Reforming Diminished Responsibility in English Criminal Law: An Evaluation of Section 52 of the Coroners and Justice Act 2009

This paper aims to critically examine the existing principle of diminished responsibility in English criminal law under the Coroners and Justice Act 2009, Section 52. This article analyzes the increase in Section 52 upon the previous defense enshrined in the Homicide Act 1957, especially in clarity, fairness, and effectiveness. The essay provides a detailed analysis of the significant amendments made by section 52, for instance, substituting the vague term "mental abnormality" with the more accurate and specific expression "mental abnormal functioning due to a medical condition. The assessment assesses whether the reforms have remedied the criticisms inherent in the old defense, such as the limited scope, lack of uniformity, and disregard for the different degrees of mental disability. The essay stresses that the newly introduced definition is more precise and comprehensive, including a broader range of mental disorders such as personality disorders and short-term impairments.

On the one hand, the article addresses the remaining uncertainties and possible concerns regarding the definition of the "recognized medical condition" and the fairness issues of including or excluding certain mental diseases. Still, it explains the pros and cons of the mentioned approach. Additionally, the paper examines the possibility of Section 52 in identifying diminished culpability due to mental disorders and the hurdles that courts may encounter in its practical application. It investigates the availability of expert evidence and the detailed evaluation of the defendant's mental status as primary determinants of the law's successful implementation.

LAW173 Criminal Law: Assessment Two

Diminished responsibility is a partial defense to the murder charge in English criminal law. It enables the reduction of a charge from murder to manslaughter if the defendant can prove that they were affected by an abnormality of mental functioning at the time of the killing, which seriously impaired understanding of the nature of their conduct, rational judgment-making, or self-control. ^[1] Section 52 of the Coroners and Justice Act 2009 has made a significant impact on the application of the defense of diminished responsibility over the previous defense from the standpoint of clarity, fairness, and effectiveness. Through a brief overview of the crucial amendments made by Section 52, an evaluation reveals that these changes have effectively resolved the criticisms associated with the previous defense in English criminal law^[2].

The Former Defence of Diminished Responsibility

The idea of diminished responsibility was introduced in the Homicide Act 1957. According to section 2 of the Act, the defense is applicable if the defendant had been under an abnormal state of mind (whether due to the arrested or retarded development of mind or any inherent causes or induced by disease or injury) that substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing^[3]. The definition of "abnormality of mind" was imprecise and interpreted differently, creating inconsistency in its application. The line between “substantial impairment of mental responsibility” was not always clear, leading to the defense of diminished responsibility being blurry. The former defense was criticized for being very narrow, and it did not take into consideration the varying degrees of mental impairment and their implications on criminal responsibility^[4].

The Current Defence of Diminished Responsibility (Section 52)

The current defense of diminished responsibility is provided under Section 52 of the Coroners and Justice Act 2009, which replaced the previous provisions under the Homicide Act 1957. Section 52 states that a person who would otherwise be convicted of murder is instead convicted of manslaughter if they meet specific criteria. Firstly, at the time the murder was committed, the defendant had to have experienced an "abnormality of mental functioning" that was due to a recognized medical condition. Secondly, the damage to the mental functioning, which is abnormal, must have significantly left the defendant with difficulty understanding the nature of their conduct, forming a rational judgment, or having control over themselves. Thus, the last issue is that the disorder of mental functioning ought to furnish the rationale for committing the homicide or the party to the killing. The purpose of this amendment was to remove the ambiguity in the earlier definition and to provide the courts with a more precise guideline for the application and interpretation of the defense. This change eliminates the discrimination and exclusion problem of the past defense, which was limited to only a particular set of mental impairments, and now the broader categories are included^[5].

Section 52 clearly defines the concept and expands the cases recognized as refugee-like. The new wording also provides courts with more specific and unambiguous guidance on how they should approach the question of whether the defendant's actions were affected by their impaired state of mind, and, as a result, the chances for the defense to succeed are likely to be increased.^[6] The widening of the defense to include personality disorders and temporary impairments other than PTSD is a welcome development as it shows that the law is moving in the direction of being fairer and more inclusive^[7].

Effectiveness of the defense

Specifying the definition and the extended range of qualifying conditions can strengthen the defense in identifying reduced fault because of mental impairment. By providing more specific directions and a cohesive approach, Section 52 may increase the possibility of practical applications of this defense in the appropriate circumstances. In the article that reviews the first impact of Section 52, Amanda Clower pointed out that the defense of insanity has been used more in court, and the effect has been insignificant. The author argues that even though the revision of the defense has excellent potential, more detailed instruction and judicial guidance from appellate courts will be required for its full realization.^[8]. Moreover, this defense could be used or misapplied by the defense where the mental impairment is not so severe to justify lesser culpability. The key to achieving the desired outcomes is the thorough review by courts of the criteria and the manner of their application. This will be crucial in ensuring the defense is implemented effectively and relevantly^[9].

Conclusion

This essay has evaluated the current defense of diminished responsibility under Section 52 and assessed its advantages over the former defense regarding clarity, fairness, and efficacy. Although section 52 defined the term and extended the scope by adding more mental conditions, there is still confusion about interpreting "recognized medical condition." The broader term contributes to overall fairness, but some claim that it is possible to discriminate against some mental disorders.

1.Johnston, E. Lea, Kendall D. Runyan, Fernando José Silva, and Francisco Maldonado Fuentes. "Diminished criminal responsibility: A multinational comparative review." International journal of law and psychiatry (2023) 91: 101919. ↑

2.Ibid ↑

3.Kennefick, Louise. "Introducing a new diminished responsibility defence for England and Wales." (2011) The Modern Law Review 74, no. 5: 750-766. ↑

4.Herring, Jonathan. Criminal law: The basics. (2021) Routledge ↑

5.Reed, Alan, Nicola Wake, and Bethany Simpson. "'Domestic and Comparative Perspectives on Loss of Self-Control and Diminished Responsibility as Partial Defences to Murder: A 10-Year Review of the Coroners and Justice Act 2009 Reform Framework'." (2021) N. Ir. Legal Q. 72: 161. ↑

6.Reed, Alan, Nicola Wake, and Bethany Simpson. "'Domestic and Comparative Perspectives on Loss of Self-Control and Diminished Responsibility as Partial Defences to Murder: A 10-Year Review of the Coroners and Justice Act 2009 Reform Framework'." (2021) N. Ir. Legal Q. 72: 161. ↑

7.Simester, Andrew. Fundamentals of criminal law: responsibility, culpability, and wrongdoing. (2021) Oxford University Press, USA. ↑

8.Herring, Jonathan. Criminal law: The basics. (2021) Routledge. ↑

9.Ibid ↑