Voluntary Manslaughter- Partial Defences

Question 1

Diminished Responsibility

Preliminary points

Answer 1

• introduced due to dissatisfaction with the defence of insanity.
• Wider ambit than insanity
• reduces murder to manslaughter.
• > burden on accused to shownon balance of probabilities that he or she is suffering from diminished responsibility..

Question 2

Diminished responsibility as set out in

Answer 2

s.2 of Homicide Act of 1957 as ammended by s.52 of Cornoners and Justice Act 2009

Question 3

D must demonstrate the following

Answer 3

• > abnormality of mental function caused by recognised mental condition
• > abnormality must subsstantially impaIr his/her mental ability to either:
  a. Understand nature of conduct
  b. form a rational judgement or
  c. excercise self control

-> which provides an explanation for the defendants acts or ommisions in being party to the killing.

Question 4

Abnormality of mental functioning

Answer 4

No clear definiton by courts or parliament.

- Law com recommends that medical def used.

Question 5

‘Subsantially impair”

D’s ability to understnad conduct, forma rational judgmenet or exercise self control

Answer 5

• to exercise self control distinguishes diminshed responsibility from insanity
  this is a jury q
  -D bears burden of proof on BOP
• Any planning by D may be used to show that mental ability was not impaired- R v Campbell [1997]

Question 6

Byrne [1960]

Answer 6

D strangled and then mutilated a woman after her death. Evidencce given that Brne suffered strong perverse desires from childhood that he found it all-but impossibleto control,and it was such a desire that overwhelmed him whe he killed the woman. Falls within scop asit involves abnormality of mental function substantially impairing D’s ability to exercise self control.

Question 7

Mental abnormalities recognised

Answer 7

-alcohol dependency - Tandy [1989], Dietschmann [2003]
–»Dowds: Voluntary acute intoxication is incapable of founding diminished responsibility.
-Depressive illness reesulting from long term abuse at hands of violent partner-Ahluwalia; or
-From stress of long-term care for terminally ill relative- Law com
Smth [1982- PMS

Question 8

Seers [1998]

Answer 8

D killed motherw/ hammer.CA:ruled postnatal depression after giving birth could amoun to diminshed responsibility..

Question 9

Ahluwalia [1993]

Answer 9

D absued by husband; suffered battered wife syndrome. At threat of him leaving, she set fire to him. CA: Upon appeal murder conviction quashed as battered woman syndrome acknowledged. Reduced to manslaughter.

Question 10

The abnormality must provide an explanation for D’s act or ommision in being party to the killing

Answer 10

A matter of causation
s&s- think statute worded in a way that suggests to jury that mental condition automatically diminishes moral responsibility. Rather than questioning if there was a causal link between disease and offence.

Question 11

the appeal courts are reluctant to admit fresh evidence relating to diminished responsibility:

Answer 11

there have been advances in medical opinion since the time of trial:

E.G Ahluwalia

Question 12

Substantial Impairment of understanding of conduct, rationality or self-control

Answer 12

Substantial does not mean total and is not minimal, it is somewhere in-between. Parliament has left this decision to the jury based on the evidence to decide.
Ashworth J’s definition in R v Lloyd 1967

Question 13

Intoxication and Defence of D.R (Case)

Di Duca 1957

Answer 13

-Taking alcohol/drugs is mot classed as an abnormality of mental functioning as it is self-inflicted.

Question 14

Intoxication and a pre-existing abnormality of M.F (Case)

Hendy 2006

Answer 14

-D intoxicated and medical evidence proved an underlying brain damage and disorder at time of killing. VI is no bar to defence of D.R, as long as the underlying abnomarlity of mental function exists.

Question 15

Intoxication due to alcohol dependency syndrome (Case)

Stewart 2009

Answer 15

Juries should apply a 3 stage test:

1. The seriousness of D’s ADS.
2. D’s abnormality of mental functioning must be caused by ADS.
3. If so, D’s mental responsibility must be substantially impaired by ADS.

Question 16

Loss of self Control

Preliminary points

Answer 16

• replaced provocation
• exists only for murder
• reduces murder to MS
• More restrictive than provocation

Question 17

Loss of Self control set out in:

Answer 17

s.54 Coroners and Justice Act 2009

Question 18

s.54 (1) requires

Answer 18

a) . loss of self control
b) The loss of self control had a quaifying trigger, and
c) a person of D’s sex& age w/ normal degree of tolerance andself restraint in the circumstances of D, might have reacted in the same or in a similar way to D.

Question 19

Burder of Proof

Answer 19

S.54 (5)- Is on the prosecution to prove beyond reasonable doubt that D did not lose self control

Question 20

Loss of Self Control

s. 54 (2)

Answer 20

S 54 (2) loss of self control neednot be sudden.
policy reason: seen as bar for victims of domestic violence.

Question 21

S.54 (4)

Answer 21

Defence not abailable where D has “acted in a considered desire for revenge”
R v Ibrahams (1982)

Question 22

Qualifying Trigger

Answer 22

set out in s.55

• > s.55(3) D’s fear of serious violence
• > s. 55(4) Where D’s loss of self-control was attributable to athing or things done or said (or both) which–
• > (a) constitued circumstances of an extremely grave character, and
• > (b) caused D to have a justifiable dednse of being seriously wronged.

Question 23

Fear of Serious violence

Limitations

Answer 23

S.55(6)(b) A person may not raise a qualifying trigger if they incited the thing done or said or the violence.

Otherwise it covers domestic violence w/o strain. Also provides offence for those who use excessive force attempting self defence.

Question 24

being seriously wronged by things said or done

Limitations

Answer 24

S.55(6)(a) The fact that a thing done or said constituted sexual infidelity is to be disregarded.

S.55(6)(b) A person may not raise a qualifying trigger if they incited the thing done or said or the violence.

Question 25

Sexual infidelity

already been subject to interpretation by the courts of appeal
R v Clinton [2012]-

Answer 25

D killed wife. argued loss of control due to things said or done: meaning her teasing him about his impotency. Also saying he didnt have the bollocks to commit suicide held:
Where other factors count as a qualifying trigger, sexual infidelity may be taken into account in assessing whether things done or said amounted to circumstance of an extremely grave character and gave D a justifiable sense of being wronged under s.55(4)

Question 26

3. Degree of tolerance and self-restraint

Objective standard.

Answer 26

.54(1)(c) requires that a person of the defendant’s sex and age, 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 - Jury q

Question 27

Dpp v Camplin (1978)

Answer 27

Age should be considered when considering reasonableness

Question 28

Asmelah [2013]

Answer 28

D murdered while drunk and, at trial, he raised the defence that he had lost control at the relevant time. He appealed, issue: oluntary consumption of alcohol falls within the ambit of s.54(1)(c), as amplified by s.54(3)

CA: D who has been drinking is not deprived of any possible loss of control defence: judge explained, loss of control defence must be approached w/o reference to the defendant’s voluntary intoxication.
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.

Question 29

The revised s. 2 of the Homicide Act 1957 and the provisions of the Legal Aid, Punishment and Sentencing of Offenders Bill 2010–11

Answer 29

The revised s. 2 of the Homicide Act 1957 and the provisions of the Legal Aid, Punishment and Sentencing of Offenders Bill 2010–11.potentially opens the door to defendants who would not previously have been able to rely on their voluntarily induced state of intoxication to reduce a murder conviction to one of manslaughter.