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The Law Around Diminished Responsibility In Light Of Valdo Calocane’s Case What Is The Approach Our Judges Take?

The killings of Grace O’Malley-Kumar, Barnaby Webber and Ian Coates have shaken the public. The horror of such violence and the random nature in which the deceased and other victims were selected makes us all shudder. When you listen to the families express their pain and frustration it is impossible not to feel sympathy.

As a criminal lawyer dealing with these sorts of cases regularly, the final outcome of a hospital order for Mr. Calocane always seemed likely, verging on certain.

What does a Judge have to consider in a case such as this?

Here is the test:

Firstly, the partial defence of diminished responsibility only applies in a case of murder. It is not applicable in any other case. It is only a partial defence, unlike (for example) self-defence.

The law is set out in section 52 of the Coroners and Justice Act 2009. The section says as follows:

(1) A person who kills or is a party to the killing of another is not to be convicted of murder if they were suffering from an abnormality of mental functioning which—
(a) arose from a recognised medical condition,
(b) Substantially impaired their ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for their acts and omissions in doing or being a party to the killing.
(1A)Those things are—
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control

In its most basic terms, if you have killed someone but did so when suffering from a mental illness which meant your ability to understand what you were doing (or form a rational judgment) was reduced, you may (I stress may) have a partial defence. It is conceivable that your ability to exercise self-control may also form part of the same test.

However, simply meeting this test is not enough. Appropriately qualified psychiatrists will need to carry out assessments and provide their opinions to the court. In Calocane’s case, the press have said that three reports were provided. That is quite common. The three reports are usually made up of two psychiatrists instructed by the defence legal team, and one instructed by the prosecution legal team. If all three agree that the defendant meets the test set out above, that is then quite compelling for all parties in the case. The three psychiatrists are all independent and very experienced.

It is in that context that the prosecution accepted a guilty plea to a charge less serious than the original murder charge that Calcone faced. As we know he pleaded guilty to manslaughter.

Although not certain, I would have expected this to be a rather predictable outcome in a case such as this.


Does this mean that Calcone was absolved of responsibility for what he did? No it does not. What it means is that he has pleaded guilty to a very serious crime. He then had be sentenced, punished, for that serious crime.

The process of sentencing people who have pleaded guilty to manslaughter, by reason of diminished responsibility, is far from unusual. There is a guideline for Judges to follow when they sentence someone for this sort of offence. You will see it in this link. This is not discretionary, Judges have to follow this guideline unless there is some good reason not to.

In the case of Calcone our Judge had the option to send him to prison for life, or to choose where his case falls on the spectrum of possible prison sentences. This spectrum can be from 24 years to 3 years, depending on a large number of factors. However, having decided on the appropriate length of any prison sentence at step two of the above guidelines, the Judge must then consider step four. I have copied this below:

Step 4 – Consideration of mental health disposals (Mental Health Act 1983)


(i) the evidence of medical practitioners suggests that the offender is currently suffering from a mental disorder,
(ii) treatment is available, and
(iii) the court considers that a hospital order (with or without a restriction) may be an appropriate way of dealing with the case, the court should consider all sentencing options including a section 45A direction and consider the importance of a penal element in the sentence taking into account the level of responsibility assessed at step one.

This is what the Judge in Calcone’s case did. He considered the evidence of medical practitioners, that treatment was available, and thought that a hospital order was ‘appropriate’.

The Judge in Calcone’s case also added a restriction on release, meaning it is quite possible that Calcone may never be released. The Secretary of State is likely to be involved in any decision to release him in the future.

If Calcone went to prison to serve a sentence of imprisonment, and not to a mental health hospital, he would probably have a better chance of being released sooner. In the current situation, he will not be released unless he is better, not a threat to the public and the Secretary of State agrees. Do not forget, the press reports say that Calcone suffers from treatment resistant schizophrenia.

None of this helps those whose lives have been ruined by Calcone’s actions, or makes him more or less responsible. It may help you understand the process and decisions made, but no more or no less than that I suspect.

If you require expert legal representation in relation to a murder or manslaughter please call one of our criminal defence experts on 0330 822 3451 or request a callback online.

Further Reading Post by Sean Caulfield
Criminal Defence