Diminished Responsibility Evaluation.

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Problems with Old Law

Problematic as to what conditions were sufficient to cause an "abnormality of the mind."

Issues with credibility of medical evidence and believability of expert witnesses.

Lots of overlaps with other defences, e.g. insanity.

Burden of proof on the defendant not the prosecution= unfair and not a right to a fair trial.

Recent Reform.

Law was updated and reformed in 2009 by Coroners and Justice Act 2009.

This was in line with the Law Commission's recommendation in Murder, Manslaughter and Infanticide (2006) that the definition of DR be modernised to be brought in line with modern medical knowledge.

Some parts of the old definition remain (e.g. abnormality of mind/mental functioning) but some new requirements have been added (e.g. causal link between act or omissions and the killing.)

Evaluation of Updated Offence.

Development of immaturity.

In 2006 report, Law Commission had recommended that developmental immaturity in those under 18 should also be included within the definition of DR.

Developmental immaturity currently is not considered as an AMF.

Children can't claim the defence but scientific evidence proves that a child's mind doesn't mature until 14.

Their immaturity substantially impairs their mental functioning.

Government ignored this- children as young as 10 could be convicted of murder.

However would children get the defence because they are young?- Jamie Bulger killers.

Overlap with other defences.

Difficult overlaps remain with defences such as insanity and intoxication BUT there is now clearer guidance relating to those with an abnormality of mental functioning who are drunk at the time of the killing, e.g. Wood (2008) and Stewart (2009).

The law is clear you can't claim voluntary intoxication as an AMF.

But it is fair if alcoholism affects brain functioning in the form of ADS- this will be an AMF now and provide the defendant a defence.

Burden of Proof.

Unfair that it is on the defendant.

The law expects mentally ill person to prove on a balance of probabilities that they are mentally ill.

Defendant's at a disadvantage compared to those pleading loss of control due to the reverse burden in DR.

Does this breach Article 6(2) of European Convention on Human Rights?- presumption of innocent until proven guilty under the law.

Medical Conditions.

Definition is now more flexible to allow for future developments in medical knowledge.

Allows more medical conditions to be covered.

Sets out what aspects of the defendant's medical functioning must be substantially impaired.

Decision in Byrne (1960) now incorporated into the statutory definition of DR.