Voluntary manslaughter

Question 1

Where is the defence of diminished responsibility found?

Answer 1

Section 2 of the Homicide Act 1957, amended by section 52 of the Coroners and Justice Act 2009.

Question 2

What does section 52 (1) of the Coroners and Justice Act 2009 state?

Answer 2

A person who kills or is 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 the defendant’s ability to do one or more things mentioned in subsection 1A, and
(c) provides an explanation for D’s actions or omissions.

Question 3

Who has the burden of proof?

Answer 3

The defendant, on the balance of probabilities.

Question 4

What was the old phrase for abnormality of mental functioning?

Answer 4

Abnormality of the mind.

Question 5

How did the case of Byrne (1960) define an abnormality of the mind?

Answer 5

As a state of mind so different from that of ordinary human beings the reasonable man would term it abnormal.

Question 6

What must the abnormality of mental functioning arise from?

Answer 6

A recognised medical condition.

Question 7

What must be given at the trial?

Answer 7

Medical evidence to prove a medical condition.

Question 8

What are the abilities that must be impaired under section 52 (1A)?

Answer 8

(a) understand the nature of his conduct,
(b) form a rational judgement,
(c) exercise self control.

Question 9

What does section 52 (1B) state?

Answer 9

The abnormality of mental functioning provides an explanation for the defendant’s conduct if it causes or is a significant contributory factor in causing the defendant to carry out the prohibited conduct.

Question 10

Can intoxication support a defence of diminished responsibility and which case decided this?

Answer 10

No, the case of Di Duca stated that the immediate effects of drink and drugs do not constitute a medical condition even if it does have an effect of the mind.

Question 11

What was the state of the defendant in Dietschmann?

Answer 11

The defendant had a pre-existing abnormality of mental functioning but was also intoxicated at the time of the killing.

Question 12

What is the alcohol-related medical condition which can constitute an abnormality of mental functioning?

Answer 12

Alcohol dependency syndrome.

Question 13

What was held in Tandy?

Answer 13

Where the defendant is unable to resist drinking (so that it is involuntary), this could constitute diminished responsibility.

Question 14

What is the three stage test set out in Stewart?

Answer 14

1. Was the defendant suffering from an abnormality of mental functioning?
2. Was the abnormality caused by the alcohol dependency syndrome?
3. Was the defendant’s mental responsibility substantially impaired?

Question 15

How did the Coroners and Justice Act 2009 improve the law on diminished responsibility?

Answer 15

It defined what a medical condition is and how substantial the effect of the abnormality of mental functioning needs to be.

Question 16

What are two problems remaining in the law of diminished responsibility?

Answer 16

1. The burden of proof is on the defendant.
2. Children who have underdeveloped brains cannot use the defence as this is not considered an abnormality of mental functioning, leaving a child as young as 10 open to being convicted of murder.

Question 17

What defence did the new defence of loss of control replace?

Answer 17

Provocation.

Question 18

Where is the law on loss of control found?

Answer 18

Section 54 of the Coroners and Justice Act 2009.

Question 19

What does section 54 (1) state?

Answer 19

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, might have reacted in the same or a similar way.

Question 20

Who has the burden of proof when a defence of loss of control is raised?

Answer 20

The prosecution.

Question 21

What does section 54 (2) state?

Answer 21

The loss of control need not be sudden.

Question 22

Where are the qualifying triggers found?

Answer 22

Section 55 (3), (4) and (5).

Question 23

What are the three permissible qualifying triggers?

Answer 23

(3) D’s fear of serious against D or another identified person.
(4) a thing or things done or said which-
(a) constituted circumstances of an extremely grave character and,
(b) gave the defendant a justifiable sense of being seriously wronged.
(5) a combination of the above two matters.

Question 24

What did the old law on provocation not allow?

Answer 24

The defendant to lose control through fear of violence, as in Martin (2002).

Question 25

Which case is likely to be decided differently under the new law of things done or said?

Answer 25

Doughty.

Question 26

Where are the excluded matters found?

Answer 26

Section 55 (6) and section 54 (4).

Question 27

What does section 55 (6) state?

Answer 27

(a) the defendant’s fear of serious violence is to be disregarded if it was caused by a thing D incited to be done or said for the purposes of providing an excuse for violence.
(b) the defendant’s sense of being serious wrong is not justifiable if D incited the thing to be said or done for the purposes of providing an excuse for violence.
(c) sexual infidelity is not a qualifying trigger.

Question 28

What does section 54 (4) state?

Answer 28

The defence is not available if the defendant acted in a considered desire for revenge.

Question 29

What did the case of Ibrams and Gregory demonstrate?

Answer 29

The defence is not available if the defendant acted in a considered desire for revenge.

Question 30

What does section 54 (3) emphasise?

Answer 30

No characteristics other than the defendant’s age and sex may be taken into account when assessing the standard of self-control to be expected from the defendant.

Question 31

When can other circumstances of the defendant be taken into account?

Answer 31

When assessing the gravity of the provocation/situation towards him.

Question 32

What are two problems remaining in the law of loss of control?

Answer 32

Battered women may not be able to use the defence due to conditions such as the revenge clause, and sexual infidelity is not a qualifying trigger even though it is a very likely event to cause someone to lose control.