Chapter 3 - Voluntary Manslaughter

Question 1

What are the two special defences to murder?

Answer 1

(1) diminished responsibility

(2) loss of control

Question 2

In which Act was diminished responsibility set and and in which Act was it amended?

Answer 2

Diminished responsibility was set out in the Homicide Act 1957 and was amended by s 52 of the Coroners and Justice Act 2009

Question 3

What does a partial defence mean?

Answer 3

The defendant is not able to be acquitted completely as instead they just reduce the offence of murder to voluntary manslaughter

Question 4

Why is it known as VOLUNTARY manslaughter?

Answer 4

Because the defendant had the necessary mens rea for murder

Question 5

Does the judge have discretion when sentencing someone with voluntary manslaughter?

Answer 5

Yes, the judge does have discretion because they don’t have to impose a mandatory life sentence and can impose a more appropriate sentence

Question 6

What is the definition of voluntary manslaughter?

Answer 6

The verdict where the defendant has a partial defence to murder when the unlawful killing was carried out when the defendant was suffering from diminished responsibility or loss of control

Question 7

Before diminished responsibility was amended what was the main problem?

Answer 7

If a person with mental problems kills someone then their only defence was insanity and the test for insanity is very narrow and many D’s who suffer from a mental illness do not always come within it

Question 8

Why was the defence of diminished responsibility developed?

Answer 8

Because those with mental illnesses did not always come within the narrow test of insanity and therefore left without a defence and this is why diminished responsibility was created

Question 9

Under s 52 of the CJA 2009 what were the 3 elements of an abnormality of mentally functioning?

Answer 9

The effect of this section is that a person who kills or is a party to the killing of another is not to be convicted of murder if he was suffering from an abnormality of mental functioning which:

(a) arose from a recognised medical condition

(b) substantially impaired D’s ability to-
(i) understand the nature of his conduct
(ii) form a rational judgement
(iii) exercise self-control

(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing

Question 10

In diminished responsibility who is the burden of proof placed on?

Answer 10

The defendant, but the defendant need only prove it on the balance of probabilities

Question 11

What is the definition of diminished responsibility?

Answer 11

A partial defence to a charge of murder which reduces the offence to one of voluntary manslaughter under s 2 Homicide Act 1957 as amended by s 52 Coroners and Justice Act 2009

Question 12

When did the law require the defendant to be suffering from an ‘abnormality of mind’?

Answer 12

Before the definition of diminished responsibility was amended by s 52 of the Coroners and Justice Act 2009

Question 13

In the case of R v Byrne what was the ‘abnormality of mind’ described as?

Answer 13

‘a state of mind so different from that of ordinary human being that the reasonable man would term it abnormal’

Question 14

Was the case of R Byrne decided on the old definition of diminished responsibility?

Answer 14

Yes

Question 15

What is the test for abnormality of mental functioning?

Answer 15

D’s mental functioning was so different from that of ordinary human beings that the reasonable man would term it abnormal

Question 16

What must the abnormality of mental functioning arise from?

Answer 16

A recognised medical condition

Question 17

Does ‘recognised medical condition’ include both psychological and physical conditions?

Answer 17

Yes

Question 18

What are some examples of psychological recognised medical conditions which affect mental functioning?

Answer 18

(1) depressive illness
(2) paranoia
(3) Battered Woman’s Syndrome

Question 19

What are some examples of physical recognised medical conditions that’s affects mental functioning?

Answer 19

(1) epilepsy
(2) sleep disorders
(3) diabetes

Question 20

Must there be medical evidence presented at trial proving the D’s recognised mental condition?

Answer 20

Yes

Question 21

What affect must the abnormality of mental functioning have of the D’s mental responsibility?

Answer 21

The abnormality of mental functioning must substantially impair the D’s mental responsibility for his acts or omissions in doing or being party to the killing

Question 22

What was ‘substantial’ held to mean in the case of R v Lloyd?

Answer 22

Substantial does not mean total, nor does it mean trivial or minimal, it is something in between and is for the jury to decide if the D’s mental responsibility is impaired substantially

Question 23

When can a judge decide not to put forward the question of whether the D’s mental functioning was substantially impaired?

Answer 23

The judge can withdraw this point from the jury if there is no evidence on which a reasonable jury could conclude that the D’s mental responsibility was substantially impaired

Question 24

Was the matter of substantial impairment decided in the cases of R v Byrne and R v Lloyd before the law was amended?

Answer 24

Yes

Question 25

What was held in the case of R v Golds about substantial impairment?

Answer 25

This case occurred after the law was amended and the Supreme Court pointed out that there was no indication in the 2009 Act that Parliament wished ‘substantial impairment’ to have a different meaning and therefore the meaning hasn’t changed

Question 26

What are the 3 abilities that must be substantially impaired set out by the Homicide Act?

Answer 26

1 out of 3 of these abilities must be impaired:

(1) to understand the nature of his conduct
(2) to form a rational judgment
(3) of exercise self-control

Question 27

What 2 situations does ‘ability to understand the nature of his conduct’ cover?

Answer 27

(1) Situations such as where D is in an automatic state and does not know what they are doing such as where the D is suffering from delusions
(2) situations where the D is suffering with severe learning difficulties whose mental age is so low that they do not understand the nature of what they are doing

Question 28

What does the ‘ability to form a rational judgement’ mean?

Answer 28

Even if the D know the nature of their conduct they may not be able to form a rational judgement about their acts or omissions

Question 29

What are 3 conditions in which a D may not be able to form a rational judgement?

Answer 29

(1) paranoia
(2) schizophrenia
(3) Battered Women’s Syndrome

Question 30

What was a case where the D was unable to ‘exercise self-control’?

Answer 30

R v Byrne

Question 31

Why was Byrne unable to ‘exercise self-control’?

Answer 31

He was a sexual psychopath and medical evidence was that his condition meant he was unable to control his perverted desires and therefore the defence of diminished responsibility was available to him

Question 32

Must the D prove that the abnormality of mental functioning provides an explanation for their acts and omissions in doing or being a party to the killing?

Answer 32

Yes

Question 33

What Act stated that there must now be some causal connection between D’s abnormality of mental functioning and the killing?

Answer 33

This was introduced by the Coroners and Justice Act 2009

Question 34

Must the abnormality of mental functioning be the only factor which caused D to do or be involved in the killing?

Answer 34

No

Question 35

Must the abnormality of mental functioning be a ‘significant factor’ which caused D to do or be involved in the killing?

Answer 35

Yes

Question 36

What are the 3 possibilities to consider when the D was intoxicated at the time of the killing? (DR)

Answer 36

(1) that the defendant was intoxicated at the time of the killing and tries to use the defence of diminished responsibility
(2) that the defendant was intoxicated and has a pre-existing abnormality of mental functioning
(3) that the intoxication is due to an addiction

Question 37

Can intoxication on its own be used as the basis of a defence of diminished responsibility?

Answer 37

No

Question 38

Can the abnormality of mental functioning be due to intoxication?

Answer 38

No, the abnormality of mental functioning must be due to a recognised medical condition

Question 39

Which case confirmed that an abnormality of mental functioning cannot be due to intoxication?

Answer 39

R v Dowds (2012)

Question 40

Which cases illustrates a situation where the D was intoxicated and has a pre-existing abnormality of mental functioning?

Answer 40

R v Dietschmann (2003)

Question 41

What is the recognised medical condition which is linked to alcohol?

Answer 41

Alcohol Dependency Syndrome (ADS)

Question 42

What is Alcohol Dependency Syndrome?

Answer 42

A condition which means that a person cannot control their drinking

Question 43

Is alcohol dependency syndrome sufficient for diminished responsibility?

Answer 43

Yes

Question 44

What is the leading case on where intoxication is due to an addiction?

Answer 44

R v Wood (2008)

Question 45

What is classed as involuntary drinking?

Answer 45

Where the consumption of alcohol is due to an addiction

Question 46

What is classed as voluntary drinking?

Answer 46

Where the consumption of alcohol is not due to an addiction

Question 47

What happens when there is both voluntary and involuntary drinking?

Answer 47

The defence of diminished responsibility can still be pleaded but the jury can only consider the effects of the involuntary drinking and they have to decide whether this substantially impaired his mental functioning

Question 48

What is the three stage test for juries in cases where there is voluntary and involuntary drinking?

Answer 48

(1) was D suffering from an ‘abnormality of mental functioning’? - the mere fact that D has ADS would not automatically amount to an abnormality, the nature and extent of the ADS has to be considered
(2) if so, was D’s abnormality caused by the ADS?

(3) if so, was D’s mental responsibility substantially impaired? - to decide this all the evidence including the medical evidence should be considered and other relevant issues to be considered may include:
(a) the extent and seriousness of D’s dependency
(b) the extent to which D’s ability to control his drinking was reduced
(c) whether D was capable of abstinence from alcohol and if so how long
(d) whether D was choosing to get drunk or drink more than usual
(e) D’s pattern of drinking preceding the killing
(f) D’s ability to make decision about ordinary day-to-day matters

Question 49

Which case set out this three stage test?

Answer 49

R v Stewart (2009)

Question 50

What Act reformed the original law of diminished responsibility?

Answer 50

Coroners and Justice Act 2009

Question 51

What was the name of the report put forward by the Law Commission?

Answer 51

‘Murder, Manslaughter and Infanticide’ (2006)

Question 52

In their report what did the Law Commission recommend about the definition of diminished responsibility?

Answer 52

They recommended that the definition of diminished responsibility should be modernised so as to take into account changing medical knowledge

Question 53

How has the change in the phrase of ‘recognised medical condition’ affected the law?

Answer 53

The definition is now flexible enough to allow for future developments in medical knowledge

Question 54

What are 2 areas where difficulties remain in the defence of diminished responsibility?

Answer 54

(1) burden of proof

(2) developmental immaturity

Question 55

What is the problem with the burden of proof in the defence of diminished responsibility?

Answer 55

That the burden of proof should not be on the defendant as this is a major disadvantage and could be a breach of Article 6(2) which states that ‘everyone charged with a criminal offence shall be presumed to be innocent until proven guilty according to law’

Question 56

What did the Law Commission recommend about developmental immaturity?

Answer 56

In its 2006 report the Law Commission recommended that developmental immaturity in those under 18 should also be included within the definition of diminished responsibility

Question 57

Why is it thought that developmental immaturity should be included within the definition?

Answer 57

There is evidence to show that frontal lobes of the brain, which play an important role in the development of self-control and in controlling impulsive behaviour, do not mature until the age of 14

Question 58

What was the governments views on developmental immaturity?

Answer 58

There was no need to include developmental immaturity as a specific cause of diminished responsibility as it is thought that conditions such as learning disabilities and autism cover this but developmental immaturity is not the same as learning disabilities

Question 59

What can be the result of the defence of diminished responsibility not being open to those suffering from developmental immaturity?

Answer 59

Children as young as 10 may be convicted of murder when they are developmentally immature and therefore cannot use the defence of diminished responsibility as they are not suffering from an abnormality of mental functioning

Question 60

What is the definition of loss of control?

Answer 60

A partial defence to a charge of murder which reduces the offence to one of voluntary manslaughter under s 54(1) of the Coroners and Justice Act 2009

Question 61

Is loss of control a partial defence to murder?

Answer 61

Yes

Question 62

What will happen if the D successfully pleads the defence of loss of control?

Answer 62

The charge of murder will be reduced to a charge of manslaughter and this allows discretion in sentencing

Question 63

Which former defence did loss of control replace?

Answer 63

Provocation

Question 64

What are the 3 elements that are essential for the defence of loss of control to be successful?

Answer 64

(1) D must have lost self-control
(2) there must be a qualifying trigger
(3) a person of the same sex and age would have reacted in the same way as D in the same circumstances

Question 65

What is the first matter to be proved for the defence of loss of control?

Answer 65

The first matter to be proved is that the defendant lost his or her self-control when doing the act or acts which caused death

Question 66

Under the old defence of provocation did the loss of control have to be sudden and temporary?

Answer 66

Yes

Question 67

Under the defence of loss of control does the loss of self-control have to be sudden?

Answer 67

No

Question 68

Which act sets out that the D’s loss of self-control does not have to be sudden?

Answer 68

s 54(2) of the Coroners and Justice Act 2009

Question 69

Is a partial loss of self-control sufficient?

Answer 69

No, the D has to have a total loss of self-control

Question 70

Is whether the defendant lost self-control a matter for the jury to decide?

Answer 70

Yes

Question 71

Has there been any statutory or judicial interpretation on the meaning of loss of self-control?

Answer 71

No, not yet

Question 72

What are the 3 potential meanings for loss of self-control?

Answer 72

(1) that the defendant lost their ability to maintain their action in accordance with considered judgement
(2) that the defendant lost their normal powers of reasoning
(3) that the defendant’s behaviour was atypical or out of character and normally they would nor have acted in this way

Question 73

Is a temper, anger or a reaction out of character sufficient for loss of self-control?

Answer 73

No, the defendant must have really ‘lost it’ or ‘snapped’

Question 74

Which case illustrated that being unwell, sleeping badly, tired, depressed and ‘unable to think straight was insufficient to amount to a loss of control’?

Answer 74

R v Jewell (2014)

Question 75

Does there have to be a qualifying trigger for the loss of control to come within the defence?

Answer 75

Yes

Question 76

Which section sets out the qualifying triggers which are permitted?

Answer 76

section 55

Question 77

What are the qualifying triggers which are permitted set out by s 55?

Answer 77

The loss of control was attributable to:

(1) D’s fear of serious violence from V against D or another identified person - s 55(3)

(2) a thing or things done or said which -
(a) constituted circumstances of an extremely grave character
(b) caused D to have a justifiable sense of being seriously wrong s 55(4)

A qualifying trigger can also be a combination of these two matters s 55(5)

Question 78

What is stated in s 55(3)?

Answer 78

This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person

Question 79

Can fear of violence against another person amount to a qualifying trigger?

Answer 79

Yes, D himself does not have to fear violence by V

Question 80

Which case illustrates that fear of violence against another person can amount to a qualifying trigger?

Answer 80

R v Ward (2012)

Question 81

Does the other person who D fears is going to use violence have to be identified?

Answer 81

Yes, because it cannot be a general fear of violence

Question 82

If the D has incited the violence, can D rely of the qualifying trigger of fear of violence?

Answer 82

No

Question 83

Which case illustrates that the D cannot rely on the qualifying trigger of fear of violence if the D incited the violence?

Answer 83

R v Dawes (2013)

Question 84

What are 2 points which have to be shown if D is relying on things said or done?

Answer 84

(1) they were of an ‘extremely grave character’

(2) they caused D to have a justifiable sense of being seriously wronged

Question 85

Should these 2 points on things said or done be judged objectively or subjectively?

Answer 85

Objectively

Question 86

In which case was is observed that the circumstances must be extremely grave and D’s sense of being seriously wronged by them must be justifiable?

Answer 86

R v Hatter (2013)

Question 87

Which 3 cases considered the interpretation of s 55(4)?

Answer 87

(1) R v Zebedee (2012)
(2) R v Hatter (2013)
(3) R v Bowyer (2013)

Question 88

What is an excluded matter?

Answer 88

Sexual infidelity

Question 89

Which act states that sexual infidelity can never be a qualifying trigger?

Answer 89

The Coroners and Justice Act 2009

Question 90

Under the old law, was sexual infidelity allowed as a reason for provocation?

Answer 90

Yes

Question 91

What was the governments view on sexual infidelity?

Answer 91

They felt that allowing a defence to a jealous man who killed his partner because she was having an affair was not acceptable in the 21st century

Question 92

Which case makes it clear that sexual infidelity alone cannot amount to a qualifying trigger?

Answer 92

R v Clinton (2012)

Question 93

In which situation can sexual infidelity be considered in the defence of loss of control?

Answer 93

Sexual infidelity could be considered if it was integral to and formed an essential part of the context where there were other factors which could be qualifying triggers

Question 94

In which case was it confirmed that sexual infidelity alone cannot amount to a qualifying trigger?

Answer 94

R v Dawes (2013)

Question 95

Can the defence of loss of control be allowed if D acted in a ‘considered desire for revenge’?

Answer 95

No

Question 96

How is the standard of self-control measured?

Answer 96

It is necessary for D to show that: ‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way’

Question 97

Is D expected to show a normal degree of tolerance and self-control?

Answer 97

Yes

Question 98

Can the fact that D is particularly hot-tempered be taken into account when looking at the level of self-control expected?

Answer 98

No

Question 99

Can the jury consider any circumstances of D which might have made him or her have less self-control?

Answer 99

No, apart from sex and age

Question 100

When is sex and age considered?

Answer 100

Sex and age can be considered in deciding the level of self-control expected from D

Question 101

Other circumstances of D may be taken into consideration in deciding whether such a ‘normal’ person might have reacted in the same or similar way to D in those circumstances, name 3 circumstances which could be taken into consideration?

Answer 101

(1) depression
(2) epilepsy
(3) any history of sexual abuse

Question 102

Is voluntary intoxication a matter to be considered as part of D’s circumstances?

Answer 102

No

Question 103

In which case did the C of A refuse to consider D’s voluntary intoxication?

Answer 103

R v Asmelash (2013)

Question 104

What is the exception were a D can use the defence of loss of control even though they were intoxicated?

Answer 104

If a sober person in the D’s circumstances, with normal levels of tolerance and self-restraint, might have behaved in the same way as the D when confronted by the qualifying trigger then the defence may still be available

Question 105

What is the situation where an alcohol and/or drug problem can be considered for the loss of control defence?

Answer 105

If the D has a severe problem with alcohol or drugs and was mercilessly taunted about the condition, so that it was a qualifying trigger, then the alcohol or drug problem would then form part of the circumstances for consideration

Question 106

Who considers whether the normal person in the circumstances of D would have reacted as D did?

Answer 106

The jury

Question 107

In provocation, was the judge bound to leave the defence to the jury if there was any evidence that the defendant was provoked to lose his self-control?

Answer 107

Yes

Question 108

What was the Law Commission’s view of putting the defence of loss of control to the jury?

Answer 108

They felt that it did not ‘serve the interests of justice’ and that it would increase the likelihood that an unmeritorious claim may succeed

Question 109

Did the Law Commission recommend that the trial judge should have the task of ‘filtering out purely speculative and wholly unmeritorious claims’?

Answer 109

Yes

Question 110

What task did the Coroners and Justice Act 2009 give trial judges?

Answer 110

Trial judges were given the task of deciding if there was sufficient evidence to leave the defence of loss of control to the jury

Question 111

Why was the defence of provocation replaced by loss of control?

Answer 111

Because there had been many problem with the law on provocation

Question 112

What were the problems with provocation?

Answer 112

(1) the wording of the test
(2) the use of the term ‘reasonable man’
(3) the word ‘characteristics’ was used instead of ‘circumstances’

Question 113

Was provocation a common law defence?

Answer 113

Yes

Question 114

Which act set out the tests for provocation?

Answer 114

The Homicide Act 1957

Question 115

Did the Homicide Act provide a definition for provocation?

Answer 115

No, it did not have a complete definition

Question 116

Why did the fact that provocation did not have a complete definition cause problems?

Answer 116

This created problems as the law in previous cases had to be considered as well as the test in the Homicide Act

Question 117

What was the test for provocation?

Answer 117

The test stated that the jury had to decide whether D was provoked to lose his self-control and if so, whether provocation was enough to make a ‘reasonable man’ do as D did

Question 118

Why was there a problem with the wording of the test?

Answer 118

The use of the term ‘reasonable man’ initially created problems

Question 119

Why did the term ‘reasonable man’ cause problems?

Answer 119

It was initially held that this meant a reasonable adult

Question 120

What was decided in the case of DPP v Camplin in regards to ‘reasonable man’?

Answer 120

In this case D was a 15-year-old boy and it was held that the age and sex of D could be considered and so age and sex are now considered in the loss of control defence

Question 121

What was also held in the case of Camplin?

Answer 121

Other characteristics of D could be considered in regard to the gravity of the provocation of him

Question 122

In the defence of loss of control what has ‘characteristics’ been changed to?

Answer 122

Circumstances

Question 123

Why has there been a changed from ‘characteristics’ to ‘circumstances’?

Answer 123

Circumstances is wider than characteristics

Question 124

Which case shows that the courts have been generous in their interpretation of characteristics?

Answer 124

R v Hill (2008) where D’s history of sexual abuse was allowed to be considered

Question 125

In some ways is the defence of loss of control wider than provocation?

Answer 125

Yes

Question 126

Give 2 examples as to how loss of control is wider than provocation?

Answer 126

(1) loss of control does not have to be sudden

(2) fear of serious violence is a matter which can be considered

Question 127

Is the defence of loss of control also narrower than the defence of provocation in some ways?

Answer 127

Yes

Question 128

Name 3 ways in which the defence of loss of control is narrower than the defence of provocation?

Answer 128

(1) sexual infidelity is no longer allowed as a qualifying trigger
(2) where the D is relying on things said and done then they must be of an extremely grave character
(3) things said and done must also cause D to have a justifiable sense if being seriously wronged

Question 129

Did the reform of the law follow all the Law Commission’s proposals?

Answer 129

No

Question 130

In the defence of provocation the D had to suffer a sudden and temporary loss of self-control and what was the result of this?

Answer 130

This requirement led to some defendants being unable to use the defence of provocation as their loss of control was not sudden

Question 131

Give an example of when this requirement that the loss of self-control must be sudden was a problem?

Answer 131

In battered women cases where the reaction to threats or abuse came some time later and therefore this loss of self-control wouldn’t be considered sufficiently ‘sudden’

Question 132

What did the Law Commission propose about women in abusive relationships?

Answer 132

They proposed removing the loss of self-control criteria completely because if recognised that women in abusive relationships may kill from ‘a combination of anger, fear, frustration and sense of desperation’

Question 133

Did the government follow the Law Commission’s proposal on abusive relationships?

Answer 133

No

Question 134

Which was the only change the government made to the loss of self-control?

Answer 134

That the loss of control need not be sudden

Question 135

Under the new defence of loss of control does sexual infidelity amount to a qualifying trigger?

Answer 135

No

Question 136

What is the effect of there being a very high threshold for the circumstances in which the defence is available where a person loses self-control in response to words or actions?

Answer 136

The effect is to substantially narrow the potential availability of this defence in cases where a loss of control is attributable to things done or said compared to provocation

Question 137

What is the result of there being a very high threshold?

Answer 137

Many cases where the D was able to use the former defence of provocation would not now come within the loss of control defence

Question 138

What matter did the government exclude?

Answer 138

Sexual infidelity - sexual infidelity could not amount to a qualifying trigger in the new defence of loss of control like it did in the former defence of provocation

Question 139

What are the circumstances (except age and sex) of the D which might have made them have less self-control that the jury should consider? (4 answers)

Answer 139

(1) any history of abuse towards the defendant by a partner
(2) any addiction that the defendant may have
(3) any illness or condition such as epilepsy
(4) any external features such as unemployment that may have caused the defendant to be depressed

Question 140

Name some matters which the jury cannot consider?

Answer 140

(1) of the defendant was bad tempered

(2) if the defendant was hot tempered

Question 141

Why can matters such as if the D was bad tempered not be considered?

Answer 141

Because it would affect a person’s capacity for tolerance and self-restraint