Law-Voluntary Manslaughter

Question 1

What is voluntary manslaughter?

Answer 1

Three (partial) defences to a murder charge are diminished responsibility, loss of control, and a suicide pact. If one of these defences is successful, the charge of murder is reduced to voluntary manslaughter

Question 2

When was diminished responsibility introduced?

Answer 2

Introduced by the Homicide Act 1957-and didn’t exist in English law until then. Before 1957 if a person with mental problems killed, then their only defence was insanity which is a very narrow test that only a few defendants could use

Question 3

Where is the definition of diminished responsibility?

Answer 3

Set out in s2(1) Homicide Act as amended by the Coroners and Justice Act 2009

Question 4

What is the definition of diminished responsibility?

Answer 4

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 defendant’s ability to: Understand the nature of his conduct; or form a rational judgement; or exercise self control, and (c) provides an explanation for the defendant’s acts and omissions in doing or being a party to the killing

Question 5

What is the burden of proof for diminished responsibility?

Answer 5

It is on the defendant but it only needs to be proved on the balance of probabilities

Question 6

What is meant by abnormality of mental functioning?

Answer 6

The old law stated it was ‘abnormality of the mind’. In Byrne the court of appeal described this as ‘a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’

Question 7

What are the rules for the cause of the abnormality of mental functioning?

Answer 7

It must arise from a ‘recognised medical condition’. This is wide enough to cover psychological and physical conditions eg depressive illnesses, paranoia, battered women’s syndrome, epilepsy, diabetes, sleep disorders etc but there must be medical evidence given at trial

Question 8

What does substantially impaired mean?

Answer 8

In Byrne it was said the question of whether the impairment was substantial was one of degree and that it was for the jury to decide. In Lloyd it was decided that it does not mean total nor trivial or minimal. It is somewhere in between and for the jury to decide, but its a question of fact so the judge can withdraw a point from the jury if there is no/lacking evidence

Question 9

What are the three things that could be substantially impaired?

Answer 9

Ability to do one of these three things must be substantially impaired. 1) To understand the nature of his conduct. 2) To form a rational judgement. 3) To exercise self control-these points were used in Byrne where it was decided ‘abnormality of mind’ was wide enough to covers all mind activities in all aspects, and was amended by the new law

Question 10

What is ability to understand the nature of his conduct?

Answer 10

Where defendant is in an automatic state and doesn’t know what he is doing. Or where they suffer from delusions and believes eg they are killing the devil etc. The defendant does not understand the nature of what he is doing, this can also include sever learning difficulties with a low mental age

Question 11

What is ability to form a rational judgement?

Answer 11

Even if defendant knows nature of their conduct, they may not be able to for rational judgement about their acts or omissions eg with paranoia or schizophrenia, or Battered Women’s Syndrome

Question 12

What is ability to exercise self control?

Answer 12

This was the situation in Byrne, who was a sexual psychopath and medical evidence showed he was unable to control his desired, and therefore diminished responsibility was a defence available to him

Question 13

What happens once it is established that the defendant has an abnormality of mental functioning?

Answer 13

It has to be proved that it provides an explanation for their acts/omissions in doing or being a party to the killing. This is a new principle introduced by the amendments made by the Coroners and Justice Act 2009

Question 14

What does section 1B of the Homicide Act 1957 explain?

Answer 14

“…an abnormality of mental functioning provides an explanation for the defendant’s conduct if it causes or is a significant contributory factor in causing, defendant to carry out that conduct’

Question 15

What happens when diminished responsibility is linked to intoxication?

Answer 15

There is a clear rule that intoxication alone cannot support a defence of diminished responsibility (Dowds-murdered girlfriend by stabbing her 60 times whilst drunk-appeal rejected)

Question 16

What happens where there is intoxication and a pre-existing abnormality of mental functioning?

Answer 16

Dietschmann-killed victim after he was disrespectful to the memory of defendant’s aunt who had just died. Defendant had an adjustment disorder (depressed grief reaction to the death of his aunt) but had also drunk a third of a bottle of whisky and two pints of cider before the killing

Question 17

Which cases then used the points made in Dietschmann?

Answer 17

Hendy and Robson, and in both cases the court of appeal quashed their murder convictions and substituted convictions for murder and is likely to be followed in cases under the new definition

Question 18

What is intoxication due to addiction/dependency?

Answer 18

Alcohol dependent syndrome meaning a person cannot control drinking. Under the old law, in the case of Tandy, the court of Appeal held that where the defendant is unable to resit drinking, so that it is involuntary, this could amount to diminished responsibility, The decision in Tandy was criticised as it only looked at whether the defendant was unable to prevent themselves from drinking. It didn’t consider whether alcoholism is a disease

Question 19

When was the point of alcoholism discussed again?

Answer 19

In wood, when the court of appeal pointed out that the ‘sharp effect of the distinction drawn in Tandy between cases where brain damage had occurred as a result of alcohol dependency syndrome and those where it had not, is no longer appropriate

Question 20

What did the court of appeal decide when hearing the appeal in the case of Wood?

Answer 20

They considered the effect of the judgement in Dietschmann on the decision in Tandy and held that alcohol dependency syndrome could be considered as a possible source of abnormality of the mind-it was for the jury to decide

Question 21

What is the three part tests set out in Stewart?

Answer 21

Was D suffering from an abnormality of mind (now mental functioning)-the nature and extent of alcohol dependency syndrome has to be considered. If so, was D’s abnormality caused by the alcohol dependency. If so, was D’s mental responsibility substantially impaired

Question 22

The cases used for intoxication were before the change in the definition of diminished responsibility, so are they still relevant?

Answer 22

It is likely that today the same approach would be taken. Also, under the new law, the jury must also decide whether the abnormality caused/was a significant factor in causing the defendant to kill the victim

Question 23

When was the law on diminished responsibility reformed?

Answer 23

By the Coroners and Justice Act 2009

Question 24

Why was the law on diminished responsibility reformed?

Answer 24

The Law Commissions report (Murder, manslaughter and infanticide 2006) recommended that the definition of diminished responsibility should be modernised to take into account the changing medical knowledge

Question 25

How was the law on diminished responsibility reformed?

Answer 25

It uses the phrase ‘recognised medical condition’ so it is flexible enough to allow for future medical developments. It also now sets out clearly what aspects of the defendant’s mental functioning must be substantially impaired for the partial defence to succeed (incorporates the decision in Byrne into the statutory definition of diminished responsibility)

Question 26

What are remaining problems with the law?

Answer 26

The burden of proof is on the defendant unlike in most cases where the prosecution has to disprove claims-this places defendants a more of a disadvantage than those raising loss of control and also may breach Article 6(2) of the European Convention on Human Rights were everyone is innocent until proven guilty. The other problem is that the Law Commission recommended that developmental immaturity in those under 18 should be included as the frontal lobe (self control) doesn’t mature until age 14 though the government thought it was not needed and thought recognising learning disabilities and autism was sufficient though it is not the same thing and could lead to 10 year olds being convicted of murder when they just developmentally immature

Question 27

What is loss of control?

Answer 27

It is a partial defence to a charge of murder. If successful the defendant will be guilty of manslaughter instead, allowing the judge discretion in sentencing

Question 28

What defence did loss of control replace?

Answer 28

It replaced the former defence of provocation

Question 29

What law sets out loss of control?

Answer 29

Section 54 Coroners and Justice Act 2009

Question 30

What does Section 54 Corners and Justice Act 2009?

Answer 30

Where a person kills or is party to the killing of another, 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 reacting in the same or in a similar way to the D

Question 31

What points are essential for loss of control to be successful?

Answer 31

Defendant must have lost self-control, there must be a qualifying trigger, a person of the same sex and age would have reacted in the same way as the defendant in the same circumstances

Question 32

How is loss of self control explained?

Answer 32

Must have been lost when doing the acts that caused the death, but this loss of control doesn’t have to be sudden.. This was not part of the former defence of provocation leading to some defendants being unable to use the defence when today they may be able to (Ahluwalia)

Question 33

What happened in the case of Ahluwalia?

Answer 33

The defendant was a victim of domestic abuse and one night, he husband threatened her before he went to bed, so she poured petrol over him and set him alight. He died six days later and she was convicted of murder and not allowed to use provocation as the longer between the threat and the murder meant it was more likely to be deliberate

Question 34

What is a qualifying trigger?

Answer 34

There has to be a qualifying trigger for the loss of control. Section 55 sets out the qualifying triggers that are permitted. These are where the loss of control was attributable to: D’s fear of serious violence from V against D or another identified person; or 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 35

Was fear of violence always allowed as a qualifying trigger?

Answer 35

Provocation did not allow a defence where defendant lost control though fear of violence, eg Martin (Anthony) where the defendant, in fear, shot two burglars who had entered his house. However he may have been able to use loss of control today as fear is a qualifying trigger. This may also be another reason why Ahluwalia may have been able to use loss of control if her case was tried today

Question 36

What are things said or done?

Answer 36

These tests were not in the old law of provocation. It means loss of control is narrower than provocation and so some cases such as Doughty where killing his baby son due to crying would no longer count as things done as he couldn’t have proved a justifiable sense of being seriously wronged, and so could not today use the defence of loss of control (Confirmed by Zebedee who killed his elderly father with Alzheimers and tried to claim loss of control but was unsuccessful)

Question 37

What are excluded matter, that cannot count as qualifying triggers?

Answer 37

The Act specifically states that sexual infidelity can never be a qualifying trigger, unlike in the defence of provocation that allowed it. In the case of Clinton, it was made clear that sexual infidelity alone could not be a qualifying trigger, however it can be considered if it was integral to and formed an essential part of the context where there were other factors which could be qualifying triggers

Question 38

Is revenge a qualifying trigger for loss of control?

Answer 38

The defence is not allowed if the defendant acted in a ‘considered desire for revenge’. This was the same for provocation as the loss of control had to be sudden and planning revenge would mean it wouldn’t have been sudden. This was seen in Ibrams and Gregory where they were guilty of murder because it was planned revenge with a gap of five days between so there was no sudden loss of control for provocation, and if tried today, revenge is excluded for the defence of loss of control

Question 39

What case demonstrates the standard of self control?

Answer 39

Camplin, where the defendant was convicted of murder, but the House of Lords allowed his appeal and substituted a conviction for manslaughter, and held that the sex and age of the defendant should be taken into account in assessing the power of self control to be expected of the defendant

Question 40

What does Section 54(3) emphasise?

Answer 40

Apart from gender and age, the jury cannot consider any circumstance of defendant which might have made him have less self control (objective part of the test). If the defendant is particularly hot-tempered, this is irrelevant when looking at the level of self control expected from him

Question 41

What are circumstances of the defendant?

Answer 41

Although only gender and age can be considered when deciding the level of self control expected, other circumstances of defendant can be taken into consideration when deciding whether such a ‘normal’ person might have reacted in the same or in a similar way to defendant in those circumstances (also a rule in provocation) Eg Hill-where D had been sexually abused as a child then the V tried to sexually assault D who lost control and killed V and was able to use the defence of provocation as a normal person would have to be considered as having a history of sexual abuse when deciding if they would react in the same or similar way to D

Question 42

Is voluntary intoxication a circumstance of the defendant?

Answer 42

It is not a matter to be considered as part of the defendant’s circumstances. The court of appeal in Asmelash refused to allow the defendants voluntary intoxication to be considered. However if a sober person in the defendant’s circumstances with normal tolerance and self restraint may have behaved in the same way when confronted with relevant qualifying trigger, then the defence may still be able to used, even though defendant was intoxicated. Also if defendant with sever alcohol/drug problem was mercilessly taunted about the condition (qualifying trigger) then the problem would be part of the circumstances for consideration

Question 43

How is ‘might have reacted in the same or similar way to D’ decided?

Answer 43

The jury has to consider whether the normal person in the circumstances of the defendant would have reacted as they did. The defence will fail if the jury consider that the ‘normal person’ would not have reacted in the same way-eg in Van Dongen where the jury said a reasonable man would have lost self control but not reacted in the same way and so the defence of provocation failed

Question 44

What reformed the defence of loss of control?

Answer 44

The Coroners and Justice Act 2009 abolished the old defence of provocation and replaced it with the defence of loss of control

Question 45

Why was the reform to loss of control made?

Answer 45

Because there had been many problems with the law on provocation. It was common law made by judges hundreds of years ago. In 1957 the Homicide Act set out tests for provocation but did not include a complete definition

Question 46

What were the problems with provocation?

Answer 46

The tests in the Homicide Act referred to the reasonable man, which meant a reasonable adult and so was not useful in Camplin where the defendant was 15, which is why it was held the age and sex of defendant could be considered which is now used in loss of control. Camplin also lead to other characteristics of D being considered which in loss of control is circumstances of the defendant, that allow cases such as Hill to use the defence. Loss of control is wider in that the loss doesn’t have to be sudden but is also narrower as sexual infidelity no longer can be a qualifying trigger. Also there are restrictions on things said and done now (fear of violence, grave character, justifiable sense of being seriously wronged)

Question 47

What are some problems that remain in the new law of loss of control?

Answer 47

Sexual infidelity is no longer allowed yet the defence for provocation was largely created for such situations. Also fear of serious violence was added as a qualifying trigger mainly due to the lack of defence in cases of Clegg, and Martin, however the requirement that the defendant must have lost self control may make it difficult for such defendants to use the defence. Also the Government did not follow a law commission proposal to remove loss of control criteria, the only concession was to add that the loss of control doesn’t have to be sudden, and so the defendant must prove loss of self control, and so some abused women will not be able to show loss of control so won’t be able to use the defence