Voluntary Manslaughter

 Voluntary Manslaughter

• There are three special defences to a charge of murder
• Diminished responsibility
• Loss of control; or
• Suicide pact

When one of these is successful the offence of murder is reduced to manslaughter

Diminished Responsibility

• The defence is set out in s2(1) of the Homicide Act 1957 as amended by s52 of the Coroners and Justice Act 2009
• The effect of this section is that
• A person who kills or is a party to the killing of another is not to be convicted of murder if he was 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 their conduct; or
• Form a rational judgment; or
• Exercise self-control and
• Provides an explanation for the defendant's acts or omissions in doing or being a party to the killing
• The burden of proving the defence rests on the defendant, but it only needs to be proven on the balance of probabilities

Abnormality of Mental Functioning

• Before s 52 of the Coroners and Justice Act 2009 amended the definition of diminished responsibility, the phrase used was 'abnormality of mind' - Byrne (1960)
• Although Byrne uses the old definition it is very likely that the courts will still use the same standard of abnormality, that is:
• that the defendant's mental functioning was so different that the reasonable man would find it abnormal - the jury will decide this covers a wide range of situations:
• Seers (1985) - chronic reactive depression
• Hobson (1998) - battered woman syndrome officially recognised as a valid new condition

Substantially Impaired

• Byrne (1960) - the question of whether the impairment was substantial was one of degree and that it was for the jury to decide
• Lloyd (1967) - substantial does not mean total, but it doesn't mean 'trivial or minimal' either
• Seers (1984) - 'Substantially' means more than trivial but not total - the abnormality of mental functioning was put down to 'depression' but this again was recognised officially by medical evidene as a psychiatric condition
• Medical evidence will normally be given at trial which the jury can consider - Campbell (1997)
• Question will be withdrawn from the jury if there is no evidence of substantial impairment

What must be substantially impaired?

• S2(1A) of the Homicide Act, the defendant's ability to do on of three things must be substantially impaired
• To understand the nature of their conduct
• To form a rational judgement
• To exercise self-control - this was the case in Byrne (1960), medical evidence that his condition of being a sexual psychopath meant he was unable to control his perverted desires; the defence of diminished responsibility was therefore available to him
• Since the Coroners and Justice Act 2009 there must now be some causal connection betweeen the defendant's abnormality of mental functioning and the killing - s2(1B) Homicide Act 1957

Valid 'Conditions'

• R v Dietschmann (2003)
• An adjustment disorder suffered on the death of the defendant's aunt with whom he was having a relationship
• R v Jama (2004)
• A violent reaction founded on the defendant's autism
• R v Gittens (1984)
• Depression
• R v Vinagre (1979)
• 'Othello's Syndrome' or pathological jealousy where the defendant is convinced that their partner is being unfaithful
• R v Simcox (1964)
• Paranoia
• R v Hendy (2006)
• General psychopathy
• R v Erskine (2009)
• Schizophrenia

Diminished Responsibility

• Intoxication alone cannot support a defence of diminished responsibility, Di Duca (1959); Dowds (2012)
• Where the defendant has a pre-existing mental disorder, intoxication does not prevent them using the defence - of the condition existed before the intoxication it is acceptable even though the intoxication may have made it worse - Dietschmann (2003)
• The only time that alcohol may form the basis of a successful diminished responsibility defence when it is a level of alcohol dependency that the court is satisfied had led to a recognisable psychiatric condition (Alcohol Dependency Syndrome can be an abnormality of mental functioning - Wood (2008))
• R v Wood (2008)
• The court made a distinction between having drunk alcohol as a result of giving in to a craving (not a recognised disorder) and the kind of dependency experienced by alcoholics (which is a recognised disorder provided medical evidence classifies it as such...i.e it is a 'syndrome')

Reform of the Law

• The Coroners and Justice Act 2009's new definition, using the phrase 'recognised medical condition', should be more flexible and allow for future developments in the field of medical science
• The 2009 Act also no incorporates the decision in Byrne (1960), in that the Act sets out clearly what aspects of the defendant's mental functioning must be substantially impaired in order for the defence to succeed

Loss of Control

• S.54 of the Coroners and Justice Act 2009
• The defence of loss of control is a partial defence that may reduce liability for murder to manslaughter. It does not operate to absolve the defendant of liability completely. It is not a general defence and exists only for the offence of murder
• The loss of control defence was introduced in response to concerns in relation to the defence of provocation
• The defence of provocation proved problematic and was subject to much consideration by the appeal courts. The appeal courts were not always consistent in the interpretation and application. The defence was also considered to have a gender bias in that it was too favourable to those who killed as a result of losing their temper (generally male defendants) but did not provide a tailored response to those who kill out of a fear of serious violence (often women experiencing domestic violence)
• The extent to which the new legislation addresses these issues is a moot point
• The new defence of loss of control is broadly similar to the defence of provocation in the requirements; however, it is far more restrictive in its application
• The Ministry of Justice Impact Analysis of 2009 estimated that the changes would result in a further 10-20 murder rather than manslaughter convictions per year at a cost of £4-8m in the prison and court systems
• For loss of self-control, there is no requirement that the loss of self-control be suddent (s.54(2))
• This represents a change from the law of provocation, which required the loss of control to be sudden and temporary (R v Duffy) which was seen as a significant barrier to victims of domestic violence. See R v Ahluwalia, R v Thornton, however, in each of those cases there was no loss of control, sudden or otherwise, and thus the cases would have had the same outcome under the new defence
• The Law Commission has recommended that there should be no requirement of loss of control as this was the element of the defence of provocation that operated against women
• By virtue of s.54(4) - If the defendant acted in a considered desire for revenge they cannot rely on the defence. This upholds the principle seen in R v Ibrams & Gregory
• Qualifying trigger - under the old law of provocation virtually any act was capable of being used as evidence of provocation. This was considered problematic in that it was too wide. The provocative action did not have to be deliberate or aimed at the victim, even a baby crying was accepted as a provocative act (R v Doughty). The introduction of qualifying triggers have narrowed the amnit of the new defence quite dramatically
• The qualifying triggers are set out in s.55 Coroners and Justice Act 2009
• A qualifying trigger may only relate to s.55(3) where the defendant's loss of sel-control was atrributable to the defendant's fear of serious violence from the victim against the defendant or another identified person OR
• s.55(4) Where the defendant's loss of self-control was attributable to a thing or things done or said (or both) which - (a) consistuted circumstances of an extremely grave character, and (b) cause D to have a justifiable sense of being seriously wronged
• See the cases of Dawes (2013) and Zebedee (2012)
• The question of what constitutes circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged is decided objectively: R v Hatter (2013)
• The breakdown of a relationship will not normally be regarded as circumstances of an extremely grave character nor entitle the aggrieved party to have a justifiable sense of being seriously wronged: R v Hatter (2013)
• Limitations on qualify triggers - Despite the restrictive wording used to establish a qualifying trigger, s.55(6) Coroners and Justice Act 2009 provides two further limits as to what may be classed as a qualifying trigger:
• 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
• Sexual infidelity - The limitation based on sexual infidelity represents a major change from the defence of provocation which was largely seen as an excuse for crimes of passion. This change is based on the view that in a civilised society there can be no excuse for killing due to infidelity
• This provision has already been subject to interpretation by the Court of Appeal: R v Clinton (2012) in this case the defendant was suffering from depression and was taking medication for this. He killed his wife. The day before she had told him that she was having an affair. She had taunted him and they had argued, then he killed her. He was convicted of murder but appealed on the basis that the defence of loss of control should have been left to the jury to decide. The Court of Appeal agreed and quashed his conviction - whilst sexual infidelity alone cannot amount to a qualifying trigger it does not have to be completely disregarded. It could be integral to and form part of other factors which could be qualifying triggers
• In Dawes (2013) the Court of Appeal confirmed that sexual infidelity cannot amount to a qualifying trigger
• Degree of tolerance and self-restraint - s.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. This is a question for the jury to decide
• It replaces the reasonable man test which existed under the law of provocation which attracted widespread criticism and was subject to much conflicting interpretation in the courts culminating in the landmark case of Attorney General for Jersey v Holley (2005)
• Reference to sex and age represents the position with regards to provocation established in DPP v Camplin (1978)
• Problems with the reasonable man test related to the characteristics which could be attributed to the reasonable man. S.54(1)(C) makes explicit reference to just age and sex. However, characteristics may be relevant when assessing the circumstances of the defendant although under s.54(3) circumstances which relate to the defendant's general capacity to exercise tolerance and self-restraint are to be disregarded
• According to R v Clinton (2012), sexual infidelity may be considered when looking at the circumstances under s.54(1)(c) in an appropriate case
• Voluntary intoxication is not a matter to be taken into account when considering the defendant's characteristics
• In Asmelash (2013) the Court of Appeal refused to allow the defendant voluntary intoxication to be considered
• The defence of provocation required some degree of proportionality test in that the jury was required to assess the gravity of the provocation in deciding if a reasonable man would have done as the defendant did.
• The new defence of loss of control does not have such a balancing exercise. The gravity of the provocation, or trigger event, is assessed at stage two and must meet the specified thresholds of either fear of serious violence (s.55(3), extremely grave or seriously wronged (s.55(4))
• There is no requirement that this is weighed against the conduct of the defendant
• Also rather than the jury assessing whether the provocation would have made a reasonable man do as the defendant did, the jury are required to consider if a relevant person might have reacted in the same or similar way. The third element of the defence is thus perhaps more generous to defendants
• R v Duffy
• R v Ahluwalia
• R v Thornton
• Teams notes:
• Where a person kills/is party to a killing, they are NOT to be convicted of murder if:
• The acts or omissions resulted from a loss of self control
• This loss of self control had a 'qualifying trigger'
• A person of D's age and sex, with the normal degree of tolerance and self restraint would have reacted in the same way as the defendant
• What is a loss of self control?
• There is no requirement for it to be 'sudden' and something is not sudden if it is done out of reevenge or there is too much thought/planning/premeditation involved
• R v Ibrams and Gregory (1982)
• A plan to beat up an ex-boyfriend of one of the defendants' girlfriends went too far and the ex was beated to death
• Their defence was that they didn't mean to kill him. They admitted to having planned the attack, but in carrying it out they went too far and killed him. They claimed it was a 'loss of self-control'
• HELD - There was far too much evidence of planning and premeditation for loss of control to operate as a defence
• There must be a 'qualifying trigger' that causes the loss of self control
• Two things can act as a trigger:
• Fear of serious violence from the deceased
• R v Pearson (1992)
• Two sons killed their abusive father
• Things that have been said, or done, or both
• In this case, the circumstances have to be of an 'extremely grave character' and there must be a justifiable sense of the defendant having been wronged
• R v Camplin
• The defendant had been raped and then taunted by the deceased, and as a result he had beaten the rapist to death
• The issue was that the trial judge said that the issue of the defendant's age should nnot be a consideration
• The HoL however said that you cannot apply the 'reasonable man' test without thinking of someone that shared the defendant's gender and age - otherwise any such application of the rest would be meaningless
• On the application of the reasonable man (of the same age and gender of the defendant) test, the court changed the murder verdict to one of manslaughter
• Sometimes both triggers can apply at the same time
• R v Humphreys (1995)
• Taunting over sexual behaviour and an inability to commit suicide was deemed to satisfy both triggers
• NEITHER TRIGGER WILL BE DEEMED TO HAVE OCCURRED IS A LOSS OF SELF CONTROL WAS SELF-INDUCED
• Meaning that you cannot use los of self control if you engineer a situation in which so-called 'trigger words and actions' are said and done, just so you can justify taking revenge