Voluntary Manslaughter

Question 1

What is voluntary manslaughter?

Answer 1

This occurs where a defendant has the required AR and MR for murder but there are mitigating circumstances which allow a partial defence and a successful plea reduces the defendants liability to manslaughter. A defendant is charged with murder and must then plead the defence at trial, a manslaughter conviction avoids the mandatory life sentence required for murder.

Question 2

What are the two defences under voluntary manslaughter?

Answer 2

• loss of control

- diminished responsibility

Question 3

How did the two defences develop?

Answer 3

Two partial defences to murder were created under the Homicide Act 1957. Provocation, where a person killed due to losing self-control having been provoked by the victim and diminished responsibility, relating to the defendant’s mental capacity. Following recommendations for reform by the Law Commission in their report ‘Murder, Manslaughter and Infanticide 2006, the partial defence of provocation has now been replaced by the new partial defence of loss of control under the Coroners and Justice Act 2009. The partial defence of diminished responsibility has also been amended by the Corners and Justice Act 2009. The act provided explanatory notes designed to help in interpreting and applying the legislation.

Question 4

Section 54 (1) of the Coroners and Justice Act 2009?

Answer 4

Where a defendant kills or is the party to a killing of another, the defendant is not to be convicted of murder if:

a. the defendants acts and omissions in doing or being a party to the killing resulted from their loss of self-control.
b. the loss of self-control had a qualifying trigger.
c. a person of the defendants age and sex, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or in a similar way to the defendant.

Question 5

What are the two sections of the Coroners and Justice Act 2009 for loss of control?

Answer 5

Section 54 and 55.

Question 6

Section 54 (2)?

Answer 6

The loss of control need not be sudden, the defendants action in killing must be the result of a loss of control. There is no need for the loss of control to be sudden. The judge decides if there is sufficient evidence to leave the defence to the jury and the jury decide if the killing resulted from a loss of self-control.

Question 7

R V Dawes 2013?

Answer 7

This said ‘provided there was a loss of control it does not matter whether the loss was sudden or not. A reaction to circumstances of extreme gravity may be delayed. Different individuals in different situations do not react identically nor respond immediately.’

Question 8

Duffy 1949?

Answer 8

The defence of provocation held that the loss of control needed to be ‘sudden and temporary’.

Question 9

Section 54 (4)?

Answer 9

This excludes a defendant who acted in revenge. A defendant cannot then rely on this defence even if they lost self-control as a result of a qualifying trigger.

Question 10

Section 55?

Answer 10

This explains the meaning of qualifying triggers which can be either:

• a fear of serious violence from the victim against the defendant or another identified person e.g. parent or child
• things said or done of an extremely grave character that caused the defendant to have a justifiable sense of being seriously wronged
• a combination of both.

Question 11

R V Dawes 2013 (qualifying triggers)?

Answer 11

The Court of Appeal gave its first interpretation of the meaning of ‘loss of control’ in cases where fear of violence was claimed. Dismissing the appeals of three men against their murder convictions it ruled that the circumstances in which ‘qualifying triggers’ will arise are much more limited than the equivalent provisions in the former provocation defence. In this case the defendant stabbed his victim in the neck after he found the victim on the sofa with his wife.

Question 12

Section 55 (3)?

Answer 12

Fear of serious violence is the first of the qualifying triggers, the defendant has to show that they lost self-control because of a genuine fear of serious violence from the victim against him/her or another identified person. This fear does not have to be reasonable and is judged subjectively. It cannot be fear that the victim would in the future, use serious violence against people generally.

Question 13

Ward 2012?

Answer 13

The defendants brother had been attacked by the victim and the defendant effectively used loss of control. The defendant did not personally fear violence but his brother did.

Question 14

Lodge?

Answer 14

The victim was a small scale drug dealer and the defendant used loss of control as the victim threatened him with a baseball bat.

Question 15

Section 55 (4)?

Answer 15

Things said, done or both is the second of the qualifying triggers. This is where the defendants loss of self-control was due to things said, done or both that were of an extremely grave character causing the defendant to experience a justifiable sense of feeling seriously wronged.

Question 16

R V Dawes 2013 (things said or done)?

Answer 16

The Court of Appeal held that unless the circumstances are extremely grave, normal irritation and even serious anger do not often cross the threshold into loss of control. It also confirmed that the defendant’s sense of being seriously wronged is judged objectively by the jury.

Question 17

Can loss of control be the result of cumulative provocation?

Answer 17

It may be the result of cumulative provocation, ‘the loss of control may follow from the cumulative impact of earlier events’. However, ‘cumulative impact’ may be a better phrase. Although this is an objective test, the act is unclear whether this purely an objective test or whether the defendant will be judged against a person sharing the characteristics of the defendant. There may will be situations where a defendant feels aggravated by another’s behaviour but this will not be sufficient for the defence to succeed unless the jury concludes that the defendant was seriously wronged.

Question 18

Section 55 (6) (a) (b)?

Answer 18

This specifically excludes a trigger if it was self-induced by the defendant in the first place.

Question 19

R V Dawes 2013 (self-induced)?

Answer 19

It was stated that ‘the mere fact that in some general way the defendant was behaving badly and looking for and provoked trouble does not itself lead to the dis-application of the qualifying trigger unless his actions were intended to provide him with an excuse or opportunity to use violence.’

Question 20

Section 55 (6) (c)?

Answer 20

It excludes sexual infidelity as a qualifying trigger. However, it may still be relevant to the circumstances in which the defendant lost control.

Question 21

R V Clinton 2012?

Answer 21

The defendant appealed against his murder conviction arguing that loss of control should take account of sexual infidelity. He killed his wife after he found evidence of her infidelity on Facebook. The trial judge refused to let the jury consider the defence of loss of control due to the exclusion of sexual infidelity. A retrial was ordered by the Court of Appeal due to the trial judges misdirection about the possible relevance of his wife’s infidelity, at the retrial the defendant pleaded guilty.

Question 22

The standard of control, the comparison of the defendant with the ordinary person?

Answer 22

This is an objective test where the defendant’s behaviour is compared to how a person of the defendants sex and age with a normal degree of tolerance and self-restraint and in the defendants circumstances might have reacted in the same or similar way. All ‘circumstances’ are relevant expect those that impact on the defendant’s general capacity for tolerance or self-restraint. So a defendant’s history of abuse at the hands of the victim could be taken into account in deciding if an ordinary person might have acted as the defendant did, whereas the defendants generally short temper could not. If the jury decide that a normal person might have lost self-control due to the qualifying trigger but would not have behaved as the defendant did the defence will fail.

Question 23

R V Asmelash 2013?

Answer 23

Both parties were drunk and the defendant stabbed the victim twice and killed him. The Court of Appeal held that the loss of control defence has to be approached without reference to the defendants voluntary intoxication. If a sober person in the defendants circumstances, with a normal degree of tolerance and self-restraint, might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, the defendant would not be deprived of the loss of control defence just because he was not sober.

Question 24

Advantages of loss of control?

Answer 24

• the new defence is wider than the previous defence of provocation because there is no need for a sudden loss of control. It abolishes the rule in R V Duffy 1949 which said the loss of control must be sudden and temporary and if there was a delay or time gap between the provocative conduct and the defendant’s response to this conduct then the defence would be unavailable. However, a time gap between the incident and the defendant’s response to it could also be relevant in deciding whether there was a loss of control. Under the old law, any time gap was seen as a cooling off period when the defendant had time to regain control. This was problematic for women in violent relationships as they were unable to plead the defence due to the perceived element of pre-meditation.
• the defendant response to the qualifying trigger is judged objectively. The act requires the jury to decide if a person of the defendants age and sex with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or similar way to the defendant. The defence seem to approve of the objective test in the provocation case of DPP V Camplin 1978. Characteristics that only affect the defendants capacity for tolerance or self-control are excluded.
• the act gives a defence to someone who loses control due to a fear of serious violence from the victim, but this may be difficult to prove successfully.
• the defence is narrower than the old defence of provocation with the requirement that what ‘is done or said or both’ must be of an ‘extremely grave character’. This requirement is a response to concerns that under the old defence of provocation anything said or done by the victim to the defendant could qualify as evidence of provocation. In R V Doughty 1986, the court said that even a baby’s continual crying was evidence of provocation.
• looking at the defendants circumstances that can be taken into account when comparing the defendants reaction with that of the hypothetical ordinary person a range of factors can be taken into account, for example a history of violence. This is in line with the defence of provocation as in R V Humphreys 1995 where the court said that the whole history of the relationship was relevant, not just the last thing said or done by the victim to the defendant.
• It is by no means certain that problems of the old defence of provocation have been resolved and much depends on future cases.

Question 25

R V Ahluwalia 1993?

Answer 25

The defendant was a victim of domestic violence over ten years, fearing further violence, she waited for her husband to go to sleep, poured petrol over him and set it alight. It was seen as a cooling down period and her defence of provocation failed.

Question 26

R V Thornton 1996 and R V Humphreys 1995?

Answer 26

The defence of provocation failed in these similar case, although the courts accepted that women in violent relationships may experience a slow burn reaction compared to men who are more likely to respond immediately. The defence tried to address the criticism that the defence of provocation was harsh, male centred and sexist towards women, especially battered women with it emphasis on a ‘sudden’ loss of control.

Question 27

Disadvantages of loss of control?

Answer 27

• the defence especially denies the defence to someone who acted in revenge even if they lost self-control due to a qualifying trigger. This follows the provocation case of R V Ibrams and Gregory 1981. The defendants were provoked by the victims bullying and lured him into a trap with the aim of seriously injuring him, but ended up killing him. The defence was denied to them as there was a time gap between the victims provocative conduct and their response which was seen as planned and their actions as revenge.
• Sexual infidelity is specifically excluded as a qualifying trigger by the 2009 Act and as the Acts explanatory notes say the effect of this is that if a person kills another because they have been unfaithful they will not be able to claim the defence. However, in the recent case of R V Clinton 2012 it suggests that sexual infidelity is still relevant to the circumstances in which the defendant lost control. Was this what Parliament intended when it excluded sexual infidelity as a qualifying trigger in the legislation?
• It is insufficient for a defendant to feel wronged, the qualifying trigger will only apply where something said or done or both caused the defendant to have a justifiable sense of being seriously wronged. The explanatory notes to the Act say that deciding the ‘sense of being seriously wronged’ is judged using an objective test by the jury. In R V Dawes 2013 it confirms the use of an objective test. However, this limits the availability of the defence.

Question 28

What is the defence of diminished responsibility?

Answer 28

Diminished responsibility is a partial defence to murder and where successfully pleaded a defendant is convicted of manslaughter instead of murder. It is also a special defence as it is only available to murder. The defence of diminished responsibility was originally created by Section 2 of the Homicide Act 1957 due to the narrow definition of insanity and has now been given a broad interpretation. Following the Law Commissions 2006 report of ‘Murder, manslaughter and infanticide’ it was amended by Section 52 of the Coroners Justice Act 2009. The report said that the defence was ‘now badly out of date’ and it did not reflect modern psychiatric approach. The new definition has streamlined the defence and its aim to update the terminology so it encourages a defence to be grounded in a medical diagnosis and in a way that will accommodate future medical developments. The old defence referred to a defendant suffering from an ‘abnormality of the mind’ whereas the current defence refers to an ‘abnormality of mental functioning.

Question 29

What does Section 52 of the Coroners and Justice Act 2009 state?

Answer 29

A person who kills or is the party to a killing of another is not to be convicted of murder if they were suffering from an abnormality of mental functioning which:

• arose from a recognised medical condition
• substantially impaired the defendant’s ability to understand the nature of his conduct or form a rational judgement or exercise self-control
• provides an explanation for the defendants acts and omissions in doing to being a party to the killing.

Question 30

There must be an abnormality of mental functioning?

Answer 30

The accused must be suffering from an abnormality of mental functioning. The old defence of diminished responsibility referred to an ‘abnormality of mind’ but the Law Commission said that ‘abnormality of mental functioning was a term preferred by psychiatrists to ‘mind’. The test for abnormality of mental functioning is the reasonable man test and this is the same as under the previous Homicide Act 1957 which was given in R V Byrne 1960.

Question 31

R V Byrne 1960?

Answer 31

Byrne was a sexual psychopath who suffered from perverted sexual desires which he was unable to control. While under the influence of these desires, he strangled a girl then mutilated her body. His murder conviction was reduced to manslaughter on appeal. The court held that abnormality of mind meant ‘a state of mind so different from that of an ordinary person that the reasonable man would term it abnormal, it is an objective test.

Question 32

The abnormality of mental functioning must have been caused by a recognised medical condition?

Answer 32

The abnormality of mental functioning must have arisen from a condition recognised by medical professionals, this is aimed to modernise the defence and bring it into line with medical understanding of mental illnesses. So the defence will only be available if the defendant was suffering from a medically recognised condition when they killed the victim.

Question 33

Examples of conditions to support a diminished responsibility plea?

Answer 33

• battered women syndrome
• PMS
• Aspergers syndrome
• paranoid personality disorder
• depression
• epilepsy
• othello syndrome
• psychopathy

Question 34

R V Osbourne 2010?

Answer 34

The Court of Appeal accepted that ADHD could support a defence of diminished responsibility but in this case it was more likely that the defendant’s drug taking and anger explained his conduct when he attacked the victim. The defendant had been smoking cannabis with friends, he saw the victim walking with a friend, a fight erupted and the victim punched the defendant in self defence and then left with his friend. The defendant was very angry and arming himself with a plank of wood chased the victim and hit him over the head from behind with the plank. He was convicted of murder. On appeal the defendant tried to introduce new evidence that he was suffering from ADHD which made him behave in an impulsive way and impaired his ability to form rational judgement and control his actions, this was rejected and his conviction upheld.

Question 35

Substantial impairment of responsibility?

Answer 35

The Coroners and Justice Act 2009 simplifies this third requirement by stating that the abnormality of mind must have ‘substantially impaired’ the defendants ability to do one of the following:
- to understand the nature of their conduct
- to form rational judgement
- to exercise self-control
The act does not define the phrase ‘substantially impaired’ and the courts may be influenced by the meaning given to a similar phrase in the old defence. The case of R V Lloyd 1976 decided it meant ‘more than trivial but less than total impairment.’

Question 36

R V Gold 2014?

Answer 36

The defendant pleaded guilty to murdering his partner and medical evidence provided evidence of diminished responsibility. He was convicted of murder and appealed on trial judge error in refusing to direct the jury on the meaning of ‘substantial’. The Court of Appeal upheld his murder conviction saying there was no error and gave a ruling on the meaning of substantial. The abnormality of mental functioning must provide an explanation for the defendants involvement in killing the victim. The abnormality should cause or be a significant contributory factor in causing the defendant to kill. If the abnormality made no difference to the defendant’s behaviour, then the defence will not be available.

Question 37

Diminished responsibility and intoxication?

Answer 37

The defence becomes more complicated when the defendant was intoxicated at the time of the killing. Under the old diminished responsibility defence, there was considerable case law looking at the relevance of alcohol and drugs to the availability of the defence. It is not clear if the courts will apply the same approach to alcohol and drugs under the new definition of diminished responsibility.

Question 38

R V Fenton 1975?

Answer 38

It was held that a mental abnormality caused by drink/drugs was not sufficient for a diminished responsibility plea.

Question 39

Intoxication and a pre-existing abnormality of the mind?

Answer 39

There are problems where the defendant has some abnormality of the mind but in addition he was intoxicated at the time of the killing. This was the issue in RV Gittens 1984 and R V Egan 1992.

Question 40

R V Gittens 1984?

Answer 40

The defendant suffered from depression, he consumed a large amount of drink and anti-depressants and killed his wife and step-daughter and was convicted of murder. The Court of Appeal quashed his murder conviction and substituted manslaughter because of a misdirection to the jury on the misuse of intoxicants. The court said the jury should be told to ignore the effect of the alcohol and drugs and consider whether if the defendant had been sober, would he have been suffering from an abnormality of the mind so that it substantially impaired his mental responsibility.

Question 41

R V Egan 1992?

Answer 41

The Court of Appeal confirmed R V Gitten 1984 on the question the jury must consider ‘was a defendant’s abnormality of the mind such that he would have been under diminished responsibility, drink or no drink?

Question 42

R V Dietschmann 2003?

Answer 42

This confirmed the decision in R V Fenton 1975, R V Gittens 1984 and R V Egan 1992. The defendant killed a man at a party who was disrespectful towards the memory of his aunt who had recently died. He was very drunk but was suffering from grief induced adjustment disorder, an abnormality of the mind. He was convicted of murder and appealed. The House of Lords quashed his murder conviction and substituted manslaughter. It said that the key question for the jury was not whether the defendant. had he been sober, would have killed but whether had he been sober, he would still have been suffering from an abnormality of the mind.

Question 43

R V Hendy 2006?

Answer 43

The principle from R V Dietschmann 2003 was applied by the Court of Appeal where the defendants murder conviction was quashed because the trial judge did not direct the jury in accordance with the model direction given in R V Dietschmann.

Question 44

How have the courts addressed a scenario where a defendant was suffering from an abnormality of the mind caused by intoxication?

Answer 44

• where a defendant’s long-term alcohol and/or drug abuse has led to brain damage or psychosis. The Court of Appeal in R V Tandy 1989 said this could be seen as an ‘injury’ and a reason for the abnormality of the mind and a defendant could plead the defence.
• long term alcoholism and/or drug addition may amount to ‘disease’ allowing a defendant to plead diminished responsibility. The courts have been reluctant to say that being an alcoholic is enough and imposed conditions of the availability of the defence.

Question 45

R V
]
Tandy 1989?

Answer 45

The court did not allow her the defence of diminished responsibility because it was not proved that her drinking was involuntary. The defendant was an alcoholic and after drinking most of the bottle of vodka killed her young daughter who said she had been sexually abused by Tandy’s husband. She was convicted of murder and the Court of Appeal upheld it dismissing her appeal of diminished responsibility because she could not show that her brain had actually been injured from the drinking and that she was no longer able to resist the urge to drink making her drinking involuntary. She had to show that the urge to drink was so overwhelming it was involuntary but she could not prove that she was unable to resist the first drink of the day.

Question 46

R V Inseal 1992?

Answer 46

Even though the ruling in R V Tandy 1989 was criticised as harsh, the Court of Appeal followed it here where the defendant was convicted of murdering his girlfriend despite his alcohol dependence syndrome and he was not allowed to raise a diminished responsibility plea.

Question 47

R V Wood 2008?

Answer 47

The Court of Appeal reviewed in the light of the House of Lords decision in R V Dietschmann 2003. It set down principles where a defendant who has alcohol dependence syndrome wants to plead diminished responsibility. It said that the alcohol dependence syndrome may amount to disease or illness and if so diminished responsibility is available provided there is evidence of brain damage and/or where some or all of the defendants intoxication resulting from the syndrome is seen by the jury as involuntary intoxication. A legal commentator has criticised this ruling saying that ‘any jury would find it a fearsomely difficult task’. In this case after a days drinking the defendant killed the victim with a meat cleaver. He suffered from alcohol dependence syndrome and using the principle in R V Tandy the trial judge rejected his diminished responsibility plea and he was convicted of murder. The Court of Appeal quashed his murder conviction and substituted manslaughter.

Question 48

R V Dowds 2012?

Answer 48

The defendant and his girlfriend were heavy binge drinkers and also had a violent relationship. They drank two bottle of vodka and he stabbed her to death. The defendant argued he suffered from voluntary acute intoxication, a recognised medical condition but he was not alcohol dependent. The Court of Appeal dismissed his appeal as voluntary acute intoxication is not capable of being relied upon to ‘found diminished responsibility’.

Question 49

Advantages of diminished responsibility?

Answer 49

• the new defence takes account of modern medical knowledge and the phrase ‘recognised medical condition’ allows for flexibility and development. It could be argued that an ‘abnormality of mental functioning’ may be interpreted more narrowly than an ‘abnormality of the mind’ in the old defence as it will need to result from a ‘recognised medical condition’. It remains to be seen if the new defence tightens up on types of conditions allowed as a basis for a diminished responsibility plea.
• the requirement for the defendants mental responsibility to be substantially impaired under the old defence is no longer required. Instead a defendant must prove that their ‘recognised medical condition; substantially impaired their ability to understand the nature or their conduct, form a rational judgment or exercise self-control. The Coroners and Justice Act 2009 did not define ‘substantially’ although they may use the meaning given to ‘substantially impaired’ in R V Lloyd 1967.

Question 50

Disadvantages of diminished responsibility?

Answer 50

• The Law Commission proposed the inclusion of developmental immaturity in the defence but the government rejected this as conditions like autism and learning difficulties could fall under the umbrella of a ‘recognised medical condition’.
• Under the old defence the courts sometime took a practical approach with diminished responsibility and applied the defence to avoid a mandatory life sentence e.g. in mercy killing cases. Cases involving mercy killings have always put a strain on diminished responsibility because strictly speaking the requirements of the defence may not have been satisfied and this loop-hole may be tightened up under the new defence. The defence failed in R V Inglis 2010 where a mother who was convicted of murder for giving her 21-year-old son a fatal injection of heroin who was never going to recover from head injuries.
• mental health issues can carry a stigma which may deter some defendant’s from using diminished responsibility plea.
• a jury, not a psychiatrist or doctors or a judge decides in the end if the defendant was suffering from an abnormality of mental functioning which provides an explanation for killing the victim. Should the jury decide this?
• Once a defendant raises a diminished responsibility plea the prosecution can argue insanity. If this is accepted then a defendant will be found not guilty by reason of insanity and could be referred to a mental institution for an indefinite period.