Loss of Control and Diminished Responsibility by Reed, Alan -- Read -- Imperial Library of Trantor

Index

Loss of Control and Diminished Responsibility

Contents Notes on Contributors Preface Introduction Chapter 1 The New Diminished Responsibility Plea: More than Mere Modernisation?

Introduction The New Plea The Role of the Law Commission The Development of Diminished Responsibility in New South Wales

The Operation of the New Plea in New South Wales A Stricter Plea in England?

Conclusion

Chapter 2 The Modern Partial Defence of Diminished Responsibility1

General Principles and Overview

Introduction

Diminished Responsibility No Longer Involves a Moral Question39 Diminished Responsibility and the ‘Benign Conspiracy’ Abnormality of Mental Functioning

Recognised Medical Condition

‘Arrested and Retarded Development’ Contrasted with ‘Developmental Immaturity’ Developmental Immaturity: Proposals for Reform Developmental Immaturity under the New Section 2 of the Homicide Act 1957 The Three Bases for Establishing Diminished Responsibility

Defendant’s Ability to Understand the ‘Nature of D’s Conduct’: Section 2(1A)(a) Defendant’s Ability to Form a Rational Judgement: Section 2(1A)(b) Impaired Ability to Exercise Self-Control: Section 2(1A)(c)

Proving that the Defendant’s Abnormality was a Cause of the Killing

Whether the Problem of Causation is More Apparent than Real

Diminished Responsibility and the Role of Experts Concluding Remarks

Chapter 3 Loss of Self-Control under the Coroners and Justice Act 2009: Oh No!

Introduction Common Law Provocation – Especially the Loss of Self-Control Requirement Aims of the New Law The New Loss of Self-Control Back to First Principles The Search for a Rationale – for a ‘Moral Plank’51 Practical Implications Conclusions

Chapter 4 The Model of Tolerance and Self-Restraint

Introduction The Development of the Test of ‘a Normal Degree of Tolerance and Self-Restraint’ The Development of the Test of ‘in the Circumstances of D’ Summary in Relation to the New Objective Test in Section 54(1)(c) The Potentially Reduced Importance of the New Objective Test in Section 54(1)(c) in Relation to ‘Things Done or Said’ The Relatively Greater Importance of the Objective Test in Section 54(1)(c) in Cases Triggered Primarily by Fear of Serious Violence Conclusions

Tolerance and Self-Restraint In the Circumstances of D The Impact on the Qualifying Triggers and their Interpretation

Chapter 5 The Serious Wrong of Domestic Abuse and the Loss of Control Defence

Introduction The Background to the Reform What is Domestic Abuse? The Wrong of Domestic Abuse

Domestic Abuse as ‘Coercive Control’ Domestic Abuse as a Breach of Trust Domestic Violence and Children Domestic Violence and Patriarchy

Women on Men Violence Conclusion

Chapter 6 Loss of Self-Control: When His Anger is Worth More than Her Fear

Introduction Extent of ‘Domestic’ Homicide Tale as Old as Time – Male Violence against Women The Coroners and Justice Act 2009 – Loss of Self-Control Objective Test – Objective Subjects Subjective Test – Subjective Subjects Time – Out of Mind Evidence of Loss of Self-Control ‘Extremely Grave’ Circumstances What of Fear of Serious Violence? – The Colour Purple Anticipating Violence – The Case of the Keys in the Lock Fear’s Own Reasoning Misfits and Loss of Self-Control

Chapter 7 Feminism, ‘Typical’ Women, and Losing Control

Introduction Loss of Control’s Evaluative Standard The Role of Sex and Gender in the Evaluative Standard Restricting the Sexed Evaluative Standard Sex and Gender as ‘Circumstances’ of D Conclusions

Chapter 8 Sexual Infidelity Killings: Contemporary Standardisations and Comparative Stereotypes

The Putative Search for a Rationale to the Heat of Passion Defence The American Experience: Reform and Traditional States Scottish Law and Contemporary Standardisation of Sexual Infidelity Cases The Via Media: Province of Judge and Jury in Sexual Infidelity Killings

Chapter 9 Killing in Response to ‘Circumstances of an Extremely Grave Character’: Improving the Law on Homicide?

Introduction The Background to the 2009 Reforms Critical Analysis

What Factors Should the Jury Take into Account in Applying Section 55(4)? Does the Serious Wrongdoing Have to be Directed Against D? To What Extent, if at all, Should D be Judged on the Facts as He or She Believed Them to be Where He or She Made a Mistake About Them? What is the Extent of the Restriction Regarding Sexual Infidelity and Does this Restriction Improve the Law?

Conclusions

Chapter 10 The View from Ireland

Introduction The Constitutional Background

Republic of Ireland Northern Ireland

The Defences

Republic of Ireland Northern Ireland

The Wood and the Trees

Chapter 11 Partial Defences to Murder in Scotland: An Unlikely Tranquillity

Introduction The Structure of Homicide and Partial Defences in Scots Law The ‘Unofficial Categories’ and the Role of Prosecutorial Discretion

The ‘Unofficial Categories’ Understanding the Significance of Prosecutorial Discretion Discretion and Partial Defences

Diminished Responsibility

The Modern Law of Diminished Responsibility The Scottish Law Commission’s Review: Statutory Restatement The Difficulty of Evaluating the Scottish Approach

Provocation

The Development of the Modern Law of Provocation The Law as it Now Stands: Two Separate Defences Why Has there Been No Impetus for Reform?

Is the Scottish Approach to Partial Defences Sustainable?

Chapter 12 Anglo-American Perspectives on Partial Defences: Something Old, Something Borrowed, and Something New

Introduction Section 2 of the Homicide Act 1957 – Something Old Coroners and Justice Act 2009, Section 52 – Something New Extreme Mental or Emotional Disturbance – Something Borrowed Provocation – Something Old The Coroners and Justice Act 2009 – Something Borrowed and Something New Conclusion

Chapter 13 Provoking a Range of Responses: The Provocation Defence in British Overseas Territories and Crown Dependencies

Introduction British Overseas Territories and Crown Dependencies – The Constitutional Position The Range of Provocation Defences in British Overseas Territories and Crown Dependencies20

British Overseas Territories Crown Dependencies

The Commonwealth Caribbean – Some Points of Comparison Conclusions

Chapter 14 A Comparative Analysis of English and French Defences to Demonstrate the Limitations of the Concept of Loss of Control

Introduction Comparing Self-Defence and Loss of Control

The Timing of the Defendant’s Response to the Fear of Serious Violence A Proportionate Response Loss of Control

Crimes of Passion in France and England A Comparison with the French Defences The European Convention on Human Rights Burden of Proof Self-Preservation Self-Defence and the Burden of Proof Conclusion

Chapter 15 When the Bough Breaks – Defences and Sentencing Options Available in Battered Women and Similar Scenarios under German Criminal Law

Introduction Justificatory Defences

Self-Defence

Excusatory Defences

Excessive Self-Defence Duress Supra-Legal Duress? Insanity and Diminished Responsibility

Homicide Offences

Structural Overview Section 211 – The Special Elements of Aggravated Murder

The Law Applied – Battered Women Who Kill123

Scenario 1125 Scenario 2128 Scenario 3129 Scenario 4130

Conclusion

Chapter 16 Partial Defences to Murder in New Zealand

Introduction Review of New Zealand Law on Provocation

The 1961 Amendment Criminal Law Reform Committee Proposal Criticism of Reform Proposals The New Zealand Law Commission’s Approach The 2007 Report The Catalyst for Repeal of Provocation The Weatherston Case30 Similarity to the Hinkley Case Provocation and Disputed Facts Provocation as Mitigation in Sentencing

Diminished Responsibility

Status of the Doctrine in New Zealand The Law Commission’s Suggestions Concerning Diminished Responsibility

Excessive Self-Defence in New Zealand

Current Status of the Doctrine The Law Commission‘s Proposals on Excessive Self-Defence

The Three Strikes Law in New Zealand

The ‘Three Strikes Scheme’ Manslaughter Murder Consequences

Conclusion

Chapter 17 Abnormal Mental State Mitigations of Murder: The US Perspective

Introduction

The Model Penal Code Reform of Common Law Rules

Provocation and Extreme Emotional Disturbance

Mental Illness Negating an Offence Element ‘Diminished Capacity’ or ‘Partial Responsibility’

Current United States Rules

Provocation and Extreme Emotional Disturbance Mental Illness Negating an Offence Element The Special Resistance to the Reform of Homicide Requirements

Underlying Rationales and their Implications for Reform

The Mitigations under Alternative Distributive Principles: A Desert Foundation Implications for Reform

Conclusion

Chapter 18 The Conflation of Provocation and Justification: An Analysis of Partial Defences to Murder in Islamic Law

Introduction Overview of Homicide in Islamic Law Revenge-Centred Punishment in Homicide Cases and its Impact on Provocation Divisions of Homicide and General Comparison to English Homicide Law The Law on Defences to Murder in Islamic Law Generally Capacity and Diminished Responsibility Provocation Defence in Homicide ‘Family Honour’ and Provocation Provocation Based on Immorality of Victim Application of Defences in Islamic States Iran Statutory Basis of Law on General Provocation Provocation Based on the ‘Immorality’ of the Victim Conclusion: Islamic/Iranian Provocation Defences Compare Unfavourably to the Revised Defence in the 2009 Act

Chapter 19 Provocation and Diminished Responsibility in Dutch Homicide Law

Introduction General Characteristics of the Dutch Criminal Code Homicide Offences

Intention to Kill Meaning of ‘Intention’ Emotions, Motives, Mental Disorders and Intention Murder; Premeditation

Defences and Mitigation Grounds Generally Provocation

Provocation is Not a Statutory Mitigation Ground Provocation and (Full) Defences Self-Defence Excessive Self-Defence Duress

Diminished Responsibility

Insanity Diminished Responsibility

Conclusion

Chapter 20 Partial Defences Due to Loss of Control and Diminished Responsibility under Spanish Criminal Law

Introduction Complete and Incomplete Exemptions

Unaccountability Due to Temporary Mental Disorder (Article 20.1 CP) Total Intoxication and Withdrawal Symptoms (Article 20.2 CP) Insurmountable Fear (Article 20.6 CP)

Mitigation Grounds

Serious Addiction (Article 21.2 CP) Violent Emotion (Article 21.3 CP)

Some Conclusions

Chapter 21 Between Lack of Responsibility and Dangerousness: Determinism and the Specificity of the French Criminal Law on Lack of Intellectual Insight and Loss of Control

Introduction The Legislative Evolution: From Dementia to Psychological and Neuropsychological Disorders The Judicial Evolution: From Enhanced Powers to an Increasing Severity

From Declaring Lack of Responsibility to Assessing Dangerousness From Mitigating Circumstances to Aggravating Factors

The Sovereignty of the Judicial Interpretation

The Judicial Discretion to Consider the Prior Fault The Legislative Authorisation to Anticipate Potential Future Offences The Political-Legal Reaction: A Misguided Proposal?

Conclusion

Chapter 22 Diminished Responsibility and Loss of Control: The Perspective of International Criminal Law

Introduction Diminished Responsibility and Loss of Control in English Law Homicide in International Criminal Law Diminished Responsibility Diminished Responsibility as Part of a Spectrum of Mitigation in International Criminal Law Loss of Control Conditions of Armed Conflict as a Cause of Mental Disorder and Loss of Control Following Provocation Conclusions

Index

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