Acute voluntary intoxication and the amended Section 2 Homicide Act 1957

The words, of course, are from Section 2 of the Homicide Act 1957. This is the Section that defined diminished responsibility. Section 2 used to read:

"2(1) Where a person kills or is a party to the killing of another he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."

The Homicide Act 1957 was amended by Section 52 Coroners and Justice Act 2009 so we are now concerned with a new definition. It was this new definition which was challenged in the Court of Appeal in Dowds v R [2012] EWCA Crim 281 (22 February 2012). The Court of Appeal has dismissed the appeal and in so doing helped to answer any concerns as to whether acute voluntary intoxication can give rise to the partial defence of diminished responsibility. The substance of the appeal being that acute intoxication should be regarded as a 'recognised medical condition' within the meaning of Section 2 of the amended 1957 Act and that the defence of diminished responsibility should have been left to the jury.

The facts of the case against Dowd were that, sometime over a weekend in November 2010, he killed his partner of about 18 months at the house which they shared. He had inflicted approximately 60 knife wounds to her which were mainly of a stabbing nature and chiefly about the neck. The appellant was a 49 year old college lecturer who had no previous convictions, there was however, a history of drunkeness and fights between the couple.

At the trial, the trial judge His Honour Judge Wait, had ruled that simple voluntary drunkenness was was not capable of giving rise to a defence of diminished responsibility.

The amended definition now reads:

"Persons suffering from diminished responsibility

2(1) A person (D) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which –

(a) arose from a recognised medical condition,

(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.

(1A) Those things are –

(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(c) to exercise self control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter."

Apart from answering certain issues as to construction, the Court seemed to have based their decision on the reasoning that, although the statutory definition had been re-formulated, it was quite clear to them that the rule on voluntary intoxication had not changed. The Court took careful account of the work of the Law Commission as part of an earlier review and the Law Commission's report Law Com No 290 in August 2004 and to the general review and report by the Commission Murder, Manslaughter and Infanticide Law Com No 304 (November 2006).

Lord Justice Hughes, who gave the decision of the Court, said 'For present purposes the significant change in formulation was to move from "an abnormality of mental functioning arising from an underlying condition" (2004) to "an abnormality of mental functioning arising from a recognised medical condition" (2006) (our emphasis).'

Lord Justice Hughes concluded that 'Such an intention cannot be inferred from the adoption in the new formulation of the expression "recognised medical condition" because the origins of that were clearly explained by the Law Commission. They explicitly did not include writing the terms of ICD-10 and/or DSM-IV into the legislation, for which purpose those terms are demonstrably unsuited.'

ICD-10 is a reference to the World Health Organisation's ("WHO") publication of an International Statistical Classification of Diseases and Related Health Problems ("ICD") of which the current edition is ICD-10. DSM is a reference to the American Medical Association and their classification of medical conditions under the title "Diagnostic and Statistical Manual" ("DSM"). The part dealing with conditions of the mind is known as DSM-IV.

Lord Justice Hughes went on to say 'It is enough to say that it is quite clear that the re-formulation of the statutory conditions for diminished responsibility was not intended to reverse the well established rule that voluntary acute intoxication is not capable of being relied upon to found diminished responsibility. That remains the law. The presence of a 'recognised medical condition' is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility.'

tags: diminished responsibility, intoxication, malice aforethought, unlawful act manslaughter