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You are here: BAILII >> Databases >> The Law Commission >> Partial Defences to Murder (Consultation Paper) [2003] EWLC 173(8_2) (15 October 2003) URL: http://www.bailii.org/ew/other/EWLC/2003/173(8_2).html Cite as: [2003] EWLC 173(8_2)

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Comparative table of those countries with a defence of diminished responsibility

	Nature and Effect of Defence	Basis	Burden of Proof	Judicial Role	Proposed Reforms	Sentencing Regime
AUSTRALIAN CAPITAL TERRITORY[1]	Partial, reducing murder to manslaughter. The defence in essence mirrors the English provision, and is derived from it.[2]	Statute.[3]	Party seeking to establish it, therefore normally the accused. The standard of proof is on a balance of probabilities.[4]	It is for the court to determine whether there is sufficient evidence at law to permit the jury to find diminished responsibility and therefore whether the matter should be left to them. Importantly, the judge should direct the jury to consider the defence when there is sufficient evidence of it, even if it is not raised by the parties.[5]	None.	Murder is punishable by imprisonment for life.[6]

	Nature and Effect of Defence	Basis	Burden of Proof	Judicial Role	Proposed Reforms	Sentencing Regime
AUSTRALIA New South Wales	Partial, reducing murder to manslaughter. Nature of impairment: capacity reduced so far that unable to "understand events… judge whether the … actions were right or wrong, or to control himself or herself".[7] Cause can be any "underlying condition".[8] Effect of impairment must be "…to warrant liability for murder being reduced to manslaughter." [9]	Statute.[10]	As above.	As above.	The Crimes Amendment (Diminished Responsibility) Act 1997 partially implemented the proposals of the New South Wales Law Reform Commission contained in Report 82.[11] There are no further proposals to reform at present.	Discretionary life sentence for murder.[12]

	Nature and Effect of Defence	Basis	Burden of Proof	Judicial Role	Proposed Reforms	Sentencing Regime
AUSTRALIA Northern Territory	Partial, reducing murder to manslaughter. Impairment of capacity to "understand what he is doing…to control his actions…to know that he ought not to do the act".[13] No reference to causes of impairment.	Statute.[14]	As above.	As above.	None.	Mandatory life sentence for murder.[15]
AUSTRALIA Queensland	Partial, reducing murder to manslaughter. Requires an impairment of capacity to "understand what he is doing, …to control his actions, … to know that he ought not to do the act or make the omission"[16] Causes mirror the English definition.	Statute.[17]	As above.	As above.	None.	Mandatory life sentence for murder.[18]

	Nature and Effect of Defence	Basis	Burden of Proof	Judicial Role	Proposed Reforms	Sentencing Regime
SCOTLAND	Partial, reducing murder to culpable homicide.[19] Requires impairment of the ability of the accused, as compared with a normal person, to determine or control his acts. [20] This focuses on the component aspect of control as opposed to the overarching issue of mental responsibility preferred in the English concept.[21]	Common law.[22]	Party seeking to establish it, therefore normally the accused. If pleaded by the accused, then standard of proof is on a balance of probabilities.[23] The Scottish Law Commission has recommended that the burden on the accused be reduced from the current legal burden to a merely evidential one.[24]	It is for the court to determine whether there is sufficient evidence at law to permit the jury to find diminished responsibility If it is concluded that there is not sufficient evidence, the defence should be withdrawn from the jury.[25]	The Scottish Law Commission has recently issued a discussion paper on this area of law. The proposal shifts the focus to whether the accused's condition is such as to "justify a conviction for culpable homicide instead of a conviction of murder."[26] The exclusion of psychopathic personality disorder from the Galbraith formula is raised as an area potentially requiring reconsideration and clarification.[27] The issue of diminished responsibility is also addressed in clause 38 of	Mandatory life sentence for murder.[28]
					the Draft Criminal Code for Scotland produced under the auspices of the Scottish Law Commission. The definition used differs from that proposed in the later discussion paper but it is noted that "it would be a simple matter to amend this Bill to incorporate such changes".[29]

Comparative table of those countries without a defence of diminished responsibility

	Inclusion of Comparable Concepts in Domestic Law	Proposed Reforms
AUSTRALIA (Victoria)	The defence of mental impairment was introduced in 1997[30] and is comparable to the defence of insanity in English law. It extends only to mental conditions that affect the accused's understanding of the nature, quality or wrongfulness of the conduct. A finding of not-guilty by reason of mental impairment permits discretionary disposal. There is no lesser degree of mental impairment recognised as a defence in Victorian law.[31]	The former Law Reform Commission of Victoria decided in 1990 not to recommend the introduction of a defence of diminished responsibility.[32] The proposed Model Criminal Code also decided to exclude the defence.[33] The present Victorian Law Reform Commission is currently undertaking a review of the law pertaining to homicide, including the potential introduction of a defence of diminished responsibility.[34]
CANADA	The defence of mental disorder applies to those persons who would also generally fall within the English law definition of insanity.[35] However, "evidence of mental disorder that does not satisfy the legal tests for the mental disorder defence may be used to raise[…] a reasonable doubt as to whether the defendant had the specific intent required for murder"[36] The effect of a plea of mental disorder, if the facts are established, is a finding of "not criminally responsible on account of mental disorder".[37]	There is little real support for reforming the to include a defence of diminished responsibility.[38] There are proposals in relation to provocation, and in particular the objective or subjective nature of the test. These may potentially affect some defendants who currently fall within the English law concept of diminished responsibility.[39]
INDIA	Provocation has always been held to include cumulative provocation,[40] which could potentially be applicable to certain situations pleaded as falling within the English defence of diminished responsibility. A significant example is Battered Woman Syndrome where the act may be committed without the sufficient temporal nexus for a plea of provocation to be entered, but where provocation is cumulative.	None.

	Inclusion of Comparable Concepts in Domestic Law	Proposed Reforms
IRELAND	The M'Naghten rules were originally the basis of the defence of insanity in Irish law. However the definition of the concept was extended in the 1960's and 1970's. It currently includes "certain serious mental diseases" which do not prevent an accused from understanding the nature and quality of an act, but which may still prevent him from "exercising a free volition as to whether he should or should not do that act."[41] This concept is now referred to as 'volitional insanity'. Subsequently, it has been judicially stated that "It seems … impossible that … there could exist side by side with what is now the law in this country concerning a defence of insanity a defence of diminished responsibility… "[42] Where insanity is established the accused is found 'guilty but insane' and detained in the Central Mental Hospital.[43]	The Criminal Law (Insanity) Bill 2002,[44] clause 5 establishes a defence applicable to cases where the accused suffers from a mental disorder insufficient to establish insanity but nonetheless, "was such as to diminish substantially his or her responsibility for the act". The new defence would have the same effect as in English law, reducing the offence to manslaughter. The burden of proof remains on the defendant.

	Inclusion of Comparable Concepts in Domestic Law	Proposed Reforms
NEW ZEALAND	Attempts to create a common law doctrine of diminished responsibility have been expressly rejected.[45] Where an accused is suffering from an illness that may have affected his or her response or judgement, evidence may be adduced to demonstrate that the necessary intent for murder had not been formulated.[46] In addition, mental illness was held to have played a significant part in a case of provocation and at sentencing, similarities to diminished responsibility were noted.[47] The full scope of this potential extension is yet to be considered, but may well extend to factors similar to those within the English law concept of diminished responsibility.[48]	The New Zealand Law Commission rejected the proposal to introduce a defence of diminished responsibility in a report that focused on the particular situation of battered defendants.[49] The defence was felt to be too difficult to define. The matter was considered to be one better dealt with at the sentencing stage. The Commission is simultaneously proposing the abolition of the mandatory life sentence for murder.
SOUTH AFRICA	South Africa operates two sets of defences applicable in cases of murder; pathological incapacity and non-pathological incapacity. Pathological incapacity defences include mental illness/defect (formerly known as insanity) and a lesser concept of a mental condition, short of clinical insanity, which intervenes to prevent intent being formed. Not guilty by reason of mental illness/defect results in being detained indefinitely as a State's President patient. The lesser defence, short of clinical insanity, leads to a conviction for culpable homicide, and thus operates in a comparable way to the English defence of diminished responsibility. Non-pathological incapacity defences include provocation, intoxication, emotional stress and youth. The consequence of a successful plea is complete acquittal. The effect of the broad interpretation of non-pathological incapacity and the effect that the defence has is such that the use of pathological incapacity defences is considerably reduced. Unless there is overwhelming evidence of insanity, the preferable plea would be non-pathological incapacity, circumventing the need for and use of the lesser pathological defence. Diminished responsibility may also be offered as a mitigating factor at the time of sentencing. However, there is already considerable breadth in the area of sentencing due to the interpretation of the "substantial and compelling reasons" to depart from minimum sentences in legislation.[50]	None.

Note 1   Diminished responsibility is a defence to murder in four of the nine Australian jurisdictions. All those jurisdictions are considered in this table. Victoria, which does not have the defence, is considered in the ensuing table for purposes of comparison. Whilst the defence is not generally a matter for the Commonwealth jurisdiction, it is recognised under s 13 of the Defence Force Disciplinary Act 1982 (Cth), but only applies to crimes committed by military personnel that would otherwise be murder.     [Back]

Note 2   See Appendix A, S Yeo, para 3.2.    [Back]

Note 3   Crimes Act 1900 (ACT), s 14, as inserted by the Crimes (Amendment) No 2 Act 1990 (ACT).    [Back]

Note 4   See Appendix A, S Yeo, para 3.30.    [Back]

Note 5   See Appendix A, S Yeo, para 3.31.    [Back]

Note 6   Crimes Act 1900 (ACT), s 12(2).    [Back]

Note 7   See Appendix A, S Yeo, para 3.4.    [Back]

Note 8   Ibid.    [Back]

Note 9   Ibid.    [Back]

Note 10   Crimes Act 1900 (NSW), s 23A, as inserted by the Crimes and Other Acts (Amendment) Act 1974, and amended by the Crimes Amendment (Diminished Responsibility) Act 1997 (NSW).    [Back]

Note 11   New South Wales Law Reform Commission Report 82 (1997) Partial Defences to Murder: Diminished Responsibility, Recommendation 4.    [Back]

Note 12   Crimes Act 1900 (NSW), s 19A; Crimes (Sentencing Procedure) Act 1999 (NSW), s 21(1).    [Back]

Note 13   Criminal Code Act 1983 (NT), schedule 1, s 37.     [Back]

Note 14   Criminal Code Act 1983 (NT), schedule 1, s 37.    [Back]

Note 15   Criminal Code Act 1983 (NT), schedule 1, s 164.     [Back]

Note 16   See Appendix A, S Yeo, para 3.3.    [Back]

Note 17   Criminal Code 1899 (Qld), s 304 A.    [Back]

Note 18   Criminal Code 1899 (Qld), s 305.     [Back]

Note 19   It must be shown that “at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts.” Galbraith v HM Advocate (No 2) 2002 JC 1, para 54. See Appendix E, J Chalmers, C Gane, F Leverick, p 158.    [Back]

Note 20   The current Scottish formulation was a broadening of the earlier definition which required the accused’s condition to be bordering on insanity, HM Advocate v Savage 1923 JC 49.    [Back]

Note 21   See however, ‘Proposed Reforms’, n 26.    [Back]

Note 22   Origin in Alexander Dingwall (1867) 5 Irvine 466. See Appendix E, J Chalmers, C Gane, F Leverick, p 153.    [Back]

Note 23   Lindsay v HM Advocate 1997 JC 19. See Appendix E, J Chalmers, C Gane, F Leverick, p 165.    [Back]

Note 24   Scottish Law Commission, Discussion Paper No 122 on Insanity and Diminished Responsibility, January 2003, para 5.35.    [Back]

Note 25   Galbraith v HM Advocate (No 2) 2002 JC 1, para 54. See Appendix E, J Chalmers, C Gane, F Leverick, p 165.    [Back]

Note 26   Scottish Law Commission Discussion Paper No 122 on Insanity and Diminished Responsibility, January 2003, Recommendation 17.    [Back]

Note 27   See Appendix E, J Chalmers, C Gane, F Leverick, p 167.    [Back]

Note 28   Murder (Abolition of Death Penalty) Act 1965, s 1(1).    [Back]

Note 29   E Clive, P Ferguson, C Gane, A McCall Smith, A Draft Criminal Code for Scotland with Commentary, September 2003, p 88.    [Back]

Note 30   Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 20, available at www.dms.dpc.vic.gov.au/ (accessed: 22 September 2003).    [Back]

Note 31   See further, Victorian Law Reform Commission Defences to Homicide: Issues Paper, 31st March 2002, available at http://www.lawreform.vic.gov.au/ (accessed: 22 September 2003). A discussion paper is expected during 2003.    [Back]

Note 32   Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, Report No. 34 (1990), p 53.    [Back]

Note 33   Model Criminal Code Officers Committee of the Standing Committee of Attorney’s General, Chapter 5: Fatal Offences Against the Person, Discussion Paper (1998), available at http://www.aic.gov.au/links/mcc.html (accessed: 22 September 2003).    [Back]

Note 34   Victorian Law Reform Commission Defences to Homicide: Issues Paper, 31st March 2002, available at http://www.lawreform.vic.gov.au/ (accessed: 22 September 2003). A discussion paper is expected during 2003.     [Back]

Note 35   Canadian Criminal Code, Part I, s 16, available at http://laws.justice.gc.ca/en/C-46/ (accessed: 22 September 2003).    [Back]

Note 36   See Appendix B, D Ives, pp 73, 97.    [Back]

Note 37   Canadian Criminal Code, s 672.34.    [Back]

Note 38   See Appendix B, D Ives, p 97.    [Back]

Note 39   See Appendix B, D Ives, pp 81 – 84.    [Back]

Note 40   See Appendix A, S Yeo, para 2.7.    [Back]

Note 41   See Appendix C, Irish Law Reform Commission, paras 10 – 12; The People (Attorney General) v Hayes, unreported, 30 November 1967; Doyle v Wicklow County Council [1974] IR 55.    [Back]

Note 42   The People (Director of Public Prosecutions) v O’Mahony [1985] IR 517, at p 523.    [Back]

Note 43   Trial of Lunatics Act 1883, s 2 (1).    [Back]

Note 44   http://www.irlgov.ie/bills28/bills/2002/4402/default.htm (accessed: 19 September 2003).     [Back]

Note 45   See Appendix D, W Brookbanks, paras 66 – 8.     [Back]

Note 46   See Appendix D, W Brookbanks, paras 67.    [Back]

Note 47   Ashton [1989] 2 NZLR 166.    [Back]

Note 48   See Appendix D, W Brookbanks, paras 69 – 71.    [Back]

Note 49   See Appendix D, W Brookbanks, paras 75.    [Back]

Note 50   See Appendix F, J Burchell, pp 208 – 210.    [Back]