diminished responsibility
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The sex-specific doctrine of infanticide provides a merciful method of dealing with women who kill their newborn children in circumstances of psychological distress. This article examines the contentious medical rationale which underpins infanticide legislation with the purpose of providing a substantiated argument for the abolition of this antiquated doctrine. Specifically, a two-pronged approach is taken. First, by utilising the views of contemporary medical science, the scientific credibility of the medical rationale is scrutinised. Second, by drawing upon feminist legal theory, a myriad of concerns associated with the medicalisation of female offenders are critically discussed. Ultimately, it is suggested that the offence/defence of infanticide should be abolished and that crimes of this nature should be readily subsumed under the current partial defence of diminished responsibility.

This is a commentary on R v Westwood (Thomas), where the Court of Appeal of England and Wales held that the judge had erred in assessing Westwood’s ‘retained responsibility’ as medium to high under the Sentencing Council Guideline for manslaughter by reason of diminished responsibility. Although the sentencing judge concluded that the offending was caused by Westwood’s anger, the Court of Appeal found the psychiatric evidence clearly indicated that the most significant factor was Westwood’s mental illness and that his anger at the time of the offence was a manifestation of his mental illness. Westwood’s responsibility was low, and it was appropriate to impose both a hospital and restriction order.  

In R v Foy, the appellant sought to adduce fresh evidence based on a difference in expert opinion. Dismissing the appeal, the Court of Appeal in England held that, where there is no solid basis for expert assertions, these appeals must fail. The case highlights the legal complexities intrinsic in diminished responsibility cases in the context of intoxication and mental health issues. This commentary addresses the legal ambiguities that arise under these circumstances.

The reformed partial defences to murder, enacted under the Coroners and Justice Act 2009, reflect Parliament’s attempt to align those defences with modern social norms and medical experience whilst retaining the existing definition of ‘murder’, being an offence that attracts a mandatory fixed sentence of imprisonment or detention. However, Parliament departed from the recommendations of the Law Commission in important respects and the appellate courts have added their ‘voice’ to the scope of the partial defences. This article, which is written from a practitioner’s perspective, discusses the existing law and considers the extent to which, since 2009, the aims of policy-makers and law-makers have been fulfilled or have fallen short of expectations. The author contends that the reforms did not go far enough, that the term ‘diminished responsibility’ is no longer apt, that rules relating to ‘loss of control’ are unnecessarily complex and unsatisfactory, and that expert opinion evidence remains problematic.

The reformed section 2 of the Homicide Act 1957 is markedly different from the original provision. Despite this, the ‘official line’ has been that the changes to the plea were merely ones of ‘clarification’ and ‘modernisation’. This article analyses the requirements of the new section 2 in the context of the results of an empirical study into the operation of the new plea carried out by myself and Professor Barry Mitchell. In doing so, it attempts to evaluate the changes which have taken place through an analysis of a sample of 90 cases involving the new plea. The results of the study are discussed in order to assess the validity of the ‘official line’. Is it correct, or have the new elements in section 2 resulted in unintended consequences?

Manslaughter is defined by common law as any unlawful homicide that is not murder. The offence is limited by murder at one extreme and accidental killing at the other. Manslaughter can be either ‘voluntary’ or ‘involuntary’. This chapter deals with voluntary manslaughter: this occurs when someone had the intention to kill or do grievous bodily harm, but relies on a partial defence to murder. The two partial defences considered in this chapter are loss of self- control and diminished responsibility (suicide pact is dealt with in Ch 15). This chapter scrutinizes the defences available to the accused and in particular the developing case law under the Coroners and Justice Act 2009 on loss of control and diminished responsibility, including the Supreme Court’s decision in Golds and the series of Court of Appeal cases since that decision.

AimsThe aim of the study was to identify any symptoms or features of Battered Woman Syndrome (BWS) or Post-traumatic Stress Disorder (PTSD) that may be associated with, or explain, abused women killing their abuser; and the extent to which such identified symptoms or features have been deemed, or are potentially relevant, to past and now reformed partial defences to murder in English law. Hence two sub-studies were completed.MethodThe first sub-study identified mental symptoms of BWS or PTSD apparent in battered women who kill their abuser; achieved by identifying relevant research papers, through applying a ‘rapid review’ approach to three databases: PubMed, PsychInfo and PsychArticles. The second sub-study identified by legal research reported Court of Appeal (CA) judgments on women appealing their conviction of the murder of their abusive partner. It then analysed the legal approach taken towards evidence of the effects of abuse upon these women before and after relevant statutory law reform (although no CA cases were identified post-reform).ResultThe first sub-study identified and reviewed six symptoms or features, within three quantitative and three qualitative studies, that appeared to be associated with, or described by, abused women killing their abuser. These included helplessness, symptoms associated with PTSD, plus fear, isolation, experience of escalation of violence and cycle of violence. From the CA cases the perpetrators of killings that occurred prior to 04.10.2010 (the date of law reform) were usually successful in having their conviction overturned based upon diminished responsibility; but not provocation, because of the requirement of ‘sudden loss of self control’. ‘Loss of control’, which replaced provocation, appears highly likely to be capable of reducing murder to manslaughter based upon symptoms of BWS, or PTSD. However, the amended defence of diminished responsibility is likely to exclude evidence of BWS, but allow evidence of PTSD, because of its requirement of the defendant suffering from ‘a recognised medical condition’.ConclusionThis study demonstrated particular symptoms or features of BWS or PTSD associated with abused women killing their abusers plus their very different relevance to two partial defences to murder, pre and post law reform.

Review of: Diminished Responsibility: My Life as a U.K. Sub, and Other Strange Stories, vol. 1, Alvin Gibbs (2020) Stratford-upon-Avon: Tome & Metre, 282 pp., ISBN 978-1-83801-160-4, p/bk, £15.00

Введение: в статье рассматривается уголовное законодательство России, Англии и Уэльса в части института ограниченной вменяемости. Материалы и методы: авторами изучены и проанализированы нормативные правовые акты Российской Федерации, Англии и Уэльса, касающиеся института ограниченной вменяемости, а также отечественная и зарубежная (на языке оригинала) научная литература по теме исследования, данные практических органов1. Методологическую основу исследования составляет диалектический метод познания. Применялись общенаучные (логический, системный, анализ, интерпретация, обобщение) и частнонаучные (формально-юридический, сравнительно-правовой) методы. Результаты исследования: сравниваются законодательное понимание и оценка биологического критерия ограниченной вменяемости в двух национальных правовых системах. Кратко приводятся данные практических органов о конкретных примерах заболеваний, рассматриваемых в качестве биологического критерия ограниченной вменяемости. Обсуждение и заключения: на основании проведенного сравнительно-правового анализа авторы отмечают положительные аспекты законодательной регламентации института ограниченной вменяемости в России, Англии и Уэльсе.

This chapter focuses on manslaughter, a common law homicide offence with an actus reus of unlawful conduct causing death. The chapter considers two categories of manslaughter: voluntary manslaughter and involuntary manslaughter. Voluntary manslaughter arises where D commits murder, but meets the criteria for one of the partial defences: loss of self-control, diminished responsibility, or suicide pact. Involuntary manslaughter arises where D does not commit murder, but commits a relevant manslaughter offence: unlawful act manslaughter, gross negligence manslaughter, or reckless manslaughter. The chapter explains statutory offences of unlawful killing (corporate manslaughter, driving causing death, infanticide, killing of a foetus) and concludes by outlining options for legal reform concerning voluntary manslaughter, involuntary manslaughter, and the structure of manslaughter offences. Relevant cases are highlighted with a summary of the main facts and judgment.