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Research on the Defence of Diminished Responsibility

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Published: Mon, 15 Jan 2018

Research Proposal

Provocation, diminished responsibility and the reasonable (wo)man; the implications of the Law Reform Commission’s recommendations.

Introduction

The crime of murder is one defined by the common law as the intention to unlawfully kill another human being with malice afore thought. Currently, in England and Wales the legal system does not differentiate between different ‘types’ of murder, such as first and second degree.[1] There are however, defences available to defendants, which could enable either an acquittal (some general defences), or a conviction of some lesser offence (specific defences). Under the Homicide Act 1957 an individual can plead the defences of provocation, diminished responsibility or claim that he or she was involved in a suicide pact. If such defences are successful, this will have the result of bringing a charge of murder down to one of manslaughter and thus, termed ‘voluntary manslaughter’. The first of the two defences have developed a considerable amount of case law and many of these decisions have related to abusive relationships where the abused has killed the alleged abuser.

The law relating to the defence of provocation has held that an individual must have been provoked (by either words or actions), resulting in a total loss of self control,[2] and that a reasonable person in the same situation would have acted in the same manner. The first two aspects of the defence have been referred to as the ‘subjective’ elements and the third part as ‘objective’. The so-called objective element has become more and more subjective in nature. In R v Camplin, Lord Diplock acknowledged that the test was not ‘wholly objective’[3] and in the case of R v Smith (Morgan James)[4] it was asserted that the characteristics of the defendant should be attributed to the ‘reasonable person’ and this includes not only characteristics that had bearing on the actual provocation, but also on the ability of an individual to maintain his or her self control. In context of the so-called ‘battered wife’ cases, the judiciary have also applied this principle.[5]

The specific defences outlined above are justified on the basis that in some circumstances, the law should recognise that there are reasons as to why an individual should not be convicted of the more serious offence of murder and thus, subject to a mandatory life sentence. The issue with the provocation defence relating to an individual who has suffered long-term abuse, is that such individuals will not always be able to rely on it as there may be some aspect of pre-meditation. The law has also recognised that such individuals suffering from some ‘abnormality of mind’ may not be fully responsible for his or her conduct and therefore should be convicted of manslaughter instead of murder. The effect of abuse on an individual’s mental state can in certain circumstances, amount to an ‘abnormality of mind’ and thus satisfy the defence of diminished responsibility.[6]

The purpose of the proposed research is to examine the current state of the law and look at the way in which abused women are dealt with when charged with murder. In line with the Law Commission’s proposals to reform the law of homicide, the research will also examine the extent to which the proposed change in the law will impact on this area. It is submitted that the current state of the law is not adequate in dealing with such individuals and it remains to be answered as to whether the proposals will make any real difference.

The Law Commission’s Consultation Paper proposes to maintain the defence of diminished responsibility and comments that there are no grounds for abolishing the defence based upon arguments that it gender discriminatory. The paper comments at one point:

“Was the abnormality of mental functioning really a substantial cause of the defendant’s conduct if other factors were at work? Or, were the other factors, jealousy, anger, a desire to dominate or punish, the real or predominant explanation, with the abnormality of mind being a minor background factor of inadequate moral significance to affect the verdict?”[7]

The research will examine the defence of provocation and the so-called objective element in order to determine how this fits with the nature of a long term build up of abuse suffered by some women. Is there a true ‘loss of control’ in such circumstances and is it appropriate to attribute the full characteristics of such people to the reasonable (wo)man? Furthermore, by also enabling such individuals to plead the defence of diminished responsibility, as the above quote would seem to suggest, is the law simply ‘categorising’ these people to as their conduct is not viewed quite as seriously as a person who commits murder? Thus, the term ‘abnormality of mind’ is not one used in psychiatric terminology and the courts have been left to establish exactly what the phrase means on a case-by-case basis. It seems doubtful as to whether this is a sufficient approach for the law to take.

Objectives

  1. Analyse the current law relating to the defences of provocation and diminished responsibility and establish how these apply to women in long-term abusive relationships.
  2. Present the justifications for the defences and apply them in context of the proposed research theme.
  3. Establish the proposed reforms in the area.
  4. Critically analyse the proposed reforms in line with the research topic in order to determine whether they are sufficient.

Value of the Research

  1. Add to the current academic debate in this field.
  2. Establish the appropriateness of the Law Commission’s reforms.
  3. Personal interest to the researcher.

Theoretical research based on literature search and critical analysis.

Sources:

  1. Domestic legislation, cases in domestic and international jurisdictions
  2. Books and periodical articles.
  3. Law Commission Reports.
  4. Statistics from the Home Office (relating to domestic violence/fatal offences from domestic relationships).

Preliminary Plan (Chapters)

  1. Abstract
  2. Introduction and overview of the topic
  3. Analysis of the existing law on provocation/diminished responsibility
  4. Analysis of the Law Commission’s proposals for reform
  5. Conclusion (including any further suggestions for the direction the law should take for the future).

Essential Reading:

(As well as the most current academic text books on the subject)

Legislation:

Homicide Act 1957

Family Law Act 1996 – see Part IV relating to domestic violence provisions

Protection From Harassment Act 1997

See also the Law Reform’s paper: The Law Commission Consultation Paper No 177, A New Homicide Act For England And Wales?

At http://www.lawcom.gov.uk/docs/cp177_web.pdf

Cases:

Jersey v Holley [2005] UKPC 23 R v Mohammed [2005] EWCA Crim 180 R v Ahluwalia (1992) 4 All.E.R 889 R v Bedder (1954) 2All.E.R. 801 DPP v Camplin (1978) A.C. 705 R v Duffy [1949] 1 All.E.R 932 R v Newell (1980) 71 Cr.App.R. 331 R v Roberts [1990] Crim.L.R 122 R v Thornton (No.2) (1996) 2 All.E.R 1023 R v Richens (1993) 4 All.E.R 877 R v Humphreys (1995) 4 All E.R 1008 R v Morhall (1995) 3 All E.R 659 R v Luc Thiet Thuan (1996) 2 All E.R 1033 R v Smith (Morgan James) (2000) 4 All. E.R. 289 R v Keaveney (2004) LTL 22.04.04 Extempore – unreported – find it on Lawtel

Journals:

Toczek, ‘The action of the reasonable man’, (1996) N.L.J. 146, 835 Toczek, ‘Self-control and the Reasonable Man’ (2000) NLJ 150, 1222 Oliver, ‘Provocation and non-violent homosexual advances’ (1999) J.Crim.L. 63(6) 586-592 Thomas, ‘Sentencing: manslaughter – manslaughter by reason of provocation – manslaughter of spouse of partner’ (2003) Crim.L.R. June 414-417 Neal & Bagaric, ‘Provocation: the ongoing subservience of principle to tradition’, (2003) J.Crim.L 67(3) 237-256 Gardner, ‘The mark of responsibility’ (2003) O.J.L.S 23(2) 157-171

{N.B – Some psychology literature may be relevant on this topic – search the online journals for killing stemming from domestic violence.

Further research will also be needed to obtain further literature – search www.ingenta.com and your university library should be able to order any articles of relevance that they do not have on site/access to online journal. Also search for any recent reviews of the Law Commission’s proposals

You may also need to add to this proposal and include a timescale and any further information you wish to add – such as the length of the research (this is obviously information not available)}

1


Footnotes

[1] However, see the proposals of the Law Reform Commission:

[2] See R v Duffy (1949) 1 All.E.R 932

[3] (1978) AC 705

[4] [2000] 4 All. E.R. 289

[5] See R v Keaveney [2004] EWCA Crim 1091

[6] R v Thornton (No.2) [1996] 2 All.E.R 1023

[7] The Law Commission Consultation Paper No 177, A New Homicide Act For England And Wales? At http://www.lawcom.gov.uk/docs/cp177_web.pdf


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