Barry Mitchell

Diminished responsibility manslaughter

Abstract Whilst there has been a good deal of qualitative criticism and commentry about the partial defence of diminished responsibility in homicide cases, relatively little empirical analysis has been provided about the way in which the law works. Buck and Walklate (1994) undertook one of the most recent surveys in which they tried to shed some light on the interaction of the psychiatric and legal perspectives, though their work was confined to the experience of a northern psychiatric service. This study was carried out to expand our quantitative knowledge of the operation of the diminished responsibility law, particularly the significance of the work of forensic psychiatrists and the outcome of cases in the criminal justice system. In so doing, it tests the extent to which many of the results of Buck and Walklates survey applied to a different part of the country. The data are based on a sample of cases at a regional secure unit in the Midlands during the late 1980s and early 1990s.

Putting diminished responsibility law into practice: A forensic psychiatric perspective

Abstract There has been a good deal of criticism, especially in the legal press, about the concept of diminished responsibility and about the wording of the principal legal provision in s.2(1) of the Homicide Act 1957. Since its inception lawyers and others have raised a series of concerns about the way in which the law operates and the role played by forensic psychiatrists. One of the main concerns has been the encouragement of psychiatrists to give their opinion on what is the ‘ultimate issue’ in the case – whether the defendants responsibility was diminished. The traditional legal view is that psychiatrists should confine their opinion evidence to the defendants mental health and how that manifested itself in the individuals perception, judgement and thinking. Psychiatrists have no special training or expertise in assessing personal responsibility and should thus not comment on it. Moreover, there are specific situations such as mercy killings or battered spouses who kill their abusers, in which psy...

Multiple Wrongdoing and Offence Structure: A Plea for Consistency and Fair Labelling

Crimes come in all shapes and sizes, but relatively little work has been done on offence structure – Robinson’s recent functional analysis is perhaps the one obvious exception. This article concentrates on incidents of multiple wrongdoing and suggests that the current substantive law is both inconsistent and confusing. Burglary, for example, is unnecessarily narrowly defined and should be expanded to include broadly similar scenarios. The law is confusing because it conflates qualitatively very different incidents under the same umbrella – serial killers, for example, commit the same crimes as those who kill multiple victims by one act. Not only does the law fly in the face of common sense but it conflicts with the principle of fair labelling – that crimes be defined to reflect their wrongfulness and severity – which seeks to fulfil some important functions in the criminal justice system.

Sentencing for Murder

Setting the minimum prison term Depending on the facts of the offence the starting point for the minimum time served in prison for an adult ranges from 15 to 30 years. For an offender under 18 the starting point is 12 years. It is unusual, but some offenders receive a whole life tariff, which means they will spend the rest of their life in prison. Parliament has set out in law the circumstances in which this can happen.

Minding the Gap in Unlawful and Dangerous Act Manslaughter: A Moral Defence of One-Punch Killers

Whilst it is true that the one-punch killer has crossed a moral threshold and acted wrongfully by committing an assault, his victims death may be both unforeseen and unforeseeable. The gap between what was foreseen/foreseeable and death may thus be considerable. This article suggests it is too great; convicting the killer of manslaughter places too much weight on the element of luck. The task then is to identify an appropriate principle for regulating the gap and in the course of tackling this task the article considers and rejects, inter alia, a recent recommendation by the Law Reform Commission of Ireland.

Provoked violence, capacity and criminal responsibility

Abstract Traditionally, the criminal law adopts the classical approach and assumes people have the ability to regulate their behaviour so as to comply with its rules, although there are recent signs that the courts are looking more carefully at human capacity. Research in psychology and biology, albeit still in its early stages, suggests that individual traits which influence the capacity for self-control vary from one person to another. This article considers the potential impact of this data on the determination of responsibility under the criminal law.

Sentencing for Murder: Drawing Lessons from Research

The literature on sentencing for murder falls into four categories. First, ‘black letter’ law sets out how the courts should punish convicted murderers and what should happen to them after conviction. Second, empirical research sheds light on the way that the sentencing provisions for murder determine the number of years served in custody prior to release on life licence. Third, a number of studies have documented what the public know or believe about sentencing for murder as well as how the public think murder ought to be punished (e.g., Mitchell and Roberts, 2012). Public opinion research is relevant to the sentencing for murder since public views are often employed to justify retention of a mandatory sentence (see Mitchell and Roberts, 2012). Fourth, there is a wealth of academic commentary advocating sentencing reform (e.g., House of Lords Select Committee, 1989; Committee on the Penalty for Homicide, 1993; Morris and Blom-Cooper, 2011; Mitchell and Roberts, 2013).

Multiple-Victim Murder, Multiple Murders and Sched. 21 to the Criminal Justice Act 2003

A small proportion of convicted murderers kill more than one victim: some kill two or more victims by a single act; others kill one at a time. Schedule 21 to the Criminal Justice Act 2003 identifies various starting points which judges should have regard to when setting the minimum terms for murderers, but one clear consequence of this is that the murder of a single victim may result in a starting point of a whole life term, whereas the murder of multiple victims may indicate a starting point of a 30-year term. Obviously, all aggravating and mitigating factors must be taken into account, but this article questions whether the number of murder victims should automatically be given more weight in determining the minimum term.

Problems with the Interpretation of Murder

To many people, murder is the ultimate crime. Although the unlawful taking of the life of another person may also be treated as manslaughter, murder is reserved for those cases where the offender kills with a more culpable state of mind and where there are no extenuating circumstances. For a considerable number of years the courts have adopted Sir Edward Cokes definition of murder: it is the unlawful killing of any reasonable creature in being, under the Queens peace, with malice aforethought, either express or implied, death occurring within a year and a day. Yet certain elements in that definition have been given varied interpretations by the courts, and it appears that the judiciary at least have not found it easy to indicate precisely what has to be proven by the prosecution. This article focusses its attention on two aspects: (1) the issue of causation, the requirement that the defendant be shown to have caused the death of the victim; and (2) the mental element in murder.