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Murder - defences - diminished responsibility and alcohol

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[ Cases Voluntary Manslaughter, here ]

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Diminished responsibility is a partial defence which, if successfully pleaded, reduces liability from murder to manslaughter (s 2(3) of the Homicide Act 1957).

For a successful plea, the defendant bears the burden of proof; he must prove (on the balance of probabilities)  that:

(a) he was suffering from an ‘abnormality of mind’,
(b) resulting from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury,
(c) that substantially impaired his responsibility for the killing.

s 2(2) and R v Dunbar (1958)

R v Dix (1982) CA

The defence must not be left to the jury unless there is medical evidence in support of the three elements.
 

Alcohol can substantially impair mental responsibility

Section 2(1) does not require the abnormality of mind to be the sole cause of the defendant’s acts.

 

Even if the defendant would not have killed if he had not consumed alcohol, the causative effect of the alcohol does not prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for the fatal acts.

 

Abnormality of mind induced by alcohol or drugs is not due to inherent causes

R v Gittens [1984] CA R v Fenton (1975) CA. Approved in Dietschmann

If drinking alcohol has reached the stage that the accused’s brain has been damaged so that there is gross impairment of judgment, or the accused drinks alcohol because he can no longer resist the impulse to drink, the defence of diminished responsibility is available R v Tandy [1989] CA.

The voluntary intoxication test

R v Dietschmann (2003) HL

A problem arises where there are two independent possible causes of the abnormality of mind, one of which is an allowable cause within s. 2(1) (e.g., a depressive illness) and the other of which is voluntary intoxication (which is clearly not allowable).

 

A defendant seeking to use diminished responsibility  where he had been drinking does not have to show that if he was sober
(a) he would have killed as he in fact did; and
(b) he would have been under diminished responsibility when he did so?

 

A jury may find defendant guilty of manslaughter if it is satisfied that, notwithstanding his alcohol consumption, his abnormality of mind substantially impaired his mental responsibility for his acts in doing the killing.

 

The transient side-effects of a legal drug, which include disinhibition and loss of memory, cannot be characterised as ‘injury’ within the meaning of the 1957 Act s 2(1) R v O’Connell [1997]  CA.

The direction in R v Dietschmann (2003) HL

"[...] has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility ... If he has satisfied you of that, you will find him ... guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him."

Voluntary intoxication is not an acceptable cause of the abnormality

In R v Tandy [1989] D was an alcoholic who strangled her 11-year-old daughter after drinking nine-tenths of a bottle of vodka and upon learning that her daughter had been sexually abused.

 

She was clearly suffering from an abnormality of mind at the time of the killing, and the amount of alcohol in her bloodstream would have been lethal for most people.

 

However, the Court of Appeal upheld the conviction for murder based on the trial judge's direction that, for the defence to succeed, the abnormality had to be caused by the disease of alcoholism rather than by the voluntary ingestion of alcohol on the particular occasion.

 

This would be the case 'If the alcoholism had reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgment and emotional responses'.

 

Even if this was not the case (as the jury must have found by their verdict), the alcoholism might still found a defence if it meant that the intoxication was not voluntary, i.e. if 2she was no longer able to resist the impulse to drink".

 

Although the defence medical witnesses testified to this effect, the prosecution witness was of the view that D had control over whether she had the first drink of the day, but once she had had the first drink she was no longer in control, and the Court of Appeal said that "the judge was correct in telling the jury that, if the taking of the first drink was not involuntary, then the whole of the drinking [on that day] was not involuntary".

Tandy was followed in Inseal [1992], where the Court of Appeal approved of the trial judge's direction only in terms of this second issue of whether the drinking had become involuntary, since no medical evidence had been given on the first question of whether the brain had been 'injured by the repeated insults from intoxicants'.

The relevance in Tandy of the distinction between voluntary and involuntary intoxication is in answering the question of whether the abnormality of mind is caused by disease, i.e. alcoholism.

 

If the intoxication is voluntary, then it constitutes a novus actus interveniens and breaks the causal link between the alcoholism and the abnormality of mind.

 

If it is involuntary, in the sense that the accused's alcoholism meant she was no longer able to resist the impulse to take (even the first) drink, then the actual intoxication is not a novus actus but part of the causal chain between the alcoholism and the abnormality of mind.

Watkins LJ said

"'if her drinking was involuntary then her abnormality of mind at the time of the act of strangulation was induced by her condition of alcoholism".

If this is correct, then logically an alcoholic (or anybody else for that matter) whose orange juice, for example, is surreptitiously laced with vodka by another, might have difficulty relying on diminished responsibility.

 

Even though his abnormality of mind is caused by involuntary intoxication, it would appear that it is not induced by disease. This seems rather harsh but a possible answer is that the abnormality might be said to be due to one of the other causes specified in s. 2(1), i.e. "injury".

 

The spiker of the drinks could be said to be inflicting an injury via the alcohol on the accused's brain, just as much as if he clubbed him over the head, and thus the abnormality could be said to be induced by "injury".

 

However, in R v Di Duca (1959), the court was 'very doubtful' as to whether the transient effect of drink could amount to an injury and in R v O'Connell [1997] similar doubts were expressed in respect of the transient effects of voluntarily ingested Halcion (a sleeping drug).

 

These doubts can be explained on the grounds that the courts were speaking of cases of voluntary intoxication. Rather than deny that the transient effect of drink or drugs can ever constitute an injury, it would be better merely to exclude voluntarily self-inflicted injuries (including the effects of voluntary intoxication) from the meaning of "injury" within s. 2(1).

 

Their exclusion can be justified on the grounds that, being voluntarily self-inflicted, they are not capable of substantially impairing responsibility within the meaning of the section.

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