Diminished Responsibility - Scottish Law

Scottish Law

During the course of the 20th century the courts began to limit the mental conditions falling within diminished responsibility. In HM Advocate v Savage (1923) JC 49 Lord Alness addressed the jury (at 51):

It is very difficult to it put in a phrase, but it has been put in this way: that there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility. In other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through the cases that there is implied ... that there must be some form of mental disease.

This statement became the authoritative version of the test for diminished responsibility and the various factors mentioned by Lord Alness were regarded as being cumulative in nature. The effect was that the test became difficult to satisfy, and the courts adopted the position that the scope of the plea was not to be further widened (e.g. Carraher v HM Advocate (1946) JC 108 held that the plea was not available to a person suffering from psychopathic personality. But in Galbraith v HM Advocate (2002) JC 1 it was held that the formula in Savage was not to be read in a narrow sense, and it was not necessary that all the criteria in that formula had to be present. Furthermore, although the plea had to be based on some form of mental abnormality, that condition need not be one bordering on insanity. Instead the court ruled that diminished responsibility required the existence of an abnormality of mind which had the effect that the accused's ability to determine or control his actings was substantially impaired. However, the Court excluded from the scope of the plea:

1. any condition brought on by the consumption of drink or drugs, and
2. psychopathic personality disorder.

The Scottish Law Commission reported in 2004 proposing changes to the law on insanity and diminished responsibility