Diminished responsibility determinations in England and Wales and New South Wales: whose role is it anyway?

Abstract

A decade has passed since changes to the Homicide Act 1957, section 2 (under section 52 of the Coroners and Justice Act 2009) were implemented. The issues that have arisen since implementation have resulted in significant role confusion in the operation of the partial defence, with the real risk of inconsistent outcomes in practice. The article argues that medicalisation of the partial defence in England and Wales has impacted the role of parties in reaching plea agreements pre-trial, rendered the delineation between legal and medical questions regarding the recognised medical condition requisite unclear and produced significant role confusion between medical experts and jurors in assessing the partial defence. The position stands in stark contrast to the approach under the Crimes Act 1900 (New South Wales) section 23A, where the legislation explicitly outlines the respective role of the medical experts and jurors and prohibits experts from commenting on whether murder ought to be reduced to manslaughter in such cases.