Assessment and Reporting for Mental Condition Defences
an impairment of their ability to appreciate long-term consequences of their actions (individuals who are depressed typically ‘see no further than the end of their noses’, through preoccupation); or their perception of the actions of others, their perception of their own self-worth or their ability to concentrate or comprehend a situation may have been impaired. Description of the likely impact of any such mental abnormalities on behaviour, including in terms of a narrative of the killing, may then allow a jury to make a decision on the ultimate issue as to whether this was sufficient substantially to impair their mental responsibility.
Clinical issues
Te clinical interview should be conducted as soon as possible after the alleged offence occurred. In practice, however, instructions might not be received until some months (or even years) after the offence, which this emphasises the importance of access to medical records, as well as witness statements and police interviews with the defendant.
General advice on assessment applies. In particular, however, any mental symptoms present at the time of the killing should be described. Mental symptoms both prior and subsequent to the time of the offence will inform. However, unless there was a clinical assessment close to that time, what will be required is retrospective reconstruction from clinical interview, aided by additional information about clinical state as it may have been known to have been at other times, combined with reference to any evidence in the case which goes to the defendant’s likely mental state at the time of the killing.
An account of the killing should be sought from the defendant, in order to contribute to an attempt at describing how any mental symptoms may contribute to a reasonable ‘narrative’ of the killing. Ask for their account, using open questions as much as possible. Record verbatim comments and ask them to pause, or repeat, if this is difficult. Asking about the alleged offence may itself reveal psychiatric symptoms of relevance, but may also help to establish how, or whether, any mental abnormality that has been assessed as being present relates to the killing.
Provocation
Provocation is also a partial defence to murder, although it may not be available in all common law jurisdictions. Successful pleading of the defence will result in a conviction for manslaughter, as opposed to murder.
In broad terms, provocation requires:
• Sudden and temporary loss of mastery over the mind (R v Duffy) (the ‘subjective test’)15 • Caused by things said or done by the victim (sometimes by another)
• Te requirement that the things said or done would have caused a loss of self-control in a reasonable person (the ‘objective test’)
15 Within law in England and Wales, the defence has been abolished, with substitution, by way of S53, Coroners and Justice Act 2009, of a defence of ‘loss
of control’; this ‘need not be sudden’, but the required objective level of ‘trigger’ (‘things said or done’) has been raised substantially, and ‘sexual infidelity’ is explicitly excluded as a potential trigger (although it can form ‘a trigger with other triggers’, see R v Clinton)
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