Why was diminished responsibility introduced

The change of wording does not substantially alter the applicability of the defence, so the precedents set under the previous law are still valid. To establish whether a defendant is suffering from an abnormality of mental functioning, medical evidence will be provided in court; it will, however, be up to the jury to decide whether the defendant is suffering from an abnormality of mental functioning and whether the defence of diminished responsibility should succeed; they are not bound to accept the expert evidence R v Sanders However, if there is unchallenged medical evidence of diminished responsibility and no other evidence is able to rebutt the defence, the trial judge should withdraw a charge of murder from the jury R v Brennan The test which will be required to establish an abnormality of mental functioning is that by which a reasonable person would regard as abnormal.

This test has a very wide meaning and includes the ability to exercise will power and control. The following have been held to be an abnormality of mental functioning in cases of diminished responsibility:. To establish an abnormality of mental functioning and to use the defence of diminished responsibility it is not sufficient to simply have the condition. The defendant must prove that the condition was excessive when compared to that experienced by a reasonable person.

The abnormality must have been caused by a source which comes from inside that person and not a factor which is said to be outside them. Outside factors which cause the abnormality, such as binge drinking or occasional drug-taking, would not therefore be enough to establish diminished responsibility R v Fenton However, drug addiction and alcoholism are seen as medical diseases so these would be taken into account if the abnormality was brought about as a result of the disease of alcoholism or drug addiction or if it is due to the long term damage caused by the intake of such substances R v Wood Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality.

The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence. When sentencing young adult offenders typically aged , consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

Where any such actions are the subject of separate charges, this should be taken into account when assessing totality. Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm. The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence separate from any guilty plea reduction.

Remorse can present itself in many different ways. If a PSR has been prepared it may provide valuable assistance in this regard. Where an offender has committed the offence with little or no prior thought, this is likely to indicate a lower level of culpability and therefore justify a reduction in sentence.

However, impulsive acts of unprovoked violence or other types of offending may indicate a propensity to behave in a manner that would not normally justify a reduction in sentence. This factor may apply whether or not the offender has previous convictions.

Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence. However , this factor is less likely to be relevant where the offending is very serious. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

The emotional and developmental age of an offender is of at least equal importance to their chronological age if not greater. In particular young adults typically aged are still developing neurologically and consequently may be less able to:. Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers. Immaturity can also result from atypical brain development.

An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody. An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support. There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.

Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties. Young adult care leavers are entitled to time limited support.

Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point. Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders.

When considering a custodial or community sentence for a young adult the National Probation Service should address these issues in a PSR. This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline. For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.

For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight. The court should ensure that it has all relevant information about dependent children before deciding on sentence. When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.

When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the National Probation Service to address these issues in a PSR.

Useful information can be found in the Equal Treatment Bench Book see in particular Chapter 6 paragraphs to Before a hospital order is made under section 37 with or without a restriction order under section 41 , consider whether the mental disorder can appropriately be dealt with by custody with a hospital and limitation direction under section 45A.

In deciding whether a section 45A direction is appropriate the court should bear in mind that the limitation direction will cease to have effect at the automatic release date of a determinate sentence. If a penal element is appropriate and the mental disorder can appropriately be dealt with by a direction under section 45A, then the judge should make such a direction.

Not available for a person under the age of 21 at the time of conviction. Section 37 hospital order and section 41 restriction order. If a section 45A direction is not appropriate the court must then consider assuming the conditions in section 37 2 a are satisfied whether the matters referred to in section 37 2 b would make a hospital order with or without a restriction order under section 41 the most suitable disposal.

The court should explain why a penal element is not appropriate. Cases of manslaughter by reason of diminished responsibility vary considerably on the facts of the offence and on the circumstances of the offender. The court should take into account section 74 of the Sentencing Code reduction in sentence for assistance to prosecution and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given or offered to the prosecutor or investigator.

The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the Reduction in Sentence for a Guilty Plea guideline. Note: the limitations on reductions for murder do not apply to manslaughter. If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Totality guideline.

Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence. The court must consider whether to give credit for time spent on bail in accordance with section A of the Criminal Justice Act and section of the Sentencing Code.

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Home Crown court Manslaughter by reason of diminished responsibilit User guide for this offence Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system.

Applicability The Sentencing Council issues this definitive guideline in accordance with section of the Coroners and Justice Act Structure, ranges and starting points For the purposes of section 60 of the Sentencing Code , the guideline specifies offence ranges — the range of sentences appropriate for each type of offence. The approach to the imposition of a custodial sentence should be as follows: 1 Has the custody threshold been passed?

A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence. There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified.

Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment. The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences. Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available.

If not, a non-custodial sentence should be imposed. Pre-sentence report Whenever the court reaches the provisional view that: the custody threshold has been passed; and, if so the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence; the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary.

Suspended Sentences: General Guidance i The guidance regarding pre-sentence reports applies if suspending custody. The courts cannot effect a cure or diminution of the incidence of alcohol induced violence. All the courts can do in the meantime is to punish those who kill or injure, but the deterrent value of what we do is, I am afraid, precisely nil.

Alcohol and Aboriginal Customary Laws. Alcohol is an introduced problem which causes great disruption in Aboriginal communities. There are few, if any, traditional restraints on alcohol abuse. Drinking alcohol is an activity which individuals or groups choose to engage in and which is largely considered to be their own business.

Individuals and collectivities such as Councils have limited jurisdiction over the actions and disputes of others. Breaches of customary laws may be caused by alcohol:. It is admitted also by many drinkers that alcohol makes one lax in matters of traditional law.

On numerous occasions I have heard drunken persons use the names of the recently dead. This causes consternation among sober listeners. Sexual liaisons between forbidden partners are also mentioned as a distressing outcome of drinking.

Probably the most serious misdemeanour of all, however, is the revelation of secret-sacred material to those who have no right of access to it.

Such breaches are seriously regretted but they do not appear to lead to any change in drinking patterns. Intoxication and Criminal Responsibility. There seems to be no warrant in Aboriginal customary laws for preferring one version of the intoxication rule to the other, especially since in practice the difference between them is less than might appear.

In the case of both the common law and the Codes, intoxication may be relevant in casting doubt upon the existence of a specific intent in murder cases, thus reducing the charge to manslaughter and attracting a sentencing discretion.