Recognising acute intoxication as diminished responsibility? A comparative analysis

This article provides an analysis of the extent to which acute intoxication may or may not satisfy the ‘recognised medical condition’ requirement under s. 2 of the Homicide Act 1957, as amended by s. 52 of the Coroners and Justice Act 2009. It is argued that jurisprudential authorities clarifying the parameters of the ‘recognised medical condition’ requirement are urgently needed. In the interim period the importation of the novel terminology remains open to conjecture. The author argues that ‘acute intoxication’ potentially satisfies the revised plea and utilises the position adopted in Scotland, New South Wales and New Zealand to demonstrate this proposition. The latter jurisdiction has never had a formal diminished responsibility plea, although it has been identified that evidence of a defendant's mental abnormality was often used to reduce a murder conviction to one of voluntary manslaughter via the legal conduit of provocation. Following the demise of the provocation defence, however, issues pertaining to provocative conduct and/or a defendant's mental abnormality fall to be considered by the sentencing judge, but only in restricted circumstances. The recent implementation of a tripartite sentencing regime in New Zealand means that the alcohol-dependent and/or provoked defendant who kills will not have such mitigation considered if they have previously committed a qualifying offence under the scheme. The position in New Zealand is set against the Legal Aid, Sentencing and Punishment of Offenders Bill 2010–11 which proposes a ‘two-strike’ system for a variety of offences including voluntary manslaughter. It is submitted that this type of scheme has potentially significant consequences for the alcohol-dependent defendant who may not have had appropriate treatment for his mental abnormality following a first conviction.