Explain the progression of the law in the area of voluntary manslaughter for the two partial defences available

to defendants.

Voluntary manslaughter requires the same degree of intention as murder, the defendant would be guilty of murder but as successful plea of diminished responsibility or loss of control (previously provocation) results in the murder charge being reduced to voluntary manslaughter, diminished responsibility and loss of control are partial defences, which means that they do not lead to a complete acquittal. These defences were previously provided for by the Homicide Act 1957 however due to lack of clarity and guidelines which were too broad much of the Homicide Act was abolished and it was updated by the Criminal and Justice Act 2009 which came into effect in October 2010 and brought law up to date making it more just, for example the previous law allowed loss of control due to infidelity to qualify as provocation however the new law abolished this and states that if a person kills another because they have been unfaithful then the defence of loss of control cannot be used because the court felt that it allowed jealous men to kill wives or girlfriends due to affairs which is not acceptable in modern society. The defence of diminished responsibility was introduced by Section 2 of the Homicide Act 1957 and it stated that the defendant must be suffering from an abnormality of the mind arising from a recognised medical condition which causes substantial impairment. Under the old law abnormality of the mind covered a wide range of medical conditions from pre-menstrual tension (English (1981) in which a woman who had killed could provide evidence to show that her responsibility was impaired by pre-menstrual tension) to psychotic disorders as seen in Byrne (1960) where the court ruled that a sexual psychopaths inability to control sexual desires could be used to plead diminished responsibility. The old law also covered the battered wife syndrome, Ahluwalia (1992) the defendant waited for her abusive husband to fall asleep then poured petrol over him, and post-natal depressionillustrated by Reynolds (1988) when a young mother killed her own mother with a hammer and successfully pleaded diminished responsibility due to post-natal depression. The Criminal and Justice Act (2009) is the new law and under this abnormality of the mind is now referred to as abnormality of mental functioning which arises from a recognised medical condition, this covers a wide range of physical, psychological and psychiatric that exist and are listed in the World Health Organisations classification of diseases and in the American Psychiatric Associations manual of mental disorders. Under this law, if the jury accepts that the defendant is suffering from one of these conditions then the first part of the test for diminished responsibility is met. The second test is whether the defendant was substantially impaired by this abnormality. Under the Homicide Act 1957 it was stated that the defendants mental responsibility must be substantially impaired but it failed to be specific so the Criminal and Justice Act (2009) aimed to clarify this by stating that the abnormality of mental functioning has to be a significant contributory factor in causing the defendant to act the way they did, there must be a casual connection between the abnormality and the killing for the defence to be successful. Under the old law there was a problem if a person was under the influence of alcohol or drugs at the time of the killing however in Tandy the court stated that drunkenness was not an abnormality of the mind so could not be used for diminished responsibility. There was also an issue if the defendant was suffering from a recognised condition and was under the influence of alcohol or drugs at the time of the killing, it was held in Gittens that the jury should ignore the effects of the alcohol or drugs and focus on the defendants depression and decide if it was sufficient enough to impair the defendants mental responsibility for his act. This was approved in Dietschmann in which the defendant was suffering from a mental disorder when he killed a man who he felt was

disrespecting his recently dead aunt. The defendant had consumed a large amount of alcohol at te time of the killing and initially the court of appeal upheld the conviction of murder but on the second appeal they stated that the important question was whether, discounting the intoxication, the mental abnormality substantially impaired the defendants responsibility for his actions. Under the new law the jury must decide if the defendant had an abnormality of mental functioning arising from a recognised mental condition, whether the abnormality substantially impaired the defendants ability to understand the nature of his condition, form a rational judgement or exercise self control, and whether the abnormality caused was a significant factor in causing the defendant to kill the victim. If it is yes to all three requirements then the defendant cannot be convicted of murder and must be convicted of voluntary manslaughter. The Criminal and Justice Act has clarified the requirements for the defence of diminished responsibility by expanding on the Homicide Acts statement that the defendants mental responsibility must be substantially impaired and specified that the abnormality of mental functioning must substantially impair the defendants ability to either understand the nature of his/her conduct, form a rational judgement or exercise self control. The other partial defence is loss of control which was provided for by section 3 of the Homicide Act (1957) but at this point it was referred to as provocation and there was a two part test the jury would have to apply; the subjective test, was the defendant provoked to lose his/her self control, and the objective test- would a reasonable man have lost his self control in the same circumstances? The Homicide Act did not give enough detail and couldnt be applied to new circumstances so the Coroners and Justice Act (2009) s.56 abolished provocation as it was defined in the Homicide Act and S.54 and S.55 introduced the new defence of loss of control. In the criminal and justice act there are three situations which are referred to as qualifying triggers. The first situation is the fear trigger which is a subjective test where the defendant has to prove that he/she experienced genuine fear for themselves or some other identifiable person that the defendant knows. The defendant does not have to prove that the fear was reasonable however it is not enough for the defendant to have a general fear that serious violence might be directed towards someone the defendant does not know. A case which shows the progression of the law in this area is Martin (2002) in which a home owner shot into the dark when his home was broken into in the middle of the night and killed one of the two intruders, the house was in an isolated place and had been burgled before. The defendant was convicted of murder although later succeeded in an appeal on the grounds of diminished responsibility. The old law did not allow a defence where the defendant lost control through fear of violence however taking into account the new law Martin could use the defence of loss of control. The second situation is things said or done- the anger trigger. This must amount to circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged, for example homophobic or racist taunting. This is an objective test because it is up to the jury to decide whether the defendant was seriously wronged. Under the new law things said or done with regards to sexual infidelity have to be disregarded because the court felt that the provocation defence allowed jealous men to kill their wives or girlfriends because of affairs, something which is not acceptable in the 21st century. A case which illustrates the progression of the law in this area is Doughty (1986) in which the defendant killed his 19 day old baby because it would not stop crying, the defendant successfully pleaded the defence of provocation under the old law however would not be able to do so under the new law of loss of control. The third situation allows for a combination of the previous two situations as it is likely that a combination of fear of violence and things said or done might have cause the defendant to act in the way that they did. Another change brought by the Criminal and Justice Act (2009) is that it is now possible for there to be a delay between the incident causing the loss of control and the killing; this is a key development because previously the loss of control had to be sudden and temporary. As it says in Baillie (1995) if there was a sudden loss of control then the defence of provocation was

available. In Ahluwalia (1992) an abusive husband threatened his wife with violence next day and when he was sleeping she poured petrol over him and set him alight, the defendants appeal on the basis of provocation was disallowed however in Thornton (1996) a similar situation in which the defendant was abused by her husband and after a particular incident went into the kitchen to calm down but ended up searching for a weapon. She returned to the living room and stabbed her husband with a knife which she had just sharpened. She was convicted of murder and her first appeal failed because the Court of Appeal said there had not been a sudden and temporary loss of control however on her second appeal the court said that it was possible that the minor incident could have acted as the last straw and trigger a sudden loss of control- she was later acquitted by the jury. These cases show that there had been a gradual change in attitudes before the new law was put into place. In the 2012 R v Clinton case it was said that the greater the level of deliberation, the less likely that the killing followed a true loss of control this is in reference to the new law and means that although it is now possible for there to be a delay between the provocation and the loss of control the provocation or qualifying trigger still has to be recent.