Voluntary Manslaughter Flashcards
What is the law on diminished responsibility?
• Introduced as a partial defence in Homicide Act 1957.
• Previously the only defence was insanity, which was considered too
narrow.
• S 2(1) Homicide Act and s 52 Coroners and Justice Act 2009;
A person is not to be convicted of murder if they were suffering from an abnormality of mental functioning which:
(a) Arose from a recognised medical condition.
(b) Substantially impaired their ability to understand the nature of their conduct, form a rational judgment or exercise self-control.
(c) Provides an explanation for D’s acts and omissions in doing or being party to the killing.
What is the law on abnormality of mental functioning?
• A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.
• Byrne (1960).
• S 2(1) Homicide Act 1957.
• Covers both psychological and
physical conditions.
• Covers any recognised mental disorder.
• Medical evidence must be provided however.
What is the law on being substantially impaired?
• The abnormality of mental functioning has to be substantial enough that impaired the defendant’s mental responsibility for their act.
• In Byrne, the appeal court let the jury make that decision and in Lloyd (1967), it was held that substantial did not have to mean total.
What must be substantially impaired? S 2(1A) Homicide Act 1957.
- The ability to understand the nature of their conduct.
- The ability to form a rational judgement.
- The ability to exercise self-control.
• The Coroners and Justice Act 2009 have now put these points into statutory form.
• In 2016, the Supreme Court decided in Golds that there was no indication that the 2009 Act wished to re-interpret the meaning of the word ‘substantially’.
Providing an explanation for D’s conduct:
• Diminished Responsibility is a new principle in the Coroners and Justice Act 2009.
• D has to prove that the abnormality of mental functioning provides an explanation for their acts/omissions. (s 2 (1B) of the Homicide Act 1957).
• There must be some casual connection between D’s abnormality of function and the killing.
• Abnormality of function need not be the only factor but it still needs to be significant.
• If D was intoxicated at the time, then there is no defence of diminished responsibility if they were not suffering from an abnormality of mental functioning. Dowds (2012).
• If there is abnormality of function in addition to intoxication, this may make a difference. Dietschmann (2003), Hendy (2006) and Robson (2006).
What is ‘loss of control’?
• Partial defence
• Set out in s 54 of the Coroners and Justice Act 2009: Loss of Control s 54(1) ‘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.
(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’.
For the defence to be successful, the following points are essential – D must have lost self- control, there must have been a qualifying trigger and a person of the same sex and age would have reacted in the same way as D in the same circumstances.
What qualifies as a trigger for loss of control?
The Act sets out that:
- D must have a fear of serious violence from V or another identified person. Or…
- A thing or things done or said which constitute circumstances of an extremely grave character or have caused D to have a justifiable sense of being seriously wronged.
• The qualifying trigger can include combinations of the above.
• The new law is clear though that the fear of violence has to be specific either by
the victim or another identified person. A general fear of violence isn’t enough.
• Dawes (2013) failed because his loss of control was not triggered from a fear of violence when he himself he had triggered the violence in the first place.
Cases that help constitute what ‘a thing or things done or said which constitute circumstances of an extremely grave character or have caused D to have a justifiable sense of being seriously wronged.’
• Doughty (1986), a case before the 2009 Act, when a man convicted of killing his baby son after he hadn’t stopped crying for 19 days had his conviction quashed because it should have been left to the jury to decide whether the baby’s crying was provocation by ‘things done’.
• Zebedee (2012) when a man who had killed his 94 year old incontinent father with Alzheimer’s disease had his conviction upheld because under the 2009 Act, the jury did not deem the father’s repeated soiling of himself as either circumstances of a very grave character or having a justifiable sense of being seriously wronged.
• Therefore, the 2009 Act means that loss of control is now a much narrower defence than the old provocation.
Are ‘sexual infidelity and the desire for revenge’ allowed as triggers for loss of control?
Excluded from the 2009 Act as the government felt that it could be used as a justification for male violence against women which was not appropriate in the 21st century. (The old provocation laws had developed hundreds of years ago).
• Can still be used if it is integral to the case and there are other factors involved however. Clinton (2012).
What is the standard of self-control?
• The 2009 Act states that apart from D’s sex and age, they must have demonstrated the normal degree of tolerance and self-restraint and in the circumstances of D, the reasonable man might have reacted in the same or similar way.
- Camplin (1978): age taken into account
• Apart from age and sex, no other personal characteristics, such as hot temper, are relevant in the ability to exercise self-control. A-G for Jersey v Holley (2005).
Circumstances of the defendant
• Whilst age and sex can only be considered in deciding the level of self- control expected from D, other circumstances CAN be considered in deciding whether the normal person would have reacted in a similar way to D in the same circumstances.
• In Gregson (2006) it was decided that D’s unemployment, depression and epilepsy COULD be used in deciding the gravity of provocation to him from V, who had taunted him about all three.
• It was decided that a normal person could have reacted in the same way given Gregson’s circumstances.
• In Hill (2008), D’s history of sexual abuse as a child was taken into consideration after D lost control and killed V following a sexual assault.
Voluntary intoxication and reacting in the
same way
• In Asmelash (2013), the C of A refused to allow voluntary intoxication as a defence stating that if parliament had meant it to be, it would have included it in the 2009 Act.
• However if a sober person might have behaved in the same way in D’s circumstances, then a defence of loss of control could be used even if they were drunk.
• Finally, if a person with severe alcohol or drug problems was mercilessly taunted as the qualifying trigger, then this could form part of the circumstances for consideration.
• In relation to reacting in the same or a similar way, in Van Dongen (2005), it was held that whilst the reasonable man would have lost self-control in similar circumstances, they would not have reacted in the same way, i.e. kicking the victim to death. In this case, the old defence of provocation failed.
What counts as sufficient evidence
• Old law of provocation – judge left the defence to the jury if sufficient evidence was produced, however implausible.
• Law Commission report suggested ending this and allowing the judge to sift through any evidence in order to weed out what they considered unreliable.
• The Coroners and Justice Act 2009 did give the judge the task of deciding however whether there was sufficient evidence of loss of control to put to the jury.
• This held true in Dawes, Bowyer and Hatter (2013) when the C of A dismissed all the appeals on the basis that the original trial judge was absolutely right to say that there was not sufficient evidence to leave the defence to the jury.
Reform of the law on provocation/loss of control?
• The old defence of provocation, as in the Homicide Act 1957 set the test of whether D was provoked to lose self-control and if so, whether that provocation would have been enough to make the ‘reasonable man’ do the same.
• The problem here was that ‘reasonable man’ equated to reasonable adult.
• Yet in Camplin (1978), the 15-year-old boy’s age and ‘characteristics’ were
considered.
• ‘characteristics’ has now been changed to ‘circumstances’, but even before, the courts had been quite generous in their interpretations of this. Hill (2008) – D’s history of sexual abuse, Morhall (1995) – D’s history of glue- sniffing.
Problems remaining in the law of loss of control:
Loss of self-control
• Law Commission proposed removing loss of self-control criteria owing to the fact that women in abusive relationships may kill after a prolonged period.
• This was rejected. Loss of self- control still needs to be proven, although it doesn’t have to be proven to be sudden.
Sexual infidelity and fear of serious violence
• Finding a partner having sex with another person is still likely to result in a loss of self-control, yet this has disappeared as a defence.
• Fear of serious violence also needs to be proven in loss of self-control. This may prove difficult for the defence.
Comparison of provocation and loss of control:
Provocation
• Narrower, provocation had to be sudden.
• D could rely on a wider range of things said and done as a defence of loss of control. Doughty (1986) succeeded here – the baby crying continuously for 19 days.
Loss of control
• Narrower, sexual infidelity no longer considered.
• D can only rely on things said or done of an extremely grave character.
• D must have a justifiable sense of being seriously wronged. Doughty would fail this test.
