Chapter 3 - Voluntary Manslaughter Flashcards
What are the two special defences to murder?
(1) diminished responsibility
(2) loss of control
In which Act was diminished responsibility set and and in which Act was it amended?
Diminished responsibility was set out in the Homicide Act 1957 and was amended by s 52 of the Coroners and Justice Act 2009
What does a partial defence mean?
The defendant is not able to be acquitted completely as instead they just reduce the offence of murder to voluntary manslaughter
Why is it known as VOLUNTARY manslaughter?
Because the defendant had the necessary mens rea for murder
Does the judge have discretion when sentencing someone with voluntary manslaughter?
Yes, the judge does have discretion because they don’t have to impose a mandatory life sentence and can impose a more appropriate sentence
What is the definition of voluntary manslaughter?
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
Before diminished responsibility was amended what was the main problem?
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
Why was the defence of diminished responsibility developed?
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
Under s 52 of the CJA 2009 what were the 3 elements of an abnormality of mentally functioning?
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
In diminished responsibility who is the burden of proof placed on?
The defendant, but the defendant need only prove it on the balance of probabilities
What is the definition of diminished responsibility?
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
When did the law require the defendant to be suffering from an ‘abnormality of mind’?
Before the definition of diminished responsibility was amended by s 52 of the Coroners and Justice Act 2009
In the case of R v Byrne what was the ‘abnormality of mind’ described as?
‘a state of mind so different from that of ordinary human being that the reasonable man would term it abnormal’
Was the case of R Byrne decided on the old definition of diminished responsibility?
Yes
What is the test for abnormality of mental functioning?
D’s mental functioning was so different from that of ordinary human beings that the reasonable man would term it abnormal
What must the abnormality of mental functioning arise from?
A recognised medical condition
Does ‘recognised medical condition’ include both psychological and physical conditions?
Yes
What are some examples of psychological recognised medical conditions which affect mental functioning?
(1) depressive illness
(2) paranoia
(3) Battered Woman’s Syndrome
What are some examples of physical recognised medical conditions that’s affects mental functioning?
(1) epilepsy
(2) sleep disorders
(3) diabetes
Must there be medical evidence presented at trial proving the D’s recognised mental condition?
Yes
What affect must the abnormality of mental functioning have of the D’s mental responsibility?
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
What was ‘substantial’ held to mean in the case of R v Lloyd?
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
When can a judge decide not to put forward the question of whether the D’s mental functioning was substantially impaired?
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
Was the matter of substantial impairment decided in the cases of R v Byrne and R v Lloyd before the law was amended?
Yes
What was held in the case of R v Golds about substantial impairment?
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
What are the 3 abilities that must be substantially impaired set out by the Homicide Act?
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
What 2 situations does ‘ability to understand the nature of his conduct’ cover?
(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
What does the ‘ability to form a rational judgement’ mean?
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
What are 3 conditions in which a D may not be able to form a rational judgement?
(1) paranoia
(2) schizophrenia
(3) Battered Women’s Syndrome
What was a case where the D was unable to ‘exercise self-control’?
R v Byrne
Why was Byrne unable to ‘exercise self-control’?
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
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?
Yes
What Act stated that there must now be some causal connection between D’s abnormality of mental functioning and the killing?
This was introduced by the Coroners and Justice Act 2009
Must the abnormality of mental functioning be the only factor which caused D to do or be involved in the killing?
No
Must the abnormality of mental functioning be a ‘significant factor’ which caused D to do or be involved in the killing?
Yes
What are the 3 possibilities to consider when the D was intoxicated at the time of the killing? (DR)
(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
Can intoxication on its own be used as the basis of a defence of diminished responsibility?
No
Can the abnormality of mental functioning be due to intoxication?
No, the abnormality of mental functioning must be due to a recognised medical condition
Which case confirmed that an abnormality of mental functioning cannot be due to intoxication?
R v Dowds (2012)
Which cases illustrates a situation where the D was intoxicated and has a pre-existing abnormality of mental functioning?
R v Dietschmann (2003)
What is the recognised medical condition which is linked to alcohol?
Alcohol Dependency Syndrome (ADS)
What is Alcohol Dependency Syndrome?
A condition which means that a person cannot control their drinking
Is alcohol dependency syndrome sufficient for diminished responsibility?
Yes
What is the leading case on where intoxication is due to an addiction?
R v Wood (2008)
What is classed as involuntary drinking?
Where the consumption of alcohol is due to an addiction
What is classed as voluntary drinking?
Where the consumption of alcohol is not due to an addiction
What happens when there is both voluntary and involuntary drinking?
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
What is the three stage test for juries in cases where there is voluntary and involuntary drinking?
(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
Which case set out this three stage test?
R v Stewart (2009)
What Act reformed the original law of diminished responsibility?
Coroners and Justice Act 2009
What was the name of the report put forward by the Law Commission?
‘Murder, Manslaughter and Infanticide’ (2006)
In their report what did the Law Commission recommend about the definition of diminished responsibility?
They recommended that the definition of diminished responsibility should be modernised so as to take into account changing medical knowledge
How has the change in the phrase of ‘recognised medical condition’ affected the law?
The definition is now flexible enough to allow for future developments in medical knowledge
What are 2 areas where difficulties remain in the defence of diminished responsibility?
(1) burden of proof
(2) developmental immaturity
What is the problem with the burden of proof in the defence of diminished responsibility?
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’
What did the Law Commission recommend about developmental immaturity?
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
Why is it thought that developmental immaturity should be included within the definition?
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
What was the governments views on developmental immaturity?
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
What can be the result of the defence of diminished responsibility not being open to those suffering from developmental immaturity?
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
What is the definition of loss of control?
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
Is loss of control a partial defence to murder?
Yes
What will happen if the D successfully pleads the defence of loss of control?
The charge of murder will be reduced to a charge of manslaughter and this allows discretion in sentencing
Which former defence did loss of control replace?
Provocation
What are the 3 elements that are essential for the defence of loss of control to be successful?
(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
What is the first matter to be proved for the defence of loss of control?
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
Under the old defence of provocation did the loss of control have to be sudden and temporary?
Yes
Under the defence of loss of control does the loss of self-control have to be sudden?
No
Which act sets out that the D’s loss of self-control does not have to be sudden?
s 54(2) of the Coroners and Justice Act 2009
Is a partial loss of self-control sufficient?
No, the D has to have a total loss of self-control
Is whether the defendant lost self-control a matter for the jury to decide?
Yes
Has there been any statutory or judicial interpretation on the meaning of loss of self-control?
No, not yet
What are the 3 potential meanings for loss of self-control?
(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
Is a temper, anger or a reaction out of character sufficient for loss of self-control?
No, the defendant must have really ‘lost it’ or ‘snapped’
Which case illustrated that being unwell, sleeping badly, tired, depressed and ‘unable to think straight was insufficient to amount to a loss of control’?
R v Jewell (2014)
Does there have to be a qualifying trigger for the loss of control to come within the defence?
Yes
Which section sets out the qualifying triggers which are permitted?
section 55
What are the qualifying triggers which are permitted set out by s 55?
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)
What is stated in s 55(3)?
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
Can fear of violence against another person amount to a qualifying trigger?
Yes, D himself does not have to fear violence by V
Which case illustrates that fear of violence against another person can amount to a qualifying trigger?
R v Ward (2012)
Does the other person who D fears is going to use violence have to be identified?
Yes, because it cannot be a general fear of violence
If the D has incited the violence, can D rely of the qualifying trigger of fear of violence?
No
Which case illustrates that the D cannot rely on the qualifying trigger of fear of violence if the D incited the violence?
R v Dawes (2013)
What are 2 points which have to be shown if D is relying on things said or done?
(1) they were of an ‘extremely grave character’
(2) they caused D to have a justifiable sense of being seriously wronged
Should these 2 points on things said or done be judged objectively or subjectively?
Objectively
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?
R v Hatter (2013)
Which 3 cases considered the interpretation of s 55(4)?
(1) R v Zebedee (2012)
(2) R v Hatter (2013)
(3) R v Bowyer (2013)
What is an excluded matter?
Sexual infidelity
Which act states that sexual infidelity can never be a qualifying trigger?
The Coroners and Justice Act 2009
Under the old law, was sexual infidelity allowed as a reason for provocation?
Yes
What was the governments view on sexual infidelity?
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
Which case makes it clear that sexual infidelity alone cannot amount to a qualifying trigger?
R v Clinton (2012)
In which situation can sexual infidelity be considered in the defence of loss of control?
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
In which case was it confirmed that sexual infidelity alone cannot amount to a qualifying trigger?
R v Dawes (2013)
Can the defence of loss of control be allowed if D acted in a ‘considered desire for revenge’?
No
How is the standard of self-control measured?
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’
Is D expected to show a normal degree of tolerance and self-control?
Yes
Can the fact that D is particularly hot-tempered be taken into account when looking at the level of self-control expected?
No
Can the jury consider any circumstances of D which might have made him or her have less self-control?
No, apart from sex and age
When is sex and age considered?
Sex and age can be considered in deciding the level of self-control expected from D
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?
(1) depression
(2) epilepsy
(3) any history of sexual abuse
Is voluntary intoxication a matter to be considered as part of D’s circumstances?
No
In which case did the C of A refuse to consider D’s voluntary intoxication?
R v Asmelash (2013)
What is the exception were a D can use the defence of loss of control even though they were intoxicated?
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
What is the situation where an alcohol and/or drug problem can be considered for the loss of control defence?
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
Who considers whether the normal person in the circumstances of D would have reacted as D did?
The jury
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?
Yes
What was the Law Commission’s view of putting the defence of loss of control to the jury?
They felt that it did not ‘serve the interests of justice’ and that it would increase the likelihood that an unmeritorious claim may succeed
Did the Law Commission recommend that the trial judge should have the task of ‘filtering out purely speculative and wholly unmeritorious claims’?
Yes
What task did the Coroners and Justice Act 2009 give trial judges?
Trial judges were given the task of deciding if there was sufficient evidence to leave the defence of loss of control to the jury
Why was the defence of provocation replaced by loss of control?
Because there had been many problem with the law on provocation
What were the problems with provocation?
(1) the wording of the test
(2) the use of the term ‘reasonable man’
(3) the word ‘characteristics’ was used instead of ‘circumstances’
Was provocation a common law defence?
Yes
Which act set out the tests for provocation?
The Homicide Act 1957
Did the Homicide Act provide a definition for provocation?
No, it did not have a complete definition
Why did the fact that provocation did not have a complete definition cause problems?
This created problems as the law in previous cases had to be considered as well as the test in the Homicide Act
What was the test for provocation?
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
Why was there a problem with the wording of the test?
The use of the term ‘reasonable man’ initially created problems
Why did the term ‘reasonable man’ cause problems?
It was initially held that this meant a reasonable adult
What was decided in the case of DPP v Camplin in regards to ‘reasonable man’?
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
What was also held in the case of Camplin?
Other characteristics of D could be considered in regard to the gravity of the provocation of him
In the defence of loss of control what has ‘characteristics’ been changed to?
Circumstances
Why has there been a changed from ‘characteristics’ to ‘circumstances’?
Circumstances is wider than characteristics
Which case shows that the courts have been generous in their interpretation of characteristics?
R v Hill (2008) where D’s history of sexual abuse was allowed to be considered
In some ways is the defence of loss of control wider than provocation?
Yes
Give 2 examples as to how loss of control is wider than provocation?
(1) loss of control does not have to be sudden
(2) fear of serious violence is a matter which can be considered
Is the defence of loss of control also narrower than the defence of provocation in some ways?
Yes
Name 3 ways in which the defence of loss of control is narrower than the defence of provocation?
(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
Did the reform of the law follow all the Law Commission’s proposals?
No
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?
This requirement led to some defendants being unable to use the defence of provocation as their loss of control was not sudden
Give an example of when this requirement that the loss of self-control must be sudden was a problem?
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’
What did the Law Commission propose about women in abusive relationships?
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’
Did the government follow the Law Commission’s proposal on abusive relationships?
No
Which was the only change the government made to the loss of self-control?
That the loss of control need not be sudden
Under the new defence of loss of control does sexual infidelity amount to a qualifying trigger?
No
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?
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
What is the result of there being a very high threshold?
Many cases where the D was able to use the former defence of provocation would not now come within the loss of control defence
What matter did the government exclude?
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
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)
(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
Name some matters which the jury cannot consider?
(1) of the defendant was bad tempered
(2) if the defendant was hot tempered
Why can matters such as if the D was bad tempered not be considered?
Because it would affect a person’s capacity for tolerance and self-restraint
