SECTION

‘Law Reform (Year and a Day Rule) Act 1996

1 The rule known as the “year and a day rule” (that is, the rule that, for the purposes of offences involving death and of suicide, an act or omission is conclusively presumed not to have caused a person’s death if more than a year and a day have elapsed before he died) is abolished for all purposes.

2(1) Proceedings to which this section applies may only be instituted by or with the consent of the Attorney-General.

  (2) This section applies to proceedings against a person for a fatal offence if (a) the injury alleged to cause death was sustained more than three years before the death occurred, or (b) the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death.

  (3) subsection (2) “fatal offence” means (a) murder, manslaughter, infanticide or any other offence of which one of the elements is causing a person’s death, or (b) the offence of aiding, abetting, counselling or procuring a person’s death.’

The consent of the Attorney-General is required in two circumstances. First, where several years had passed since the original incident, it was thought to be undesirable to have the history of the case trawled over again in a homicide trial. It would mean some defendants having to live for years with the threat of a murder change hanging over them. Second, where D has already been convicted of a non-fatal offence, or attempt, on the same set of facts. This encourages the prosecution to bring assault or wounding charges earlier, while V is still alive, rather than wait for years to see whether V dies or not.

  a. Under the present common law definition?

  b. Under the Draft Criminal Code?

  (a) to understand the nature of D’s conduct;

  (b) to form a rational judgment;

  (c) to exercise self-control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.’

student mentor tip

“Understand the Homicide Act of 1957.”

Anthony, London South Bank University

The background to the reform of DR lies with the Law Commission (LC), who had been advocating modernisation of the definition for several years. For example, in their Report, Murder, Manslaughter and Infanticide, published in November 2006, the LC observed that the ‘definition of diminished responsibility is now badly out of date’. Key amendments made by the 2009 Act are as follows:

‘Abnormality of mental functioning’ replaces the original phrase ‘abnormality of mind’.

‘Recognised medical condition’ replaces the original list of causes: ‘condition of arrested or retarded development of mind’, ‘any inherent cause’ or ‘induced by disease or injury’.

‘Substantially impaired’ ability to ‘understand the nature of D’s conduct’, ‘form a rational judgment’ or ‘exercise self-control’ replaces the original phrase ‘substantially impaired mental responsibility’.

The requirement that D’s abnormality of mental functioning ‘provides an explanation’ for D’s involvement in killing V is a new element of the offence.

Notwithstanding these amendments, much of the case law that built up around the original s 2 will continue to be relevant.

DR is a ‘special’ defence in that it is purely a defence to murder. This allows the trial judge more discretion in terms of sentencing than he would have were D to be convicted of murder, because of the mandatory life sentence. In Campbell (1997) Crim LR 495, the Court of Appeal rejected the argument that DR should be allowed as a defence to attempted murder. This decision must be correct, because the trial judge already has discretion when it comes to sentencing those convicted of attempted murder, and so the defence is simply unnecessary in attempted murder trials. Had it been accepted (and successfully pleaded), moreover, then it would have introduced a new crime into English law: attempted manslaughter.

In Antoine (2000) UKHL 20; (2001) 1 AC 340, the House of Lords held that evidence of DR is not relevant when a jury is deciding whether or not D is fit to stand trial on a charge of murder.

CASE EXAMPLE

Antoine (2000) UKHL 20; (2001) 1 AC 340

D had been charged with the ‘brutal’ murder of a 15-year-old boy, apparently as a human sacrifice to the devil. He was found unfit to plead under the Criminal Procedure (Insanity) Act 1964, on the basis of paranoid schizophrenia, and another jury was brought in to determine whether he had done ‘the act … charged against him’. He sought to rely upon DR but the judge ruled that it was unavailable. The jury duly found that he had done the act charged, and the judge ordered indefinite hospitalisation. The Court of Appeal and House of Lords dismissed D’s appeals.

D bears the burden of proving DR (Homicide Act 1957, s 2(2)) on the balance of probabilities (Dunbar (1958) 1 QB 1). A successful defence results in a verdict of not guilty to murder but guilty of manslaughter (Homicide Act 1957, s 2(3)). This allows the judge full discretion on sentencing. Some defendants may receive an absolute discharge, others probationary or suspended sentences, while in appropriate circumstances some will receive hospital or guardianship orders under s 37(1) of the Mental Health Act 1983. Others may still face imprisonment, with some receiving life sentences for manslaughter (about 15 per cent of cases). If D raises the defence, and the prosecution has evidence that he is insane then, under s 6 Criminal Procedure (Insanity) Act 1964, evidence may be adduced to prove this. Here, the burden remains on the prosecution to prove insanity. The converse situation is also allowed by s 6, that is, if D raises insanity, then the prosecution may argue it is really a case of DR. Where this happens, the burden is on the prosecution to prove DR beyond reasonable doubt (Grant (1960) Crim LR 424).

Pleading guilty to manslaughter on grounds of DR

Originally, the courts took the view that DR had to be proved to the jury in every case and could not be accepted by a trial judge. However, it is now accepted that D may plead guilty to a charge of manslaughter on the ground of DR. Such a plea would be proper ‘where the medical evidence available, in the possession of the prosecution as well as the defence, showed perfectly plainly that the plea’ was one that could properly be accepted (Cox (1968) 1 WLR 308). In Vinagre (1979) 69 Cr App R 104 the Court of Appeal said that pleas of guilty to manslaughter on the ground of DR should only be accepted where there was ‘clear evidence’ of mental imbalance. The plea was refused in the following cases.

Din (1962) 1 WLR 680. D attacked and killed a man whom he believed was having an affair with his wife, stabbing him several times and almost severing V’s head. After death, D cut off V’s penis. D pleaded DR, based on paranoia induced by an unreasonable belief in his wife’s infidelity. Two medical experts supported the plea; the prosecution was prepared to accept it. However, the judge insisted on leaving the defence to the jury, which returned a verdict of guilty of murder. D’s appeal was dismissed. Lord Parker CJ said that the case was ‘a very good illustration of what for long has been apparent’, namely, that the prosecution were ‘only too ready to fall in with and to support’ a defence of DR.

Walton (1978) 66 Cr App R 25. D shot and killed a random stranger, a 16-year-old girl. Charged with murder, he pleaded DR. Two defence medical experts described D as ‘retarded in certain respects’, suffering from ‘an extremely immature personality’ and ‘having an inadequate personality enhanced by emotional immaturity and low tolerance level’. The jury, however, rejected the defence. The Privy Council rejected D’s appeal. Lord Keith said that the jury was entitled to regard the medical evidence as ‘not entirely convincing’.

Where D pleads DR but it is rejected by the jury, the Court of Appeal may, if it believes the murder conviction to be unsupported by the evidence, quash it and substitute one of manslaughter. This happened in the following cases.

Matheson (1958) 2 All ER 87. D killed a 15-year-old boy. The medical experts agreed that D was suffering a mental abnormality but the jury rejected the defence. D’s murder conviction was quashed on appeal. Lord Goddard CJ said that where there was ‘unchallenged’ evidence of medical abnormality and ‘no facts or circumstances appear that can displace or throw doubt on that evidence’ then the Court was ‘bound’ to say that the conviction was unsafe.

According to research (S Dell, ‘Diminished Responsibility Reconsidered’ (1982) Crim LR 809) in practice 80 per cent of pleas of guilty to manslaughter on grounds of DR are accepted. Where the case does go to trial (usually because the prosecution disputes the defence), there is about a 60 per cent chance of conviction for murder. Thus the overall failure rate of the defence is quite small, around 10 per cent.

Importance of medical evidence

Medical evidence is crucial to the success of the defence. In Byrne (1960) 2 QB 396 it was said that, while there is no statutory requirement that a plea be supported by medical evidence, the ‘aetiology of the abnormality … does, however, seem to be a matter to be determined on expert evidence’. Thus, where D was suffering a condition that was not, at the time of the trial, regarded by psychiatrists as a mental condition the defence will be unavailable but, if the condition subsequently becomes so regarded, a conviction may be quashed. This was the outcome in Hobson (1998) 1 Cr App R 31.

The Court of Appeal in Dix (1982) 74 Crim LR 302 declared that medical evidence was a ‘practical necessity if the defence is to begin to run at all’. The jury were not, however, bound to accept that evidence if there was other material, which, in their opinion, conflicted with and outweighed the medical evidence. Occasionally, the jury may be faced with conflicting medical evidence. They are then required to weigh up and choose between the different opinions.

Operation of the defence

Section 2(1) breaks down into four components:

There must be an ‘abnormality of mental functioning’.

It must arise from a ‘recognised medical condition’.

D must have a ‘substantially impaired’ ability to understand the nature of their conduct, or form a rational judgement, or exercise self-control.

The abnormality must provide an ‘explanation’ for D’s acts and omissions in doing or being a party to the killing.

There are no further requirements nor exceptions. In Matheson (1958) it was accepted that the fact that a killing was premeditated did not destroy a plea of DR and this remains the position today.

‘Abnormality of mental functioning’

A ‘recognised medical condition’

This is another of the 2009 amendments. The original s 2(1) required the ‘abnormality of mind’ to arise from a ‘condition of arrested or retarded development of mind’ or ‘any inherent cause’ or be ‘induced by disease or injury’. That list has now been consolidated into the single, simpler, but potentially wider, requirement of a ‘recognised medical condition’. The Law Commission explained the thinking behind the redefinition in their 2006 Report by pointing out that ‘diagnostic practice’ in DR cases ‘has long since developed beyond identification of the narrow range of permissible causes’ stipulated in s 2(1). Moreover, the LC observed that ‘the stipulated permissible causes never had an agreed psychiatric meaning’. A further improvement is the long-overdue removal of the obsolete — and insulting — reference to retardation as a means of supporting a plea of DR.

The government agreed, claiming that the redefinition will bring ‘the existing terminology up-to-date’ whilst allowing for ‘future developments in diagnostic practice’ and encouraging defences to ‘be grounded in a valid medical diagnosis linked to the accepted classificatory systems which together encompass the recognised physical, psychiatric and psychological conditions’ (Ministry of Justice Consultation Paper, Murder, Manslaughter and Infanticide ( July 2008), para 49).

No further definition of ‘recognised medical condition’ is provided in the Act so it will be interesting to see how the courts apply this new criterion. However, it is not unreasonable to expect that the courts will, in the future, be prepared to accept the following conditions, all of which fell within the scope of the original s 2(1):

Adjustment Disorder (Dietschmann (2003) UKHL 10; (2003) 1 AC 1209; Brown (2011) EWCA Crim 2796; (2012) Crim LR 223)

Alcohol Dependence Syndrome (discussed below)

Asperger’s Syndrome (Jama (2004) EWCA Crim 960)

Battered Woman Syndrome (Hobson (1998))

Depression (Gittens (1984) 3 All ER 252; Seers (1984) 79 Cr App R 261; Ahluwalia (1992) 4 All ER 869;Swan (2006) EWCA Crim 3378)

Epilepsy (Bailey (1961); Campbell (1997) 1 Cr. App. R. 199)

Othello Syndrome, a form of extreme jealousy (Vinagre (1979) 69 Cr App R 104)

Paranoia (Simcox (1964) Crim LR 402)

Premenstrual Tension and Postnatal Depression (Reynolds (1988) Crim LR 679)

Psychopathy (Byrne (1960); Hendy (2006) EWCA Crim 819)

Schizophrenia (Moyle (2008) EWCA Crim 3059; Erskine (2009) EWCA Crim 1425, (2009) 2 Cr. App. R. 29;Khan (2009) EWCA Crim 1569)

It is possible that there will be more than one cause of D’s ‘abnormality of mental functioning’. If both causes are medical conditions (as in Reynolds (1988)), then if anything D’s defence is strengthened. However, if one of the causes is a medical condition but the other is not, the latter must be discounted. This situation has been raised before the courts a number of times where D pleaded DR and was also intoxicated. These cases will be examined below.

‘Substantially impaired ability to understand the nature of conduct, or form a rational judgment, or exercise self-control’

This is another amendment, replacing the original expression used in s 2(1), ‘substantially impaired mental responsibility’. The amendment was brought about after the government accepted the Law Commission’s criticism in its 2006 Report that the phrase ‘mental responsibility’ was too vague. The LC had argued (at para 5.110) that the ‘implication’ was that D’s mental abnormality ‘must significantly reduce the offender’s culpability’ but without saying, precisely, how or in what way it did so. The redefinition makes explicit what was, at best, implicit in the original version of the Act. Now D must prove that his abnormality of mental functioning impaired his ‘ability to understand the nature of [his or her] conduct’ and/or ‘form a rational judgment’ and/or ‘exercise self-control’.

In Byrne (1960), the Court of Criminal Appeal said that the question of whether D’s impairment could be described as ‘substantial’ was a question of degree and, hence, although medical evidence was not irrelevant, one for the jury. This was confirmed in Eifinger (2001) EWCA Crim 1855, the Court of Appeal describing this question as ‘the jury’s function’. More recently, in Khan (2009) EWCA Crim 1569, the Court of Appeal acknowledged that ‘scientific understanding of how the mind works and the extent to which states of mind and physical responses to them have physical or chemical causes have undoubtedly advanced considerably’ since the time when Byrne was decided. However, despite those advances, the Court said that ‘even today, it is impossible to provide any accurate scientific measurement of the extent to which a particular person’ might be able to ‘understand or control his physical impulses on a particular occasion’. In short, there was no ‘scientific test’ for measuring this aspect of the DR defence. It remained a question for the jury. It seems reasonable to assume that this will continue to be the case under the amended statute.

As to what is meant by ‘substantial’, in Lloyd (1967) 1 QB 175, the trial judge, Ashworth J, directed the jury as follows:

JUDGMENT

‘Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between and Parliament has left it to you and other juries to say on the evidence, was the mental responsibility impaired and if so, was it substantially impaired?’

The abnormality must provide ‘an explanation’ for D’s acts and omissions in doing or being a party to the killing

This requirement, in s 2(1)(c), is an entirely new legal principle, introduced by the 2009 amendment. The Law Commission (LC) proposed that this amendment be made and the government agreed. Section 2(1B) further provides that ‘an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct’. It essentially means that there must now be some causal connection between D’s mental abnormality and the killing.

However, notice the use of the word ‘an’, as opposed to ‘the’, before the word ‘explanation’ in s 2(1)(c). This means that, although the ‘abnormality’ must at least be ‘a significant contributory factor’ for D killing, it need not necessarily be the only reason for doing so. The government agreed with the LC that it would be ‘impractical’ to require mental abnormality to be the ‘sole’ explanation for D’s killing of V, on the basis that ‘it is rare that a person’s actions will be driven solely from within to such an extent that they would not otherwise have committed the offence, regardless of the influence of external circumstances, and a strict causation requirement of this kind would limit the availability of the partial defence too much’ (Ministry of Justice, Murder, Manslaughter and Infanticide Consultation Paper (July 2008), para 49).

Diminished responsibility and intoxication

It is now well established that a state of intoxication (falling short of the level of intoxication at which D fails to form mens rea) on its own cannot be used to support a plea of DR. In Fenton (1975) 61 Cr App R 261, Lord Widgery CJ said that ‘We do not see how self-induced intoxication can of itself produce an abnormality of mind’. This has been confirmed as still representing the law under the reformed defence. In Dowds (2012) EWCA Crim 281; (2012) 3 All ER 154, it was argued that, because ‘Acute Intoxication’ appears in the World Health Organisation’s International Statistical Classification of Diseases & Related Health Problems (ICD), where it is defined as ‘a condition that follows the administration of a psychoactive substance resulting in disturbances in level of consciousness, cognition, perception, affect or behaviour, or other physiological functions or responses’, it was therefore a ‘recognised medical condition’ for the purposes of s 2. The Court of Appeal rejected this argument, stating that, if Parliament had meant to alter the law as decided in Fenton, it would have made its intention explicit. Hughes LJ pointed out that a variety of conditions appeared in the ICD and / or the American Medical Association’s Diagnostic & Statistical Manual that would not support a plea of DR, such as ‘unhappiness’, ‘irri-tability and anger’, ‘suspiciousness and marked evasiveness’, ‘pyromania’, ‘pae-dophilia’, ‘sado-masochism’, ‘kleptomania’, ‘exhibitionism’ and ‘sexual sadism’. Hughes LJ stated:

‘It is quite clear that the re-formulation of the statutory conditions for [DR] was not intended to reverse the well-established rule that voluntary acute intoxication is not capable of being relied upon to found [DR]. That remains the law. The presence of a “recognised medical condition” is a necessary, but not always a sufficient, condition to raise the issue of [DR] … Voluntary acute intoxication, whether from alcohol or other substance, is not capable of founding [DR].’

CASE EXAMPLE

Dowds (2012) EWCA Crim 281; (2012) 3 All ER 154

D and his girlfriend, V, were both ‘habitual, heavy binge drinkers’. One night, D stabbed V 60 times, mostly in the neck, severing the carotid artery causing her to bleed to death. At the time, both had drunk a lot of vodka. At his murder trial, D did not deny being the killer but pleaded lack of intent due to intoxication and/or loss of control. The jury rejected both of these and he was convicted of murder. D appealed, arguing that DR, based on a state of ‘acute intoxication’, should have been left to the jury. The Court of Appeal disagreed and upheld his murder conviction.

However, what is the situation where D suffers from an underlying abnormality of mental functioning (eg, depression) and kills whilst intoxicated? This issue has arisen on several occasions, and the courts have taken a consistent line: a plea of DR may not be supported with evidence of voluntary intoxication. The trial judge should direct the jury to ignore the effects of the intoxication and consider whether the medical condition on its own would have been enough to amount to an abnormality of mental functioning. This was the decision in Gittens (1984) 3 All ER 252.

CASE EXAMPLE

Gittens (1984) 3 All ER 252

D was suffering depression and had, on the night in question, consumed a large amount of drink and antidepressant pills. In this state he clubbed his wife to death with a hammer and then raped and strangled his 15-year-old stepdaughter. He was convicted of murder but the Court of Appeal allowed his appeal, on the basis that the underlying depression may on its own have amounted to an ‘abnormality of mind’. The Court did stress, however, that the jury should be directed to disregard the effect (if any) on D of any alcohol or drugs consumption.

This decision was confirmed by the Court of Appeal in Egan (1992) 4 All ER 470, where it was said that ‘the vital question’ for the jury in such cases is to ask, ‘was the appellant’s abnormality of mind such that he would have been under diminished responsibility, drink or no drink?’ In Dietschmann (2003), it was further held that it was wrong to ask a jury whether D would still have killed V, even if he had not been intoxicated. The question was whether or not D would have had an ‘abnormality of mind’, even if he had not been drinking.

Dietschmann (2003) UKHL 10; (2003) 1 AC 1209

D killed V by punching him and kicking him in the head in a savage attack. At the time of the killing, D was heavily intoxicated, in addition to suffering from an ‘adjustment disorder’, a ‘depressed grief reaction’ to the recent death of his girlfriend. At his trial for murder D relied on DR. The expert evidence for D was that, as well as the adjustment disorder, he had suffered a ‘transient psychotic episode’ at the time of the incident so that, even if he had been sober, he would still probably have killed V. The Crown’s case was that the alcohol had been a significant factor as a disinhibitor and that, if D had been sober, he would probably have exercised self-control. The judge directed the jury that the question was whether D would still have killed V had he not been drinking, and the jury convicted. D appealed and although the Court of Appeal dismissed the appeal, he was successful in the House of Lords. The jury had been misdirected.

Lord Hutton suggested the following model direction for future juries:

JUDGMENT

‘Assuming that the defence have established that [D] was suffering from mental abnormality as described in s 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? … Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both [D]’s mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has [D] satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him.’

Dietschmann has been followed by the Court of Appeal in a number of DR cases:

Hendy (2006) EWCA Crim 819; (2006) 2 Cr App R 33: D admitted killing V while intoxicated on alcohol, but there was evidence of an underlying brain damage and a psychopathic disorder.

Robson (2006) EWCA Crim 2749: D was heavily intoxicated, but also suffering from an ‘acute stress disorder’, when he killed V.

Swan (2006) EWCA Crim 3378: intoxication on top of underlying depression.

(a) ignore the effect of D’s drinking and/or drug-taking

(b) decide whether D’s underlying abnormality arose from a ‘recognised medical condition’

(c) decide whether this underlying abnormality substantially impaired D’s ability to understand their conduct, form a rational judgement and/or exercise self-control

(d) decide whether the underlying abnormality caused, or was a ‘significant contri-butory factor’, in D’s killing of V

In short, whilst the courts had held that it was wrong for the trial judge in such cases to ask juries to decide whether D would have killed had he been sober, Parliament has decided that juries should, in future, be asked to decide whether D might have done so. This is because, if D definitely would not have killed V (or anyone else) had he remained sober, then there cannot be any causal connection between the underlying condition and the killing, as required by s 2(1)(c), and D would be liable for murder.

Diminished responsibility and alcoholism

Different rules apply where it is suggested that D’s ‘abnormality of mental functioning’ was itself caused by long-term alcohol and/or drug abuse, and that D has developed a medical condition, sometimes known as Alcohol Dependence Syndrome (ADS). In Fenton (1975), Lord Widgery CJ in the Court of Appeal envisaged the possibility that a craving for drink or drugs could produce an ‘abnormality of mind’. However, until recently the leading case in this area was Tandy (1989) 1 WLR 350, in which Watkins LJ added a very important caveat, holding that alcoholism on its own would not suffice for a plea of DR. Instead, it would have to be proved (by the defence) that either D’s 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 … judgment and emotional responses’ or, if not, that D’s ‘drinking had become involuntary, that is to say she was no longer able to resist the impulse to drink’.

Alcohol Dependence Syndrome (ADS) is a condition which may amount to an ‘abnormality of mind’. Whether it does or not is a matter for the jury to decide.

It is not essential that brain damage has occurred — although if it has, that can only help D to prove the defence.

If D’s syndrome does amount to an ‘abnormality of mind’, then the jury must then consider whether D’s mental responsibility was substantially impaired.

In deciding that question the jury should focus ‘exclusively’ on the effect of alcohol consumed by D as a ‘direct result’ of D’s condition but the jury should ‘ignore the effect of any alcohol consumed voluntarily’.

CASE EXAMPLE

Wood (2008) EWCA Crim 1305

After a day’s heavy drinking, Clive Wood killed V in a frenzied attack with a meat cleaver. At Wood’s murder trial, four psychiatrists agreed that Wood suffered from alcohol dependence syndrome, but the trial judge told the jury that a verdict of manslaughter based on DR was only open to them if D’s consumption of alcohol was truly involuntary, and that simply giving into a craving for alcohol was not involuntary drinking. D was convicted of murder but the Court of Appeal quashed his conviction and substituted a verdict of manslaughter.

Sir Igor Judge stated:

JUDGMENT

‘The sharp effect of the distinction drawn in Tandy between cases where brain damage has occurred as a result of alcohol dependency syndrome and those where it has not is no longer appropriate.’

Commenting on Wood in the Criminal Law Review, Professor Andrew Ashworth states:

QUOTATION

‘If there is no proof of brain damage it is still open to the jury to decide that the alcohol i dependency syndrome amounted to an “abnormality of mind” within s.2. If they do so, I then the next question is whether that abnormality “substantially impaired” D’s responsibility, discounting any effects of alcohol consumed voluntarily. So the jury are left to determine how much of D’s drinking derived from his alcohol dependency and how much was I “voluntary”. This is a fearsomely difficult question to ask.’

1. Was D suffering from an ‘abnormality of mind’? The mere fact that D has ADS will not automatically amount to such an ‘abnormality of mind’, because the jury need to assess ‘the nature and extent of the syndrome’.

2. Was D’s ‘abnormality of mind’ caused by the ADS? If the answer to question (1) was yes, then this is likely to be straightforward.

3. Was D’s ‘mental responsibility’ ‘substantially impaired’? Here, the jury should be directed to consider all the evidence, including any medical evidence. The issues likely to arise would include (a) the extent and seriousness of D’s dependency; (b) the extent to which his ability to control his drinking or to choose whether or not to drink was reduced; (c) whether he was capable of abstinence from alcohol and, if so, (d) for how long; and (e) whether he was choosing for some particular reason, such as a birthday celebration, to get drunk, or to drink more than usual. D’s pattern of drinking in the days leading up to the killing and his ability to make ‘apparently sensible and rational decisions’ about ordinary day-to-day matters at the relevant time might all bear on the jury’s decision.

KEY FACTS