Murder and Voluntary Manslaughter

Question 1

Definition of murder

Answer 1

‘Unlawful homicide’, defined by Lord Coke as ‘unlawfully killing a reasonable person who is in being and under the King’s peace’

Question 2

Murder - actus reus

Answer 2

• Unlawful
• Killing
• Human being
• Queen’s peace

Question 3

Murder - mens rea

Answer 3

• Malice aforethought

- Intention to kill or intention to cause grievous bodily harm

Question 4

Murder - Actus reus: Unlawful

Answer 4

The killing must be unlawful. It will be lawful to kill another if it is:

(a) Killing enemy soldiers in battle
(b) Advancement of justice
(c) Self defence

Question 5

Murder - Actus reus: Killing

Answer 5

Murder is a result crime which requires the prosecution to show that the defendant caused the death of the victim. The tests of factual and legal causation must be satisfied.

Question 6

Factual causation

Answer 6

‘but for’ the acts or omissions of the defendant, the relevant consequence would not have occurred in the way that it did (R v White)

Question 7

Legal causation

Answer 7

The defendant’s act must be the ‘operating and substantial’ cause of the prohibited harm. It does not have to be the only/principal cause, but must be more than minimal (R v Hughes)

Question 8

Murder - Actus reus: ‘a reasonable person in being’

Answer 8

A person is ‘in being’ when born alive and capable of independent life.

R v Poulton - a child must be fully expelled from the mother’s body and born alive; ‘whether the child was born alive or not depends mainly upon the evidence of medical men.’

R v Reeves - it is not necessary for the umbilical cord to have been cut.

AG-Ref (No 3 of 1994) - A pregnant woman was stabbed in the abdomen, her child was born prematurely and died. The child was not a live person when stabbed and therefore this was not murder.

Question 9

Murder - Actus reus: under the King/Queen’s peace

Answer 9

R v Adebolajo - Two men killed a soldier in London because he was in the British army. They said they were fighting a war so were not under the Queen’s peace. Now, an offender can generally be tried for murder whether committed if he is a British subject, or, if not a British subject, the murder was committed within England and Wales.

Question 10

Mens rea - malice aforethought

Answer 10

‘Malice aforethought’ means:

a) Intention to kill (express malice);
(b) Intention to cause grievous bodily harm (implied malice) (R v Vickers

Question 11

Meaning of ‘grievous bodily harm’

Answer 11

‘Serious harm’ (Saunders)

Question 12

Important aspects about malice aforethought

Answer 12

• The defendant does not need to have any malice, nor does the act need to be premeditated.
• Mercy killing is no defence in English law (Inglis)
• The defendant can have malice aforethought even if they kill a person in the spur of the moment.

Question 13

What is diminished responsibility?

Answer 13

• One of the two special defences to murder

- Special defence = it can be used as a defence to murder only

Question 14

What type of defence is diminished responsibility?

Answer 14

Partial defence - if it is successful, the defendant is not acquitted but convicted of a lesser defence, voluntary manslaughter (Homicide Act 1957, s 2(3)).

Question 15

What impact does diminished responsibility voluntary manslaughter have on the sentence imposed?

Answer 15

It means 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 16

Who is the burden on for proving diminished responsibility?

Answer 16

The burden falls on the defence to prove on the balance of probabilities (so a lower standard) that the defendant was acting under diminished responsibility (s 2(2) HA 1957)

Question 17

What is diminished responsibility not a defence to?

Answer 17

Diminished responsibility is not available as a defence to a charge of attempted murder (R v Campbell)

Question 18

Diminished responsibility - statutory reference

Answer 18

s 2(1) Homicide Act 1957 (as amended by the Coroners and Justice Act 2009, s 52)
‘(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.’
‘(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 19

Meaning of an ‘abnormality of mental functioning’

Answer 19

R v Byrne - a ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.’

Question 20

Abnormality of mental functioning - a recognised medical condition

Answer 20

• It is sufficient that the defendant was suffering from a recognised medical condition that was undiagnosed at the time of killing.
• It is not enough that the defendant was suffering from an abnormality of mental functioning/has a recognised medical condition. The abnormality must be caused by the recognised medical condition and not something else.
• Alcohol Dependency Syndrome (ADS) is a recognised medical condition.

R v Dowds - Defendant, a binge drinker, stabbed his partner after a night of heavy drinking. He tried to argue dim.responsibility on the grounds of a medical condition, Acute Voluntary Intoxication. He was not arguing that he was an alcoholic (ADS). The trial judge concluded voluntary intoxication could not give rise to the defence.

Question 21

R v Dowds - reliance on medical conditions recognised in WHO’s International and Statistical Classification of Diseases (ICD) and the American Medical Associations Diagnostic and Statistical Manual (DSM)

Answer 21

CoA 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, such as ‘unhappiness’ and ‘intermittent explosive disorder.’

The DSM itself, in its introduction, warns against a rigid application of the categories of medical conditions to legal issues.

Question 22

Diminished responsibility - substantial impairment of D’s ability

Answer 22

R v Golds - ‘substantial’ should have its ordinary meaning and therefore there is generally no need to direct the jury on the meaning. However, if the court feels it is necessary to give further guidance, ‘substantial’ means something ‘more than merely trivial.’

Question 23

Diminished responsibility - to understand D’s conduct - Law Commission example

Answer 23

A boy aged 10 who has been left to play violent video games for hours on end for much of his life, loses his temper and kills another child. When interviewed, he shows no real understanding that when a person is killed they cannot later be revived.

Question 24

Diminished responsibility - to form a rational judgment - Law Commission examples

Answer 24

A woman suffering from PTSD, following violent abuse 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.

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 25

Diminished responsibility - to exercise self control - Law Commission example

Answer 25

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.

Question 26

Diminished responsibility - Summary of question as to whether the defendant’s ability is substantially impaired

Answer 26

A question of fact for the jury to decide but guidance can be taken from the Law Commission examples. Much will depend on the extent to which the jury feel the defendant is morally culpable.

Question 27

Diminished responsibility - Provides an explanation

Answer 27

The abnormality of mental functioning:

• Must provide an explanation for D’s acts and omissions in doing or being a party to the killing (s 2(1)(c) HA 1957); and
• Must 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) CJA 2009)
• A causal link between the abnormality of metal functioning arising from a recognised medical condition and the killing must be established. It does not need to be the only cause.
• The defence can still operate even if the jury consider that alcohol has also played a part (Dietschmann)

Question 28

Diminished responsibility - Medical experts

Answer 28

R v Brennan - 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. Overturned conviction and said that a judge should withdraw the murder charge from a 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 also held that it was legitimate and helpful for expert psychiatrists to give evidence, as all four elements of the defence are concerned with psychiatric matters.

Question 29

Loss of control - statutory reference and 3 key requirements

Answer 29

Coroners and Justice Act 2009, s 54(1):

(a) D must have lost self control;
(b) due to the fear and/or anger qualifying trigger; and
(c) a normal person might have acted in a similar way to D.

Question 30

Loss of control - burden of proof

Answer 30

The burden of proof rests with the prosecution once the issue has been raised by the defence (CJA 2009, s 54(5)

The prosecution need to prove only that one of the components is absent for the defence to fail (R v Clinton, Parker and Evans)

It is a matter for the judge to decide whether the defence can be put to the jury (s 54(6) CJA 2009)

Question 31

Impact of successful loss of control defence

Answer 31

The conviction is reduced from murder to voluntary manslaughter, so the defendant avoids the mandatory life sentence (s 54(7))

Question 32

Loss of control - requirement 1: loss of self-control

Answer 32

R v Clinton - Whether the defendant actually lost control is a question for the jury, taking into account all the evidence.

R v Richens - 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.

The loss of control does not need to be sudden (CJA 2009, s 54(2))

The defence will be lost should it be established that the defendant was acting out of a ‘considered desire for revenge’ (CJA 2009, s 54(4))

R v Ahulwalia - 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. The longer the delay, the less likely it was that the defendant had lost self-control.

Question 33

Loss of control - requirement 2: qualifying trigger - fear trigger

Answer 33

ss 55(3) CJA 2009 - The defendant must fear serious violence from the victim against the defendant or another person.

Dawes, Hatter and Bowyer - Loss of control and self defence are two distinct defences. The fear 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 was unreasonable, preventing the use of self defence as a defence.

s 55(6)(a) - The defendant cannot rely on the fear trigger if they incited it as an excuse to use violence.

R v Martin - Mr Martin, having suffered a number of burglaries at his isolated farmhouse, decided to take matters into his own hands. He shot at two suspected burglars who had entered his farmhouse during the night. He pleaded self defence but was unsuccessful due to the excessive force used. A defence now however might be available using a fear of serious violence as a qualifying trigger for loss of control.

Question 34

Loss of control - requirement 2: qualifying trigger - anger trigger

Answer 34

s 55(4) - Has three parts:

(a) things said and/or done; that constitute circumstances of an extremely grave nature;
(b) that caused D to have a justifiable sense of being seriously wronged.

• CJA s 55(4)(a) & (b) require objective evaluation (R v Clinton)

Question 35

Loss of control - When can D not rely on the anger trigger?

Answer 35

• When D incited it as an excuse to use violence (s 55(6)(b) CJA 2009)
• When the thing said/done constituted sexual infidelity (s 55(6)(c) CJA 2009)

Question 36

Loss of control - anger trigger: things said or done

Answer 36

• There must be something actually said or done.
• R v Acott - 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 37

Loss of control - anger trigger: circumstances of an extremely grave nature

Answer 37

• not defined in CJA 2009
• this must be determined objectively, and should not be established easily (R v Clinton)
• Jonathon Herring: ‘the circumstances facing the defendant must have been unusual, and not part of the normal trials and tribulations of life.’

Question 38

Loss of control - anger trigger: caused the defendant to have a justifiable sense of being seriously wronged

Answer 38

• an objective question (explanatory notes to CJA 2009, R v Clinton)
• guidance from Dennis Baker and Lucy Zhao, Journal of Criminal Law: ‘it must be shown that a normal person in contemporary Britain would have felt seriously wronged in the same situation.’
• secondhand word of an act such as finding out your child had been abused would have the same objective provocative effect as witnessing it

Question 39

Loss of control - requirement 3: normal person test

Answer 39

CJA 2009, 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.’

s 54(3): ‘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 40

Loss of control - requirement 3: normal person test - two steps the jury will need to assess

Answer 40

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

Question 41

Loss of control - requirement 3: normal person test - assessing the gravity of the qualifying trigger

Answer 41

R v Camplin - The test for determining the proportionality of D’s reaction is objective.

• The normal person will have ordinary powers of tolerance and self restraint.
• The jury will not be allowed to take into account any characteristics or circumstances which would affect normal tolerance and the ability to exercise restraint.
• Characteristics/circumstances likely to be excluded: Bad temper, Intoxication, Extreme sensitivity, PTSD (R v Rejmanski), Personality disorder (R v Rejmanski)

Question 42

Loss of control - requirement 3: normal person test - assessing the gravity of the qualifying trigger: three categories of circumstances to consider

Answer 42

(1) Circumstances and characteristics which will be taken into account under s 54(1)(c)
(2) Circumstances and characteristics which will be excluded by s 54(3)
(3) Circumstances and characteristics which will be considered in assessing how much tolerance and self-restraint the normal man would have (see R v Rejmanski)

Question 43

Loss of control - requirement 3: normal person test - assessing the gravity of the qualifying trigger: circumstances and characteristics which will be considered in assessing how much tolerance and self-restraint the normal man would have

Answer 43

R v Rejmanski - ‘If a mental disorder has a relevance to the defendant’s conduct other than bearing on his 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 s 54(1)(c).’ ‘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…The disorder would be a relevant circumstance of the defendant, but would not be relevant to the question of the degree of tolerance and self-restraint which would be exercised by the hypothetical person.’

R v Wilcocks - ‘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. 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 kill himself.’

Question 44

Limitations on the use of the loss of control defence

Answer 44

The defence of loss of control cannot be used:

(1) In an act of considered desire for revenge
(2) As an excuse to use violence
(3) If the thing said/done constituted sexual infidelity
(4) If the defendant is charged with attempted murder

Question 45

Loss of control - an act of considered desire for revenge

Answer 45

• Cannot be used (CJA 2009, s 54(4))
• Covers cases where there is clear planning
• The word ‘considered’ is important; implies the defendant has had time to think about the qualifying trigger

Question 46

Loss of control - as an excuse to use violence

Answer 46

• Cannot be used (s 55(6)(a) and (b))
• R v Clinton - someone who is out to incite violence may well not ‘fear’ violence, but actively welcome it (so would not be a trigger), and equally such a person would not feel a sense of being seriously wronged. However, s 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.’ They must have had the intent from the outset to provoke the reaction that then led to the killing.

Question 47

Loss of control - the thing said/done constituted sexual infidelity

Answer 47

• Cannot be used (s 55(6)(c)
• R v Clinton - judge chose to interpret this clause as being to exclude the defence only when sexual infidelity is the sole qualifying trigger. If there are other things said or done or if there is also a fear of serious violence, then sexual infidelity should be considered.
• ‘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 operated to exclude it.’
• 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 e.g. the threat the defendant would lose the children or as in Clinton, the threat that they will lose their home.

Question 48

Loss of control - attempted murder

Answer 48

R v Campbell - Provocation (the old defence that loss of control is based on) was not available as a defence to a charge of attempted murder, so unlikely loss of control would ever be.

Question 49

Intoxication and loss of control

Answer 49

R v Asmelash - ‘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’
‘if a defendant with a severe problem with alcohol or drugs was mercilessly taunted about the condition, to the extent that it constituted a qualifying trigger, the alcohol or drug problem would then form part of the circumstances for consideration.’

R v Morhall - Defendant was addicted to glue and had been taunted about his glue-sniffing habit and how it made him incapable of employment. The fact 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 50

Intoxication and loss of control - directions from the law

Answer 50

a) Defendant is not precluded from using the defence just because he is drunk.
b) His intoxication will be ignored in accordance with CJA 2009 s 54(3) (as a circumstance which is only relevant to 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
c) If there is a connection between the things said or done which make up the qualifying anger trigger, e.g. where the defendant is taunted about their intoxication, then the jury can take that intoxication into account when considering the gravity of the qualifying trigger.

Question 51

Intoxication and diminished responsibility - two approaches taken by the courts

Answer 51

The courts have taken two approaches, depending on whether the intoxication is:

a) independent of the abnormality or
b) as a result of alcohol dependency syndrome (ADS)

Question 52

Intoxication and diminished responsibility - Intoxication independent of the abnormality

Answer 52

R v Dietschmann - Question is: 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 53

Intoxication and diminished responsibility - Alcohol dependency syndrome (ADS)

Answer 53

R v Wood - The jury must decide whether the ADS was a significant factor in leading the defendant to consume the alcohol. If they decide it was a significant factor, they can conclude that the defendant’s responsibility was impaired as a result of the abnormality of mental functioning.

R v Stewart - (1) The jury must be satisfied that there was an abnormality of mind.

(2) They then need to be satisfied that this arises from a recognised medical condition.
(3) They must then consider whether the ADS substantially impaired the defendant’s mental responsibility. CoA 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 (e.g. birthday) to decide to get drunk or drink more than usual.