Lawyers are contending that matters surrounding mental health and sanity are not tactics and tools pulled from a box of tricks to free their clients.

In fact, they argue that a defence such as “diminished responsibility” is available to individuals accused of murder, if the offence was committed while they were experiencing any mental illnesses or abnormality of mind, and this would have to be proved by psychiatric evaluation.

A sentence indication report from the Probation Aftercare Services unit of the Department of Correctional Services (DCS) obtained by the Jamaica Observer showed that several factors are considered for a diminished responsibility defence.

Apart from medical examination, this includes whether the offender accepts responsibility, recognises the impact and consequences of the offence on the victim and community, whether the offence forms part of an established pattern of offending, and interviews with relatives and community members to determine conduct and character.

Defence attorney Peter Champagnie, KC, said the perception by some that the reliance on diminished responsibility will absolve anyone of criminal culpability is fallacious.

“At best, it can only serve, if established or proved by an accused through his lawyer, to cause an offence of murder to be reduced to manslaughter. Manslaughter is punishable by a term of imprisonment, albeit less than a term of imprisonment for murder,” Champagnie told the Observer.

“Consequently, diminished responsibility does not equate to or result in any defendant being freed. For emphasis, therefore, it’s not an absolute defence. This is supported by section five of the Offences Against the Person Act and case law or common principles.”

Champagnie added that a psychiatric report would be integral to arriving at whether a defendant was under diminished responsibility at the time of the offence.

In addition, attorney Alexander Shaw said diminished responsibility can also be substantiated by other means.

“Diminished responsibility is not limited to only medical evidence but allows for the statements or acts of the accused and his demeanour and other relevant material,” he said.

Dr Aggrey Irons, consultant psychiatrist, stressed that one of the most difficult things to assess in psychiatry is the degree of danger but explained that there are several mental status examinations and certain questions that will indicate that someone is a danger to themselves and to others.

As it relates to diminished responsibility, Irons said, “There can be people who are sleep walking, for example, and commit violent acts. Their responsibility is diminished because they were in that state. Usually the court gets two psychiatric opinions and then the judge has to weigh them to see if they agree or differ.”

Irons also pointed to paranoia, which can be described as delusion.

“When people are paranoid and they strong[ly] believe that somebody is trying to hurt them, you can’t convince them otherwise. They are likely to respond in a retaliatory way.”

Attorney Kemar Setal said defence attorneys are usually privy to an accused person’s mental state and, therefore, it is the defence attorney who would request a psychiatric evaluation of the accused as it relates to having a fitness-to-plea hearing.

“Upon the accused being deemed fit to plea, the case can proceed to the next level. But although an accused person may be deemed fit to plea, that does not mean that he or she was not experiencing a mental disorder during the commission of the offence. With the offence of murder, diminished responsibility is a defence available to the accused if the offence was committed while experiencing some mental illness,” he told the Observer.

“However, it is not the case that we [defence attorneys] use this as a means to get our clients free. It is just to show that the client did not have the mental element of the offence of murder, which would then lower the offence to manslaughter.”

Similar to that of Champagnie, Setal reasoned that the accused would nonetheless be convicted of manslaughter and can be given a custodial sentence.

However, in such cases, a non-custodial sentence is available if the court is satisfied that the accused would not present a risk to self or society.

“A non-custodial sentence also does not mean that the person is admonished and discharged of the offence. There are other sanctions that would be imposed, just not prison time. It is important to consider this defence because I believe it is only fair to treat people suffering from a mental disorder different from people of sound minds.

“People suffering from mental disorders are not in control of themselves, and it’s due to that external force why they commit the offence. That is making justice prevail on the side of the accused and the side of the victim’s family.”