Homicide

Question 1

A defendant will be criminally liable for voluntary manslaughter if the defendant:

Answer 1

Committed the actus reus of murder: The defendant unlawfully killed another human being
under the Queen’s peace; and
* Committed the mens rea of murder: The defendant committed the actus reus with malice
aforethought, meaning intention to kill or intention to cause grievous bodily harm; and
* Can rely on one of the special defences to murder: Loss of control or diminished responsibility.

Question 2

1. Homicide overview

Answer 2

Homicide is an umbrella term used to describe a set of offences where the defendant has killed a victim. Homicide includes murder, voluntary manslaughter and involuntary manslaughter.

Question 3

Voluntary manslaughter

Answer 3

This is where the defendant has satisfied the actus reus and mens
rea of murder, but murder conviction is reduced to voluntary manslaughter by way of diminished responsibility or loss of control.

Question 4

Involuntary manslaughter

Answer 4

This is where the defendant has killed the victim, but lacks the
mens rea of murder.

Question 5

Loss of control and diminished responsibility

Answer 5

The defendant will be criminally liable for voluntary manslaughter rather than murder, so these are partial rather than complete defences, in that the defendant is not acquitted. The defendant is not given a
mandatory life sentence but the judge has discretion in sentencing

Question 6

Diminished Responsibility

Answer 6

In contrast, with diminished responsibility the defence must prove on the balance of probabilities that the partial defence applies - one of the few instances in criminal law where the burden of proof rests with the defence.

Question 7

Diminished Responsibility

Answer 7

The defendant will be
criminally liable for voluntary manslaughter rather than murder, so these are partial rather than
complete defences, in that the defendant is not acquitted

Question 8

Judge’s Discretion

Answer 8

The defendant is not given a
mandatory life sentence but the judge has discretion in sentencing. It is worth noting that once the defence of loss of control is raised it is up to the prosecution to prove beyond reasonable doubt that the partial defence does not apply

Question 9

Legal Analysis of a Client-Based Problem

Answer 9

• Has the defendant unlawfully killed another human under the Queen’s peace with intention to
  kill or intention to cause grievous bodily harm?
• If not, the defendant is not liable for murder.
• If so, consider the next question.

Question 10

Legal Analysis of a Client-Based Problem

Answer 10

• Can the defendant rely on a complete defence such as self-defence? We consider complete
  defences first, as the defendant will be acquitted if successful.
• If so, the defendant is not liable for murder.
• If not, consider the next question.

Question 11

Legal Analysis of a Client-Based Problem

Answer 11

• Can the defendant rely on the partial defence of loss of control or diminished responsibility?
• If not, the defendant is liable for murder.
• If so, the defendant is liable for voluntary manslaughter.

Question 12

2. Voluntary manslaughter: Diminished Responsibility

Answer 12

Diminished responsibility is one of the two special defences to murder. ‘Special defence’ means
diminished responsibility can only be used as a defence to murder, no other offences.

Question 13

Partial Defense

Answer 13

Diminished responsibility is a partial defence, meaning if it is successful, the defendant is not acquitted but convicted of a lesser offence, known as voluntary manslaughter (s2(3) Homicide Act 1957 (HA)). This means that the judge will have discretion in sentencing and the defendant will
avoid the mandatory life sentence handed down to those convicted of murder (Murder (Abolition of Death Penalty) Act 1965).

Question 14

Burden falls upon the defence

Answer 14

The burden falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility (s 2(2) HA). Diminished responsibility is not available as a defence to a charge of attempted murder (R v Campbell [1997] Crim LR 495).

Question 15

Section 2(1) HA 1957 (as amended by s 52 CJA 2009)

Answer 15

Section 2(1) Homicide Act 1957 (as amended by the s52 CJA 2009) provides:
(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder
if D was suffering from an abnormality of mental functioning which-
(a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of the things mentioned in
subsection (1A), and
(c) provides an explanation for D’s 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.

Question 16

Abnormality of mental functioning

Answer 16

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an
explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to
carry out that conduct.

Question 17

2.2 An ‘abnormality of mental functioning’

Answer 17

Firstly, under s 2(1), there must be an ‘abnormality of mental functioning’.
The Coroners and Justice Act 2009 (CJA) made modest reforms to the language of diminished responsibility, for example requiring an abnormality of mental functioning rather than an abnormality of mind.

Question 18

Key case: R v Byrne [1960] 2 QB 396

Answer 18

In the absence of any statutory definition, guidance on the meaning of abnormality of mental
functioning is taken from this case. A defendant would be suffering from an abnormality of the mind if they had a ‘state of mind so different from that of ordinary human beings that the
reasonable man would term it abnormal’.

Question 19

2.3 Arising from a recognised medical condition

Answer 19

Secondly, under s 2(1)(a), the abnormality must arise from a recognised medical condition.
This clause has hugely simplified the defence but it is not completely straightforward. A defendant might be suffering from an undiagnosed recognised medical condition at the time of the killing which will be sufficient to satisfy this element.

Question 20

Not enough to be suffering from abnormality

Answer 20

It is not enough to be suffering from an abnormality of mental functioning and have a recognised medical condition. The abnormality must be caused by the recognised medical condition and not by something else, such as hatred, jealousy or bad temper. Alcohol Dependency Syndrome (ADS) is a recognised medical condition

Question 21

Key case: R v Dowds [2011] EWCA Crim 281

Answer 21

Facts: The defendant, a binge drinker, stabbed his partner after a night of heavy drinking. He
tried to run the defence of diminished responsibility on the basis that he was suffering from a
recognised medical condition, namely ‘Acute Voluntary Intoxication’. Dowds was not arguing that
he was an alcoholic and there was no evidence to suggest it.

Question 22

s52 CJA

Answer 22

Dowds argued that the changes
made to the defence by s52 CJA meant that it was possible to raise the defence of diminished
responsibility based on voluntary intoxication because such intoxication is recognised as a
medical condition in both the World Health Organization’s International and Statistical
Classification of Diseases (ICD) and the American Medical Associations Diagnostic and Statistical
Manual (DSM).

Question 23

Key case: R v Dowds [2011] EWCA Crim 281 Judgement

Answer 23

Held: The Court of Appeal noted that both the ICD and DSM recognised a number of medical
conditions that would give rise to significant problems if raised as issues in legal cases, including
‘unhappiness’, ‘irritability and anger’, and ‘intermittent explosive disorder’. However, they also
noted that the DSM itself, in its introduction, warned against a rigid application of the categories
of medical condition to legal issues.

Question 24

Long history of legal principles

Answer 24

It also briefly reviewed the long history of legal principles that
showed, with exceptions, that the law generally does not allow voluntary intoxication to afford
any defence to criminal liability. They said that the changes brought about by the CJA to the
defence were recommended by the Law Commission, who nevertheless observed that generally
the law as it formerly read worked well and no major changes were required. Intoxication cannot give rise to a criminal defense.

Question 25

2.4 Substantial impairment of Defendant’s ability

Answer 25

Thirdly, under s 2(1)(b), the abnormality of mental functioning must have substantially impaired
the defendant’s ability to do one of the things stated within s 2(1A).
These three things are: to understand the nature of D’s conduct, to form a rational judgment and to exercise self-control.

Question 26

Key case: R v Golds [2016] UKSC 61

Answer 26

The meaning of the word ‘substantial’ has been considered by the Supreme Court. It held that ‘substantial’ should have its ordinary meaning and therefore there is generally no need to direct the jury on the meaning. However, if the court felt it was necessary to provide further guidance
then the judge should explain that ‘substantial’ means something greater than ‘more than merely trivial’.

Question 27

2.4.1 To understand the nature of D’s conduct

Answer 27

Law Commission, Report No 304 provided the following example.
A boy aged 10 who has been left to play very violent video games for hours on end for much of his
life, loses his temper and kills another child when the child attempts to take a game from him. When interviewed, he shows no real understanding that, when a person is killed they cannot
simply be later revived, as happens in the games he has been continually playing.

Question 28

2.4.2 To form a rational judgment

Answer 28

A woman suffering from post-traumatic stress disorder, following violent abuse suffered at her
husband’s hands, comes to believe that only burning her husband to death will rid the world of his
sins.
A mentally sub-normal boy believes that he must follow his older brother’s instructions, even when
they involve taking part in a killing. He says: ‘I wouldn’t dream of disobeying my brother and he
would never tell me to do something if it was really wrong’.
A depressed man who has been caring for many years for a terminally ill spouse kills her, at her
request. He found it progressively more difficult to stop her repeated requests dominating his
thoughts.

Question 29

2.4.3 To exercise self-control

Answer 29

Law Commission, Report No 304 provided the following example.
A man says that sometimes the devil takes control of him and implants in him a desire to kill, a
desire that must be acted on before the devil will go away.
The question of whether the defendant’s ability is substantially impaired is one of fact and is for
the jury to decide, however, guidance can be taken from the above examples. The above
definitions tend to allow the jury a wide discretion and much will depend on the extent to which
the jury feel the defendant is morally culpable.

Question 30

2.4.4 Provides an explanation

Answer 30

Finally, under s 2(1)(c), the abnormality of mental functioning must provide an explanation for the defendant’s acts and omissions in doing or being a party to the killing. The defendant’s act will provide an explanation for D’s conduct if it causes, or is a significant
contributory factor in causing, D to carry out that conduct (s 2(1B)).

Question 31

Causal link

Answer 31

Therefore, a causal link between the abnormality of mental functioning arising from a recognised medical condition and the killing must be established. It is clear from the wording of this section that it need not be the only cause. The defence can still operate, even if the jury consider that alcohol may have played a part (Dietschmann [2003] 1 AC 1209). Another section will cover this in more detail.

Question 32

2.4.5 Medical experts

Key case: R v Brennan [2014] EWCA Crim 2387

Answer 32

Facts: In this case Brennan had been convicted of murder despite a psychiatrist’s evidence that
all the elements of the test had been satisfied. Her evidence had not been contradicted.

Held: Davies LJ, in overturning the conviction, held that a judge should withdraw the murder
charge from the jury when either the expert medical evidence is uncontested or when there is no
other evidence which is capable of rebutting the medical evidence. It was held to be legitimate
and helpful for expert psychiatrists to give evidence.
All four of the elements of the defence are concerned with psychiatric matters.

Question 33

Four elements of diminished responsibility

Answer 33

• D must have an abnormality of mental functioning (s 2(1)), meaning ‘state of mind so
  different from that of ordinary human beings that the reasonable man would term it
  abnormal’ (R v Byrne).

Question 34

2.5 Summary

Answer 34

Once the D has fulfilled the actus reus and mens rea of murder, D’s conviction can be reduced
to voluntary manslaughter (s 2(3)), if D proves, on the balance of probabilities, that they were
acting under diminished responsibility (s 2(2)). Medical evidence will be helpful for all elements of the defence (R v Brennan).

Question 35

Abnormality of mental functioning must

Answer 35

◦ Arise from a recognised medical condition (s 2(1)(a)) which can be diagnosed or not at
the time of the killing. D must not be acting out of hatred, jealousy or bad temper.
◦ Have substantially impaired (something greater than ‘more than merely trivial’, R v
Golds) the defendant’s ability (s 2(1)(b)) to understand the nature of D’s conduct, form
a rational judgment and/or exercise self-control (s 2(1A)).
◦ Provide an explanation for D’s conduct (s 2(1)(c)), even if it is not the only cause (s 2(1B)
and R v Dietschmann).

Question 36

When diminished responsibility is not a defence

Answer 36

• Diminished responsibility is not available for attempted murder (R v Campbell).

Question 37

3 Voluntary manslaughter: Loss of control

Answer 37

The Law Commission published a report in 2006 proposing a wholesale restructuring of the law of homicide. The government’s response was the Coroners and Justice Act 2009 (CJA). This made
significant changes to the special defences to murder. The defence of provocation was abolished
and was replaced with ‘loss of control’.

Question 38

3.1 Loss of control introduction

Answer 38

Loss of control is a partial defence to murder. The burden of proof rests with the prosecution once the issue is raised (s 54(5) CJA).
The prosecution need to prove that only one of the components is absent for the defence to fail,
this is clear from the statute and was confirmed in the first case on the new defence (R v Clinton,
Parker and Evans [2012] EWCA Crim 2).

Question 39

Whether the defence can be put before the jury

Answer 39

It will be a matter for the judge to decide whether the defence can be put before the jury (s 54(6)).
The power of the judge to remove the issue of loss of control from the jury may prove to be a
significant change from the old law of provocation (R v Jewell [2014] EWCA Crim 414).

Question 40

Successful Defense

Answer 40

If this defence is successful, the conviction is reduced from murder to voluntary manslaughter, which means that the defendant will avoid the mandatory life sentence (s 54(7)). As some aspects of the defence are yet to be defined and tested by the courts, you will be expected to rely on your statutory interpretation and analysis skills.

Question 41

3.1.1 The three key requirements of the loss of control defence

Answer 41

Section 54(1) Coroners and Justice Act 2009 provides:
Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of
murder if—
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of
self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) 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 in a similar way to D.

Question 42

3.2 There must be a loss of self-control

Answer 42

Firstly, under s 54(1)(a), the defendant’s act or omission in killing, must have resulted from a loss of self-control.

Question 43

Key case: R v Clinton, Parker and Evans [2012] EWCA Crim 2

Answer 43

The Court of Appeal made it clear that this defence had replaced the old law on provocation and that application of this defence should be made with reference to the Coroners and Justice Act 2009. The judges were of the opinion that the old common law is now largely irrelevant.

It seems that the use of old case law is now very limited. It can be referred to, but any use must be justified. The element of loss of self-control can be assessed by looking at its literal meaning. As under the old law, whether the defendant actually lost control is a question for the jury, taking into account all of the evidence.

Question 44

Key case: R v Richens [1993] 4 All ER 877

Answer 44

Loss of self-control was a necessary part of the old law and reference can be made to the legal principle from this case, which stated that, although there need not be a complete loss of control so that defendants do not know what they are doing, defendants must be unable to restrain themselves. A mere loss of temper would not be enough.

Question 45

The loss of control need not be sudden (s 54(2)).

Answer 45

The defence will be lost should it be established that the defendant was acting out of a ‘considered desire for revenge’ (s 54(4)). The judges in R v Clinton directed that this should be considered within this aspect of the defence.

Question 46

Key case: R v Ahulwalia [1992] 4 All ER 889

Answer 46

A case on the old law, where it was noted that the jury in deciding whether there was a loss of
self-control should consider the length of any delay between the provocation and the killing and it
was noted that the longer the delay, the less likely it was that the defendant had lost self-control.
This observation would apply to the loss of control defence.

Question 47

3.3 Qualifying trigger

Answer 47

Secondly, under s 54(1)(b), there must be a qualifying trigger.
The ‘qualifying trigger’ that must be identified as the cause of the loss of control is defined in s55.
Lord Judge in R v Clinton, made it clear that it would be more difficult to raise the loss of control
defence than the old defence:

Question 48

Section 55(3)

Answer 48

In section 55(3) it is not enough that the defendant is fearful of violence. He must fear serious
violence. In subsection (4)(a) the circumstances must not merely be grave, but extremely so.

Question 49

Subsection (4)(b)

Answer 49

In subsection (4)(b) it is not enough that the defendant has been caused by the circumstances to feel a sense of grievance. It must arise from a justifiable sense not merely that he has been
wronged, but that he has been seriously wronged. By contrast with the former law of
provocation, these provisions, as Mr Michael Birnbaum QC, on behalf of Clinton submitted,
have raised the bar.

Question 50

Section 55 CJA 2009

Answer 50

(1) This section applies for the purposes of section 54.
(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(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.
(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which-
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged

Question 51

Section 55 CJA 2009

Answer 51

(5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a
thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited
the thing to be done or said for the purpose of providing an excuse to use violence […]

Question 51

3.3.1 Fear trigger - fear of serious violence

Answer 51

The first trigger (s 55(3)) ‘attributes’ the loss of self-control to the defendant’s fear of serious
violence. There is no specific direction on the way in which the defendant should fear serious
violence; this would suggest that this defence will have a broader application than it previously
did.

Question 51

Dawes, Hatter and Bowyer [2013] EWCA Crim 322

Answer 51

In Dawes, Hatter and Bowyer [2013] EWCA Crim 322, the Court of Appeal directed that,
despite the fact that there may be factual overlaps, loss of control and self-defence are two
distinct defences. The court highlighted some important differences: for example, self-defence requires only that the defendant fears violence, whereas the s 55(3) requires the defendant to fear serious violence.

Question 51

Design of the trigger

Answer 51

It seems that in part, this ‘trigger’ is designed to cover a situation where a jury might conclude
that the defendant was justified in using defensive force, but that the level of force used was
unreasonable, thus preventing the defence of self-defence from operating. D cannot rely on the fear trigger if D incited it as an excuse to use violence (s 55(6)(a)). This will be covered in more detail in another element.

Question 51

Key case: R v Martin (Anthony) [2002] Crim LR 136

Answer 51

Mr Martin, having suffered a number of burglaries at his isolated farmhouse in Norfolk, decided to take matters into his own hands. He had placed various security measures/booby traps around his property and then shot at two suspected burglars, who had entered his farmhouse during the night, with his pump-action shot gun. One of the victims (16-year-old Fred Barras) died. Mr Martin pleaded self-defence at his trial, but was unsuccessful due to the excessive force used. Defence may now be available under loss of control using a fear of serious violence as a qualifying trigger.

Question 52

3.3.2 Anger trigger: Second qualifying trigger

Answer 52

The second qualifying trigger, informally referred to as the anger trigger, is a more nebulous
concept and has three parts to it:
* Things said and/or done;
* That constitute circumstances of an extremely grave nature; and
* That caused D to have a justifiable sense of being seriously wronged. None of these elements are defined in the CJA 2009. Although we have clear direction that both the ss 55(4)(a) and (b) require objective evaluation, confirmed in Clinton and Dawes.

Question 53

3.3.3 Things said or done (or both)

Answer 53

Limitations
D cannot rely on the anger trigger if:
* D incited it as an excuse to use violence (s 55(6)(b)); or
* The thing said/done constituted sexual infidelity (s 55(6)(c)).
This will be covered in more detail in another section.

Question 54

Things said or done (or both)

Answer 54

This was a requirement under the old law, and confirms that there must be something actually said or done. Therefore, circumstances on their own will not be enough.

Question 55

Key case: R v Acott [1996] Crim LR 664

Answer 55

Lord Steyn made it clear, by way of example, that if a person was driving in slow-moving traffic caused by snow and lost self-control, they would not be able to rely on this defence.

Question 56

3.3.4 Circumstances of an extremely grave nature

Answer 56

The phrase, ‘constitutes circumstances of an extremely grave nature’ is not defined in the CJA. What we do know is that the presence of this phrase must be determined objectively, and these circumstances should not be established easily

Question 57

Lord Judge in R v Clinton:

Answer 57

Jonathan Herring says he believes:
[…] the circumstances facing the D must have been unusual, and not part of the normal trials
and disappointments of life. The circumstances could not be events which ordinary people
would regard as trivial. So being jostled in a supermarket, having someone queue jump in front
of you, or being sworn at would not amount, in themselves, to grave circumstances.

Question 58

3.3.5 Caused D to have a justifiable sense of being seriously wronged

Answer 58

Reference has been made to the explanatory notes for some guidance on the meaning of the phrase, ‘caused D to have a justifiable sense of being seriously wronged’. Although the phrase is not defined, the notes do emphasise that the issue of whether this sense of being seriously wronged is justifiable is an objective question. This has since been confirmed in R v Clinton.

Question 59

Dennis Baker and Lucy Zhao (2012) 76 Journal of Criminal
Law 254

Answer 59

Similarly, the word “justifiable” in s 55(4)(b) of the Coroners and Justice Act 2009 means that the defendant’s sense of being seriously wronged must be one that accords with
contemporary society’s norms and values. In other words, it must be shown that a normal
person in contemporary Britain would have felt seriously wronged in the same situation.

Question 60

Objective trigger

Answer 60

Additionally, he may have in fact felt seriously wronged by his daughter’s conduct, but this will not qualify as an ‘objective’ trigger for his loss of control. The fact he ‘personally’ felt wronged and ‘subjectively’ viewed the
circumstances as being of an extremely grave character is irrelevant as far as the new defence is concerned.

Question 61

Normal/Reasonable Person

Answer 61

A normal person communally situated in contemporary Britain would not
consider discovering his adult daughter dating someone of a different race or religious faith as constituting extremely grave circumstances. A normal relationship between a consenting adult couple does not constitute extremely grave circumstances, and a normal parent in contemporary Britain would not be unjustifiably wronged in an objective sense by having to deal with his or her adult daughter’s decision to choose her own partner.

Question 62

Parent arrives at a kindergarten

Answer 62

Compare this with the situation where a parent arrives at a kindergarten to pick up her child and finds a paedophile teacher molesting her child. Clearly, the latter would constitute objective provocation when measured against contemporary standards in Britain. A normal
parent communally situated in contemporary society would have a justifiable sense of being seriously wronged by such conduct.

Question 63

If it were ‘said’ to him

Answer 63

It would be enough if it were ‘said’ to him or her that there is a teacher in the building who has just been caught molesting your toddler. For example, if the mother uses
her smartphone to inform her husband, who is waiting outside the kindergarten, that she has just found a paedophile teacher molesting their child, the husband could raise the defence if what has been ‘said’ to him (ie ‘I found the teacher molesting our child’) causes him to lose
control and run into the kindergarten and kill the paedophile teacher. The husband is provoked
by the paedophile’s act, even though he did not witness it. Second-hand word of such an act would have the same objective provocative effect as witnessing it.

Question 64

3.4 A normal person test

Answer 64

Finally, under, s 54(1)(c):
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 in a similar way to D.

Question 65

Section 54(3) provides

Answer 65

In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s
circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint

Question 66

There are two steps. The jury will have to assess:

Answer 66

(a) The gravity of the qualifying trigger to a person in the defendant’s circumstances; then
(b) Whether as a result of that trigger a normal person might have done what the defendant did or something similar.

Question 67

Key case: DPP v Camplin [1978] AC 705 (The gravity of the qualifying trigger)

Lord Diplock:

Answer 67

To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however
equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. The test for determining the proportionality of D’s reaction remains a wholly-objective one.

Question 68

Characteristics or circumstances likely to be excluded in assessing the normal person’s capacity
for tolerance and self-restraint:

Answer 68

• Bad temper
• Intoxication
• Extreme sensitivity
• Post-traumatic stress disorder (R v Rejmankski)
• Personality disorder (R v Rejmankski)

Question 69

There are three categories to consider:

Answer 69

• Category one: Circumstances and characteristics will be taken into account under s 54(1)(c);
• Category two: Circumstances and characteristics which will be excluded by s 54(3); and
• Category three: Which consists of circumstances or characteristics which will be considered in assessing the magnitude of the qualifying trigger, but ignored in assessing how much
  tolerance and self-restraint the normal man would have. See the R v Rejmanski case below.

Question 70

R v Clinton Lord Judge

Answer 70

Pointed out that as the statute requires the jury to take into account all the circumstances, they could find themselves in a situation where they are expected to ignore sexual infidelity when considering the qualifying trigger but could take it into account here. If there is evidence that the jury feel is relevant to the overall evaluation, the courts have confirmed that the jury can take sexual infidelity into consideration, regardless of whether it goes towards
the gravity of the taunt, provided it does not only go towards the capacity to exercise self-restraint.

Question 71

Key case: R v Rejmanski [2017] EWCA Crim 2061

Answer 71

If a mental disorder has a relevance to the defendant’s conduct other than a bearing on is general capacity for tolerance or self-restraint, it is not excluded by subs. (3), and the jury will be entitled to take it into account as one of the defendant’s circumstances under s54(1)(c).

Question 72

How mental disorder is relevant

Answer 72

However, it is necessary to identify with some care how the mental disorder is said to be relevant as one of the defendant’s circumstances. It must not be relied upon to undermine the principle that the conduct of the defendant is to be judged against “normal” standards, rather
than the abnormal standard of an individual defendant […]

Question 73

Key case: R v Wilcocks [2016] EWCA Crim 2043

Answer 73

A case where the victim had taunted the defendant about his failed suicide attempts, the Court of Appeal approved the trial judge, Holroyde J’s direction: If and insofar as you conclude a personality disorder reduced his general capacity for tolerance and self-restraint, that would not be a relevant circumstance when you are considering the defence of loss of control.

Question 74

Assistance in loss of control

Answer 74

If you thought that CW suffered from a personality disorder which made him unusually likely to become angry and aggressive
at the slightest provocation, that would of course be relevant to diminished responsibility but it
could not assist him in relation to loss of control

Question 75

Caused in suicide attempt

Answer 75

But if you thought that a personality disorder
had caused him to attempt suicide, then you would be entitled to take into account as one of his circumstances the effect on him of being taunted that he should have killed himself.

Question 76

3.5 Summary

Answer 76

Once the D has fulfilled the actus reus and mens rea of murder, D’s conviction can be reduced to voluntary manslaughter (s 54(7)), if the prosecution fail to disprove, beyond reasonable doubt,
that the defendant was acting under a loss of control (s 54(5)).

Question 77

Loss of control has three aspects to it:

Answer 77

• D lost self-control. This does not have to be complete but D must be unable to exercise selfrestraint (R v Richens).
• D acted as a result of a qualifying trigger:

Question 78

Types of Triggers

Answer 78

• Fear trigger: Defendant fears serious violence; and/or
• Anger trigger:
  ◦ Things said and/or done;
  ◦ That constitute circumstances of an extremely grave nature; and
  ◦ That causes D a justifiable sense of being seriously wronged.
• A normal person might have done the same or a similar thing. The jury will have to assess:
  ◦ The gravity of the qualifying trigger to a person in the defendant’s circumstances; then
  ◦ Whether as a result of that trigger a normal person might have done what the
  defendant did or something similar.

Question 79

4. Voluntary manslaughter: Loss of control - limitations

Answer 79

Aside from the fact that loss of control can only be used as a special defence to murder, there are some clear limitations on the use of the qualifying triggers. The defence of loss of control cannot be used:
(a) In an act of ‘considered desire for revenge’;
(b) As an excuse to use violence;
(c) If the thing said/done constituted sexual infidelity;
(d) If the defendant is charged with attempted murder.

Question 80

4.1 Limitation 1: Considered desire for revenge

Answer 80

This defence cannot be used if it stems from an act of revenge (s 54(4)).
This would cover cases where there is clear evidence of planning. The word ‘considered’ is important here, as it implies the defendant has had time to think about
the qualifying trigger. It is clear that if the defendant is acting out of planned revenge, D will not have lost self-control. The judges in R v Clinton recognised this when they made it clear that s
54(4) must be considered within the first requirement, a loss of self-control.

Question 81

4.2 Limitation 2: An excuse to use violence

Answer 81

The defendant cannot create the qualifying trigger as an excuse to use violence.
Further narrowing the defence, is indicated by s 55(6):
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a
thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence.

Question 82

Court of Appeal Considerations of Sections 55(6)(a) and (b)

Answer 82

Sections 55(6)(a) and (b) were considered by the Court of Appeal in R v Clinton. Lord Judge suggested that someone who is out to incite violence may well not ‘fear’ violence, but actively
welcome it, and equally such a person would not feel a sense of being seriously wronged

Question 83

Lord Judge

Answer 83

Suggested that someone who is out to incite violence may well not ‘fear’ violence, but actively welcome it, and equally such a person would not feel a sense of being seriously wronged. This
suggests that in such circumstances, the defence will always be difficult to run

Question 84

Intent from outset

Answer 84

Judge goes on to point out that ss 55(6)(a) and (b) only apply where the defendant’s actions were done with a view to providing an excuse for violence; it is not enough that the defendant ‘started it’ to invoke s 55(6). D must have had the intent from the outset to provoke the reaction that then led to the killing. It is therefore only in rare cases that these subsections will apply.

Question 85

4.3 Limitation 3: The thing said/done constituted sexual infidelity

Answer 85

The defence cannot be relied on if the thing said/done constituted sexual infidelity.
This subsection was brought in to prevent defendants from using sexual infidelity as an excuse for killing. Section 55(6) states:
In determining whether a loss of self-control had a qualifying trigger—
[…]
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

Question 86

The Court of Appeal questions whether the exception under s 55(6)(c) should apply in the following scenarios:

Answer 86

• If sexual infidelity is in the background, but is not the true trigger or the sole trigger for the loss
  of control.
• Where there has not in fact been any sexual infidelity because V, or someone else, has lied or
  made it up to taunt D.
• If the sexual infidelity has not taken place yet, eg V is about to leave D for someone else, but
  has not yet been sexually intimate with them.

Question 87

Key case: R v Clinton, Parker and Evans [2012] EWCA Crim 2

Answer 87

Lord Judge quoted from Hansard and chose to interpret the intention of those proposing the
clause in the bill as being to exclude the defence only when sexual infidelity is the sole qualifying trigger. He said that if there are other things said or done or if there is also a fear of serious violence, then sexual infidelity should be considered

Question 88

Lord Judge:

Answer 88

However, to seek to compartmentalise sexual infidelity and exclude it when it is integral to the facts as a whole is not only much more difficult, but is unrealistic and carries with it the potential for injustice. We do not see
how any sensible evaluation of the gravity of the circumstances or their impact on the defendant could be made if the jury, having, in accordance with the legislation, heard the
evidence, were then to be directed to excise from their evaluation of the qualifying trigger the matters said to constitute sexual infidelity, and to put them into distinct compartments to be
disregarded.

Question 89

Judgement where sexual infidelity is integral

Answer 89

In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and 55(4), the prohibition in section 55(6)(c) does not operate to exclude it.

Question 90

Sexual infidelity has caused the defendant to lose their self-control

Answer 90

There will be other factors which could make up a qualifying trigger such as the threat that the defendant will lose the children, as was the case in R v Clinton, or that they will lose their home. It will then be possible to include sexual infidelity within the argument that a qualifying
trigger exists, to ensure that the jury has the ‘whole story’.

Question 91

4.4 Limitation 4: Attempted murder

Answer 91

The CJA is silent on this point. However, provocation was not available as a defence to a charge of attempted murder (R v Campbell [1997] Crim LR 495). Smith, Hogan and Ormerod’s Criminal Law states that loss of control ‘is not a defence to a charge
of attempted murder or any other charge other than murder’.

Question 92

4.5 Summary

Answer 92

The defence of loss of control cannot be used:
* In an act of ‘considered desire for revenge’ (s 54(4)).
* As an excuse to use violence (ss 55(6)(a) and (b)). It is not enough that the defendant ‘started
it’.
* If the thing said/done constituted sexual infidelity (s 55(6)(c)). However, it is likely that in most
cases where sexual infidelity has caused the defendant to lose their self-control, there will be other factors which could make up a qualifying trigger. It will then be possible to include sexual infidelity within the argument that a qualifying trigger exists, to ensure that the jury has the
‘whole story’.
* For attempted murder, see R v Campbell and Smith, Hogan and Ormerod’s Criminal Law.

Question 93

5. Murder, voluntary manslaughter and intoxication

Answer 93

You will come across intoxication in two different forms in this element:
* As a way to negate the mens rea of murder; or
* As an influencing factor on the special defences of loss of control and diminished
responsibility.
If D is intoxicated loss of control and/or diminished responsibility can still be potentially argued as
partial defences to murder, reducing the conviction to voluntary manslaughter if successful.
Intoxication can mean with drugs or alcohol.

Question 94

Negating the mens rea

Answer 94

A defendant can use evidence of their intoxication to show that they did not form the necessary mens rea for murder - that the defendant did not form the mens rea of intention to kill or cause
grievous bodily harm to the victim. Remember, the prosecution need to prove, beyond reasonable doubt, that the defendant has
committed the actus reus and the mens rea of murder. If, due to intoxication, the defendant did not form the mens rea of murder, then the defendant will be entitled to an acquittal.

Question 95

5.1 Intoxication and loss of control

Key case: R v Asmelash [2013] EWCA Crim 157

Answer 95

The interaction between intoxication and the defence of loss of control was explained in this case of where Lord Judge stated: It does not mean that the defendant who has been drinking is deprived of any possible loss of control defence: it simply means, as the judge explained, that the loss of control defence must be approached without reference to the defendant’s voluntary intoxication. If a sober
individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint
might have behaved in the same way as the defendant confronted by the relevant qualifying
trigger, he would not be deprived of the loss of control defence just because he was not sober.

Question 96

Key case: R v Morhall [1996] AC 90

Answer 96

This is a case under the old law on provocation. The defendant was addicted to glue and had
been taunted about his glue-sniffing habit and how it made him a hopeless character, incapable
of employment. The fact that he was addicted to glue was relevant in assessing the gravity of the
provocation, but the jury had to consider whether a reasonable man, who was not high on glue,
would have done what he did

Question 97

The law is unchanged and directs us as follows:

Answer 97

(a) Defendant is not precluded from using the defence just because he is drunk;

(b) His intoxication will be ignored in accordance with the CJA 2009, s 54(3) (as a circumstance
whose only relevance to D’s conduct is that it bears on D’s general capacity for tolerance or
self-restraint), if it has no connection to the things said or done which make up the qualifying
trigger; and

(c) If there is a connection between the things said or done which make up the qualifying trigger
eg when the defendant is taunted about his intoxication, then the jury can take that intoxication into account in assessing the gravity of the qualifying trigger.

Question 98

5.2 Intoxication and diminished responsibility

Answer 98

The impact of intoxication on the defence of diminished responsibility is an issue with which the courts have long struggled.

Question 99

Two pronged approach

Answer 99

The courts have taken two approaches, depending on whether the intoxication is:
* Independent of the abnormality- the defendant has an abnormality of mental functioning and
is voluntarily intoxicated; or
* As a result of alcohol dependency syndrome (ADS).

Question 100

5.2.1 Intoxication independent of the abnormality

Answer 100

A defendant might, at the time of the killing suffer from both an abnormality of mental functioning and from the effect of alcohol taken before the killing. The leading authority on this situation before the amendments was R v Dietschmann [2003] 1 AC 1209, where the House of Lords suggested that it would be an impossible task for the jury simply to ignore the effect of the
alcohol and decide whether the defendant, sober, would still have killed as a result of the
abnormality

Question 101

What should the jury do instead?

Answer 101

Instead, the jury must first consider the effect of the matters other than the alcohol and determine whether they amounted to such abnormality of mental functioning as might have
substantially impaired the defendant’s ability to do one of the things in the 2(1A) HA. From that
case, the jury should consider:

If the defendant was intoxicated at the time of the killing, the jury should then ask themselves:
has the defendant satisfied you that, despite the drink,

(1) he was suffering from mental abnormality; and
(2) his mental abnormality substantially impaired his mental responsibility for his fatal acts?

Question 102

Key case: R v Kay [2017] EWCA Crim 647

Answer 102

The Court of Appeal in considering the amended defence of diminished responsibility said that it was bound by the case of R v Dietschmann, so it is clear that this case remains the authority to
be applied.

Question 103

Key case: R v Dowds [2012] 1 WLR 2576 at 2590

Answer 103

Hughes LJ (as he then was) said:

It is enough to say that it is quite clear that the reformulation of the statutory conditions for
diminished responsibility was not intended to reverse the well-established rule that voluntary
acute intoxication is not capable of being relied upon to found diminished responsibility. That
remains the law. The presence of a “recognised medical condition” is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility.

Question 104

5.2.2 Alcohol dependency syndrome

Answer 104

We will consider a series of cases which make up the courts approach to D’s seeking to rely on
diminished responsibility with alcohol dependency syndrome (ADS).

Question 105

Key case: R v Wood [2008] EWCA Crim 1305

Answer 105

The Court of Appeal acknowledged that it was somewhat artificial to draw a distinction where
that defendant has ADS between purely involuntary drinking and drinking where the defendant
has some ability to stop.

Question 106

Significant Factor

Answer 106

Instead, the jury must decide whether the ADS was a significant factor in leading the defendant to consume the alcohol, even if there was an element of voluntary choice
either to start drinking or not to stop at some point. If they decide that it was a significant factor,
they can conclude that the defendant’s responsibility was impaired as a result of the abnormality of mental functioning.

Question 107

Key case: R v Stewart [2009] EWCA Crim 593

Factor 1

Answer 107

First, they pointed out that the jury must be satisfied that there was an abnormality of mind (which would now be an abnormality of mental
functioning). Evidence of ADS may well assist the jury here. However, it would, depending on the
evidence, be open to them to conclude that, notwithstanding the existence of the condition, at the
time of the killing, the defendant was not suffering from an abnormality of mental functioning.

Question 108

Factor 2

Answer 108

Second, if the jury are satisfied that the defendant was suffering from an abnormality, they then
need to be satisfied that this arises from a recognised medical condition. If there is clear evidence
of ADS, then this requirement is likely to be satisfied. Any attempt to rely on voluntary and temporary drunkenness, even when based on habitual heavy binge drinking, will not be sufficient.

Question 109

Factor 3

Answer 109

Third, under the old law, the Court of Appeal directed that the jury must consider whether the ADS
substantially impaired the defendant’s mental responsibility. The Court of Appeal suggested a
number of factors that may assist the jury in deciding this:
(a) The extent and seriousness of the defendant’s dependency;
(b) The extent to which his ability to control his drinking was reduced;
(c) Whether he was capable of abstinence and if so;
(d) For how long; and
(e) Whether he was choosing for some particular reason (such as a birthday) to decide to get
drunk or to drink more than usual.

Question 110

Key case: R v Kay [2017] EWCA Crim 647

Answer 110

The approach was approved for the amended law by the Court of Appeal in this case. Hallett LJ:
[W]e see no reason to depart from the approach in R v Stewart. Coupled with the provisions of
section 2(1) of the Homicide Act 1957(as substituted), it provides a clear and sensible approach
for directing the jury. The approach is neither binary nor simplistic but is flexible enough to encompass a wide variety of factual circumstances in a manner that is fair to all.

It is suggested that the same considerations will be made when determining whether the
defendant is able to do one of the things (s 2(1A) HA).

Question 111

5.3 Summary

These pages summarise where in your analysis you will need to consider intoxication.

Answer 111

Murder
* Actus reus
- Unlawful
- Killing
- Human being
- Queen’s peace
* Mens rea: Even though intoxicated, did D form the mens rea of intention to kill or intention to cause grievous bodily harm? A drunken intent is still intent (Kingston)

Question 112

Loss of control

Answer 112

Did D lose self-control?
* Did D act due to the fear or anger qualifying trigger? D’s drug or alcohol addition can be taken
into account in assessing the magnitude of the qualifying anger trigger if D was taunted about
the addiction.
* Normal person test- an intoxicated person is not precluded from using the defence. If D is
addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober (Asmelash).

Question 113

Voluntary intoxication

Answer 113

Voluntary intoxication is not, on its own, capable of being relied upon to found the defence of diminished responsibility (Dowds). If the defendant has an abnormality of mental functioning (AMF) and is voluntarily intoxicated (Dietschmann).

Question 114

Voluntary Intoxication

Answer 114

• D must have an AMF.
• AMF must arise from a recognised medical condition.
• AMF must have substantially impaired the defendant’s ability to do one of the things in s2(1A).
• AMF must provide an explanation for D’s conduct, even if it is not the only cause - alcohol can
  be another reason.

Question 115

If the defendant’s AMF arises from the alcohol dependency syndrome (ADS):

Answer 115

• D must have an AMF: At the time of the killing due to ADS. Factors to be taken into account
  include the extent and severity of the ADS.
• AMF must arise from a recognised medical condition: The alcohol dependency syndrome.
• AMF must have substantially impaired the defendant’s ability to do one of the things in s 2(1A).
• AMF must provide an explanation for D’s conduct, even if it is not the only cause (s 2(1B)).

Question 116

6. Unlawful act manslaughter

Answer 116

Involuntary manslaughter includes all varieties of unlawful homicide other than murder. It is
distinguished from murder by the lack of ‘malice aforethought’. In Andrews v DPP [1937] AC 576,
Lord Atkin at 581, alluded to the difficulties of defining an offence (or offences) which cover a wide
range of circumstances

Question 117

Difficulties of Definition

Answer 117

Of all crimes manslaughter appears to afford most difficulties of definition, for it concerns
homicide in so many and so varying conditions […] the law […] recognises murder on one hand
based mainly, though not exclusively, on an intention to kill, and manslaughter on the other
hand, based mainly, though not exclusively, on the absence of intent to kill, but with the
presence of an element of ‘unlawfulness’ which is the elusive factor

Question 118

Two main forms of involuntary manslaughter

Answer 118

Unlawful act (or
constructive) manslaughter.

Question 119

Key case: DPP v Newbury and Jones [1977] AC 500

Answer 119

The modern definition of unlawful act manslaughter arises from this case. The defendants had
pushed a concrete paving slab onto an oncoming train, killing the guard.
The court stated that to be guilty of the offence the prosecution must prove that:
(a) The defendants intentionally (voluntarily) did an act;
(b) The act was unlawful;
(c) The unlawful act was dangerous; and
(d) The unlawful act caused the death of the victim.

Question 120

6.2 The defendant’s act was intentional

Answer 120

The accused must intentionally, ie voluntarily, have carried out an act, which results in the death
of a person. This refers to intention with regard to the doing of the act, not to the consequences
which flow from it.

Question 121

6.3 The defendant’s act was unlawful

Answer 121

There are three aspects to the defendant’s act being unlawful. It must be:
* A criminal act;
* An intrinsically unlawful act; and
* An act rather than an omission.

Question 122

6.3.1 The unlawful act must be a criminal act

Answer 122

Key case: R v Franklin (1883) 15 Cox CC 163
Initially, it was accepted that the unlawful act could be civil or criminal. However, since this
decision it has been settled law that the unlawful act must be criminal.
The mere fact of a civil wrong committed by one person against another ought not to be used
as an incident which is a necessary step in a criminal case.

Question 123

Key case: R v Lamb [1967] 2 QB 981

Answer 123

The criminal act must be independent of the fact that it has caused death. Both the actus reus
and mens rea of the criminal act must be proven. The defendant pointed a revolver at the victim as a practical joke. Both parties believed that there was no risk of the revolver firing a bullet. Unfortunately, a bullet was fired and the victim was killed. Lamb was convicted of manslaughter.

Question 124

Court of Appeal

Answer 124

The Court of Appeal allowed the appeal against conviction on the basis that there had not been
an unlawful act. The defendant had no intention of committing an assault (at that time, intention
was the only mens rea for assault) and therefore all elements of the offence had not been proven.

Question 125

Key case: R v Scarlett [1993] 4 All ER 629

Answer 125

The defendant was the landlord of a pub. He believed the deceased was about to hit him and
therefore the defendant physically removed him from the premises. The deceased fell down some
steps and suffered a head injury from which he died. The Court of Appeal held that if the defendant was using reasonable force in acting in self-defence or to prevent a crime, there would be no unlawful assault and accordingly the defendant’s conviction for unlawful act manslaughter was quashed. The unlawful act need not be serious and can simply be a common assault. Typically, the unlawful act will be an offence against the person, but it can also be any offence eg theft or criminal damage.

Question 126

6.3.2 The act must be intrinsically unlawful

Answer 126

The unlawful act cannot be based on a lawful act, which becomes unlawful only because of the
negligent or reckless manner in which it is performed eg driving.

Question 127

Key case: Andrews v Director of Public Prosecutions [1937] AC 576

Answer 127

The principle that the act must be intrinsically unlawful came from this case. Lord Atkin stated:
There is an obvious difference in the law of manslaughter between doing an unlawful act and
doing a lawful act with a degree of carelessness which the Legislature makes criminal. If it were
otherwise a man who killed another while driving without due care and attention would ex necessitate commit manslaughter.

Question 128

6.3.3 There must be an act rather than an omission

Answer 128

A person cannot be guilty of unlawful act manslaughter by an omission. A failure to do something
while under a duty to do it would correctly be charged as gross negligence manslaughter.

Question 129

Key case: R v Lowe [1973] QB 702

Answer 129

The Court of Appeal quashed the defendant’s manslaughter conviction, which had resulted from
his criminal omission to look after his nine-week-old daughter. Phillimore LJ stated:

If I strike a child in a manner likely to cause harm it is right that if the child dies I may be charged with manslaughter. If, however, I omit to do something with the result that it suffers injury to its health which results in its death, we think that a charge of manslaughter should
not be an inevitable consequence, even if the omission is deliberate

Question 130

6.4 The act must be dangerous

Key case: R v Church [1966] 1 QB 59

Answer 130

Edmund Davies J stated that:

[…] the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.

Question 131

DPP v Newbury

Answer 131

Whether the act is dangerous is an objective test and depends not on the accused’s appreciation
of the likely harm, but on what the sober and reasonable person would appreciate. This was
affirmed in DPP v Newbury.

Question 132

6.4.1 Type of harm

Key case: R v Dawson (1985) 81 Cr App R 150

Answer 132

The Court of Appeal said that the type of harm likely to result from the unlawful act must be
physical and not emotional harm. However, Watkins LJ said:
[…] there seems to us to be no sensible reason why shock produced by fright should not come
within the definition of harm in the context […]. Shock can produce devastating and lasting
effects, for instance upon the nervous system. That is surely harm.

Question 133

Key case: R v JM & SM (2012) EWCA Crim 2293

Answer 133

The Court of Appeal said that the type of harm a reasonable person would have foreseen does
not have to be that actually caused.

Question 134

6.4.2 Circumstances to be taken into account

Answer 134

The dangerousness of the act is judged from the viewpoint of a sober and reasonable person. The
reasonable person will have knowledge of the circumstances that they would have had if they had been in the accused’s shoes at the time of the offence.

Question 135

Key case: R v Dawson (1985) 81 Cr App R 150

Answer 135

The defendant and accomplices, wearing masks and armed with an imitation gun and a pickaxe
handle, robbed a petrol station. The cashier suffered from a heart condition and died shortly after
the robbery. The trial judge had directed the jury that the reasonable person would know of the victim’s bad heart. This was held to be a misdirection and their appeals were allowed on the basis
that a sober and reasonable person present at the scene of the crime would have known the robbery could cause fear but could not have known of the heart condition

Question 136

Upon the basis of the knowledge

Answer 136

This test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of and watched the unlawful act being performed […]. In other words, he has the same knowledge as the man attempting to rob and no more. The Court of Appeal overturned the conviction because the jury had been misdirected. It is possible that a properly directed jury could have found what the defendants did to be dangerous.

Question 137

Key case: R v Watson [1989] 2 All ER 865

Answer 137

Facts: In Watson, the defendants broke into the house of an elderly and frail man. The elderly
man confronted the defendants and died of a heart attack shortly after the burglary. The
defendants appealed against their conviction for manslaughter on the basis that when they entered the house they did not know that the elderly man was present and consequently the reasonable person would not know this. As a result, their act of burglary was not dangerous.

Question 138

Lord Lane CJ

Answer 138

Dr West, who was called on behalf of the prosecution, had performed the autopsy. He was sure that the burglary was the cause of death. He described for the benefit of the jury how excitement causes the production of adrenalin making the heart beat faster. The heart
therefore needs more blood and oxygen, but is unable to obtain it if there is a chronic heart disease, as there was here, with the result that the arteries leading to the heart are substantially narrowed. The heart then begins to beat irregularly, it eventually stops beating and thus death ensues

Question 139

Held/Judgement

Answer 139

The Court of Appeal stated that a reasonable person in the defendant’s shoes would have
realised the act was dangerous once they became aware of the particular circumstances. It did
not matter that the defendants did not know this information (frail, elderly man) when they first
entered the house. The unlawful act comprised the whole of the burglarious intrusion during which
time they were gathering knowledge and information about the victim.

Question 140

Rationale in Watson

Answer 140

Hence, following this rationale in Watson, the action of burglary became dangerous once they
realised the elderly man was in the house. A reasonable person would consider that there was the risk of some harm being caused to an elderly and frail man.

Question 141

Key case: R v Ball [1989] Crim LR 730

Answer 141

The defendant kept a mixture of live and blank cartridges for his gun in his overall pockets. He picked up his gun and a handful of cartridges and went out of his house to confront the victim. He fired at the victim and killed him. Ball claimed that he had mistakenly thought he had put a blank cartridge in the gun. The court held that the reasonable person would have been aware of the difference in weight and would not have made that mistake. Therefore the act was dangerous.

Question 142

R v Ball

Answer 142

In R v Ball the reasonable person was given knowledge they would have gained from being in the
defendant’s shoes a while before the unlawful act. The reasonable person will therefore have any
special knowledge which the defendant has. This has now been confirmed by the Court of Appeal
in R v Farnon [2015] EWCA Crim 351 at pp 12 and 22.

Question 143

6.4.3 Summary

Answer 143

We could summarise the legal principles from the cases on the act being dangerous as follows:
* The sober and reasonable person knows everything they would have known if they had been in
the defendant’s shoes at the time of the offence.
* The sober and reasonable person has any special knowledge that the defendant has or ought
to have known.
* Being reasonable, they do not make any unreasonable mistakes made by the defendant.

Question 144

6.5 The unlawful act caused the death of the victim

Answer 144

Normal rules of causation apply (Chapter 1). The act must have both factually and legally caused
the death of the victim. The issue of causation is the last stage in the four-part test for unlawful
act manslaughter.

Question 145

6.6 Causing death by supplying drugs

Answer 145

The courts have faced particular difficulties in applying the rules relating to unlawful act
manslaughter to deaths arising from the supply, by the defendant to the victim, of controlled drugs, such as heroin, cocaine, etc. In order to understand the rules relating to this issue, it is helpful to distinguish between two situations.

Question 146

6.6 Causing death by supplying drugs

Answer 146

(a) Directly administers the drug to V, for example by taking a syringe and injecting V with it; and
(b) Merely supplies V with the drugs, or assists V, such as by mixing a particular ‘cocktail’ of
drugs, or filling the syringe before passing it on to V, who then takes the drugs themselves.

Question 147

R v Kennedy [2007] 3 WLR
612,

Answer 147

Previously, the courts, through some ingenious mental gymnastics, successfully managed to bring
cases falling under (b) into the ambit of unlawful act manslaughter. The confusion in law that these efforts caused has been resolved to a large extent by the case of R v Kennedy [2007] 3 WLR
612, discussed on the pages which follow.

Question 148

6.6.1 Administration of the drug by the defendant

Key case: R v Cato [1976] 1 WLR 110

Answer 148

The deceased asked Cato to inject him with heroin. Cato obliged and the victim died as a result.
Cato was convicted of manslaughter. He appealed on the basis that there had been no unlawful act as the victim had consented. The Court of Appeal upheld Cato’s conviction for unlawful act manslaughter, holding that, by injecting the deceased with heroin, Cato had acted unlawfully by administering a noxious thing contrary to s 23 Offences Against the Person Act 1861 (OAPA), and
the deceased’s death was caused by this unlawful act. Consent by the victim was no defence to this.

R v Kennedy confirmed the decision of R v Cato on this point.

Question 149

6.6.2 Supply of drugs and assisting the deceased to take the drugs

Answer 149

This concerns situations where the deceased voluntarily consumes the drug, in awareness of what they are taking. Where the deceased is deceived, or is otherwise unaware of what they are taking, the supplier of the drug may still be guilty of an offence under s 23 OAPA. This offence could form the basis of a conviction for unlawful act manslaughter.

Question 150

House of Lords in R v Kennedy [2007] 3 WLR 612

Answer 150

Where the deceased is aware of what they are taking, could the supplier of drugs still be convicted? Does it make a difference if the supplier of drugs does more than simply supplying, such as by mixing a particular ‘cocktail’ of drugs, or filling the syringe before passing it on to V? The issues fell to be determined by the House of Lords in R v Kennedy [2007] 3 WLR 612. The offence of unlawfully by administering a noxious thing contrary to s 23 OAPA is beyond the scope of this Workbook.

Question 151

Key case: R v Kennedy [2007] 3 WLR 612

Answer 151

Kennedy supplied a dose of heroin in a syringe, which he handed to the victim, who injected himself, and almost immediately suffered an adverse reaction. The victim later died of the consequences of intoxication by opiates and alcohol. Kennedy was convicted of unlawful act manslaughter and his conviction was upheld by the Court of Appeal on two separate occasions.

Question 152

Court of Appeal consideration

Answer 152

When is it appropriate to find someone guilty of manslaughter where that person has been
involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?

Question 153

House of Lords

Answer 153

‘In the case of a fully-informed and responsible adult, never.’ (Per Lord Bingham.) Lord Bingham: The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that
way rather than another.

Question 154

Freely and voluntarily self-administered & the issue of choice

Answer 154

In this case the heroin is described as “freely and voluntarily self-administered” by the deceased. This, on the facts, is an inevitable finding. The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.

Question 155

6.7 Summary

In DPP v Newbury and Jones the court stated that to be guilty of the offence the prosecution
must prove that:

Answer 155

• The defendant intentionally (voluntarily) did an act which results in the death of a person (D
  does not need intention regarding the consequences which flow from the act).

Question 156

The act was unlawful It must be:

Answer 156

• A criminal act rather than a civil one (R v Franklin), the actus reus and mens rea of the
  offence must be proven (R v Lamb) and there must be no valid defence (R v Scarlett).
• An intrinsically unlawful act: It cannot be a lawful act which becomes which becomes
  unlawful only because of the negligent or reckless manner in which it is performed eg
  driving (Andrews v DPP).
• An act rather than an omission (R v Lowe).

Question 157

The unlawful act was dangerous:

Answer 157

An objective test which asks if all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm, albeit not serious harm (R v Church).

Question 158

Physical, not emotional harm but includes shock that produces physical effects (Dawson):

Answer 158

• The sober and reasonable person knows everything they would have known if they had been in the defendant’s shoes at the time of the offence (Dawson, Watson).
• The sober and reasonable person has any special knowledge that the defendant has or ought to have known (Ball).
• Being reasonable, they do not make any unreasonable mistakes made by the defendant
  (Ball).

Question 159

The unlawful act caused the death of the victim: The act must have both factually and legally
caused the death of the victim. If D:

Answer 159

• Directly administers a drug to V, D causes V’s death as consent by the V is no defence
  (Cato).
• Merely supplies V with the drugs, or assists V, D does not cause V’s death, so long as V is a
  fully informed and responsible adult who freely and voluntarily self-administers (Kennedy)

Question 160

7. Gross negligence manslaughter

Answer 160

Involuntary manslaughter includes all varieties of unlawful homicide other than murder. It is distinguished from murder by the lack of ‘malice aforethought’. This element will consider one of
two main forms of involuntary manslaughter: gross negligence manslaughter

Question 161

Definition of gross negligence manslaughter

Answer 161

The basis of a gross negligence
manslaughter charge will be that the defendant has breached a duty of care owed to V. This can
be done through a positive act or by an omission which must be considered so bad that it
necessitates a criminal charge.

Question 162

Key case: R v Bateman (1925) 19 Cr App R 8

Answer 162

The classic definition of negligence in relation to manslaughter was given in this case: […] in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

Question 163

Key case: Andrews v DPP [1937] AC 576

Answer 163

Defining the precise nature of negligence has proved problematic for the courts. In this case the
House of Lords summarised the degree of negligence as being close to reckless, but not completely the same

Question 164

Lord Atkin

Answer 164

Probably of all the epithets that can be applied “reckless” most nearly covers the case […] but it is probably not all-embracing, for “reckless” suggests an indifference to risk, whereas the accused may have appreciated the risk and intended to avoid it and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction.

Question 165

Key case: R v Adomako [1995] 1 AC 171

Answer 165

The leading case on gross negligence manslaughter is this House of Lords decision. In Adomako, the defendant was a locum anaesthetist during an operation to correct a detached retina. He failed to notice that a tube had become dislodged during the course of the operation, and this resulted in the patient being deprived of oxygen. The patient suffered a cardiac arrest and died.
The defendant was convicted of manslaughter

Question 166

House of Lords Appeal on the
basis that the correct test for this form of manslaughter should be recklessness not negligence

Answer 166

The Lords dismissed his appeal and expressed the view that Andrews v DPP had not been overruled by the House, and that, therefore, gross negligence and not recklessness was the correct test for this form of manslaughter.

Question 167

Lord MacKay

Answer 167

In my opinion the law as stated in these two authorities [Bateman and Andrews] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter […]. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim

Question 168

7.1 Requirements of gross negligence manslaughter

Answer 168

The basic requirements for gross negligence manslaughter as laid down in Adomako are as
follows:
(a) The existence of a duty of care;
(b) Breach of that duty;
(c) That the breach causes death;
(d) That there was a risk of death; and
(e) That the breach of duty was so bad as to amount to ‘gross negligence’.

Question 169

7.2 Duty of care

Answer 169

Duty of care is essentially given the same meaning it has in the law of tort, and a defendant will
owe such a duty towards anyone where harm caused by their acts was foreseeable

Question 170

Positive Act

Answer 170

In certain situations, this can be easy to establish as it is now settled in the law of tort that everyone has a general duty to take care to avoid injury by a positive act to their neighbour.

Question 171

Arising from an omission

Answer 171

You also know that liability can arise for an omission in circumstances where the defendant is under a specific duty to act. This duty can arise by statute or by contract. It can also arise as a
result of a special relationship between the defendant and the victim, as a result of the
defendant’s voluntary assumption of a duty of care, or as a result of the defendant creating a
dangerous situation.

Question 172

Neatly into category

Answer 172

Even if the defendant’s act does not fall neatly in to either category set out above, there may still
be liability. The judge will decide whether there is sufficient evidence to go before the jury based
on the specific facts of each case.

Question 173

Key case: R v Singh [1999] Crim LR 582

Answer 173

The deceased tenant had died from carbon monoxide poisoning as a result of a faulty gas fire.
The defendant was the maintenance man for the lodging house where the deceased had been staying and he was in charge of the lodging house while his father, the owner, was away in India. The trial judge summed up the duty of care owed.

Question 174

A close relationship

Answer 174

In [the defendant’s] case there existed a close relationship between him and his father’s
tenants […] Mr Gurpal Singh was […] the “maintenance man” he was also one of the two people
to whom tenants could bring any complaints or inquiries that they had with the prospect of there being dealt with […]. Therefore Mr Gurpal Singh had assumed a duty of care towards his father’s tenants. The Court of Appeal approved ‘as a model of its kind’ the judge’s direction and the appeal against
conviction was dismissed.

Question 175

Key case: R v Ruffell [2003] 2 Cr App R (S) 53

Answer 175

In this case R had supplied drugs to the victim who had clearly suffered a severe adverse reaction
to the drugs. R did various things, such as putting the V in a cold bath, to try to revive him. The
next day R rang the V’s mother and said he was going to work, and she would find her son outside
R’s house. The mother asked R to bring V in and cover him with a blanket. R agreed, but left V
outside. It was very cold weather and V died from a combination of hypothermia and the drugs.

Question 176

Court of Appeal

Answer 176

The Court of Appeal, in reviewing the sentence, found that the defendant had breached a duty of
care towards the victim even though it is not clear from the judgment on what basis the duty
arose. It could have been that R had voluntarily assumed a duty or care, or it could have been that R had created a dangerous situation as in R v Miller. The courts have made it clear that the defendant could still have a duty of care within criminal
cases, even though such liability would be avoided in tort.

Question 177

Key case: R v Wacker [2003] 4 All ER 295

Answer 177

The appellant, a lorry driver, was convicted of killing by gross negligence after 58 illegal
immigrants were suffocated while being transported in his lorry. The defendant argued that the
law of negligence did not recognise a duty of care arising between parties to a criminal enterprise. The Court of Appeal upheld his conviction stating that it was inappropriate to apply the tortious
principle of ex turpi causa non oritur actio in a criminal action.

Question 178

7.3 Breach of duty of care

Answer 178

The House of Lords in Adomako held that the ordinary principles of negligence apply in deciding
whether the defendant had breached their duty of care. The question is one of whether the
defendant’s acts fell below the standard expected of a reasonable person. The reasonable person will be attributed with any special skill used by the defendant. In Adomako
the question was whether the defendant’s actions had fallen below the standard of a reasonable
anaesthetist.

Question 179

7.4 The breach caused the death of the victim

Answer 179

The normal causation principles apply

Question 180

7.5 There was a risk of death

Answer 180

In Adomako, Lord Mackay referred to the risk of death, but then quoted the test in Bateman,
which refers to a disregard to the ‘life and safety of others’. However, in Singh it was held that there must ‘be an obvious and serious risk not merely of injury or even serious injury, but of death’.

Question 181

Key case: R v Misra and Srivastava [2005] 1 Cr App R 21

Answer 181

That there must be an obvious and serious risk not merely of injury or even serious injury, but of death was confirmed by the Court of Appeal in this case. Lord Judge stated: In our judgment, where the issue of risk is engaged, Adomako demonstrates, and it is now
clearly established, that it relates to the risk of death, and is not sufficiently satisfied by the
risk of bodily injury or injury to health. At this point he does not appear to require an obvious and serious risk. However, later in his
judgment he refers to the quote from R v Singh, above, with approval.

Question 182

Key case: R v Rose [2017] EWCA Crim 1168

Answer 182

The Court of Appeal overturned the conviction of an optometrist due to this element of the offence
not being fulfilled. Rose had performed a routine sight test on a seven-year-old boy, but failed to use an ophthalmoscope to view his optic nerves. Rose had a duty to do this internal examination which
would have revealed he was suffering from hydrocephalus. At her trial it was found that a
competent optometrist would have carried out such an examination and having done so would
have seen that the optic nerve was swollen and immediately referred the boy for medical treatment which would have saved his life.

Question 183

Court of Appeal Judgement

Answer 183

Held that test for the fourth element of gross negligence manslaughter was whether a reasonable and competent optometrist would have seen an obvious and serious risk at
the time of the breach of duty. It was not whether a reasonable and competent optometrist would
have seen an obvious and serious risk if she had not breached her duty. A mere possibility that an assessment might reveal something life-threatening was not the same as an obvious risk of death: an obvious risk was a present risk which was clear and unambiguous not one which might become apparent on further investigation.

Question 184

7.6 The breach was sufficiently serious to constitute gross negligence

Answer 184

Judges have struggled with how to direct juries to differentiate between negligence causing death
justifying a successful civil action for compensation, and negligence, which is sufficiently serious
to justify a conviction for manslaughter. In Adomako, the House of Lords acknowledged that the infinite variety of circumstances in which the issue may arise precludes any more precise
definition of the distinction and therefore left the issue to the jury with relatively little guidance.

Question 185

Key case: R v Litchfield [1998] Crim LR 508

Answer 185

The difficulty of explaining the distinction to a jury between civil negligence and criminal gross
negligence is illustrated in this case. The captain of a schooner was convicted of manslaughter by gross negligence when three of his crew members died after he sailed perilously close to the Cornish coast, knowing that he would
have to rely on his engines and knowing that they may break down as a result of him using
contaminated fuel.

Question 186

Trial Judge & Court of Appeal

Answer 186

According to the trial judge ‘with his vast experience of sailing, he must have appreciated the obvious and serious risk of death to his crew in navigating his ship in the way he did’. The Court of Appeal upheld his conviction based on the trial judge’s direction that the question for the jury was whether the captain’s conduct was:

Question 187

Trial Judge & Court of Appeal

Answer 187

[…] so bad, so obviously wrong, that it can be properly condemned as criminal, not in some
technical sense of the word, like somebody might be regarded as criminal if they did not have a light on the back of their bicycle, but in the ordinary language of men and women of the
world. In this case, the fact that the defendant had recognised the risk made it easier for the jury to find
he had been grossly negligent.

Question 188

Key case: R v Adomako [1995] 1 AC 171

Answer 188

Adomako was an anaesthetist attending an operation. The defendant did not appreciate that
there had been a disconnection of the oxygen tube. After 4 mins an alarm sounded. Despite resuscitation attempts, the patient died 9 minutes after the disconnection. At no stage between the alarm and the death was the connection checked. This was despite the fact that the patient started to turn blue after the oxygen tube had been disconnected. The prosecution called
witnesses who stated that: ‘the standard of care that the patient received was abysmal’. Checking the oxygen tube would have been absolutely basic procedure.

Question 189

Lord Mackay

Answer 189

This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely
a jury question is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.

Question 190

Key case: A-G’s Ref(No 2 of 1999) [2000] QB 796

Answer 190

The Court of Appeal held that proof of gross negligence did not require proof of any particular
state of mind, and did not require evidence as to the accused’s state of mind.

Question 190

Key case: R v Misra and Srivastava [2005] 1 Cr App R 21

Answer 190

The victim developed an infection following a routine operation. The two defendants were between them the doctors responsible for V’s post operative care over a period of 48 hours from the time of his operation until the time of death (S on night shift, M on days). Despite numerous signs of significant post-operative problems (raised temperature, low blood pressure, high pulse) they took little action.

They did not check blood tests that had been ordered, ignored advice from senior nurses and other doctors, recorded the patient as being fine and basically did nothing to treat the patient. Such a catalogue of errors could not realistically be anything other than grossly
negligent.

Question 191

Key case: R v Singh [1999] Crim LR 582

Answer 191

S was the son of the owner of a building split into bedsits. S acted as rent collector, maintenance man and main link between the tenants and his father. At the time of the death, he was in charge
as his father was in India. Several tenants told him of problems with their gas fires, including the smell of gas and symptoms suggestive of carbon monoxide poisoning over a period of four
months.

S acknowledged he was aware of the dangers of carbon monoxide poisoning. One of the tenants died of carbon monoxide poisoning. S, his father and the fitter who inspected the fires the
previous year were all convicted of manslaughter. Given the number of complaints, his direct
involvement and his knowledge, S’s conviction was upheld.

Question 192

Key case: R v Prentice [1993] 4 All ER 935 CA, R v Sullman [1994] KB 302

Answer 192

Their appeal was heard with Adomako in the Court of Appeal. Both were junior doctors. P was required to administer a routine lumbar injection to a 16-year-old cancer sufferer. He had not
done this before and was concerned about whether he should. He consulted the registrar, who arranged for S (who had only done the procedure once) to supervise. S took the wrong drug from
a box of drugs provided and handed it to P who injected. Because it was the wrong drug, the patient died from a reaction to it.

Question 193

Key case: R v Prentice [1993] 4 All ER 935 CA, R v Sullman [1994] KB 302

Answer 193

In the circumstances, the mistakes by the defendants were in part brought about by the failures of others, including the failure of more senior doctors to prepare and advise them or supervise them properly, inadequacies in the way the drugs were stored (different drugs with similar labels in the same box). Therefore the mistakes of the
defendants were not ‘grossly negligent’ – contrast with Singh where there were also multiple
people responsible but all were experienced and individually able to address the problems.

Question 194

7.6.1 What constitutes gross negligence?

Answer 194

It is not possible to draw firm conclusions from these cases, given that the issue of what
constitutes gross negligence is fact sensitive. However, here are some themes which can be used to guide your application of the law to the facts of any scenario you are given

Question 195

Misra, Litchfield

Answer 195

Where the defendant is responsible for a series of acts/omissions rather than a single event, this may make it easier for the jury to find gross negligence

Question 196

Adomako

Answer 196

A single devastating act can be grossly negligent

Question 197

Prentice and Sullman

Answer 197

Where the defendant’s mistakes are themselves in part or in whole brought about by mistakes of others, this may be a reason for not convicting

Question 198

Singh

Answer 198

There can be gross negligence by the defendant, even if others are also responsible for the circumstances leading up to the death, for example where, despite the involvement of others, the defendant has a clear personal responsibility and the ability to discharge it

Question 199

Prentice and
Sullman

Answer 199

If the defendant has knowledge/experience that should alert them to the danger, this may be a
helpful fact for the jury to take into account: contrast Singh and Litchfield with

Question 200

Requirement for Mental State

Answer 200

There is no requirement for any mental state, Adomako. However the defendant’s state of mind is not irrelevant eg it was a key point in Litchfield that Litchfield would have seen the serious risk of death.

Question 201

Couldn’t care less attitude

Answer 201

If someone has seen a high risk of death or has a ‘couldn’t care less’ attitude to a high risk of
death, it seems clear that they are highly likely to be convicted.
* The defendant’s state of mind may also work in their favour: if the defendant genuinely did not believe there was a risk, this is a factor that the court can take into account.

Question 202

7.7 Summary

This element considered one type of involuntary manslaughter, gross negligence manslaughter.
The basic requirements for gross negligence manslaughter as laid down in Adomako are as follows:

Answer 202

• The existence of a duty of care: Everyone has a general duty to take care to avoid injury by a positive act to their neighbour. Liability can arise for an omission in circumstances where the defendant is under a specific duty to act.
• Breach of that duty: The question is one of whether the defendant’s acts fell below the
  standard expected of a reasonable person. The reasonable person will be attributed with any
  special skill used by the defendant.
• The breach causes death: Factual and legal causation principles apply.
• There was a risk of death: There must ‘be an obvious and serious risk not merely of injury or even serious injury, but of death’ (Singh).
• The breach of duty was so bad as to amount to ‘gross negligence’: Whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission (Adomako). Factually specific but
  some themes can be drawn from the case law in this area