Diminished responsibility post codification: lost opportunities, tensions and gendered applications

Following from the Scottish Law Commission’s Report on Insanity and Diminished Responsibility, the Criminal Justice and Licensing (Scotland) Act 2010 codified the plea of diminished responsibility. Part of the justification for this codification arose from the need to clarify the rule in relation to drugs and alcohol. With this change there existed scope to develop the plea in a way which appreciated the complex interplay between mental conditions and intoxication- something which was absent under common law. At a time when mental health law is under review in Scotland, this article seeks to examine the landscape of diminished responsibility, asking whether s51B is able to properly appreciate the realities of offending and whether it is applied to all accused fairly and consistently