Voluntary manslaughter

Voluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted
during "the heat of passion", under circumstances that would cause a reasonable person to become emotionally or
mentally disturbed.
Apart from the general defences, murder is served by three special (partial) defences which, if successful, reduce a
murder conviction to a conviction for voluntary manslaughter. It is called voluntary manslaughter because the
prosecution can prove the killing was voluntary (in the sense of being intended or almost intended),

Loss of Self Control

 The loss of control defence was introduced by s.54 of the Coroners and Justice Act 2009 and came into force in
October 2010.
 Killings committed prior to this date continue to be governed by the defence of provocation.
 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 of the defence of provocation
as set out in s.3 of the Homicide Act 1957.
 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.

S.54 Coroners and Justice Act 2009

S.54(1) A person who kills or was party to a killing may be convicted of manslaughter rather than murder where
there exists:
(a) a 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 and in the circumstances of
D, might have reacted in the same or in a similar way to D.

Burden of proof
S.54 (5) - if sufficient evidence is adduced, the jury must assume that the defence is satisfied unless the prosecution
proves beyond reasonable doubt that it is not.

1. Loss of self-control
 There is no requirement that the loss of self-control be sudden (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 [1949]) which was a seen as a significant barrier to victims of domestic violence. See, R v
Ahluwalia [1992], R v Thornton [1996].
 However, in each of those cases there was no loss of control, sudden or otherwise and thus the cases would have
the same outcome under the new defence.
 The Law Commission had 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 D acted in a considered desire for revenge they cannot rely on the defence. This upholds
the principle seen in: R v Ibrams & Gregory (1982)

2. 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: R v Davies [1975].
 Even a baby crying was accepted as a provocative act (R v Doughty (1986)).
 The introduction of qualifying triggers have narrowed the ambit 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 D's loss of self-control was attributable to D's fear of serious violence from V against D or another
identified person. or
 S.55 (4) Where D's loss of self-control was attributable to a thing or things done or said (or both) which—
 constituted circumstances of an extremely grave character, and
 caused D to have a justifiable sense of being seriously wronged.
 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] WLR (D) 130
 The issue of justifiable sense of being wronged was considered in R v Bowyer [2013] WLR (D) 130
R v Bowyer [2013] WLR (D) 130

Limitations on qualify triggers

 Despite the restrictive wording used to establish a qulaifying 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.
 Whilst this sentiment is commendable its inclusion has received widespread criticism as to its workability in
practice.
 This provision has already been subject to interpretation by the Court of Appeal:
R v Clinton [2012]

Incitement
 The limitation based on incitement seemed to represent a move away from the law of provocation where self–
induced provocation could be relied upon:
R v Johnson [1989]
 However, in the case of R v Dawes it was held that s.55(6)(b) did not change the position established in R v
Johnson
R v Dawes [2013]

3. 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.
 The defence of provocation required some degree of proportionality test in that the jury were 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.

Diminished responsibility
 Diminished responsibility is one of three special defences which exist solely for the offence of murder.
 It is contained in the Homicide Act 1957 as modified by the Coroners and Justice Act 2009.
 Where the defence of diminished responsibility is successfully pleaded, it has the effect of reducing a murder
conviction to manslaughter.
 The three special defences of diminished responsibility, loss of control and suicide pact differ from general
defences in that they do not apply to all crimes and also the effect is to reduce criminal liability rather than to
absolve the defendant from liability completely.
 Diminished responsibility is set out in s.2 of the Homicide Act 1957 as amended by s.52 of the Coroners and
Justice Act 2009.
 To rely on the defence, the defendant must be able to demonstrate the following:
1. An abnormality of mental functioning caused by a recognised medical condition.
2. Which provides an explanation for the defendant’s acts or omissions in being party to the killing.
3. Which substantially impaired his/her mental ability to either:
a) Understand the nature of their conduct or
b) Form a rational judgment or
c) Exercise self–control

1. Abnormality of the mental functioning caused by a recognised mental condition.

 Prior to the Coroners and Justice Act 2009, the Homicide Act 1957 referred to abnormality of the mind.
 The change of wording in this respect was simply to clarify the law and is not expected to make any
changes to the applicability of the defence.
 Thus the case law under the Homicide Act, is still helpful in determining what may count as an
abnormality of the mental functioning.
 The question of whether the defendant is suffering from an abnormality of the mental functioning is for
the jury to decide after hearing medical evidence.
 The jury are not bound to follow medical opinion it is ultimately their decision as to whether the defence
should succeed.
 A notorious example of the jury ignoring medical opinion was present in the trial of Peter Sutcliffe (the
Yorkshire ripper) where the medical opinion was unanimous that the defendant was a paranoid schizophrenic,
yet the jury refused to allow him the defence.
 Abnormality of the mental functioning is assessed by reference to what a reasonable man would regard as
abnormal.
 It has a wide meaning and encompasses the inability to exercise will power and control. R v Byrne (1960)
 Some examples of what has been held to constitute an abnormality of the mind include:
- Jealousy (R v Miller 1972,even unfounded jealousy R v Vinagre 1979)
- Battered woman syndrome (R v Hobson 1997, R v Ahluwalia 1993)
- Pre-menstrual tension (R v Smith 1982, R v Reynolds 1988)
- Epilepsy (R v Campbell 1997)
- Chronic depression (R v Seers, R v Gittens 1984)
 In each case the defendant must demonstrate that the characteristic was excessive when compared to
that experienced by a reasonable person.

2. The abnormality must provide an explanation for D’s act or omission in being party to the killing.
 This is an issue of causation - S. 1B Homicide Act 1957 states that an abnormality of the mental
functioning provides an explanation for D's Conduct if it causes or is a significant contributory factor in causing D
to carry out that conduct.
 This follows from the old law under S.2 Homicide Act 1957 which required the abnormality to be caused
by an arrested or retarded development of the mind or any inherent causes or induced by disease or injury.
 This was interpreted by the courts as meaning that the abnormality must be caused by an inside source
and that outside factors causing the abnormality such as alcohol or drugs could not be taken into account unless
the abnormality was as a result of the disease of alcoholism or drug addiction or long term damage caused by
the intake of such intoxicants:
R v Tandy [1989]
R v Wood [2009]
R v Stewart [2009]
 The same approach is applied where the defendant is intoxicated by prescription drugs:
R v O'Connell 1997 Crim LR 683
 Where there exists an abnormality of the mind in addition to intoxicants, the legal position was stated in R v
Gittens and affirmed in R v Dietschmann:
R v Gittens (1984)
R v Dietschmann [2003]
 Acute voluntary intoxication (binge drinking) alone is not capable of founding the defence of voluntary
intoxication:
R v Dowds [2012]

3. Which substantially impaired his/her mental ability

 The defendant must show that the abnormality of the mind must have substantially impaired his mental
ability to either:
- Understand the nature of their conduct or
- Form a rational judgment or
- To exercise self –control
 This is a question for the jury to decide after hearing medical evidence.
 It is not necessary to show a complete loss of control, however, any evidence of planning on the part of the
defendant may be used to show the defendant’s mental ability was not impaired.
R v Campbell [1997]

Raising diminished responsibility on appeal

 If the defendant did not raise the defence of diminished responsibility at trial, the appeal courts are reluctant to
admit fresh evidence relating to diminished responsibility:
R v Andrews [2003]
 In the case of R v Ahluwalia Lord Taylor CJ stated:

"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is
available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly
emphasised that this court would require much persuasion to allow such a defence to be raised for the first time
 here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might
be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to
be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further
from the truth. Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this
court would view any wholly retrospective medical evidence obtained long after the trial with considerable
scepticism.
 In deciding whether to admit fresh evidence the court must have regard to S. 23 of the Criminal Appeal
1968 which provides:
(1) For purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the
interests of justice --
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to --
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an
issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
 The court is particularly reluctant to allow fresh evidence if the decision not to raise the defence of
diminished responsibility was made for tactical reasons as oppose to reasons relating to the capacity to instruct
the defence:
R v Erskine [2009] R v Neaven [2006] R v Diamond [2008] R v Hendy [2006] R v Martin [2002]
 The courts are more willing to admit fresh evidence relating to diminished responsibility where there have been
advances in medical opinion since the time of trial:
R v Ahluwalia [1993] R v Hobson [1997] R v Campbell [1997]

Cases

R v Duffy [1949] 1 All ER 932

The appellant attacked and killed her husband with a hammer and a hatchet whilst he was sleeping in bed. He had
subjected her to violence throughout their marriage.
Devlin J gave the classic definition of provocation as:
"Provocation is some act, or series of acts done (or words spoken)... which would cause in any reasonable person
and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject
to passion as to make him or her for the moment not master of his or her mind."

R v Ahluwalia (1993) 96 Cr App R 133 Court of Appeal

The appellant poured petrol and caustic soda on to her sleeping husband and then set fire to him. He died six days
later from his injuries. The couple had an arranged marriage and the husband had been violent and abusive
throughout the marriage. He was also having an affair. On the night of the killing he had threatened to hit her with
an iron and told her that he would beat her the next day if she did not provide him with money. At her trial she
admitted killing her husband but raised the defence of provocation however, the jury convicted her of murder. She
appealed on the grounds that the judge's direction to the jury relating to provocation was wrong and she also
raised the defence of diminished responsibility.
Held:The judge's direction on provocation was correct. The Duffy direction was good law and the judge had
directed the jury on the issue of the abuse suffered by the appellant and thus the jury would have considered the
affect of this in reaching their verdict. The appeal on the grounds of provocation was therefore unsuccessful.
However, the appeal was allowed on the grounds of diminished responsibility. The Court did, however, stress that it
was exceptional that fresh evidence would be allowed.
Lord Taylor CJ:"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical
evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be
too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the
first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants
might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different
defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could
be further from the truth. Likewise, if there is no evidence to support diminished responsibility at the time of the
trial, this court would view any wholly retrospective medical evidence obtained long after the trial with
considerable scepticism."

R v Thornton [1996] 1 WLR 1174

The appellant killed her alcoholic, abusive and violent husband. On the day in question the deceased returned
home drunk and an argument erupted. At one point he asked her to leave and started throwing her clothes out.
She then left the house with her husband's son. She returned later to find her husband asleep on the sofa. She
went and changed into her night clothes and came down and asked her husband to come to bed. He called her a
whore and told her to get out or he would kill her. She went to the kitchen got a knife and sharpened it then
returned to the living room. Woke her husband and again asked him to come to bed. He made further abusive
comments. She plunged the knife into his stomach which killed him. At her trial she raised the defence of
diminished responsibility based on a personality disorder. She did not raise the defence of provocation but the
judge directed the jury on provocation. She was convicted of murder. In her first appeal, the appellant challenged
the Duffy direction given to the jury ie the requirement that the loss of control be sudden and temporary. This
appeal was unsuccessful. She then appealed relying on fresh medical evidence that at the time of the killing she
was suffering from battered woman syndrome in addition to her personality disorder and whilst the trial judge had
directed the jury to take into account her characteristics in assessing whether she had lost her self control, he had
not specifically mentioned these particular characteristics nor the fact that they could be attributed to the
reasonable man when the jury is assessing the standard of control expected of the appellant.
Held:The appeal was allowed and the murder conviction was quashed. In accordance with Morhall, Ahluwalia and
Humphreys, the jury should have been directed that they could take into account her mental characteristics in
assessing the standard of control expected of the defendant. NB. This position of the law was changed in A-G for
Jersey v Holley

R v Ibrams & Gregory (1982) 74 Cr App R 154

The two appellants had been harassed and terrorised by John Monk. Ibram's girlfriend ,Andronik, left him to start a
relationship with Monk. However, Monk was extremely violent towards her leading her to flee the country. She
returned to the UK and resumed the relationship with Ibrams. Monk was serving a sentence in Borstal. However, on
his release, Monk started visiting the couple using violence and making threats and forcing Andronik to sleep with
him. The police had been informed of the events but did not take any action. On one of his visits Gregory a, friend
of the couple witnessed the violence. They hatched a plan whereby, Andronik would invite Monk round, get him
drunk and entice him into bed. Ibrams and Gregory would then burst in and beat him up. In fact the two appellants
went further than planned and killed Monk. They stated that once they started beating him they lost their control.
The trial judge did not allow the defence of provocation to be put before the jury as the planning indicated that
there was no sudden and temporary loss of self control. The defendants appealed.
Held:The appeal was dismissed.
Lawton LJ:"They carried out the plan. They were masters of their minds when carrying it out, because they worked
out the details with considerable skill; and in pursuing the plan as they did on the Friday night they were still
masters of their own minds. They were doing what they had planned to do. When they went into Monk's bedroom
and Gregory struck the first blow that again was pursuant to the plan which had been worked out, and they were
masters of their own minds. It follows, in our judgment, that Mr. Justice McNeill was right in ruling that there was
no evidence of loss of self-control. In those circumstances the appeal will be dismissed.”
The Court wishes to say that this case is a most unusual one, and had it not been for the appalling criminal
behaviour of the dead man these two appellants would not today be serving sentences of life imprisonment for
murder. It is to be hoped that a copy of this judgment will be sent to the appropriate department of the Home
Office, and that the parole board will as soon as possible be alerted to the very unusual and very disturbing facts of
this case."

R v Davies [1975] 1 QB 691

The defendant killed his wife after seeing her lover walk towards her place of work. It was held that the act of the
lover walking to her work place could amount to a provocative act and the issue of provocation should have been
put before the jury. The provocative act need not be deliberately aimed at provoking the victim, nor must the
provocation come from the victim.

R v Doughty (1986) 83 Cr App R 319 Court of Appeal

The appellant killed his 17 day old baby son. His wife had had a caesarean and was told to take things easy so the
appellant was looking after his wife and the baby in addition to carrying out all the general house hold matters. On
the night of the killing the baby was constantly crying. The appellant used his best efforts to keep the baby quiet to
no avail. He then covered the baby's mouth to dampen the sound. He then stated that due to his excessive
tiredness and the constant noise of the baby he lost his control and pressed down harder than he meant to at the
time he was kneeling on the baby's head. The trial judge did not allow the jury to consider the defence of
provocation stating that provocation can not be founded on the perfectly natural episodes of a baby's crying. The
defendant appealed.
Held:The baby's crying could amount to a provocative act within the meaning of s.3 of the Homicide Act 1957. The
appellant's murder conviction was substituted for manslaughter and his life sentence reduced to 5 years.

R v Hatter [2013] WLR(D) 130

Mark Hatter developed a relationship with Dawn Blackhouse. She was younger than him. He was very generous to
her and her children. He had never had children and she had promised to have her sterilisation reversed. The
relationship later phased out and she started seeing another man although she never told the defendant it was
over. He went to her house at midnight with a knife and climbed through an upstairs window. He claimed he had
taken the knife to lift the carpets and had accidentally stabbed her in the chest and wrist when he spun around
whilst holding the knife. He then stabbed himself in the chest but he survived. The defendant claimed accident at
trial but this was rejected by the jury The trial judge held that loss of control could not be put to the jury as there
was no evidence that he had lost his control, the circumstances were not of an extremely grave nature nor did he
have a justifiable sense of being seriously wronged. The defendant appealed against the judge's finding on loss of
control.
Held:The appeal was dismissed and the defendant's conviction for murder was upheld. The question of whether
the circumstances are extremely grave and whether D had a justifiable sense of being seriously wronged is judged
objectively. The break up of a relationship will not normally constitute circumstances of an extremely grave
character nor entitle the aggrieved party to have a justifiable sense of being seriously wronged,
“The circumstances must be extremely grave and the defendant's sense of being seriously wronged by them must
be justifiable. In our judgment these matters require objective assessment by the judge at the end of the evidence
and, if the defence is left, by the jury considering their verdict. If it were otherwise it would mean that a qualifying
trigger would be present if the defendant were to give an account to the effect that, "the circumstances were
extremely grave to me and caused me to have what I believed was a justifiable sense that I had been seriously
wronged". If so, when it is clear that the availability of a defence based on the loss of control has been significantly
narrowed, one would have to question the purpose of s.55(3)(4) and (5).”

R v Bowyer [2013] WLR(D) 130 Court of Appeal

The defendant, Barry Bowyer and the victim Gary Suller, were both having a relationship with Katie Whitbread, a
prostitute. Suller was her pimp. The defendant was not aware she was a prostitute. They were both aware of the
other’s relationship. On the night of the killing, the defendant went to Suller’s house to burgle him. Suller disturbed
the burglary and a fight developed. Suller then revealed that Katie was a prostitute and taunted him that she was
her best earner. The defendant lost his control and beat Suller and tied him up with an electricity cable. He was
alive when he left him but was found dead the following afternoon. The defendant was addicted to heroin,
diagnosed as bipolar and suffered social phobia, anxiety and depression.
Held: The defendant had no justifiable sense of being wronged given that he was committing a burglary at the time
of the offence.
Lord CJ:“The appellant was a self -confessed burglar. He deliberately entered the home of the deceased in order to
steal property, to sell it to feed his drug habit. He deliberately targeted the house, taking every precaution to avoid
detection. At the very best, he suggests that he just snapped when, following the householder's return, he, the
householder, reacted violently to the presence of the burglar in his home and used deliberately insulting remarks
about the appellant's girlfriend. To that the somewhat colloquial answer is, "So what"? If either of these men was
justified in losing his self control, it was the deceased. The deceased was entitled to say and do anything
reasonable, including the use of force, to eject the burglar from his home. Even taking the appellant's evidence at
face value (and we bear in mind that the jury must have rejected it) it is absurd to suggest that the entirely
understandable response of the deceased to finding a burglar in his home provided the appellant with the
remotest beginnings of a basis for suggesting that he had any justifiable sense of being wronged, let alone seriously
wronged. On that basis alone, one essential ingredient of this defence was entirely absent. Furthermore, we can
detect no evidence of loss of control. The tragic events which occurred in the home of the deceased bore all the
hallmarks of appalling violence administered in cold blood.”

R v Clinton [2012] EWCA Crim 2 (Court of Appeal)

The appellant and his wife both suffered from depression for which they were on prescribed medication. He was
experiencing financial difficulties and stress at work. He and his wife agreed to a trial separation for four weeks as
she needed time out. She left him with the children and moved into her parent’s home. The appellant did not cope
well with this and became obsessional and had been looking at suicide websites. Two weeks later she revealed to
him that she was having an affair. He asked for her to come to the matrimonial home in order to tell the children
together that their marriage was over. She agreed to meet. However he had arranged for the children to be
elsewhere at the time she was due to come and he was heavily intoxicated. At the meeting he killed her by
repeatedly beating her on the head with a wooden baton and strangled her with a belt. He then took photos of her
naked body in various poses and texted them to her lover.
According to the appellant, he lost his control at the meeting due to three factors:
1. She had told him that she had had sexual relations with five men and was describing in graphic detail the acts
they had performed.
2. She had laughed and taunted him about a suicide website that he had been looking at on his computer.
3. She had told him she no longer wanted the children.
The trial judge held that the defence of loss of control was not available to the defendant because the words
relating to infidelity should be disregarded as a qualifying trigger and the remaining factors alone were not of an
extremely grave character nor would they cause the appellant to have a justifiable sense of being wronged. The
defence of diminished responsibility was left for the jury to decide, however they rejected this and found him guilty
of murder. He appealed.
Held:The defence of loss of control should have been put to the jury. His conviction for murder was quashed and a
retrial ordered.
Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance
on the defence where there exist other qualifying triggers.
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)
Sexual infidelity may be taken into account in the third component of the defence in examining the defendant’s
circumstances under s.54(1)(c).

R v Johnson [1989] EWCA Crim 289 Court of Appeal

The appellant was at a night club. A woman called him a 'white nigger'. The appellant was white but had taken to
adopting a West Indian accent. He took exception to the comments and made violent threats to her. A male friend
of hers intervened and poured a glass of beer over the appellant. A fight developed between the two men and the
appellant stabbed the man resulting in his death. The appellant argued he was acting in self-defence as he believed
he was about to be glassed. He also denied losing any self-control. The judge directed the jury on self-defence but
did not direct the jury on provocation because he considered the provocation was self-induced. The jury rejected
self-defence and convicted him of murder. He appealed contending the judge had a duty to direct the jury on
provocation.
Held:Conviction for murder quashed and substituted for manslaughter. The judge should have directed the jury on
provocation.
LJ Watkins:"In view of the express wording of section 3, as interpreted in Camplin, which was decided after
Edwards, we find it impossible to accept that the mere fact that a defendant caused a reaction in others, which in
turn led him to lose his self-control, should result in the issue of provocation being kept outside a jury's
consideration. Section 3 clearly provides that the question is whether things done or said or both provoked the
defendant to lose his self-control. If there is any evidence that it may have done, the issue must be left to the jury.
The jury would then have to consider all the circumstances of the incident, including all the relevant behaviour of
the defendant, in deciding (a) whether he was in fact provoked and (b) whether the provocation was enough to
make a reasonable man do what the defendant did."

R v Dawes, [2013] WLR(D) 130 Court of Appeal

The defendant, Mark Dawes went to his estranged wife’s house and found her asleep on the sofa with Graham
Pethard. He awoke him and started punching him in the face and hitting him with a bottle. According to the
defendant, Pethard took the bottle off him and attacked him. The defendant then grabbed a knife from the kitchen
and fatally stabbed him in the neck. At trial he raised the defence of self-defence which was not accepted by the
jury. The judge held that the defence of loss of control could not be put to the jury under s.55(6)(a) as he had
incited the violence. He was convicted of murder and appealed contending the defence of loss of control should
have been put to the jury on the grounds that the case of R v Johnson 1989 was still good law and had survived the
legislative provision.
Held: S.55(6)(a) did not overrule R v Johnson. On the facts there was insufficient evidence that it was Dawes
purpose to provide him with an excuse or opportunity to use violence. However, the judge was correct for not
leaving the loss of control defence to the jury as there was insufficient evidence that he had lost his control
Lord Chief Justice:“There was some debate about the continuing authority, if any, of Johnson [1989] 89 Cr. App. R
148, decided in the context of the former provocation defence. In that case the court rejected the submission "that
the mere fact that a defendant caused a reaction in others, which in turn led him to lose his self-control, should
result in the issue of provocation being outside a jury's consideration". In our judgment, for the purposes of the
loss of control defence, the impact ofJohnson is now diminished, but not wholly extinguished by the new statutory
provisions. One may wonder (and the judge would have to consider) how often a defendant who is out to incite
violence could be said to "fear" serious violence; often he may be welcoming it. Similarly, one may wonder how
such a defendant may have a justifiable sense of being seriously wronged if he successfully incites someone else to
use violence towards him. Those are legitimate issues for consideration, but as a matter of statutory construction,
the mere fact that in some general way the defendant was behaving badly and looking for and provoking trouble
does not of itself lead to the disapplication of the qualifying triggers based on s.55(3)(4) and (5) unless his actions
were intended to provide him with the excuse or opportunity to use violence. As Johnson no longer fully reflects
the appropriate principle, further reference to it is inappropriate. The relevant principle is identified in the present
judgment.”

Attorney General for Jersey v Holley [2005] 3 WLR 29 Privy Council

A landmark case where the Privy Council declared that they were announcing the law applicable not only to Jersey
but also to England and Wales. (Privy Council decisions are not generally considered binding in English law but of
mere persuasive authority). The Judicial Committee consisted of nine members of the House of Lords.
Facts:The defendant had a stormy relationship with the deceased. They were both alcoholics and he had a history
of violence towards her for which he had spent time in prison. On his release from prison she indicated that she did
not want to continue the relationship. However, they continued to live together having constant rows. On the day
in question they had both been to the pub in the afternoon. He returned early because of an argument. She
returned in the evening and announced that she had had sex with another man. He hacked her to death with an
axe. At his trial he raised the defence of provocation. He wished to rely on his alcoholism, depression and other
personality traits. The jury convicted him of murder. The defendant appealed to the Court of Appeal who quashed
the conviction and ordered a retrial. He was again convicted at the retrial and again appealed. His conviction was
again quashed and a manslaughter conviction was substituted. The Attorney General sought leave to appeal
arguing the decision in Smith (Morgan) was wrong and should not apply in Jersey.
Held: 6:3 Decision (Lords Carswell, Bingham and Hoffman dissenting)
The appeal was allowed.
The law in Jersey and England & Wales is the same on this issue. The decision in Smith (Morgan) allowing mental
characteristics to be attributed to the reasonable man in assessing the standard of self-control expected of the
defendant is no longer good law.
DPP v Camplin [1978] AC 705 House of Lords
The appellant, a 15 year old boy, killed a middle aged man by hitting him over the head with a chapati pan. At his
murder trial the defendant raised the defence of provocation stating that the deceased had raped him and then
laughed at him at which point he lost his control and hit him. The trial judge directed the jury on provocation that
they should consider whether a reasonable adult would have done as the defendant did and told them that they
should not take acount of the defendant's actual age. The jury convicted him of murder and the defendant
appealed contending the judge was wrong to direct the jury that age was irrelevant.
Held:The appeal was allowed. The jury should be allowed to consider the age of the defendant.
Lord Diplock:"In my opinion a proper direction to a jury on the question left to their exclusive determination by
section 3 of the Homicide Act 1957 would be on the following lines. The judge should state what the question is
using the very terms of the section. He should then explain to them that the reasonableman referred to in the
question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the
accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of
the provocation to him ; and that the question is not merely whether such a person would in like circumstances be
provoked to lose his self-control but also would react to the provocation as the accused
did."

R v Byrne (1960) 2 QB 396

The appellant murdered a young girl staying in a YWCA hostel. He then mutilated her body. He did so as he was
suffering from irresistible impulses which he was unable to control.
Held:"abnormality of mind" was wide enough to cover the mind's activities in all its aspects, including the ability to
exercise will power to control physical acts in accordance with rational judgment. But "abnormality of mind" means
a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. He
was thus allowed the defence to reduce the murder conviction to manslaughter.

R v Tandy [1989] 1 WLR 350

The defendant was an alcoholic. She killed her 11 year old daughter by strangulation after the daughter told her
she was being sexually abused by her step father. On the day of the killing the defendant had drunk almost a whole
bottle of vodka which was stronger then her normal drink of cinzano. At her trial she was convicted of murder and
appealed. LJ Watkins stated the relevant principles applicable to a plea of diminished responsibility due to
alcoholism:
The appellant would not establish the second element of the defence unless the evidence showed that the
abnormality of mind at the time of the killing was due to the fact that she was a chronic alcoholic. If the alcoholism
had reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was
gross impairment of her judgment and emotional responses,, then the defence of diminished responsibility was
available to her, provided that She satisfied the jury that the third element of the defence existed. Further, if the
appellant were able to establish that alcoholism had reached the level where although the brain had not been
damaged to the extent just stated, the appellant's drinking had become involuntary, that is to say she was no
longer able to resist the impulse to drink, then the defence of diminished responsibility would be available to her,
subject to her establishing the first and third elements, because if her drinking was involuntary, then her
abnormality of mind at the time of the act of strangulation was induced by her condition of alcoholism.
Held:Conviction for murder upheld. The appellant had demonstrated in her evidence that she had exercised control
over her drinking. She had chosen to drink a different drink on the day in question and was unable to recall if she
had drunk the day before. She was also able to stop drinking at 6.30 pm on the day of the killing despite the fact
that the bottle was not yet empty.

R v Wood [2009] 1 WLR 496 Court of Appeal

The appellant was an alcoholic who had been sleeping rough. He had befriended a group of alcoholics known as
the breakfast club and had drunk heavily with them two days prior to the attack. After the second day of heavy
drinking he was invited to spend the night at the deceased’s house. During the night he awoke to find the deceased
attempting to perform oral sex on him. He attacked him with a meat cleaver and lump hammer killing him. The trial
judge, in his direction to the jury, stated:
"Where a man becomes so drunk that he suffers, temporarily, from an abnormality of mind, he may also be
acquitted of murder but convicted of manslaughter by reason of diminished responsibility applying the same tests
that I have outlined, but that verdict would only be open to you if you found it more likely than not that his
consumption of alcohol was truly involuntary. A man's act is involuntary if, and only if, he could not have acted
otherwise. Giving in to a craving is not an involuntary act, even if it is very difficult to do otherwise. An alcoholic not
suffering from severe withdrawal symptoms, who tops up his overnight level or who later chooses to accept a drink
after he's reached his normal quota, is not drinking involuntarily."
The appellant appealed contending that the reference to giving into a craving was a misdirection.
Held:The appeal was allowed and the appellant’s conviction for murder was quashed.
President of the Queen’s Bench:
“The problem with Mitting J's second limb direction is that whether the appellant was suffering from alcohol
induced brain damage or not, the experts agreed that the alcohol was consumed by a man suffering from alcohol
dependency syndrome. When he directed the jury that "giving in to a craving is not an involuntary act, even if it is
very difficult to do otherwise", he was implying that there was no such thing as an irresistible craving and the
observation might well have been regarded as a direction to conclude that any consumption of alcohol by the
appellant as a result of a craving did not or could not give rise to the defence. When Mitting J added that a
defendant "later choosing to accept a drink after he has reached his normal quota, is not drinking involuntarily", he
was in effect directing the jury to accept that such a choice was voluntary even when made by an alcoholic. Taken
together, these observations implied that unless every drink consumed that day by the appellant was involuntary,
his alcohol dependency syndrome was to be disregarded.”

R v Stewart [2009] 1 WLR 2507 Court of Appeal

The appellant was a chronic alcoholic sleeping rough in Marble Arch. He killed a man in the course of a fight. He
raised the defence of diminished responsibility. The trial judge in his direction to the jury stated:
"…the disease relied upon here is alcoholism, or its technical expression …alcohol dependency syndrome. Crucial,
you may think critical, to that particular issue is whether the defendant had the capacity to resist the impulse to
consume alcohol: whether the defendant had the capacity to resist the impulse to consume alcohol. In other
words, was his consumption of alcohol totally involuntary.”
The jury rejected the defence and convicted him of murder. He appealed on the grounds of a misdirection.
Court of Appeal held:
The appeal was allowed. The effect of the direction was that the defence would not be available if the jury found
that any of the appellant's drinking was voluntary and as such following R v Wood [2009] 1 WLR 496, amounted to
a misdirection.

R v Gittens (1984) 79 Cr App R 272

The appellant attacked and killed his wife with a hammer and then raped and killed his daughter. At the time of the
killing he suffered from severe depression. He had attempted suicide and had been hospitalised and on prescribed
medication. On a visit home from hospital he consumed a quantity of alcohol and also took some prescription pills
whilst his wife was out. On her return he and his wife had a violent argument and he killed her with a hammer. He
was convicted on the two counts of murder.
The evidence of three doctors called on behalf of the appellant at his trial was that he suffered from an abnormality
of mind due to inherent causes which substantially impaired his mental responsibility. Two of the doctors
considered that the abnormality of mind was due to a depressive illness and the third considered that the
abnormality of mind was due to a disorder of his personality induced by psychological injury. The doctor called on
behalf of the prosecution agreed that the appellant was suffering from an abnormality of mind, but in his view that
abnormality was brought on by drink and drugs and was not inherent and was not the result of an illness.
The judge directed the jury:
"Of course you have a further consideration in this case: that drink combined with taking the sleeping tablets
certainly may have had something to do with his acts of killing in this case. I do not think there is any dispute about
that on the part of any of the doctors. It may have played some part in what he did, but what you have to decide
here is what was the substantial cause of his conduct. Was it the abnormality of mind from which he suffered that
substantially impaired his mental responsibility, an abnormality of mind arising, of course, from inherent causes or
from disease or injury, not an abnormality of mind arising from the taking of drink - for that does not help? As I say,
you ask yourselves what was the substantial cause of his conduct. If it be substantially the abnormality of mind
arising for those reasons other than drink or drugs, why, then, the defence of diminished responsibility has been
established."
The jury convicted of murder on both counts and the defendant appealed.
Held:The murder convictions were substituted for manslaughter convictions on the grounds of diminished
responsibility.
The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant
was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and
is not therefore within the section. Then the jury should consider whether the combined effect of the other
matters which do fall within the section amounted to such abnormality of mind as substantially impaired the
defendant's mental responsibility within the meaning of 'substantial' set out in R v Lloyd [1967] 1 QB 175.
Therefore four points clearly emerge from the judgment of the Court of Appeal in Gittens:
(i) Where a defendant suffers from an abnormality of mind arising from arrested or retarded development of mind
or inherent causes or induced by disease or injury and has also taken drink before the killing, the abnormality of
mind and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the
killing.
(ii) Therefore the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the
defendant's mind, the abnormality of mind arising from a cause specified in subsection 2(1) nevertheless
substantially impaired his mental responsibility for his fatal acts.
(iii) Accordingly it is not correct for the judge to direct the jury that unless they are satisfied that if the defendant
had not taken drink he would have killed, the defence of diminished responsibility must fail. Such a direction is
incorrect because it fails to recognise that the abnormality of mind arising from a cause specified in the subsection
and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing.
(iv) The direction given by the judge in R v Turnbull (Launcelot) 65 Cr App R 242 should not be followed.

R v Dietschmann [2003] 1 AC 1209

The appellant had been having a relationship with his aunt who was much older than him and was a drug addict.
The appellant was sentenced to imprisonment for an offence he had committed and the relationship continued
during his stay in prison. She wrote to him every day and visited him. Unfortunately his aunt died whilst he was in
prison. A month before she died, the aunt gave him a watch. He reacted badly to the death of his aunt and had
attempted suicide. He was released from prison a month after her death and began drinking heavily. He was also
prescribed prozac by his doctor. Two weeks after his release, he was drinking with two men at the home where he
was staying. They were dancing and the watch given to him by his aunt fell off his arm. The appellant accused
Nicholas Davies of breaking it. He then punched and kicked him to death in a violent attack. He was convicted of
murder and appealed.
Held:His conviction for murder was substituted for a manslaughter conviction.
Lord Hutton set the appropriate direction to be given to juries where there exists an abnormality of the mind in
addition to intoxication:
"Assuming that the defence have established that the defendant was suffering from mental abnormality as
described in section 2, the important question is: did that abnormality substantially impair his mental responsibility
for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink.
Drink cannot be taken into account as something which contributed to his mental abnormality and to any
impairment of mental responsibility arising from that abnormality. But you may take the view that both the
defendant's mental abnormality and drink played a part in impairing his mental responsibility for the killing and
that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is
this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his
mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will
find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the
defence of diminished responsibility is not available to him."

R v Dowds [2012] EWCA Crim 281 Court of Appeal

The appellant, a 49 year old college lecturer, killed his partner in a frenzied knife attack whilst he was heavily
intoxicated. Both he and his partner were habitual binge drinkers and there had been numerous violent exchanges
between the couple, most of which had been initiated by her and most occurred whilst they were intoxicated. He
reported her death to the police two days after the killing and claimed that he had no recollection of the events but
accepted that he had killed her. He did not assert that he was alcohol dependant. He could exercise choice over
when he drank and would not drink during the week. However, once he had started drinking he was unable to stop.
The trial judge ruled that his voluntary and temporary drunkenness was not capable of founding the defence of
diminished responsibility. The appellant appealed contending that the World Health Organisation lists acute
intoxication in its International Classification of Disease and it was therefore a medically recognised condition and
thus satisfied the requirement in s.2(1)(a) Homicide Act 1957 as amended by s.52 Coroners and Justice Act 2009.
Held:Appeal dismissed. Voluntary acute intoxication, whether from alcohol or other substance, is not capable of
founding diminished responsibility.
Hughes LJ:“The re-formulation of the statutory conditions for diminished responsibility was not intended to reverse
the well established rule that voluntary acute intoxication is not capable of being relied upon to found diminished
responsibility. That remains the law. The presence of a 'recognised medical condition' is a necessary, but not always
a sufficient, condition to raise the issue of diminished responsibility.”

R v Campbell [1987] 84 Cr App R 255

The appellant killed a female hitch hiker he had picked up when she refused his sexual advances towards her. She
wanted to go to Oxford from London. He picked her up in his car on his way home from a hockey match. He pulled
up in a remote spot and made a pass at her. She hit him in the eye and he punched her in the throat. She began
gurgling and blood came from her mouth. Realising the force at which he must have struck her he panicked and
began to strangle her. He eventually killed her by hitting her with his hockey stick around the throat. The appellant
had frontal lobe damage and epilepsy. At his trial he raised the defence of provocation which was rejected by the
jury and he was convicted of murder. The defence of diminished responsibility was not advanced at trial as medical
opinion was that his abnormality of the mind had not substantially impaired his mental responsibility due to his
ability to recall events lucidly and the length of time of the sustained attack.
He later appealed on the grounds of diminished responsibility advancing medical opinion that the effect of his
epilepsy and frontal lobe damage was to affect his functions of judgment, control of the emotions, control of
impulses, and forward planning. The appellant had suffered from absence seizures, lasting for anything from a few
seconds to about half a minute, almost continuously. Such seizures lead to a change in the intellect and a reduction
of the appellant's ability to appreciate the circumstances surrounding him and to process information. While there
will be gaps between these seizures, the appellant would have had a very imperfect understanding of what was
happening around him while he is subject to one of them. The effect of the electrical discharges of the brain which
occur during such seizures is to interrupt conscious thought processes and affect emotional control in a profound
way. Having studied the available evidence of what the appellant did and said at the time, both doctors were of the
clear opinion that at the time of the killing the appellant had been suffering an abnormality of mind of such
significance as seriously to diminish his responsibility for the act that he carried out.
Held:The appellant's conviction for murder was quashed and a retrial ordered. The evidence was admissible as the
defence had not been advanced at trial due to a lack in medical knowledge rather than for tactical reasons.

R v Andrews [2003] EWCA Crim 2750 Court of Appeal

The appellant, a former dresser to the Duchess of York, was convicted of murdering her partner after she had beat
him over the head with a cricket bat and stabbed him. The relationship between the appellant and deceased was
stormy. She claimed that he was violent towards her and had raped her. The prosecution alleged that the killing
was due to him telling her that he would not marry her. At her trial she advanced the defences of self defence,
diminished responsibility and accident. Medical evidence to substantiate the diminished responsibility was to the
effect that she had significant fluctuating depressive symptoms enhanced by a hormonal condition, polycystic ovary
syndrome. The relationship with Thomas Cressman which she described was likely to have enhanced her sense of
low self-esteem and re-awakened unpleasant memories of her childhood when she suffered abuse. Dr Turner's
view was that during the critical weekend it was likely that she was affected by her depressive symptoms and her
hormonal status. The main thrust of the trial, however, was self defence. There were various discrepancies given by
the appellant in the course of her trial and the jury convicted her of murder.
After her conviction she was referred for psychiatric assessment and where the full extent of her abuse as a child
was revealed and also new evidence of violence from her first husband. The psychiatrist diagnosed post traumatic
stress disorder in addition to depression and an abnormal personality structure. The appellant sought to use the
new evidence in an appeal.
Held:The Court of Appeal refused to admit the fresh evidence.
Kennedy LJ:"In Ahluwalia [1993] 96 Cr App R 133 this court at 142 emphasised the need for any available relevant
evidence to be advanced at trial. The same applies to expert evidence sought to be relied upon in support of
defences which are advanced at trial. In that case Lord Taylor CJ said that this court would view any wholly
retrospective medical evidence obtained long after the trial with considerable scepticism. So we do, at the same
time acknowledging the expertise of those professionals who have only come into contact with the appellant since
her conviction. We do not exclude the possibility that a professional who comes late into the field in support of a
defence which was advanced at trial may have something to say which requires this court to exercise its powers
under section 23, but for the reasons we have given this is not such a case. Here, as in almost every case, there was
room for only one trial, at which the appellant had a full and proper opportunity to put forward her defence.
Accordingly we found no substance in either of the first two grounds of appeal."

R v Erskine and Williams [2009] EWCA Crim 1425 Court of Appeal

Erskine was convicted in Jan 1988 on seven counts of murder. He had killed and sexually assaulted 7 elderly people.
Williams was convicted of taking part in killing his girlfriend's father after she had told him that her father had
sexually abused her. Both the appellants sought to admit fresh medical evidence to raise the defence of diminished
responsibility.
Held:Fresh evidence was allowed in Erskine since the evidence was compelling that his mental responsibility was
substantially impaired at the time of the killing and he lacked the capacity to instruct counsel to raise the defence
and was wrongly advised not to. His convictions for murder were quashed and substituted with manslaughter
convictions and he was subject to an indefinite hospital order.
The court did not allow fresh evidence in Williams. The issue of taking diminished responsibility to trial was
considered but rejected by Williams and his legal advisors for tactical reasons. Also the fresh evidence was less
convincing.
Lord Judge CJ gave guidance for admitting fresh evidence to advance the defence of diminished responsibility at
appeal:If reference to earlier decisions or historical analysis happens to be required, the present judgment, where
the vast majority of all the relevant decisions have been collected, will normally suffice. We emphasise that the
provisions of s.23 do not require any further judicial exegesis; the court will positively discourage references to
previous decisions which exemplify but do not alter the principles identified by Lord Bingham in Pearson.
The court will normally expect the parties to provide a detailed analysis of the facts to assist it in the application of
the statutory test, including an analysis of the following:
i) The psychiatric and/or psychological evidence or other information in relation to the appellant's mental state
which was available at the time of trial.
ii) The evidence which has become available since the trial, and an explanation why it was not available at trial.
iii) The circumstances in which the appellant sought to raise on the appeal (a) the evidence available at the time of
the trial and (b) evidence that has become available since the trial
iv) The reason why such evidence or information as was available at the time of the trial was not adduced or relied
on at trial. This will ordinarily include details of the advice given, the reasons for the appellant's decision at trial
and, subject to paragraph …, any relevant evidence of the mental condition in the period leading up to and at the
time of the trial and its impact on his decision making capacity.
v) The impact of the fresh evidence on the issues argued at trial and whether and the extent to which it involves a
re-arguing of issues considered at trial.
vi) The extent to which the opinions of the experts are agreed and where they are not.
These heads of analysis will not all necessarily apply in every case; in some cases additional areas of analysis may
be required. However, any such analysis should suffice to assist and inform the court in its task of applying the
provisions of s.23 (1) of the 1968 Act.

R v Neaven (2006) EWCA Crim 955 Court of Appeal

The appellant at the age of 22 stalked and then fatally stabbed a man who had given evidence against him in a
previous trial for wounding and criminal damage for which the appellant had been sentenced to 12 months
imprisonment. The appellant had psychiatric problems dating back to his mid-teens. He had been excluded from
school because of his violent outbursts and suffered long term personality disorder. He was dependant on alcohol
and drugs. He had made several suicide attempts due to his intrusive thoughts of killing his girlfriend. A month
before the killing the appellant told his psychiatrist he was having violent fantasies and experienced sexual arousal
from violence. At his trial he advanced a plea of self-defence. His counsel discussed the issue of diminished
responsibility but the defendant and his counsel believed that if this was also raised it would prejudice the outcome
with regards to self-defence and reveal that he was dangerous. He therefore refused the prosecution access to his
medical records. The jury rejected his plea of self-defence and convicted him of murder. The appellant later
admitted that the self-defence plea was fabricated. After his conviction he was seen by a psychiatrist who
diagnosed schizophrenia. The appellant appealed raising the diagnosis as fresh evidence to found a defence of
diminished responsibility. The prosecution contended that the decision not to raise the defence at trial was a
tactical one and therefore the new evidence should not be admitted.
Held:The new evidence was allowed. The evidence that the appellant was schizophrenic was not available at trial.
The new medical evidence was also indicative that the appellant would not have been in a position to make a
rational judgment as to instruct counsel to omit the defence of diminished responsibility. His conviction for murder
was quashed and substituted with manslaughter.
The court reviewed existing authorities and gave the following guidance:
"(1) That the obligation on a defendant to advance his whole case at trial, and the scepticism directed towards
tactical decisions, remain fundamental.
(2) That it therefore takes an exceptional case to allow it to be in the interests of justice to admit and give effect to
fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However,
subject to this,
(3) each case turns on its own facts. Therefore,
(4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and
undisputed, it may be in the interests of justice (in the absence of opposition from the appellant himself – see
Kooken) to admit it.
(5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions
were affected by the defendant's illness itself.
(6) The emergence only after conviction of evidence of mental illness and of the potential of a defence of
diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for
such a defence at the time of offence. In this connection it may be observed that only in the special case of Kooken
was clear and undisputed fresh evidence on appeal of a good defence of diminished responsibility to the killing not
acted upon in this court."

R v Diamond [2008] EWCA Crim 923 Court of Appeal

In 1997, at the age of 19, the appellant killed and dismembered the body a 17 year old. The appellant had a history
of serious violent offences. The appellant instructed counsel not to raise the defence of diminished responsibility
wishing to run his defence on the sole ground denying the killing. He had previously been acquitted of two separate
offences by denying any involvement (which he had later admitted to carrying out). The jury did not accept his
version of events and he was convicted of murder and sentenced to life imprisonment.
His violence continued in prison and he was sent for psychiatric assessment which revealed that he was suffering
from paranoid schizophrenia. He applied for leave to appeal which was refused. He then applied to the Criminal
Cases Review Commission but still did not admit the killing. This was refused. He then reapplied admitted the killing
but wishing to raise the defence of diminished responsibility. The Commission referred the case to the Court of
Appeal.
Held:The appeal was dismissed. The decision not to run the defence of diminished responsibility at trial was a
tactical one. The medical reports at the time of trial stated the appellant had significant personality problems but
no evidence of mental illness. The diagnosis of schizophrenia came four years after the killing and the medical
report was written a further 3 years later. The Court of Appeal therefore attached greater weight to the medical
evidence given at the time of trial. He was given competent and clear advice in 1998 in the period leading up to the
trial that it would be in his own interests to undergo an assessment and to consider the defence of diminished
responsibility. However, the probability is that, having obtained acquittals in 1995 and 1996, the self interest in
obtaining an acquittal was the dominant motive in his decision to plead not guilty. There was no evidence that any
lack of insight brought about by his schizophrenia played a material role in his decision.

R v Hendy [2006] EWCA Crim

In 1992, at the age of 16, the appellant stabbed and killed a complete stranger. He had been out at a party drinking
with friends when he kicked a friend in the face. He immediately appologised and shouted "I don't deserve to live. I
should be dead". He then tried to jump in front of a car but was held back by his friends. The friends took him back
into the house. He then said "I always hurt the people I like I might as well be dead." The police were called and
took the appellant home. Later that night the appellant took a knife and went and stabbed a man in an alleyway
about 100 yards from his home in an unprovoked attack. At his trial he admitted the killing and raised the defence
of diminished responsibility. He had suffered a head injury in early childhood. Medical experts differed in their
assessment of his mental condition. The jury convicted him of murder. He appealed against his conviction on two
grounds:
1. That the psychiatric evidence given at trial for the prosecution was flawed and fresh evidence demonstrates that
he was suffering from a personality disorder at the time of the killing.
2. That the judge's direction relating to the effect of alcohol on the defence of diminished responsibility was wrong
in that it was in line with that stated in R v Atkinson [1985] Crim LR 314 and R v Egan [1992] 95Cr. App. R whereas
the correct direction at the time was that stated in R v Gittens [1984] Crim LR 554. -
Held:1. Fresh evidence as to the appellant's mental responsibility was accepted as the age of the offender at trial
made it very difficult to diagnose a personality disorder and also the new medical evidence came from a
psychiatrist who had treated him for many years post trial. The case of R v Andrews was therefore distinguished. LJ
Gage:"We are acutely conscious of the fact that Professor Taylor's evidence is based on a retrospective assessment
of the appellant. However, unlike in Andrews the retrospective evidence is given by a doctor who treated the
appellant for a number of years post-trial. In the circumstances, it seems to us that it is in the interests of justice
that we should receive it."
2. R v Dietschmann [2003] 2 Cr. App. Rep. 54 did not represent a change in the law but simply affirmed the law as
stated in R v Gittens [1984] Crim LR 554. Thus the Court of Appeal in R v Atkinson [1985] Crim LR 314 and R v Egan
[1992] 95Cr. App. had taken a wrong turning. The trial judge's direction to the jury was thus erroneous.

R v Martin [2002] 2 WLR 1 Court of Appeal

Tony Martin lived alone on an isolated farm called Bleak House. The farm and surrounding buildings were
dilapidated and appeared to be derelict. Consequently the farm was subject to numerous break-ins. On the night of
Aug 20th 1999 Freddie Barras (aged 16) and Brendan Fearon (aged 30) broke into the farm. Tony Martin armed
with a 12 bore shot gun went downstairs and fired indiscriminately at where he thought the disturbance came
from. He shot both the intruders killing Barras by a gunshot wound to the back. At his trial his plea of self defence
was rejected by the jury and he was convicted of murder. He appealed on the grounds that his personality disorder
should be taken into account in assessing whether he had used reasonable force for the purposes of self defence.
Held:Whilst the personality disorder could not be considered for the purposes of self defence, it did amount to an
abnormality of the mind which substantially impaired his mental responsibility for the killing. Since the psychiatric
reports had not been considered by the jury his conviction for murder was quashed.

R v Hobson [1997] EWCA Crim 1317 Court of Appeal

The appellant stabbed and killed her abusive alcoholic partner in Jan 1992. At her trial the defences of self defence
and provocation were rejected by the jury and she was convicted of murder. At the time of her trial Battered
Women’s Syndrome was not included in the standard British classification of mental diseases. The appellant
appealed contending that at the time of her trial Battered Women’s Syndrome would not have been readily
considered by practising psychiatrists. She now had reports from two psychiatrists that she was suffering from
Battered Women’s Syndrome at the time of the killing.
Held:The appellant's conviction for murder was quashed and a retrial ordered.