Research on the Defence of Diminished Responsibility

Research on the Defence of Diminished ResponsibilityResearch ProposalProvocation, minor duty and the reasonable (wo)man the implications of the constabulary Reform Commissions recommendations.IntroductionThe crime of murder is unrivalled defined by the common impartiality as the bearing to un faithfulnessfully kill a nonher human being with malice afore thought. Currently, in England and Wales the legal system does not differentiate between different types of murder, such(prenominal) as first and second degree.1 There are however, defences available to defendants, which could enable either an acquittal (some general defences), or a conviction of some lesser disrespect (specific defences). Under the Homicide Act 1957 an individual can plead the defences of annoying, diminished responsibility or claim that he or she was involved in a felo-de-se pact. If such defences are successful, this will permit the result of bringing a charge of murder down to one of manslaughter and thus , termed voluntary manslaughter. The first of the two defences have developed a considerable amount of case law and many of these decisions have related to abusive relationships where the abused has killed the alleged abuser.The law relating to the defence of incitement has held that an individual must have been provoked (by either words or actions), resulting in a total loss of self control,2 and that a reasonable soul in the same situation would have acted in the same manner. The first two aspects of the defence have been referred to as the subjective elements and the third part as objective. The so-called objective element has become more and more subjective in nature. In R v Camplin, Lord Diplock acknowledged that the sort was not wholly objective3 and in the case of R v Smith (Morgan James)4 it was asserted that the characteristics of the defendant should be attributed to the reasonable person and this includes not solitary(prenominal) characteristics that had bearing on th e actual provocation, but likewise on the ability of an individual to maintain his or her self control. In context of the so-called batter wife cases, the judiciary have also applied this principle.5The specific defences outlined above are justified on the basis that in some circumstances, the law should recognise that there are reasons as to why an individual should not be convicted of the more serious offence of murder and thus, subject to a required life sentence. The issue with the provocation defence relating to an individual who has suffered long-term abuse, is that such individuals will not always be able to rely on it as there may be some aspect of pre-meditation. The law has also recognised that such individuals suffering from some abnormality of mind may not be fully responsible for his or her conduct and therefore should be convicted of manslaughter instead of murder. The effect of abuse on an individuals mental put in can in certain circumstances, amount to an abnorm ality of mind and thus satisfy the defence of diminished responsibility.6The purpose of the proposed research is to examine the current deposit of the law and look at the way in which abused women are dealt with when charged with murder. In line with the Law Commissions proposals to clear up the law of homicide, the research will also examine the extent to which the proposed change in the law will impact on this area. It is submitted that the current state of the law is not adequate in dealing with such individuals and it remains to be answered as to whether the proposals will make any real difference.The Law Commissions reference work Paper proposes to maintain the defence of diminished responsibility and comments that there are no grounds for abolishing the defence based upon arguments that it gender discriminatory. The paper comments at one pointWas the abnormality of mental functioning really a substantial cause of the defendants conduct if different factors were at work? Or , were the other factors, jealousy, anger, a desire to dominate or punish, the real or predominant explanation, with the abnormality of mind being a minor background factor of brusk moral significance to affect the verdict?7The research will examine the defence of provocation and the so-called objective element in order to forge how this fits with the nature of a long term build up of abuse suffered by some women. Is there a true loss of control in such circumstances and is it appropriate to attribute the full characteristics of such people to the reasonable (wo)man? Furthermore, by also enabling such individuals to plead the defence of diminished responsibility, as the above quote would seem to suggest, is the law simply categorising these people to as their conduct is not viewed quite as seriously as a person who commits murder? Thus, the term abnormality of mind is not one used in psychiatric terminology and the courts have been left to establish just what the phrase means on a case-by-case basis. It seems doubtful as to whether this is a sufficient approach for the law to take.ObjectivesAnalyse the current law relating to the defences of provocation and diminished responsibility and establish how these apply to women in long-term abusive relationships.Present the justifications for the defences and apply them in context of the proposed research theme.Establish the proposed reforms in the area. exactly analyse the proposed reforms in line with the research depicted object in order to determine whether they are sufficient.Value of the ResearchAdd to the current academic literary argument in this field.Establish the appropriateness of the Law Commissions reforms.Personal interest to the researcher.Theoretical research based on literature search and critical analysis.SourcesDomestic legislation, cases in domestic and international jurisdictionsBooks and periodical articles.Law Commission Reports.Statistics from the Home Office (relating to domestic violenc e/fatal offences from domestic relationships).Preliminary architectural plan (Chapters)AbstractIntroduction and overview of the topicAnalysis of the existing law on provocation/diminished responsibilityAnalysis of the Law Commissions proposals for reformConclusion (including any further suggestions for the direction the law should take for the future).Essential Reading(As well as the most current academic text books on the subject)LegislationHomicide Act 1957Family Law Act 1996 see Part IV relating to domestic violence provisionsProtection From Harassment Act 1997See also the Law Reforms paper The Law Commission Consultation Paper No 177, A cutting Homicide Act For England And Wales?At http//www.lawcom.gov.uk/docs/cp177_web.pdfCasesJersey v Holley 2005 UKPC 23 R v Mohammed 2005 EWCA Crim 180 R v Ahluwalia (1992) 4 All.E.R 889 R v Bedder (1954) 2All.E.R. 801 DPP v Camplin (1978) A.C. 705 R v Duffy 1949 1 All.E.R 932 R v Newell (1980) 71 Cr.App.R. 331 R v Roberts 1990 Crim.L.R 122 R v Thornton (No.2) (1996) 2 All.E.R 1023 R v Richens (1993) 4 All.E.R 877 R v Humphreys (1995) 4 All E.R 1008 R v Morhall (1995) 3 All E.R 659 R v Luc Thiet Thuan (1996) 2 All E.R 1033 R v Smith (Morgan James) (2000) 4 All. E.R. 289 R v Keaveney (2004) LTL 22.04.04 Extempore unreported find it on LawtelJournalsToczek, The action of the reasonable man, (1996) N.L.J. 146, 835 Toczek, Self-control and the Reasonable Man (2000) NLJ 150, 1222 Oliver, Provocation and non-violent homosexual advances (1999) J.Crim.L. 63(6) 586-592 Thomas, Sentencing manslaughter manslaughter by reason of provocation manslaughter of spouse of fellow (2003) Crim.L.R. June 414-417 Neal Bagaric, Provocation the ongoing subservience of principle to tradition, (2003) J.Crim.L 67(3) 237-256 Gardner, The mark of responsibility (2003) O.J.L.S 23(2) 157-171N.B Some psychology literature may be relevant on this topic search the online journals for killing stemming from domestic violence.Further research will a lso be needed to obtain further literature search www.ingenta.com and your university library should be able to order any articles of relevance that they do not have on site/access to online journal. Also search for any recent reviews of the Law Commissions proposalsYou may also need to add to this proposal and include a timescale and any further information you wish to add such as the length of the research (this is obviously information not available)1Footnotes1 However, see the proposals of the Law Reform Commission2 See R v Duffy (1949) 1 All.E.R 9323 (1978) AC 7054 2000 4 All. E.R. 2895 See R v Keaveney 2004 EWCA Crim 10916 R v Thornton (No.2) 1996 2 All.E.R 10237 The Law Commission Consultation Paper No 177, A New Homicide Act For England And Wales? At http//www.lawcom.gov.uk/docs/cp177_web.pdf