Diminished Responsibility Within Scots Criminal Law

Here in Scotland we have a hybrid legal system, this means it has combined aspects of both civil and common law systems. In Scots criminal law, it is recognised that there are two different types of mitigating pleas, these are diminished responsibility and provocation. If a mitigating plea is successful, an accused’s charge will be reduced. In the case of murder, if a plea is successful it will take the charge down to culpable homicide. ‘A plea of diminished responsibility acknowledges the fact that, although the accused acts attract liability, he was not wholly responsible for them because he was suffering from some form of mental aberration falling short of insanity.’

I will be discussing topics which are important to take into consideration when looking at diminished responsibility. I will then look specifically at murder and how an accused person can take a plea of diminished responsibility.

Actus Reus and Mens Rea

For a person to be convicted of a criminal offence, it must be established that the offender committed the criminal act in question, and it was done in a guilty state of mind. The Lord Justice-General Clyde stated “No one can be punished for merely what goes on in his own head” meaning their thoughts need to be put into actions for it to be a criminal offence.

The actus reus of a crime is the physical act taking place when committing a crime, it can be voluntary or involuntary. Murder is killing someone with intent, the actus reus for murder is ‘any wilful act causing the death which is done either with a wicked intent to kill.’ A person can kill another but may have had no intention to do so, in the case of HM Advocate v Purcell the accused was trying to escape the police when he struck a child on a zebra crossing with the car he was driving. There was no intent to kill the child it just happened when he was trying to escape. In the case of McCluskey v HMA , the accused caused a car accident due to his reckless driving. He severely injured a pregnant woman whose child was nearly full term, the baby was born but then died as a result of the injuries before birth, but is the accused charged with one murder or two?

Mens rea refers to the state of mind of an accused person, it remains for the prosecution to decide whether the accused had the necessary mens rea to commit the actus reus which was previously established. There is no single definition of mens rea which would cover all crimes. The mens rea for murder is ‘wicked recklessness that is can be inferred from what is done that the accused had no regard for whether his victim lived or died.’ Mens rea is the modern term for the word ‘Dole’, which was defined by the institutional writer Hume as ‘that corrupt and evil intention which is essential (so the light of nature teaches, and so all authorities have said) to the guilt of any crime.’ . In the case of Lord Advocate’s Reference the accused had entered a bank with a toy gun and demanded money from the till, he left the shop after another member of staff appeared then kept insisting it was all a joke. It was said that he had no intention of carrying out the act and it was clear that the accused didn’t have the appropriate mens rea to do so.

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Diminished Responsibility

Diminished responsibility is a plea that can be used when a person is accused of murder, it is accepted that a reduction in the sentence is given to take the charge down to culpable homicide. If it is a case of attempted murder, if the accused plead diminished responsibility the charge would be reduced to assault. For a successful plea there must be medical evidence or the appropriate science to show the accused had a complete alienation of control. With a murder charge, the accused will get a compulsory life sentence but if it is a culpable homicide charge, the sentence is at the discretion of the judge. Since 2012, diminished responsibility has been set out within the Criminal Procedure Act , which has abolished the common law plea of diminished responsibility. It makes it clear in section 51B the requirements for a diminished responsibility plea and how it’s possible to take murder down to culpable homicide.

Development of Diminished Responsibility

In the nineteenth century, there were cases where mercy was accepted due to the accused mental state. In the case of Dingwall , the accused was charged with the murder of his wife. Jury was asked to take into consideration the fact the accused suffered ill health and delirium tremens from chronic alcohol abuse. Dingwall’s landlord was questioned and said ‘at all times he was not quite right: 'he was very peculiar”’ . This was one of the first cases where diminished responsibility was established, due to the plea being so new and unknown it was hard to establish the correct criteria.

In the case of HMA v Savage , the accused was charged with murder, but it is said that the accused suffered a head injury at time of the crime. Witnesses say the accused was prone to binge drinking and that he was intoxicated at the time the crime took place. It was said he was of unsound mind, but not fully insane. It was hard for the jury to work out the difference between being of an unsound mind and insanity. There wasn’t enough evidence to support the plea of diminished responsibility and Savage was sentenced to death. In the case of Connelly v HMA , the accused was charged with murder of his friend, the defence tried to plea diminished responsibility. It was understood on the night the murder took place the accused had consumed a significant amount of alcohol and had a history of drug dependency. ‘None of the psychiatrists who gave evidence in this case were able to diagnose any form of mental illness, although one called for the defence was of the view that the accused suffered from a personality disorder.’ The judge had misunderstood what was said in the Savage case and said all 4 requirements needed to be met for a plea of diminished responsibility. The 4 aspects are; unsound mind, state of mind bordering on, but not insanity, aberration or weakness of mind and state of mind where responsibility reduced.

In the case of Galbraith v HMA , the accused was charged with the murder of her husband. She claimed diminished responsibility and said that she had suffered years of abuse from her husband and had just snapped. It was said she had post-traumatic stress disorder (PTSD) from the relationship. A bench of 5 judges looked at the Connelly and Savage cases and decided the judge was wrong to say all criteria needed to be met and made the decision to overrule Connell. ‘The court in Galbraith has also clarified the law of diminished responsibility and, in doing so, has considerably widened its scope; accordingly, it is no longer true that the concept is restricted to mental illness or disease.’

In a more recent case of Gordon v HMA , where the accused murdered his terminally ill wife. The accused’s wife had terminal lung cancer and the deceased had decided to overdose on drugs to end her life, the accused helped administer the drugs and then smothered the deceased with a pillow. Gordon plead diminished responsibility and psychiatrics found the accused was in a depressive state which was sufficient for diminished responsibility.

Conclusion

In conclusion, mitigating pleas are an important part of Scots criminal law, but judges are reluctant to accept pleas of diminished responsibility. There needs to be medical evidence which shows the accused is not fully liable for their actions. If the plea is successful it reduces the charge from murder to culpable homicide. Diminished responsibility has vastly developed since it was first created, with the criteria refined into what is operated within our courts today.