infanticide, MoJ CP 19 (2008) para.
6 Placing the burden of proof on the defendant is not incompatible with the
European Convention on Human Rights, Art. 6(2); R v Lambert, Ali and Jordan
[2002] QB 1112. See also Lilburn (David) v HM Advocate [2011] HCJAC 41 and
C. Shead, Diminished Responsibility and the Burden of Proof (2010) Scottish
Criminal Law 819.
7 Homicide Act 1957, s. 2, as amended by the Coroners and Justice Act 2009, s. 52.
It has been suggested that this element of the partial defence is representative of a
marked shift towards medicalization of this area of the law; Kenneck, above n. 3
at 765. See also, S. Morse, Law and Psychiatry: Rethinking the Relationship
(Cambridge University Press: Cambridge, 1984).
8 Kenneck, above n. 3 at 757.
9 Law Commission, Murder, Manslaughter and Infanticide, Law Com. Report No. 304
(2006) para. 5.114. See also Kenneck, above n. 3 at 757.
The Journal of Criminal Law

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