26 so consumed of alcohol and drugs that he did not form the intent to kill […] or cause […] some serious bodily harm.” Consequently, the judge instructed the jury that if it were to find that the accused “was so consumed of alcohol and drugs that he did not form the intent to kill or cause serious bodily harm, [it must] find him not guilty of murder, but guilty of manslaughter.”77 Additionally, the Caribbean Court of Justice’s denied a request that could have allowed Mr. DaCosta Cadogan to submit further evidence on this matter.78 As indicated by the State, the trial judge did not request a more detailed psychiatric evaluation because “the trial judge found no evidence that would lead him to raise the defense of diminished responsibility on his own accord; nor did the trial judge find any evidence of mental impairment or incapacity.” 87. In that regard, this Tribunal finds that in order to establish the criminal liability of a defendant, it is necessary to determine the effect that a mental disease may have on that defendant not only during his proceedings, but also at the time that the crime was committed. In the case of Mr. DaCosta Cadogan, the determination of the effect that an alleged mental illness may have had on him was relevant inasmuch as it could have allowed him to raise a defense of diminished responsibility.79 In this regard, the Court notes that the “anti-social personality disorder” and alcohol dependency allegedly suffered by Mr. DaCosta Cadogan are not necessarily externally apparent, and usually require a determination by a mental health professional, particularly for the differentiation between common drunkenness and a disease related to substance dependency. This differentiation, in a death penalty case, particularly in a mandatory death penalty case, could be the difference between the defendant’s life or death. 88. Though domestic law permits the presiding judge to solicit the opinion of an expert for this purpose, this was never ordered in the proceedings against Mr. DaCosta Cadogan. That is, the State failed to order that a psychiatric evaluation be carried out in order to determine, inter alia, the existence of a possible alcohol dependency or other “personality disorders” that could have affected Mr. DaCosta Cadogan at the time of the offense, and it also failed to ensure that Mr. DaCosta and his counsel were aware of the availability of a free, voluntary, and detailed mental health evaluation in order to prepare his defense in the trial. The fact that the State did not inform either Mr. DaCosta Cadogan or his attorney of his right to obtain such an evaluation may have resulted in the exclusion of evidence relevant to the preparation of his defense. Consequently, Mr. DaCosta Cadogan’s mental health at the time of the offense was never fully evaluated by a mental health professional for the purpose of preparing his defense in a case where the death penalty was the only possible sentence. 89. Unlike other criminal proceedings in which the State’s passive conduct with regard to the availability of mental health evaluations would be admissible, Mr. DaCosta Cadogan’s case is different for a number of reasons. First, the case involved the possibility of a mandatory death sentence, and, as stated above, such proceedings require the most ample and strict observation of due process rights. Second, the particular situation of the accused at the time of the offense reasonably required at least an assessment of whether a situation of alcohol dependency or some personality disorder existed, especially because the judge 77 Cf. The Queen, supra note 76. 78 Cf. Tyrone DaCosta Cadogan, supra note 65, paras. 11, 13. The Tribunal hereby reiterates that it is not a criminal court wherein an individual’s criminal responsibility can be adjudicated; therefore, it may not determine whether Mr. DaCosta Cadogan in fact suffered from a mental illness for the purposes of determining his criminal responsibility. This matter befalls on domestic courts. Cf. Case of Velásquez-Rodríguez, supra note 14, para. 134; Case of Yvon Neptune v. Haiti. Merits, Reparations, and Costs. Judgment of May 6, 2008 Series C No. 180, para. 37, and Case of Boyce et al., supra note 20, footnote 37. 79