lc290 Partial Defences to Murder report - Law Commission

victim which does not fit neatly with the thinking of the law. There is, in the view of
the Royal College, a profound mismatch between the thinking of law and
psychiatry in such areas. They say:
At least as far as psychiatric evidence is concerned, the vast
majority of problems that arise in homicide cases could, and would,
be abolished with the abolition of the mandatory life sentence on
conviction of murder. Once psychiatry has placed solely within
sentencing hearings, rather than within hearings directed towards
jury decisions about verdict, the effect of the mismatch between
legal and medical thinking is all but abolished.
5.45 This response might be read as implicitly urging the abolition of the defence of
diminished responsibility, conditional on the abolition of the mandatory sentence,
but the response does not explicitly go that far. Retention of the defence, even if
the mandatory sentence were abolished, was favoured by one consultant
forensic psychiatrist, 43 who said:
there seems to be a world of difference between … the cases of
homicide in which there is … [an] absence of any mental disorder
and homicides which are largely the product of a mental disorder for
which the sufferer bears little or no responsibility.
5.46 That leads on to broader questions about the way in which the law deals with
mentally disordered defendants. The Royal College made the points in its
response that there is no logic in the adoption of one set of mental conditions for
defendants facing a charge of murder but not for lesser charges, and that the
“insanity” defences fail to represent the range of mental state abnormalities that
the law might reasonably see, within its own terms, as relevant to verdict in a
variety of criminal cases.
Conclusion
5.47 We are not persuaded that it is desirable to come to a final view about diminished
responsibility in advance of a comprehensive review of the law of murder and the
sentencing regime. A decision on the need for a partial defence of diminished
responsibility can only sensibly be taken as a part of that review. In the next
section of this Part we consider the case for reformulation of the partial defence
under the present regime. We also tentatively consider, as an aid to further
discussion and in the light of the many helpful responses we have received, how
a partial defence of diminished responsibility might be framed in the event that it
were to be a part of a reformed law of murder.
B. REFORMULATION OF THE DEFENCE
Introduction
5.48 In considering whether, and to what extent, the defence should be reformulated,
pending any wider review of murder, the central issues might be thought to be: to
43 Dr Keith Rix.
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