Monday, 13 August 2012

Manslaughter on the grounds of diminished responsibility

A man killed six people, including his wife and young children, because his marriage was failing after his wife had an affair, a Jersey court has heard. Damian Rzeszowski, 31, from Poland, stabbed his victims at the family's St Helier flat in August 2011. He has pleaded guilty to manslaughter but denies all six counts of murder. The Royal Court heard Rzeszowski's two children, aged five and two, and another five-year-old each suffered more than a dozen stab wounds.(1)

Rzeszowski denies murder, but has pleaded to manslaughter on the grounds of diminished responsibility, arguing that his mental state was impaired at the time of the killings.(2)

Damian Rzeszowski denies murder but has admitted the lesser charge of manslaughter with diminished responsibility...The key issue in the defence is Damian's state of mind at the time of the killings....The Defence claim Damian was suffering from an impaired state of mind that caused him to lose his temper when he was not in control of his actions. But the Prosecution said on various occasions Damian's story has changed, from saying he was hearing voices at the time that he killed, to denying an hallucinations. (3)

What is manslaughter on the grounds of diminished responsibility? Some idea can be gleaned of how this operated from case studies where that verdict has been returned.

For example,  Anne Burke was acquitted of murder in 2009, but found guilty of killing her violent husband Pat, 55, by reason of diminished responsibility.

Mrs Burke had claimed he had beaten her, kicked her in the stomach when she was pregnant and threatened to blow her head off during their turbulent 32-year marriage. She described her marriage as "a litany of abuse" adding that she only started drinking so she could "stand up" to her husband.

The court heard that six days prior to the killing, Mrs Burke was admitted to the psychiatric unit of Portlaoise Hospital, after attempting to slash her wrists. She was discharged two days later without having received any treatment or medication, at her and her husband's request, but said she knew her head wasn't right. (4)

And when she returned home, matters deteriorated to the point where she killed her husband.

She told the court it was about 4pm when she picked up a hammer that had been in the bedroom and hit him over the head as he slept. Mrs Burke told gardai afterwards that "it was a haze... it was like someone else was doing it.". At around 10pm that night she wrote a suicide note to her four children and cut her wrists.

Two psychiatrists who gave medical evidence on behalf of both the defence and prosecution agreed that Mrs Burke was suffering from a mental disorder at the time of the killing, namely severe depression.(4)

What is clear from that case is that warnings about her mental state were so obvious that her discharge after a suicidal attempt ignored her depression, and no follow up by social services on her mental condition or the abusive home background was ever given. This was a case in which both defence and prosecution agreed; it can be regarded as a case which illustrates where there is little doubt of the mitigating factors which led to the death of her husband.

In 2011, an airline pilot Robert Brown admitted killing his wife, and was jailed for 26 years, but was cleared of the murder charge.

Robert Brown, 47, attacked millionairess Joanna with a claw hammer and then buried her body in a prepared grave after a costly divorce battle. The jury sensationally cleared Brown of murder on the grounds he was suffering from a mental illness. But Judge Mr Justice Cooke handed down one of the harshest prison terms for manslaughter available to him. Appearing to question the jury's decision, he told British Airways pilot Brown: "Your responsibility, though diminished, remains substantial. "You intended to kill, you intended to conceal the body and to hide the evidence of the killing." Outside court, Joanna's mother Diana Parkes described the verdict as a "gross miscarriage of justice". And she added: "Robert Brown got away with murder in name only. " He ended up bludgeoning Joanna to death in their sprawling family home as their two young children cowered in the playroom last October.(5)

It is clear that there can be considerable leeway given and a manslaughter verdict can still be brought in. In this particular case, there was considerable surprise at the jury verdict, and it is clear that while the judge had to accept it, it probably would not have been the verdict which he would have delivered. There was evidence of clear thinking after the event.

The principle of "diminished responsibility" was introduced into UK law with the Homicide Act - 1957. This can be summarised as follows:

Section 2 of this law determines that a person shall not be convicted of the crime of murder, but only of manslaughter, if he committed the act as a result of mental disorders, which are described as follows:

abnormality of the mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts....

The principle underpinning this law is that a person who suffers in this way from a mental disorder is not able to create the special mens rea which is required to commit the crime of murder and, therefore, he shall be deemed to be responsible for the crime of manslaughter only.

The principle of diminished criminal responsibility offers an additional option to the insanity defense. This defense creates the required hierarchy, draws the psychiatric perception closer to the legal perception and enables a more cogent dialogue between these two schools in court. This dialogue enables a reduction in the level of the criminal responsibility of the defendant, while not exempting him from criminal responsibility.(6)

It appears in the case in point in Jersey, that part of the grounds of the defense was provocation due to the wife's behaviour with relation to their marriage and relationships with other men:

Provocation can be traced back to the 17th century, when the criminal law distinguished between a killing where there was proof of malice aforethought, and an unpremeditated killing on the spur of the moment following a provocative act. (7)

In Australia, various cases such as that of Stingel gave rise to the following ruling by a court:

The fact that the particular accused lacks the power of self-control of an ordinary person by reason of some attribute or characteristic which must be taken into account in identifying the content or gravity of the particular wrongful act or insult will not affect the reference point of the objective test, namely, the power of self-control of a hypothetical 'ordinary person'. (8)

A report on defenses to homicide also gave this note later in 2004:

The partial defence of provocation sends the message that in some situations people (who are not at risk of being killed or seriously injured themselves) are not expected to control their impulses to kill or seriously injure another person. While extreme anger may partly explain a person's actions, in the Commission's view it does not mean such behaviour should be partly excused ... Historically,  an angry response to a provocation might have been excusable, but in the 21st century, the Victorian community has a right to expect people will control their behaviour, even when angry or emotionally upset. (9)

What emerges is that it is problematic and complex to assess the situation in which a trigger could occur which would cause an individual to lose control, and how one would determine what "loss of control" means. The Law Commission of England and Wales found that "there is no satisfactory definition of loss of self-control".

The Jersey case is further complicated by the fact that the accused did not just murder his wife, but then went on a berserker rampage, killing other people who in no way had provoked him on any occasion. The nearest case I can recall which is similar in some respects is that of Derek Bird in Cumbria:

The incident began when Bird, a self-employed taxi driver from Rowrah, first shot dead his twin brother, David Bird, in Lamplugh, then shot dead the family solicitor, Kevin Commons, in Frizington (10)

In this case, 12 people had been killed, that a further 11 people were injured, and then the suspect had killed himself, but it began with a domestic dispute that spiraled out of control, where Derek Bird then expanded the range of killings to anyone who came across his path. It is a salutary reminded of how the situation might have escalated if Damian Rzeszowski had been armed, not with a knife, but with a gun.

In most cases where violence escalates from a domestic grievance to a massacre, the perpetrator has been killed or ended taking their own life. This makes it difficult to know what their state of mind was, and how it could be assessed in such a case. This will be a difficult case for the Jurats, which does raise the question why only two Jurats are sitting, when the complexity of motivation would suggest that the minimal number is not what I would have expected. I was quite surprised.

(4) The Mirror, December 2009
(5) The Mirror, May 2011
(6) The Diminished Responsibility Defense in the Israeli Juridical Practice. Jacob Margolin, - Author. Journal title: The Israel Journal of Psychiatry and Related Sciences. Vol 35:2, January 1, 1998.
(7) Provocation: A Totally Flawed Defence That Has No Place in Australian Criminal Law Irrespective of Sentencing Regime. Andrew Hemming, University of Western Sydney Law Review. Vol:14. 2010
(8) Stingel v R (1990) 171 CLR 312, 332
(9) Victorian Law Reform Commission, Defences to Homicide: Final Report (2004)


Anonymous said...

What medication was this man on to help his depression?
Links to this drug and other people that have been proscribed it and killed are many.

I just hope Jullian Golop does his homework , but unfortunatey the drug companies have been trying to plug any leaks.

There's a huge campaigne in Ireland going on at this very moment, I just wish I could remember the name of the prescribed drug, will try and find out and get back to you.

TonyTheProf said...

Since my original post, it has come to light that (1) he appears to have approached the hospital to be hospitalised but was turn away (2) he had something like 80 antidepressants in his possession, prescribed possibly by the hospital.

Evidently there are questions that need to be asked if this is the case as to why the risk - which he himself stated - was not taken seriously. It certainly looks like a failure at the hospital.

Anonymous said...

"provocation due to the wife's behaviour with relation to their marriage and relationships with other men"

"the accused did not just murder his wife, but then went on a berserker rampage, killing other people who in no way had provoked him on any occasion"

You have made two assumptions in these two quotes which rumours circulating in the Polish community suggest are misleading. I do not mean your error was that the paper says it was the father-in-law who was attacked first, then the others and finally his wife.

Justiceforjo said...

The law on diminished responsibility due to mental impairement and loss of control changed in 2010 but it continues to let down victims and provide an 'excuse' for killers, particularly in domestic abuse cases, which then leaves it in the hands of an unqualified jury to make what is a very complex decision on differing medical expert evidence, and levels of impact on the crime. It then becomes a lottery on whether someone gets a murder conviction and a life sentence, or a manslaughter conviction and a far more lenient custodial sentence. In the case of Robert Brown, despite horrific evidence of pre-planning, and despite the trial judge giving the maximum possible manslaughter sentence of 26 years, Brown will be released on licence inn2023, instead of serving well over 30 years (given the facts of the case) that he would have received for murder. His two young children, who witnessed the crime, will pay the price for this manslaughter sentence long after the case has been forgotten by the public. How can this ever be morally right or be seen, by anyone of sane mind, as justice? The law must change.

Anonymous said...

Such a sad case