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Cases - murder - defences - diminished responsibility

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Ahluwalia, R v [1993] CA

Antoine (Pierre Harrison), R v (2000) HL

Byrne, R v (1960) CA

Di Duca, R v (1959) CA

Dietschmann (Anthony), R v 2001 CA

Dunbar, R v [1958] CA

Egan, R v [1992] CA

Fenton, R v (1975) CA

Gittens, R v (1984) CA

Hendy, R v [2006] CA

Hobson, R v (1997) CA

Lambert, R v (R v Ali, R v Jordan) [2001] HL

Lloyd, R v [1966] CA

Martin (Anthony Edward), R v [2002] CA

O’Connell, R v [1997] CA

Price, R v (1971)

Reynolds, R v (1988) CA

Rose, R v (1961) PC

Sanders, R v (1991) CA

Sanderson, R v (1994) CA

Seers, R v (1985) CA

Sutcliffe, R v (1981)

Tandy, R v (1989) CA

Vinagre, R v (1979) CA

Walton v The Queen (1978) PC

Ahluwalia, R v [1993] CA

[Diminished responsibility - Battered Woman Syndrome – can amount to diminished responsibility]

D, subjected to 10 years of spousal violence and degradation, threw petrol in her husband's bedroom and set it alight, causing his death.



Lord Taylor CJ:


No evidence was adduced at trial that D suffered from a post-traumatic stress disorder or 'Battered Woman Syndrome'.



The Court of Appeal admitted evidence, quashing the murder condition on the basis of D's depressive condition. At re-trial her plea of manslaughter by defence of diminished responsibility was accepted.


Not guilty of murder

Antoine (Pierre Harrison), R v (2000) HL   

^[Diminished responsibility - fitness to plead – murder]
D aged 16 and another youth brutally murdered V aged 15, apparently as a sacrifice to the devil. D appealed against the decision that he could not raise a defence of diminished responsibility at a hearing under the Criminal Procedure (Insanity) Act s4A(2), where he had been found unfit to plead to murder by reason of his mental disability and where the jury found that D had committed the act of murder.

Held: (1) The defence of diminished responsibility cannot be raised in a hearing under s4A Criminal Procedure (Insanity) Act 1964
(2) On the wider question: the jury under s4A procedure need only prove the actus reus of an offence. However the defence counsel may raise objective evidence of the defences of mistake, accident or self-defence.

Appeal dismissed.

Byrne, R v (1960) CA


Red triangle indicating "must know" material

[Diminished responsibility - abnormality of the mind impairing mental responsibility]
D strangled to death and then mutilated a young woman in a YWCA, confessing to both in full. D raised the defence of diminished responsibility. Since childhood he had suffered from perverted sexual desires that created irresistible impulses. His acts were driven by one of these impulses on the day in question.

Held: Diminished responsibility covers all the activities of the mind. Abnormality of the mind does no have to be connected with madness.

Lord Parker CJ.

(1) To satisfy the requirements of this defence under the Homicide Act 1957 s 2, D must demonstrate that he suffered from an 'abnormality of the mind' arising from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury; and that the said abnormality substantially impaired his mental responsibility for his acts in doing or being a party to a killing.

(2) An abnormality of the mind is to be defined widely: 'a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal' and covering all cognitive aspects, from perception to rationality and 'willpower'

Not guilty of murder by reason of diminished responsibility.

Di Duca, R v (1959) CA

[Diminished responsibility - Intoxication not sufficient]

No transcript available.


Held: The transient effects of drink on the brain might themselves be an injury, but this is doubted.


Dietschmann (Anthony), R v (2003) HL




Whole case, here

^[Diminished responsibility  -  voluntary consumption of alcohol can also be a cause of the killing]
D killed a man in a savage attack whilst he was very drunk.  He was also suffered from a mental abnormality, namely an adjustment disorder which was a depressed grief reaction following the death of his aunt, Sarah, with whom he had had a close emotional and physical relationship and whom he (wrongly) believed had committed suicide because of her drug problems.


Held:  To benefit from the finding of diminished responsibility, D does not have to show he would have killed had he been sober.


Being intoxicated does not entitle D to the benefit of the defence of diminished responsibility, the only factor which the law recognises as capable of diminishing his mental responsibility is the mental abnormality described by the expert witnesses.


Drink is only capable of amounting to Diminished Responsibility if it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary (e.g. alcohol dependence syndrome).



Although drink cannot be taken into account as something which contributed to his mental abnormality, it can contribute to his behaviour.


"...if D satisfied you that, [ignoring the drink], his mental abnormality substantially impaired his mental responsibility for his fatal acts, you may find him guilty of manslaughter.

If not, the defence of diminished responsibility is not available to him."


This case also reversed the test in Egan:

If D suffers from DR and when sober would not kill yet when drunk kills; can he still use DR, answer, Yes.

In Egan the test the answer would have been No.


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?


Appeal allowed remitted to Court of Appeal who ordered a retrial.

Dunbar, R v [1958] CA

[Diminished responsibility -  burden of proof rests on accused - a preponderance of probability]

D, killed an old lady after breaking into her house to steal.

Held: The burden of proof on accused of the defence of diminished responsibility was not as heavy as the burden of proof on the prosecution and was the burden of showing a preponderance of probability.

Guilty manslaughter.

Egan, R v [1992] CA

^[Diminished responsibility  -  voluntary consumption of alcohol can also be a cause of the killing]
D who had a mentality bordering on the subnormal, entered the home of an elderly widow after a night of heavy drinking and attacked and killed her, probably with intent to rob her.


It was clear that Egan was suffering from an abnormality of mind which arose from one of the stated causes (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury).


The difficulty was whether this abnormality had substantially impaired his responsibility for his acts or whether it was the effect of the abnormality in conjunction with the alcohol he had consumed that had done so.


Held:  A court should follow the guidance of Professor JC Smith in his commentary on R v Gittens [1984] and ask:

(i)   Can the defendant prove that had he not taken the alcohol he would nevertheless have still killed; and

(ii)   Can he prove that he was suffering from diminished responsibility at the time so as substantially to impair his responsibility for the killing.  Voluntary consumption of alcohol must be ignored.


In other words, if the jury believe that but for the voluntary consumption of alcohol he would not have killed, the defence is lost.


Where the defendant is suffering from alcoholism, the position may be different. This may constitute an abnormality of mind induced by injury within s 2, but the voluntary consumption of large quantities of alcohol will not.


Guilty murder

Dicta disapproved in R v Dietschmann (2003)

Per curiam. The word “substantial” should be approached in a broad commonsense way or that “substantial” means more than some trivial degree of impairment which does not make any appreciable difference to a person’s ability to control himself, but less than total impairment

Fenton, R v (1975) CA

^[Diminished responsibility - the effect of alcohol can be discounted]
D had consumed a large quantity of drink. He drew a revolver and killed a police officer and left the scene driving the police car. He went to a club where he shot and killed three more people.

Held: One of 4 ingredients of D's abnormality of mind was alcohol with a resulting state of disinhibition and possible confusion the absence of any one of them the killings would probably never have taken place.

Even if the effect of alcohol was ignored, the effect of the remaining factors was sufficient to cause a substantial impairment of mental responsibility.


Approved in R v Dietschmann [2003]

Gittens, R v (1984) CA


^[Diminished responsibility - abnormality of the mind – drink or drugs can be an effect  - abnormality does not have to be the sole cause of DR]
D was suffering from depression. During a visit home from hospital he argued with his wife and beat her to death and then raped and killed his stepdaughter. At the time of the offence he had been drinking and taking drugs for depression.

Held: D can benefit from DR if the inherent causes like depression would have caused him kill whether or not he took drugs or drank alcohol.

Guilty of manslaughter not murder

Approved in Dietschmann


Therefore four points clearly emerge from the judgment:

(i) Where a defendant suffers from an abnormality of mind arising from arrested or retarded development of mind or inherent causes or induced by disease or injury and has also taken drink before the killing, the abnormality of mind and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing.


(ii) Therefore the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the defendant's mind, the abnormality of mind arising from a cause specified in subsection 2(1) nevertheless substantially impaired his mental responsibility for his fatal acts.


(iii) Accordingly it is not correct for the judge to direct the jury that unless they are satisfied that if the defendant had not taken drink he would have killed, the defence of diminished responsibility must fail. Such a direction is incorrect because it fails to recognise that the abnormality of mind arising from a cause specified in the subsection and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing.


(iv) The direction given by the judge in R v Turnbull (Launcelot) should not be followed.


Hendy, R v  [2006] CA

^[Manslaughter - diminished responsibility - effect of intoxication can be disregarded]
D stabbed and killed a complete stranger. D raised diminished responsibility, there was evidence that alcohol, had played a part in the killing.
D did not have to show that if he had been sober, he would still have killed the victim to benefit from diminished responsibility.


Section 2(1) of the Homicide Act 1957 meant that, if - ignoring the effect of the alcohol - D's abnormality of mind substantially impaired his mental responsibility for his acts in doing the killing, the jury should find him not guilty of murder but guilty of manslaughter.
R v Gittens [1984] QB is correct. Dietschmann was not ’new law’ but simply explained what the law had always been since the 1957 Act was enacted and since Gittens.

Guilty of manslaughter

Also here

Hobson, R v (1997) CA



^[Diminished responsibility – battered woman syndrome recognised]
D stabbed her alcoholic and abusive partner to death in 1992, during an argument.  At the trial she claimed that she had acted in self-defence, and there was a subsidiary issue on provocation.

Held: Two psychiatrists were of the opinion that D had been a victim of battered woman syndrome, a condition not recognised in the standard British classification of mental diseases until 1994, and therefore (it was suggested) a condition not considered by British psychiatrists at the date of the trial as capable of founding a plea of diminished responsibility.

The Court of Appeal ruled that the evidence should be received, and in the light of that decision the Crown did not seek to support the conviction as safe. A retrial was ordered.


In addition, if the condition existed at the time, it was material to the appellant’s characteristics in relation to the defence of provocation under s 3 of the Act.


Retrial ordered

Lambert, R v [2001] HL


Whole case, here.


(R v Ali, R v Jordan) HL

[Diminished responsibility - burden of proof on D - does not conflict with HR Convention]

D1 was convicted of a drug offence. D1 and D2 were both convicted of murder, their claim of diminished responsibility having failed. In relation to both the drug offence and diminished responsibility the burden fell upon the defendant to establish certain facts on the balance of probabilities.


Held: Subject to certain well-established exceptions, the common law had resisted any kind of burden of proof being placed upon a defendant. Parliament, however, had created many exceptions to that general rule which could require that the defendant do no more than satisfy an evidential or persuasive burden. Article 6 had not been breached.


Guilty of murder.

Lloyd, R v [1966] CA

^[Diminished responsibility - substantial impairment, more than minimal]

D strangled his wife. medical evidence was that he suffered from reactive recurrent depressions, and his mental responsibility was impaired by that abnormality to some extent, not to any substantial degree - it was not as low as minimal but, on the other hand, it was not substantial.


Held: What amounts to ‘Substantial’ impairment is:
(i) the jury should approach the word in a broad common sense way or
(ii) the word meant ‘more than some trivial degree of impairment which does not make any appreciable difference to a person’s ability to control himself, but it means less than total impairment’.


Guilty murder.

Followed in Gittens, approved in Egan.

Martin (Anthony Edward), R v [2002] CA




Whole case here

^[Diminished responsibility - fear of burglary]
D shot two intruders who entered his Norfolk farm house in the middle of the night. One was killed the other was seriously injured.

Because of past experience D believed his house to be vulnerable to burglary, and he was in genuine fear for his personal safety and that the firing of the gun was in lawful self-defence.


Held:  Fresh medical evidence as to the physical characteristics of the defendant was relevant to diminished responsibility, because he suffered from a longstanding paranoid personality disorder which could be classified as an abnormality of the mind arising from inherent causes within the terms of s 2 of the Act.


Guilty of manslaughter by reason of diminished responsibility

O’Connell, R v [1997] CA

[Diminished responsibility - side effects of illegal drugs not 'injury']

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).


Price (1971) The Times, 22 December 1971 (news item)

[Diminished responsibility - "mercy killing"]

D killed his terminally ill son by allowing him to drown.

Held: Diminished responsibility is available in cases of "mercy killing" where the dilemma causing the accused to kill was linked with depression.


Reynolds, R v (1988) CA

[Involuntary manslaughter – diminished responsibility - abnormality of the mind includes post-natal depression and pre-menstrual tension]

No summary available


Rose, R v (1961) PC

^[Diminished responsibility - impairment bordering on insanity, a misdirection]
D a prisoner serving sentence, stabbed to death an overseer who refused to give him the key of a gate of the prison.
The trial judge referred to the case as a border-line case of sanity or insanity, according to the M’Naghten rules.


Held: The direction in terms of the M’Naghten rules, was wrong. The words (not that of the M’Naghten rules) must be used in its broad popular sense.



Sanders, R v (1991) CA

^[Diminished responsibility - jury to examine whole evidence, not obliged to accept medical evidence in isolation]

D killed his former partner by hitting her on the head with a hammer.  D was diabetic, lost sight in one eye. substantial impairment of his other eye, unable to work, and was depressed. V had formed a relationship with another man. After killing V he attempted suicide.

Two psychiatrists agreed that D suffered from an abnormality of mind (reactive depression) which substantially impaired D's responsibility

The Crown did not accept that this had substantially diminished the appellant's responsibility, even though the medical evidence was uncontradicted.

Held:  There were other circumstances to be considered, the medical evidence, though it be unequivocal and uncontradicted, had to be assessed in the light of the other circumstances on the evidence as a whole.


Guilty murder.

Sanderson, R v (1994) CA

^[Involuntary manslaughter – diminished responsibility - abnormality of the mind impairing mental responsibility]
D a drug addict had a violent argument with his girlfriend, whom he killed by hitting her 100 times with a wooden object a cricked bat and a hockey stick. Medical evidence established that D suffered from a paranoid psychosis, arising from inherent causes: namely, his upbringing.

Held: A permissible cause of an abnormality of the mind includes 'any inherent cause', which covers functional mental illness as well as organic or physical injury or disease of the body, including the brain. "Brain" and "Mind" are not the same thing in law.

Guilty of manslaughter by diminished responsibility.

Seers, R v (1985) CA

^[Diminished responsibility – includes a mind affected by severe shock - depression especially in cases of mercy killings and PMT]
D stabbed his estranged wife and claimed diminished responsibility on grounds of chronic reactive depression. The trial judge directed that for the defence to be successful Seers had to be bordering on the insane.

Held: The judge’s direction was wrong. The required abnormality of mind can cover severe shock or depression especially in cases of mercy killings and pre-menstrual syndrome. 

The test of borderline or partial insanity had been appropriate in the case of R v Byrne.

Guilty of manslaughter

Sutcliffe, R v (1981) Boreham J

[Diminished Responsibility – the public interest - jury role]
Peter Sutcliffe, the ‘Yorkshire Ripper’ pleaded diminished responsibility to 13 charges of murder. The medical reports were unanimous in suggesting that he was a paranoid schizophrenic.

Held: The judge decided that it was in the public interest for the jury to decide on the matter. The jury brought in verdicts of murder. This reflects public reaction rather than any clear cut rule of law and it illustrates rather well that in practice medical evidence alone may not be sufficient to ensure the defence.


Tandy, R v (1989) CA


[Diminished responsibility - abnormality of the mind impairing mental responsibility - effects of alcoholism -  role of jury]
D, an alcoholic, had drunk nearly a bottle of vodka when she strangled her 11 yr old daughter. (She normally drank Vermouth or Barley wine),

Held: For a craving for drink to produce an ‘abnormality of mind’ induced by the disease of alcoholism, there had to be grossly impaired judgement and emotional responses or the craving had to be such as to render the first drink of alcohol of the day involuntary.


But, if the accused had simply not resisted an impulse to drink she could not rely on the defence of diminished responsibility, and if D took the first drink of the day voluntarily, the whole of the drinking on that day was voluntary, and diminished responsibility was not available to her. 

Watkins LJ:

'If the alcoholism has 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, then the defence of diminished responsibility was available to her ... if her drinking was involuntary, then her abnormality of the mind at the time of the act of strangulation was induced by her condition of alcoholism.'

Guilty of murder.

Vinagre, R v (1979) CA

^[Diminished responsibility - Othello syndrome - unfounded jealousy]
D was suffering from so called "Othello syndrome" a disease of the mind caused by an unfounded suspicion that his wife was having an affair with a policeman she had met at horse events.


Held: Lawton LJ, was scathing in his opinion. He expressed displeasure at flimsy evidence being presented as a defence which was inaccurately and picturesquely called "Othello syndrome" by the psychiatrists.


He said that "Othello Syndrome" as a defence may have entered modern psychiatric medicine, it is not one which appeals to the Court of Appeal.


The defence of diminished responsibility appears to have succeeded because the judge at first instance accepted the plea.


Lord Lawton when on to say that it is a kind of conduct against which wives ought to be protected by the law. Before 1957 there would have been no question about it, this man would have been found guilty of murder. He could not have had any defence.


Diminished responsibility should only be accepted when there is clear evidence of mental imbalance, in this case there was not clear evidence of mental imbalance. There was clear evidence of a killing by a jealous husband which, until modern times. no one would have thought was anything else but murder.


Life imprisonment reduced to 7 years

Comment: If the wife had been having an affair it would simply be a case of a jealous husband killing his wife.

Severe jealousy might be described as an abnormality of mind but it does not arise from of an "inherent cause or injury or disease". 


Lawton LJ made it clear that "Othello Syndrome" is a flimsy defence, and it is submitted that this is a rogue decision by the judge at first instance who accepted the psychiatrists' reports, and is unlikely to be seen again.

But see "jealousy as a characteristic" in Provocation in Weller (2003).


Walton v The Queen (1978) PC (Barbados)

[Diminished responsibility - abnormality of the mind impairing mental responsibility]
D was driving with his girlfriend, who thought he was 'acting funny', when he stopped the car. After she flagged down a car for assistance D shot and killed a passenger in that car.

Held: Lord Keith:

'upon an issue of diminished responsibility the jury are ... bound to consider not only the medical evidence but also the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the accused before, at the time of and after it and any history of mental abnormality.'

The Privy Council refused to interfere with the verdict of murder, even though there was medical evidence from the defence supporting diminished responsibility and no contradictory medical evidence from the prosecution. The jury were entitled to consider the 'quantity and weight' of the medical evidence and 'to consider not only the medical evidence but the evidence on the whole facts and circumstances of the case', and to conclude that 'the defence on a balance of probabilities had not been established'. The approach in Walton was followed in Sanders (1991).


Guilty of murder.


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