Domestic Abuse, Suicide and Liability For Manslaughter

Criminal law
The Journal of Criminal Law

1–20
Domestic Abuse, Suicide and ª The Author(s) 2020
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Liability for Manslaughter: In DOI: 10.1177/0022018320940127
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Pursuit of Justice for Victims
Anne Lodge
Teesside University, UK
Abstract
There is significant debate about the attribution of criminal responsibility for involuntary
manslaughter to a defendant who has subjected a victim to a protracted campaign of emotional
abuse (falling short of psychiatric injury), where the victim has consequently taken their own
life. By virtue of it having been subjected to the most comprehensive judicial and academic
scrutiny in this context, the primary focus of this discussion is on the applicability of the
unlawful act manslaughter offence to the circumstances described above. The offence requires
proof that the victim was placed at risk of some harm by virtue of the defendant’s criminal
conduct and that the abusive conduct significantly contributed to the victim’s death. The
accused does not have to foresee or intend the victim’s death, and while the imposition of
criminal responsibility for serious homicide offences in cases where the defendant displays no
subjective advertence to the risk of death has long been controversial, it is nonetheless well
established in English and Welsh criminal law. Therefore, assuming satisfaction of the requisite
offence elements, there is arguably no principled reason to deny the extension of liability to
domestic abuse-induced suicide cases. It is proposed that a more progressive and transparent
approach to the interpretation of the unlawful act manslaughter offence requirements provides
the most appropriate means of securing prosecutions in deserving cases, although alternative
options for the imposition of liability—the offence of gross negligence manslaughter and the
creation of a context-specific homicide offence—are also acknowledged. It is argued that the
constructive manslaughter offence label reflects both the moral culpability of the perpetrator’s
patterned and invasive conduct and the exceptional gravity of the harm caused by non-physical
domestic abuse.
Keywords
Domestic violence and abuse, coercive and controlling behaviour, suicide, unlawful act
manslaughter, causation
Corresponding author:
Anne Lodge, Senior Lecturer in Law, Teesside University, Borough Road, Tees Valley, Middlesbrough TS1 3BX, UK.
E-mail: a.lodge@tees.ac.uk
2 The Journal of Criminal Law XX(X)
Introduction
The government’s ostensible commitment to protecting survivors of domestic violence and abuse
through the criminal justice system’s pursuit of perpetrators of such harm (even in cases where the
intervention of the criminal justice system may be unwanted and, arguably, unhelpful)1 is evidenced by
recent substantive2 and procedural developments designed to support the eradication of violence against
women.3 Against this political backdrop, it seems paradoxical that domestic abusers whose conduct
precipitates a victim’s suicide have thus far managed to evade the full rigour of the criminal law’s
prohibitions against harmful conduct.4 While the current focus on both civil and criminal measures
available to protect survivors of domestic abuse is both important and welcome, to achieve true justice
for all victims—including those whose voices have been perpetually silenced as a result of the abuser’s
conduct—more attention must be paid to the adequacy of the criminal law’s response in cases where
domestic abuse drives victims to suicide. This article explores the challenges faced, and opportunities
presented, by the offence of unlawful act manslaughter, since this has emerged as the most likely
mechanism for bringing perpetrators of abuse-induced suicide to justice. The proceeding discussion
provides a contemporary contextual analysis of the suitability of this offence, with the aim of supporting
existing claims that a more transparent and defensible approach to the attribution of criminal responsi-
bility in domestic abuse–induced homicide cases is achievable. For the sake of completeness, brief
consideration is also given to the potential applicability of the gross negligence manslaughter offence
and to tentative proposals for the creation of a context-specific offence.
The imposition of criminal liability in cases where domestic abusers have contributed significantly to
the suicide of their target victim is a legal conundrum that has received relatively limited academic
attention since a flurry of commentary on the seminal case of Dhaliwal.5 Recently, however, there have
been renewed scholarly appeals for a reconsideration of liability for domestic abuse–related suicide, with
the problem being described as ‘ripe for re-examination’,6 because of the, ‘apparent inability . . . [or at
least reluctance] . . . of the legal system to punish perpetrators who contribute significantly to their
victims’ suicide’.7 To date, the application of the unlawful act manslaughter offence in domestic abuse
1. For further discussion of the limitations of criminal legal responses in the context of domestic abuse, see for example S.
Walklate and K. Fitzgibbon, ‘The Criminalisation of Coercive Control: The Power of Law?’ (2019) 8(4) International Journal
for Crime, Justice and Social Democracy 94; and L. Goodmark, Decriminalizing Domestic Violence: A Balanced Policy
Approach to Intimate Partner Violence (University of California Press, California 2018).
2. Notably, the introduction of ‘stalking’ offences in ss. 2A and 4A of the Protection from Harassment Act 1997 (as amended by
the Protection of Freedoms Act 2012, s. 111) and the creation of the coercive and controlling behaviour offence in s. 76 of the
Serious Crime Act 2015.
3. These measures are all part of a broader governmental strategy to eradicate violence against women and girls through the
incorporation of a wide range of measures; for further detail, see HM Government, Ending Violence against Women and Girls
Strategy 2016-2020 (March 2016), most recently updated in March 2019. The Domestic Abuse Bill, currently before Parlia-
ment, also contains a raft of measures to combat the problem of domestic abuse. Disappointingly, neither the strategic doc-
umentation nor the current Bill directly addresses the issue of domestic abuse–induced suicide.
4. It is important to note that the failures in the criminal legal responses to domestic abuse cases can be both procedural and
substantive; see M. Burton, ‘Commentary on R v Dhaliwal’ in R. Hunter, C. McGlynn and E. Rackley, Feminist Judgments:
From Theory to Practice (Hart Publishing, Oxford 2010) 257.
5. R v Dhaliwal [2006] EWCA Crim 1139. Useful scholarly analysis offered in the aftermath of the Dhaliwal decision includes:
Law Commission, Murder, Manslaughter and Infanticide Law Com Rep No. 304 (2006); J. Horder and L. McGowan,
‘Manslaughter by Causing Another’s Suicide’ (2006) 12 Criminal Law Review 1035; C. Elliot and C. De Than, ‘Restructuring
the Homicide Offences to Tackle Violence, Discrimination and Drugs in a Modern Society’ (2009) 20(1) King’s Law Journal
69; and J.E. Stannard, ‘Sticks, Stones and Words: Emotional Harm and the English Criminal Law’ (2010) 74 Journal of
Criminal Law 533
6. V.E. Munro and R. Aitken, ‘Adding Insult to Injury? The Criminal Law’s Response to Domestic Abuse-Related Suicide in
England and Wales’ (2018) 9 Criminal Law Review 732 at 732.
7. R. Aitken and V.E. Munro, Domestic Abuse and Suicide: Exploring the links with Refuge’s Client Base and Work Force’
(Refuge, London 2018) at 2.
Lodge 3
suicide cases has been thwarted by the borderline distinction between causing emotional or psycholo-
gical harm (which has, until the recent creation of a new offence of coercive and controlling behaviour,8
largely evaded criminal sanction) and ‘recognised psychiatric injury’ (which has long been a legitimate
target of the criminal law). Similarly, the requirement to establish that the accused’s conduct caused the
death of the victim in respect of this offence (and, for that matter, any potential alternative gross
negligence manslaughter charge) has also been recognised as problematic. This article will address
some of the perceived difficulties of interpretation presented by the requisite offence elements, with
the aim of championing a more radical approach to the attribution of criminal responsibility for man-
slaughter in deserving cases.
The Harmful Effects of Domestic Abuse and Its Association with

Suicide
It is now well-accepted that domestic abuse is a gendered crime, in the sense that it is a phenomenon
experienced with greater frequency by female victims and perpetrated more often by men.9 What marks
domestic abuse out as such a serious offence is the chronicity of the violence and the context of the
intimate relationship within which the abuse is perpetrated.10 Tadros’s account supports the idea that
domestic abuse is distinctive in its harmful effects because it involves the erosion of the victim’s
freedom from non-domination, through the violation of an expectation of trust.11 The relationship
between the abuser and the abused provides the setting for an abusive course of conduct during which
the sufferer’s options are dictated, or arbitrarily controlled, by the abuser.12 The consequence is that the
abuser has ‘the kind of power over the victim’s options that he ought not to have and deprives the victim
of the kind of perceptual and evaluative control over her options that is required for true freedom’.13
Such is the magnitude of the abuse, the frequently self-blaming victim either lacks the capacity to
recognise and act on her liberty to make autonomous choices or at least drastically underestimates the
choices available to her, including having the freedom to leave the relationship.14 It is not surprising,
then, that Stark characterises the ongoing coercive and controlling behaviour at the root of many
instances of intimate partner violence perpetrated by men against women as a ‘liberty crime’.15 The
repetitive and insidious assault on the victim’s freedom, often involving psychological abuse, isolation
and intimidation, lays bare aspects of abuse that have, until recently, largely gone unpunished. Burton
also underlines the distinctively harmful nature of domestic abuse by her acknowledgment that it ‘erodes
confidence and self-esteem and in some cases can lead to victims living their lives in a constant state of
fear and abjection’.16 So, the characteristic moral wrong of domestic abuse is predicated on the idea that
domestic abuse victims not only suffer a diminution of liberty and choice but also that there is an
8. Section 76 of the Serious Crime Act 2015.

9. This claim finds support in the academic literature, see M. Hester, ‘Who does What to Whom? Gender and Domestic Violence
Perpetrators in English Police Records’ (2013) 10 European Journal of Criminology 623, and the statistical evidence, see
Office for National Statistics, Domestic Abuse in England and Wales: year ending March 2019 (ONS: 2019).
10. V. Tadros, ‘The Distinctiveness of Domestic Abuse: A Freedom Based Account’ (2005) 65(3) Louisiana Law Review 989 at
991.
11. Ibid. at 991.
12. Ibid. at 997.
13. Ibid. at 998.
14. For a more detailed exposition of the coercive control concept, see E. Stark Coercive Control: How Men Entrap Women in
Personal Life (Oxford University Press, Oxford 2007).
15. Ibid. at 15.
16. Burton (n 4) at 256. Munro and Shah also identify some significant features of domestic abuse, which can include ‘conflicting
loyalties, fear of disbelief, self-recrimination, concern over one’s ability to survive independently and fear of future violence’,
see V. Munro and S. Shah, ‘R v Dhaliwal [2007]’ in R. Hunter, C. McGlynn and E. Rackley, eds., Feminist Judgments: From
Theory to Practice (Hart Publishing, Oxford 2010) at 261.
attenuation of the psychological state required to make, and indeed perceive, choices; these are the
features of domestically abusive relationships that render the abusive conduct particularly injurious to
the victim.17
It would appear that the particular features of domestically abusive conduct described above
render the sufferer especially susceptible to experiencing negative psychological effects.18 The
characterisation of domestic abuse as uniquely harmful, particularly by virtue of its deleterious
psychological impacts (which may or may not be accompanied by physical violence), provides an
essential contextual backdrop for understanding the victim’s response and for an evaluation of the
appropriateness of the law’s response to domestic abuse–induced suicides. Further perspective is
provided by a significant body of academic research establishing the prevalence of suicide ideation
and attempts among domestically abused women.19 A recent, insightful report on the issue, written
by Aitken and Munro, confirmed the correlation between the incidence of domestic abuse and
‘experiencing negative psychological consequences’,20 which, in turn, are acknowledged risks for
suicide. The empirical research that supports the link between domestic abuse and suicide therefore
buttresses the case for a more robust criminal legal response to the imposition of liability for
suicide; but, in order for this to be achieved, some important moral and doctrinal questions must
be satisfactorily addressed.
The Imposition of Manslaughter Liability for Unintended or

Unforeseen Killing
It is clear that all deaths arising from morally wrongful conduct should be criminalised to afford full
respect to the principle that all lives are equal before the law.21 However, there is much moral dispute
about the appropriateness of a manslaughter label being applied to cases where death is caused but the
outcome (death) was not foreseen or intended by the accused. While a detailed examination of the
philosophical debate about the attribution of criminal responsibility for manslaughter in these circum-
stances is beyond the scope of the current discussion, before any meaningful analysis of the substantive
law is undertaken it is worth briefly outlining the moral concerns underlying the prohibition of con-
structive manslaughter, if only to inform the subsequent discussion of the offence requirements. Advo-
cates of varying degrees of constructivism maintain that the accused, in intentionally embarking on an
inherently criminal course of conduct, has either crossed a moral threshold or changed their normative
position in respect of the victim, to the extent that liability for the unintended and unforeseen conse-
quence of death is warranted.22 Conversely, orthodox subjectivists advocate that the accused should only
take criminal responsibility for harm that was contemplated and therefore militate against liability for
17. Tadros (n 10) at 1000.

18. Aitken and Munro (n 7) at 4.
19. V.E. Munro and R. Aitken, ‘From Hoping to Helping: Identifying and Responding to Suicidality Amongst Victims of
Domestic Abuse in England and Wales’ (2020) 26(1) International Review of Victimology 29; E. Stark and A. Flitcraft,
‘Killing the Beast Within: Woman Battering and Female Suicidality’ (1995) 25(1) Int J Health Serv.43; S. Walby, ‘The Cost
of Domestic Violence’ (Women and Equality Unit, London 2004). The recognition of domestic abuse as a precursor to suicide
is also acknowledged in national and international suicide strategies: see Department of Health (2017) Preventing Suicide in
England: Third Progress Report of the Cross-Government Outcomes Strategy to Save Lives (Department of Health, London
2017), which provides an update on the original strategy – Department of Health, Preventing Suicide in England: A Cross-
Government Outcomes Strategy to Save Lives (Department of Health, London 2012). See also The World Health Organisation,
Preventing Suicide: A Global Imperative (WHO, 2014).
21. Elliott and de Than (n 5) at 85.
22. For a more detailed critique of the divergent philosophical arguments, see A. Ashworth, ‘A Change of Normative Position:
Determining the Contours of Culpability in the Criminal Law’ (2008) 11(2) New Criminal Law Review 232.
Lodge 5
constructive manslaughter.23 Yet, despite forceful arguments to the contrary, English and Welsh crim-
inal law has long accepted liability for constructive manslaughter. For the purposes of the current
discussion, because liability for constructive crime depends less on a proximate correspondence between
the mens rea and the actus reus, other offence requirements, in particular causation, become more salient
in establishing sufficient blameworthiness fault to warrant application of the manslaughter label.24 In
other words, in the current context, the lack of fault predicated on the basis of the defendant’s mens rea is
substituted by a morally evaluative approach to establishing the accused’s causal contribution to the
victim’s death.
Notwithstanding the lively moral debate, where the death of a victim is not intended or foreseen, but
the tragic outcome is generated by the defendant’s deliberate commission of a subsidiary criminal
offence which is deemed to be dangerous, an unlawful act manslaughter conviction may follow.25 The
component parts of the constructive manslaughter offence, which has previously applied in the context
of domestic abuse–induced suicide with varying degrees of success, require a more thorough exposition
to evaluate its potential to secure true justice in domestic abuse–related suicide cases.
Unlawful Act Manslaughter: The Requisite Elements

The requisite elements of the unlawful act manslaughter offence are so well-rehearsed that they hardly
warrant any restatement here, but, for the sake of clarity, there are essentially four components to the
offence: (1) that the unlawful act was done intentionally (voluntarily and deliberately); (2) that the act
was unlawful (i.e. a criminal offence in respect of which the defendant has both actus reus and mens
rea);26 (3) that the act is also dangerous because it was likely to cause harm to somebody;27 and (4) that
the unlawful and dangerous act caused the death.28 In previous judicial evaluations of the availability of
a constructive manslaughter charge in domestic abuse suicide cases, the requirement to prove an
underlying unlawful act and the need to establish a causal connection between the unlawful act and the
victim’s death have, in particular, stymied successful convictions. The analysis below, which pays
particular attention to these perceived impediments, supports the idea that any supposed barriers to
prosecution are not insurmountable if a more liberal approach to interpretation is adopted.
Establishing the Unlawful Act

Identifying the base crime upon which liability for manslaughter can be constructed has been something
of a judicial challenge in past cases. Where the crime constitutes an act of physical violence resulting in
death, establishing a sufficient causal connection between the crime and the consequent death is usually
relatively straightforward. If there is a physical assault on the domestic abuse victim which precipitates
her suicide, the assault would arguably fulfil the requirements of the unlawful act manslaughter offence,
as set out above: there would be a deliberate criminal act which is inherently dangerous (in the sense it is
23. Simester and Sullivan describe the constructive manslaughter offence as ‘unprincipled’, see A.P. Semester, J.R. Spencer, F.
Stark, G.R. Sullivan and G.J. Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (7th edn, Hart Publishing,
Oxford 2019) 431.
24. S. Kyd, ‘Causing Death’ in A. Reed and M. Bohlander (eds) Homicide in Criminal Law: A Research Companion (Substantive
Issues in Criminal Law, London 2018) 119–120.
25. Alternatively, if the defendant claims they neither intended nor foresaw the victim’s death but their conduct, though not in
itself unlawful, is so gross as to be categorised as criminal and is deemed to be a significant cause of the death, the appropriate
charge may be gross negligence manslaughter, see R v Adomako [1995] 1 AC 171.
26. R v Franklin (1883) 15 Cox CC 163; R v Lamb [1967] 2 QB 981; R v Dias [2002] 2 Cr App R 5.
27. R v Church [1966] 1 QB 59. Edmund Davies J, at 70, elaborated that an act is dangerous if ‘all sober and reasonable people
would inevitably recognise the risk that it must subject the other person to at least, the risk of some harm resulting therefrom,
albeit not serious harm’.
28. Per Lord Hope of Craighead in Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245 at 274.
likely to cause some physical harm to somebody), and, assuming the accused’s assault more than
minimally contributed to the victim’s suicide, the causation requirement could also be fulfilled.29
Although there has also been a judicial willingness to acknowledge other non-personal types of crime
from which a constructive manslaughter conviction may flow,30 and an acceptance that emotional harm
causing recognised psychiatric injury should also be subject to some form of criminal sanction,31 there
has been comparatively little judicial attention paid to the situation where emotional abuse results in
death, despite some academic interest in the subject. The apparent difficulties of establishing an appro-
priate base offence as the foundation for a constructive manslaughter charge require further analysis to
evaluate the utility of future prosecutions on this basis.
In spite of philosophical concerns regarding the ‘extraordinary breadth’32 of the unlawful act man-
slaughter offence, the courts habitually impose liability for this offence where relatively minor physical
assaults result in the unintended death of a victim. Yet the infliction of more serious and prolonged non-
physical abuse has, historically, created more of a problem for the courts due to the absence of a specific
criminal prohibition on the infliction of emotional harm. This is despite the fact that ‘when it is taken to
extremes emotional abuse can have consequences of the gravest kind’.33 As Stannard acknowledges, the
corollary of this judicial stance is that,
if I give someone a slight push and it unexpectedly kills them, that is manslaughter, but if I hound them to
their death by a sustained course of psychological and emotional abuse it is not. It seems an affront to justice
that the criminal law is unable to cope with this sort of situation.34
The differential treatment of physical and emotional harm was last considered in any detail by the Court
of Appeal in Dhaliwal. The Dhaliwal judgment primarily concerned the meaning of the ‘bodily harm’
concept in the context of the Offences against the Person Act 1861 and, more specifically, whether the
offence of maliciously inflicting grievous bodily harm, contrary to section 20, could be committed by the
infliction of serious psychological injury on the victim as a consequence of a protracted campaign of
domestic abuse. In the absence of establishing liability for this base offence, there would–at least at that
time—have been no foundation on which to construct an unlawful act manslaughter charge.
Dhaliwal and the Problem of ‘Bodily Harm’

In 2005, Gurjit Dhaliwal took her own life following years of psychological, and occasionally physical,
abuse perpetrated by her husband. The decision was made to charge her defendant husband, Harcharan,
with manslaughter by unlawful and dangerous act contrary to common law, and the malicious infliction
of grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861. Despite
evidence of numerous physical assaults perpetrated by the defendant against the victim, including a
strike to the forehead on the evening of her suicide, the prosecution was not convinced that the causal
connection between the physical assaults and the suicide could be readily established on the facts.
Instead, they opted to construct the manslaughter charge on the serious psychiatric or psychological
illness caused by the cumulative effect of the domestic violence perpetrated by the husband, which they
29. This potential was accepted in Dhaliwal (n 5) at [7].

30. For example, it is now well accepted that crimes against property will suffice, see R v Goodfellow (1986) 83 Cr App R 23, R v
Watson (1989) 89 Cr App R 211 and R v JF and NE [2015] EWCA Crim 351.
31. For example, it is now beyond doubt that ‘bodily harm’ includes psychological injury of varying degrees for the purposes of s.
47 (assault occasioning actual bodily harm) and s. 20 (malicious wounding or infliction of grievous bodily harm) of the
Offences Against the Person Act 1861; see R v Ireland; R v Burstow [1998] AC 147.
32. Simester and Sullivan (n 23) at 424.
33. Stannard (n 5) at 533.
34. Ibid.
Lodge 7
determined was the ‘overwhelming’ cause of her suicide.35 The Central Criminal Court determined that
no reasonable and properly directed jury could convict Dhaliwal of either the manslaughter of his wife or
the infliction of grievous bodily harm on her person.36
The decisive issue in Dhaliwal’s case was whether grievous bodily harm required a finding that the
victim had been caused to suffer a recognised psychiatric illness or whether the infliction of serious
psychological illness or injury would suffice to ground the manslaughter charge.37 Perhaps borne out of a
fear of creating uncertainty, casting the culpability net too widely, and unjustifiably criminalising the
causing of ‘normal’ human emotions (such as grief, fear, anger), the Court of Appeal upheld the trial
judge’s determination that nothing short of recognised psychiatric harm or injury would constitute
‘bodily harm’ in this context.38 The Court accepted the innate evidential difficulties encountered in
cases where there is no opportunity, by reason of their untimely death, for experts to examine victims to
determine whether there is sufficient evidence of a recognised psychiatric illness.39 Yet they also
acknowledged that a manslaughter conviction may still be possible in cases such as Dhaliwal. Citing
the decision of Judge Roberts QC in the central Criminal Court, the Court of Appeal confirmed that:
. . . where ‘a decision to commit suicide has been triggered by a physical assault which represents the
culmination of a course of abusive conduct’, it would be possible for the Crown ‘to argue that that final
assault played a significant part in causing the victim’s death . . . 40
It was also suggested that there was no principled reason why the final assault which elicited the
suicide should be considered separately:
If a defendant by his previous conduct has reduced the victim to a psychological state in which the ‘last straw
which broke the camel’s back’ is liable to tip her (or him) over the edge . . . there [is] some force in the
argument that the ‘last straw’ played a significant part in causing the death.41
Although they were not explicitly required to comment on the appositeness of the trial judge’s
remarks in respect of this issue, the Court of Appeal supported the contention that the infliction of,
‘ . . . unlawful violence on an individual with a fragile and vulnerable personality, which proved to be a
material cause of death (even if the result of suicide), would at least arguably, be capable of amounting to
manslaughter’.42 But it is was also accepted that, absent any proof of physical violence–or indeed any
‘recognised psychiatric injury’–a defendant accused of causing emotional harm or mental distress does
not usually attract criminal liability, and this proposition proved to be fatal to the prosecution’s case.
Two out of the three expert witnesses in the case (a clinical psychologist and two consultant psychia-
trists) concluded that while Gurjit Dhaliwal experienced domestic abuse at the hands of her husband,
lived in fear of violence, experienced psychological symptoms which undoubtedly impacted on her
psychological functioning as a result of the cumulative effects of abuse, there was insufficient evidence
to provide a psychiatric diagnosis (e.g. of clinical depression or post-traumatic stress disorder).43 The
prosecution’s case therefore rested on the question of whether psychological injury without a diagnosis
of recognised psychiatric illness was constitutive of ‘bodily harm’.
35. Dhaliwal (n 5) at [6].

36. Ibid. at [18].
37. Ibid. at [19].
38. Ibid. at [31]–[32].
39. Ibid. at [13].
40. Ibid. at [7].
41. Ibid. at [7].
42. Ibid. at [8].
43. Ibid. at [32].
It had previously been acknowledged by the court in Chan Fook44 that ‘there is a line to be drawn’45
between ‘normal human emotions’46 on the one hand and recognisable psychiatric illness on the other.
This distinction has always been determined by expert psychiatric evidence.47 Chan Fook established
that ‘states of mind that are not themselves evidence of some identifiable clinical condition’48 do not fall
within the parameters of the ‘bodily harm’ concept, an approach which was endorsed by the House of
Lords in Burstow.49 The court in Dhaliwal, having reviewed the relevant authorities, submitted that if
they were to acknowledge psychological injury, as opposed to diagnosable psychiatric illness, as con-
stitutive of bodily harm this would ‘introduce an element of uncertainty’ to the law which would
compound the ‘inevitable problems of conflicting medical opinion in this constantly developing area
of expertise’.50 While this somewhat apathetic approach to the magnitude of emotional abuse precluded
a conviction in the instant case, the Court did at least acknowledge that the ‘current understanding of the
workings of the mind is less than complete’,51 thereby leaving the door ajar for future innovation based
on a more advanced understanding of the injurious impacts of such abuse.
Subsequent to the decision in Dhaliwal, there has been significant criticism of the judicial focus on
psychiatric diagnoses as a basis for the attribution of criminal liability which, it is argued, ignores the
broader, and often equally harmful, psychological impact of domestic abuse on victims.52 The potential
significance of the Dhaliwal decision for victims of domestic abuse cannot be underestimated; the Court
of Appeal could have seized the chance to demonstrate their commitment to developing more appro-
priate legal responses to domestic abuse.53 The rigidity of the original judgment was disappointing to say
the least. As a direct retort to the reasoning proffered in the judgment, it was contended by Munro and
Shah that a more flexible, victim-centred and trauma-informed approach to Dhaliwal’s case could have
enabled the judges to exploit the opportunity they had to extend liability for domestic abuse–related
suicide in meritorious cases.54 Some of the criticisms of the Court’s approach to establishing the base
offence in domestic abuse suicide cases will now be explored.
As alluded to above, the criminal law has, historically, been slow to recognise that non-physical abuse
constitutes harm of sufficient severity to warrant criminal prohibition. It was not until the end of the 20th
century that the courts officially accepted the extension of the related concepts of ‘actual bodily harm’
and ‘grievous bodily harm’ to include clinically diagnosable psychiatric conditions.55 Despite this
development marking a significant turning point at the time, the deficiencies of a medicalised approach
to determining the existence of bodily harm soon became apparent.56 Even in cases where severe
psychological injury or emotional harm has been inflicted in the context of an intimate relationship,
absent a clinical diagnosis victims had no recourse to justice through the law relating to offences against
the person. The injustice of this position is felt even more acutely when the psychological or emotional
44. R v Chan-Fook (Mike) (1994) 99 Cr App R 147.

45. Ibid. at 152.
46. Per Lord Bridge of Harwich in McLoughlin v O’Brian [1983] 1 AC 410 at 431.
47. Tortious cases concerning the recovery of damages for personal injury have long since recognised this distinction; see, for
example, Page v Smith [1996] AC 155 and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455.
48. Chan Fook (Mike) (n 44) at 152.
49. R v Ireland; R v Burstow [1998] AC 147.
51. Ibid. at [30].
52. The Law Commission’s tenth programme of law reform: Recognising the Psychological Impacts of Abuse, Project Proposal by
Refuge (Refuge: April 2007).
53. Burton (n 4) at 256.
54. Indeed, Munro and Shah drafted an alternative (fictional) judgment for the case which addressed many of the perceived
difficulties of interpretation; see (n 16).
55. Chan-Fook (n 44); Ireland; Burstow (n 49). At the same time, the Protection from Harassment Act 1997 was enacted to
criminalise non-physical harm, initially by virtue of the offences in sections 2 and 4, and more recently through the enactment
of specific stalking offences, see (n 2).
56. Burton (n 4) at 257–258.
Lodge 9
abuse precipitates suicide. In these circumstances, where the subject of any prospective medical diag-
nosis has taken her own life, establishing the legal requirements to ground a conviction based on bodily
harm (and, as a logical corollary, to establish the unlawful act required to ground a constructive
manslaughter conviction) is especially challenging.
In Dhaliwal, one of the Court of Appeal’s primary reasons for retaining a focus on the necessity of a
medical diagnosis of psychiatric harm was in the interests of certainty; but this pursuit of certitude
proved futile, since there was no consensus between the medical experts providing the diagnosis. This
led to criticism of the judicial preference for ‘the precision of science over the perceived vagaries of
emotion’.57 It is argued that the ‘privileging of medical knowledge over a large body of social science
research relating to the effects of domestic abuse’58 should no longer be tolerated, in the interests of
securing justice for victims of domestic abuse suicides, whose voices are rendered ‘literally absent’59
from proceedings. Munro and Shah are critical of previous judicial distinctions between psychiatric
injury which does constitute psychological harm and other non-physical harm which does not. In
particular, the repeated reference to ‘mere emotions’ such as fear, distress and panic as not being
constitutive of psychiatric injury of a sufficiently serious nature to warrant criminalisation60 seems to
downplay the often life-changing (and sometimes life-ending) experiences of domestic abuse victims.61
To address the perceived inadequacies of the traditional diagnosis of harm in the context of estab-
lishing an offence under the OAPA 1861, judicial approaches to interpreting the law could be adapted to
the extent that, even in the absence of a clinical diagnosis, significant psychological symptoms are
sufficient to count as ‘bodily harm’. However, such an approach may not be strictly necessary since the
enactment of a new criminal offence which explicitly criminalises repeated, non-physical, abusive
behaviours in the context of close personal relationships, which could now provide an alternative route
to suicide liability.
Coercive and Controlling Behaviour: An Alternative Base Offence

In the event that the courts are not prepared to extend existing offences against the person to embrace
psychological injury or emotional harm, the relatively new addition of an offence prohibiting coercive
and controlling behaviour to the criminal law’s armoury may provide an alternative route to justice not
only for the survivors of domestic abuse, at whose protection the offence is primarily aimed, but also for
those who have resorted to taking their own lives as a consequence of abuse. Building on Stark’s
conceptualisation of coercive control as a liberty crime,62 Parliament decided to close a gap that existed
in the criminal law whereby perpetrators of systematic, non-physical abuse, which fell short of causing a
recognised psychiatric condition, were not caught within the confines of existing criminal offences. It is
recognised in the academic literature that, traditionally, criminal law frameworks have not paid suffi-
cient attention to harm caused by coercive and controlling behaviour by focusing on incident-based
(physical) violence, which is often positively detached from the background context of the relation-
ship.63 The development of the coercive and controlling behaviour offence demonstrates a much antici-
pated acceptance that non-physical abuse without a clinical diagnosis of psychological injury is the
legitimate target of criminal prohibition. If the coercion and control exerted by the accused results in the
57. Munro and Shah (n 16) at 264.

58. Burton (n 4) at 258.
60. Chan Fook (n 44) at 152.
61. Munro and Shah (n 16) at 263–264.
62. It must be noted that the offence is drafted in gender neutral terms, which is where Parliament deviated significantly from
Stark’s exposition of coercive control; cf. Domestic Abuse (Scotland) Act 2018. For further discussion, see E. Stark and M.
Hester, ‘Coercive control: Update and review’ (2019) 25(1) Violence Against Women 81.
63. S. Edwards, ‘Coercion and Compulsion – Re-Imagining Crimes and Defences’ (2016) Criminal Law Review 876 at 879–880.
victim taking their own life, a manslaughter conviction may, in principle at least, be easier to establish
than it ever has been before, since the new offence circumvents the problem of proving a diagnosable
condition.
The section 76 offence requires the accused to have repeatedly or continuously engaged in behaviour
towards another person that is controlling and coercive.64 The defendant and the other person must also,
at the time of the behaviour, be ‘personally connected’.65 The behaviour is required to have a serious
effect on the other person.66 Finally, the accused must know or ought to know that the behaviour will
have a serious effect on that other person.67 The offence has been welcomed for the manner in which it
captures the ‘underlying architecture’ of the harm caused by abuse more effectively than the previous
incident-based system, by providing appropriate recognition of the loss of liberty, intimidation, isolation
and control that is an enduring feature of many cases of intimate partner violence.68 The totality of the
harm is rightly recognised,69 and the offence may well serve an educative, awareness-raising function,70
perhaps even encouraging victims—typically so blinded by the abuse as to lack awareness of its
effects—to recognise the harm being done to them71 and to tell their background stories, which are
now afforded legal significance.72 Despite the enactment of the new offence offering renewed optimism
in the pursuit of successful constructive manslaughter prosecutions where a pattern of abusive beha-
viours precipitate a suicidal response, the route to conviction is not without obstacles.
Reframing domestic abuse as coercive control has exposed a number of problems.73 The first to be
considered here is evidential. Writing in the immediate aftermath of Dhaliwal, Horder and McGowan
identified the potential difficulty of proving the cumulative effect on of non-fatal offences, which may
involve unwitnessed, systematic abuse over a prolonged period of time.74 Although the coercive control
offence now provides overt legal recognition that abuse involves a ‘course of conduct’, concerns about
proving the underlying offence elements to the requisite criminal standard of proof persist.75 The offence
relies on contextual analysis, something which arguably the criminal justice system is ill-equipped to
provide at the best of times, not least when the victim is no longer here to furnish the court with
circumstantial detail. While recognising that the coercive control offence should be championed for its
efforts to combat the ‘rampant mischief’ of domestic abuse, Edwards recognises that in respect of
translating what is essentially a clinical concept into law that is actionable,76 the potential ‘shortcomings
64. Serious Crime Act 2015, s. 76(1)(a).

65. Serious Crime Act 2015, s. 76(1)(b). According to s. 76(2), the personal connection requirement is fulfilled if A and B are in an
intimate relationship, if they cohabit and were previously in an intimate personal relationship, or if they cohabit and are
members of the same family (and in relation to the latter point, see further the provisions in s. 76(6)).
66. Serious Crime Act 2015, s. 76(1)(c). According to s. 76(4)(a) and (b), respectively, a ‘serious effect’ is established if the
behaviour ‘causes B to fear, on at least two occasions, that violence will be used against them’, or if it ‘causes B serious alarm
and distress which has a substantial adverse effect on B’s usual day-to-day activities’.
67. Serious Crime Act 2015, s. 76(1)(d). It is further clarified that a defendant ‘ought to know’ the effects of their behaviour if a
reasonable person in possession of the same information as the defendant would know, see s. 76(5).
68. J. Tolmie, ‘Coercive Control: To Criminalize or not to Criminalize?’ (2018) 18(1) Criminology and Criminal Justice 50 at 52,
citing D. Turkheimer, ‘Recognising and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence’ (2004)
94(4) Journal of Criminal Law and Criminology 959 at 959.
69. V. Bettinson, ‘Criminalising Coercive Control in Domestic Violence Cases: Should Scotland Follow the Path of England and
Wales?’ (2016) 3 Criminal Law Review 165 at 167.
70. J. Youngs, ‘Domestic Violence and the Criminal Law: Reconceptualising Reform’ (2015) 79(1) Journal of Criminal Law 55 at
61.
71. Tolmie (n 68) at 55.
72. Edwards (n 63) at 879–880.
73. For a useful recent synopsis of the main difficulties, see Walklate and Fitzgibbon (n 1).
74. Horder and McGowan (n 5) at 1043.
75. Edwards (n 63) at 884–886, in particular.
76. S. Walklate, K. Fitzgibbon and J. McCulloch, ‘Is more Law the Answer? Seeking Justice for Victims of Intimate Partner
Violence Through the Reform of Legal Categories’ (2018) 18(1) Criminology and Criminal Justice 115 at 118.
Lodge 11
are legion’.77 Coercion per se is hard to evidence in law; it requires a curtailing of another person’s free
choice, but to what extent must freedom be eroded before the conduct becomes criminal? As Tolmie
emphasises, each case involves an ‘individualised package of behaviours’78 developed for the particular
victim by the person who knows her most intimately. A complex factual analysis of the situation is
required, one which the legal system is arguably not yet ready to provide. Proving coercion is also likely
to require considerable engagement on the part of the victim in the legal process; a detailed narrative is
likely to be required before the burden of proof can be discharged. Aside from the overwhelming
problem that in domestic abuse–induced suicide cases the victim (as the primary witness) is dead, living
sufferers do not always appreciate their status as victims, since the traumatic nature of an abusive
experience often induces victims to minimise or normalise the behaviour of the perpetrator. Many
victims of abuse may not be able to appreciate or verbalise their experiences until they have left the
hostage-like state;79 and, unfortunately for victims who have taken their own life, the opportunity to
personally tell their stories will never be realised.
In cases where victims have had some form of previous interaction with the police or other state
agencies, or there are other witnesses of the abuse they have endured, there may be sufficient evidence of
the context to establish the requisite elements of the coercive control offence. However, it is well-
accepted that many survivors do not engage with state agencies for a variety of complex reasons,80 and
even if they do, the difficulties of establishing the offence prerequisites may persist, for the reasons
explored above.81 These issues appear to manifest in poor prosecution rates.82 The consensus from the
literature that has followed the introduction of the coercive control offence is that, absent any compre-
hensive and long-term commitment to shifting attitudes, and without more robust training of a variety of
state agencies involved in domestic abuse cases, the offence will continue to be ineffective and under-
utilised.83 Historically, the response of the criminal courts to female victims of gendered violence in
particular has been woefully inadequate, but perhaps there is a ‘cautious optimism’84 that the developing
understanding of coercive and controlling behaviour may assist various actors in the criminal justice
system to respond more effectively to intimate partner violence, including that which results in the
victim’s suicide.
Notwithstanding the problems of proving the stand-alone coercive control offence, it has also been
acknowledged that the ‘legal foundations’ for constructing a manslaughter conviction on the basis of
the offence of coercive and controlling behaviour are, as yet, largely ‘untested’.85 Indeed, there have
been pertinent cases of proven coercive and controlling conduct that have resulted in the suicide of the
victim which could, in principle, have warranted an extension of liability for manslaughter; but the fact
that convictions have, more often than not, been limited to non-fatal offences is perhaps indicative of
the courts’ reluctance to extend liability in such cases.86 In one case, however, hailed as a ‘legal
77. Edwards (n 63) at 898.

78. Tolmie (n 68) at 54.
79. V. Bettinson and C. Bishop, ‘Is the Creation of a Discrete Offence of Coercive Control Necessary to Combat Domestic
Violence?’ (2015) 66(2) Northern Ireland Law Quarterly 179 at 194.
80. For example, fear of gender bias, fear of escalated abuse, belief that they do not fit the mould of a stereotypical victim and
therefore are less likely to be believed, previous inadequate interactions with the state agencies, see Tolmie (n 62) at 54–55.
81. According to McGorrery and McMahon, the ‘distinctive ‘course of conduct’ requirements challenge the traditional (and
justified) reluctance of the criminal law to move beyond mandating that the prosecution identify and prove specific dates and
times of charged behaviours’, see P. McGorrery and M. McMahon, ‘Criminalising ‘the Worst’ Part: Operationalising the
Offence of Coercive Control in England and Wales’ (2019) 11 Criminal Law Review 957 at 962.
82. As reported in McGorrery and McMahon, ibid. at 957, the Home Office identified 235 successful prosecutions as of December
2018, three years after the introduction of the offence.
83. Edwards (n 63) at 898; see also Walklate, Fitzgibbon and McCulloch (n 76).
84. H. Douglas, ‘Legal Systems Abuse and Coercive Control’ (2018) 18(1) Criminology and Criminal Justice 84 at 94.
86. Reference can be made here to the case of Steven Gane, who, when his victim took her own life as a consequence of his
abusive conduct, was charged with assault occasioning actual bodily harm (under s. 47 of the Offences against the Person Act
first’,87 Stafford Crown Court convicted the accused, Nicholas Allen, of the unlawful act manslaughter
of his former partner, Justene Reece, after he pleaded guilty to charges of coercive and controlling
behaviour, stalking and manslaughter, following a protracted campaign of abuse which culminated in
the victim’s suicide. The guilty plea precluded any detailed discussion of the offence requirements, so,
while the conviction is welcome and may mark a potential shift in the courts inclination to prosecute,
many questions remain unanswered regarding the scope of liability for manslaughter in these
circumstances.
Having explored the potential unlawful acts on which a manslaughter conviction may be constructed,
either through more flexible interpretations of the traditional offences against the person or through the
acceptance of an alternative base offence, another significant barrier to prosecution must now be
explored; the sufficiency of the accused’s causal contribution to the victim’s suicide.
Establishing a Causal Connection

The default criminal law position protects defendants from shouldering responsibility where the conduct
of another individual (including the victim themselves) has contributed significantly, or more immedi-
ately, to the outcome. Exceptions to that premise have arisen, however, where the intervening conduct is
not truly the product of the individual’s free will. In such cases, it is theoretically still plausible for causal
responsibility to be attributed to the defendant despite the contribution of the victim and, subject to the
satisfaction of the other offence requirements, for manslaughter liability to ensue.
Rather unfortunately, the causation requirement was not subjected to any protracted legal analysis by
the Court of Appeal in Dhaliwal; because of the inherent difficulties of establishing the existence of
‘bodily harm’, the prosecution’s case did not meaningfully go beyond a discussion of the underlying
unlawful act. The judgment implies, however, that there is at least an arguable case that a causal
connection between domestic abuse and a victim’s suicide can be established.88 This proposition has
been further substantiated in subsequent academic discourse, which promulgates the idea that causation
could be established even without a final act of physical assault, on the basis of the cumulative effects of
persistent abuse.89 Given the flexible, policy-driven tactics often displayed in court decisions about
causation, the judicial approach to establishing the cause of the victim’s suicide should be guided by
value judgements and ‘notions of moral culpability’90 rather than a rigid application of principle. Indeed,
the Supreme Court in Hughes overtly acknowledged that ‘the meaning of causation is heavily context-
specific’ and that different legal rules may be applied in diverse situations, to the extent that a stable
concept of causation, extracted from the contextual background, cannot be routinely applied.91 It would
therefore seem contrary to current policy, with its aim of eradicating violence against women and girls,
for the courts to adopt an inflexible stance in respect of establishing causation in deserving cases of
domestic abuse–induced suicide.
To establish a sufficient causal link between the defendant’s abuse and victim’s suicide, the ordinary
principles of causation apply to the extent that the conduct must be proven to be a factual cause of the
death by suicide. If the victim’s death would not have occurred but for the defendant’s abusive course of
1861) and coercive and controlling behaviour (under s. 76 of the Serious Crime Act 2015), rather than manslaughter. Indeed,
in his sentencing remarks, Judge Grey told Gane ‘your behaviour drove Kellie Sutton (Gane’s partner) to hang herself that
morning’, yet no manslaughter conviction followed: see <https://www.bbc.co.uk/news/uk-england-beds-bucks-herts-
43541535>
87. <https://www.womensaid.org.uk/womens-aid-welcomes-historic-legal-first/>
89. For example, Munro and Shah (n 16); see also Horder and McGowan (n 5) at 1040–1041.
90. Burton (n 4) at 259.
91. R v Hughes [2013] UKSC at [20]. The Court of Appeal more recently reiterated in Wallace that the, ‘search for a compre-
hensive set of causation principles has proved to be elusive’, see R v Berlinah Wallace [2018] EWCA 690 at [52].
Lodge 13
conduct, then prima facie, the accused’s conduct has caused the consequence.92 But the presence of
factual causation does not circumvent the need to establish true legal causation; it must also be demon-
strated that the defendant’s abusive conduct made a ‘significant’ contribution to the victim’s death,93
although it is well established that the accused’s conduct need not be the sole or principal cause of that
result, as long as the contribution is not insignificant or de minimis.94
A defendant may try to deny the legal significance of their contribution by claiming that a novus actus
interveniens severed the causal connection between their conduct and the victim’s death. There is a long-
established distinction between ‘conduct which sets the stage for an occurrence and conduct which in a
common sense view is regarded as instrumental in bringing [it] about;’95 this difference requires careful
analysis in the context of domestic abuse–induced suicide cases, where the causal nexus between the
defendant’s abuse and the victim’s death may be weakened by the victim’s response to the abuse and her
apparent ‘choice’ to end her own life. Whether the victim’s decision to commit suicide is sufficient to
displace the accused’s causal responsibility is, it is argued, doubtful when considered against the
background of chronic and crippling abuse meted out by the accused. What is in dispute in such complex
cases is not the general principles of causation, which remain relatively stable, but the way in which the
rules are harnessed to achieve justice in the circumstances. The extent to which the culpable conduct of
the abuser can be disconnected from the victim’s death, so that the abuse provides nothing more than the
factual setting in which the subsequent suicide occurs, therefore requires more detailed consideration.
Free, Deliberate and Informed Human Intervention

The ordinary principles of causation are such that a voluntary act of a person other than the accused
(including the victim96) which is ‘free, deliberate and informed’97 will disrupt the causal connection
between the defendant’s action and the victim’s death.98 This basic legal position is premised on the idea
that autonomous people are responsible for their own decisions, as long as the choice to bring about the
consequence is not ‘significantly induced, fettered or constrained by the situation [the accused] has
created’.99 A perpetrator of abuse might contend that their causal responsibility is displaced by the
victim’s freely chosen conduct; but, it could equally be countered that the suicidal response of the victim
was provoked entirely by the defendant’s behaviour, and in that sense was not the product of a truly
autonomous decision.
The idea that the domestic abuse victim has not freely chosen self-sacrifice finds support in the
academic literature. Horder and McGowan suggest that in cases where a controlling influence is estab-
lished through coercive and threatening behaviour, which renders the victim unable to exploit alternative
means of fleeing the abuse, the abuser can be causally responsible for the victim’s action of choosing
suicide as the only means of escape from the controlling and coercive influence.100 Munro and Shah also
opine that often the apparent choice to commit suicide on the part of the abuse victim is not underscored
by true autonomy at all. They suggest that, when assessing the causation requirement, it must be borne in
mind that, ‘human beings make choices in a complex network of interpersonal relationships and against
92. R v White [1910] 2 KB 124; R v Dalloway (1847) 2 Cox CC 273.

93. R v Kennedy (No. 2) [2007] UKHL 38 at [7]; R v Cato [1976] 1 WLR 110, 116-117; Wallace (n 91) at [64].
94. R v Williams [2010] EWCA Crim 2552 at [33]–[36] and confirmed more recently by the Court of Appeal in Wallace (n 91) at
[25] and [86].
95. Hughes (n 91) at [23].
96. Kennedy (No.2) (n 93).
97. R v Pagett (1983) 76 Cr App R 279 at 288–289.
98. This principle was asserted in the influential treatise on causation proffered by H.L.A. Hart and T. Honore, T. Causation in
the Law, (2nd ed, Oxford University Press, 1985) 326. See also Kennedy (No. 2) (n 93) at [14].
100. Horder and McGowan (n 5) at 1041–1042.
a context of myriad social influences and communal norms’,101 to the extent that the voluntary nature of
the victim’s response in domestic abuse–related suicide cases is, at best, doubtful and this is a contention
that warrants closer judicial scrutiny.
In furtherance of the argument that the abuse victim has not freely chosen a suicidal option, it is well-
documented that opportunities for victims of domestic abuse to flee to a place of safety are limited, in
terms of both the victim’s perception, but also in reality. Although an increase in criminal laws prohibit-
ing various manifestations of abuse means that access to state protection is, in principle, now more
obtainable than ever before, the criminal justice system does not always provide an appropriate solution.
As discussed above, there are difficulties evident at all stages of the justice process that potentially
render it redundant as a mechanism of protection, particularly for victims of non-physical abuse. In cases
where the victim has a conscious awareness of the harmful situation they are in, they may be reluctant to
involve the police, and even where they are willing to engage, police investigations are not always
adequate and subsequent prosecutions may prove difficult due to lack of available evidence. Notwith-
standing the fact that a prosecution may be successful, the subsequent sentence may be insufficient to
protect the victim from further abuse. Beyond the criminal justice system, other support mechanisms that
might provide a means of escaping abuse are also not as readily accessible as they should be; in the
current climate of austerity, domestic abuse service providers are struggling to offer a necessary lifeline
to some victims, and their provision of invaluable support to desolate victims is being stretched to
breaking point.102 In short, the lack of availability of tangible escape routes that are so desperately
needed means that when the abuse becomes intolerable, there is no often no discernible alternative, from
the victim’s perspective, other than deliberate self-sacrifice. This, in turn, gives credence to the claim
that the victim’s suicidal response to domestically inflicted terror is not the product of unfettered choice.
In terms of the legal response, it has recently been suggested that existing causation principles could
be construed to ensure perpetrators of abuse are held accountable for placing victims in a position of
severely constrained ‘choice’, rather than interpreting the principles to blame victims for their under-
standable responses. The influence of human intervention on causal responsibility was considered
recently in the case of Wallace.103 Mark van Dongen was the victim of a deliberate acid attack perpe-
trated by his former partner, Berlinah Wallace, which left him ‘terribly disfigured, completely paralysed
and in a permanent state of unbearable constant physical and psychological pain that could not be
ameliorated by his doctors’.104 As a consequence, he expressed a wish to be actively euthanised and,
given that the victim was physically unable to take his own life,105 he made an application to be
euthanised by a doctor in Belgium, in accordance with a process which is lawful in Belgian law.106
Wallace was charged with murder107 but the allegation was disputed on the basis that, following the
attack, the victim made a free and informed choice to seek death which constituted an intervening act,
thereby displacing her causal responsibility for his death. Although the circumstances of this case are not
directly analogous to domestic abuse–induced suicide cases,108 aspects of the judicial synopsis of

102. Indeed, one of the key recommendations arising from the empirical research carried out by Aitken and Munro is that there
must be ‘a commitment to provide secure, protected funding for specialist domestic abuse services, as well as ensuring there
are sufficient specialist refuges to meet demand’, (n 7) at 5. Women’s Aid claimed that 1695 (or 31.1%) more refuge spaces
were required to meet minimum demand, see Women’s Aid, Survival and Beyond: The Domestic Abuse Report (Women’s
Aid, 2017).
103. Wallace (n 91).
104. Ibid. at [3].
105. Ibid. at [16].
106. Belgian Act on Euthanasia of 28 May 2002, the central provisions of which are Articles 2 and 3.
107. She was also convicted of the offence of applying a corrosive fluid with intent, contrary to s. 29 of the Offences against the
Person Act 1861, prior to the charge of murder being applied following the victim’s death.
108. For example, although the victim actively sought death, he did not take his own life.
Lodge 15
relevant causation principles in Wallace may inform future approaches and are therefore worthy of some
consideration here.
In Wallace, the trial judge suggested that:
if one is to accord proper respect to the decision and actions of persons with free will acting autonomous-
ly . . . then the legal result of their free and voluntary choice . . . to end their own or another’s life
must . . . [disconnect] both the choice to die and the death itself from the circumstances generating the
occasion for it.109
It was on this basis that the trial judge withdrew the murder case from the jury’s consideration.
However, relying on the judgment in Kennedy (No. 2),110 the Court of Appeal subsequently held that the
jury was entitled to find that the victim, in choosing to end his life, was not acting in a free and voluntary
manner, given the overwhelming and untreatable physical and psychological suffering he was experi-
encing as a direct result of the attack. The Court acknowledged that the victim’s choice to end his life
(and the doctor’s actions of carrying the act out) were not ‘random, extraneous events, or acts uncon-
nected with the fault element of the defendant’s conduct . . . [but acts which were] . . . very closely,
indeed inextricably, bound up with it’.111 Applying this logic, by analogy, to the current context, lends
further support to the proposition that the decision of the domestic abuse victim to commit suicide, in
cases where they are enduring unbearable physical and/or psychological suffering and are facing the
prospect of lifelong suffering without realistic avenues for escape, is not the product of ‘free and
unfettered volition presupposed by the novus actus rule’.112 It would seem, then, that the limited judicial
guidance available in cases where the victim has, on the face of it, elected to end their own life does not
preclude a finding of causation in domestic abuse–related suicide cases.113 Indeed, bearing in mind the
oft-cited proposition that ‘causation is not a single, unvarying concept to be mechanically applied
without regard to the context in which the question arises’,114 it would seem that the courts have paved
the way for the broader context of domestic abuse to be given careful consideration when determining
the voluntariness of a vulnerable victim’s suicidal response.
Escaping from Threats and Reasonable Foreseeability

It is clear from the preceding analysis that the courts have shown a readiness to contextualise intervening
acts to secure what they perceive to be a just outcome in each individual case, where there exist
compelling policy reasons to do so. As well as recognising that the actions of third parties acting in
circumstances of extreme pressure created by a defendant may not be legitimately described as ‘free,
deliberate and informed’,115 even in cases where the victim’s conduct might still be described as
autonomous, the courts endorse the continued causal responsibility of the defendant where the victim’s
conduct was reasonably foreseeable as a consequence of the accused’s action. So, even in cases where
the victim’s own actions appear to be more immediate cause of death than the defendant’s original
conduct, their conduct may be attributable to the accused if it was in reaction to the defendant’s wrongful
conduct and the response was a reasonably foreseeable possibility.116 Where a victim seeks to escape a
109. Cited by Lady Justice Sharp in the Court of Appeal in Wallace (n 91) at [45].
110. Kennedy (No. 2) (n 93).
111. Wallace (n 91) at [60].
112. Ibid. at [61].
113. It is noteworthy that Berlinah Wallace was subsequently acquitted of any homicide offence at retrial.
114. Kennedy (No. 2) (n 93) at [15].
115. For example, in Pagett (n 97), it was decided that the action of a police marksman instinctively shooting back at a defendant
he believed to be firing shots did not act in a ‘free deliberate and informed’ manner, given the pressurised circumstances
created by the defendant.
threatening situation, for instance, the courts maintain that the escape attempt does not constitute a novus
actus interveniens if the reaction was, ‘within a range of responses which might be expected from a
victim placed in the situation . . . [bearing in mind] . . . any particular characteristics of the victim’.117
This principle is well established at common law.
Discussing these judicial assertions, Munro and Shah suggest that cases where victims flee a threa-
tening situation in the interests of self-preservation are analogous to those in which abuse victims seek
what they perceive to be the only available form of psychological self-preservation against a background
of systematic abuse.118 It is plausible that systematic abuse contributed in a causally significant way to
the death of the victim, whose response to the abuse is not unnatural. As alluded to above, research on the
prevalence of suicide among domestic abuse victims bears this out; suicide may be viewed by many as a
drastic response, and not one that every victim will contemplate, but it at least appears to be within a
range of foreseeable responses to domestic abuse.119 Any argument that suicidal reactions are extreme
and therefore unforeseeable can also be rejected on the basis that ‘causation principles do not require the
accused to foresee the precise future consequences of their conduct’.120 As long as the victim’s reaction
is not deemed to be ‘extraordinary’, ‘daft’ or ‘unexpected’, it does not render the causal contribution of
the defendant insignificant. It would therefore appear that seeking death as an escape from horrific
psychological injury (with or without the presence of physical violence) is not a response that would
preclude the jury from finding that the defendant has made a sufficiently significant causal contribution
to the victim’s death.
On a more restrictive interpretation of principle (and not one that is advocated here), the victim’s
suicidal response may be deemed disproportionate, to the extent that the reasonable foreseeability
requirement may not be satisfied. However, another basic causation principle emerging from the legal
discourse maintains that defendants must ‘take their victims as they find them’,121 including their
physical and psychological make-up. It is a settled principle that a victim who refuses life-saving
treatment (which could effectively be construed as a suicidal act), following a physical injury deliber-
ately inflicted by a defendant, does not sever the causal connection that holds the original actor respon-
sible. This principle could, therefore, enable the vulnerabilities of the abuse victim to be accounted for in
assessing the reasonableness of their response. However, arguably this principle does not offer as much
support to the contention that the abusive defendant is causally responsible as is sometimes assumed,
since it is not universally accepted that the rule applies to actions performed by the victim rather than
omissions which bring about a result.122 In domestic abuse–induced suicide cases, then, it seems the
vulnerability of the victim is not, in and of itself, sufficient reason to displace the accused’s causal
responsibility; but the fragility created as a result of the abuse will be relevant to the assessment of other
well-established causation requirements relating to freedom of choice and reasonable foreseeability.
The causation rules considered above merely set down standards to be generally applied in the
assessment of causal responsibility. The nebulous nature of the causation inquiry allows for analogies
to be drawn between rules developed in decided cases and novel situations that may require further
117. R v Williams [1992] 1 WLR 380.

119. Aitken and Munro (n 7); S. Walby, The Cost of Domestic Violence Women and Equality Unit (London 2004); E. Stark, and A.
Flitcraft, ‘Killing the Beast Within: Woman Battering and Female Suicidality’ (1995) 25 International Journal of Health
Services 43.
120. R v Maybin [2012] 2 SCR 30 at [38], per Karakatsanis J
121. R v Blaue [1975] 1 WLR 1411 at 1415.
122. Blaue is arguably more effectively explained as dictating a principle that an omission (in that case the refusal of a life-saving
blood transfusion) does not constitute a novus actus interveniens, see A.P. Simester and Sullivan (n 23) at 98, 112–113 and
116–118. However, it is also noteworthy that in R v Dear [1996] Crim LR 595, the Court of Appeal indicated that where the
victim makes a positive contribution to their own death (in the instant case, a severe wound initially inflicted by the defendant
may have been deliberately reopened by the victim), this action will not necessarily displace the defendant’s causal
responsibility for the death.
Lodge 17
judicial contemplation. In domestic abuse–induced suicide cases, it is clear from the discussion above
that the vulnerable position that victims find themselves in on account of the abuser’s conduct could be
given legal import in determining either the autonomous quality of the victim’s response, or, by analogy
with an alternative line of reasoning, the reasonable foreseeability of her suicidal response. It is open to
the courts to realise the opportunity to afford legal significance to the position of victims of abuse by
providing a clear and transparent statement of principle. A more robust and progressive approach to the
law will demonstrate the courts taking seriously their obligations to tackle domestic abuse.
Alternative Routes to Liability

Although the limited judicial time that has been devoted to analysing the issue of domestic abuse–
induced suicide has thus far focused on the offence of constructive manslaughter, it is also contended
that alternative routes to liability could be exploited in the interests of achieving justice. Two of these
potential options—gross negligence manslaughter and the possible creation of a context-specific
offence—are briefly considered below, for the sake of completeness, before some tentative conclusions
are drawn.
Gross Negligence Manslaughter?

The difficulties of successfully pursuing a charge of unlawful act manslaughter conviction in respect of
domestic abuse–induced suicide are acknowledged above. Even if the problems associated with causa-
tion are surmountable, it may prove challenging to establish the cumulative effect of abuse over a
potential period of years to affirm coercive control as the underlying unlawful act.123 In the aftermath
of the Dhaliwal decision, it was suggested by Horder and McGowan that some of the perceived
difficulties could be circumnavigated by basing liability on the gross negligence manslaughter offence,
in the alternative.
Applying the well-rehearsed principles set out in the seminal case of Adomako,124 it would appear
relatively easy to establish that a perpetrator of abuse in the context of an intimate relationship would
owe a duty of care to the suicide victim on the basis that the victim is a person who may be foreseeably
harmed by the defendant’s action. The duty would clearly be breached by virtue of the abuse, and the
breach of the duty also has the potential to be grossly negligent, taking into account the whole course of
abusive conduct being regarded as so bad that it warrants criminal prohibition. The defendant’s grossly
negligent breach of the duty must also have exposed the victim to a risk of death.125 It is not beyond the
realm of possibility that the grossness requirement could be satisfied by the accused’s abusive beha-
viours, and the cumulative effects of the abuse throughout the relationship would provide pivotal support
for this contention. A wide range of evidence could also be presented to the court to substantiate such
claims.126 In respect of proving causation, it could arguably be easier to establish causation for this
offence because the unlawfulness in gross negligence manslaughter cases is manifest in the grossly
negligent breach of the duty. In other words, the cumulative requirements satisfy the need to demonstrate
causal salience;127 the focus of the enquiry is on whether, overall, what the defendant did was so bad as
to be deserving of the manslaughter label. This could enable a more flexible approach to causation. On
the other hand, the unlawfulness in constructive manslaughter cases is entrenched in the underlying
unlawful act, but the coercive and controlling behaviour offence focuses attention on a potentially wide
range of abusive behaviours, some of which are criminal and some of which are not, therefore making it

124. Adomako (n 25).
125. R v Misra & Srivastava [2005] 1 Cr App R 21 at [328], [343].
127. Kyd (n 24) at 134.
difficult to clearly establish the criminality required. For these reasons, it has been suggested that
pursuing the gross negligence manslaughter option could ‘make prosecutions easier in practice as well
as being sound in principle’.128 The offence elements, often criticised for their nebulous nature, could be
flexibly applied to ground liability for homicide.
It is important to note, however, that some of the arguments articulated in favour of gross negligence
manslaughter were coined before the introduction of the coercive and controlling behaviour offence.
Therefore, reliance on the constructive manslaughter prohibition, now underpinned by an offence that
overtly recognises the cumulative and deleterious impacts of non-physical abuse, is a more viable
prospect. While there may still be some merit in the argument that causation could be easier to prove
in gross negligence manslaughter cases, a more transparent approach to causation in constructive
manslaughter cases, as advocated above, would operate to undermine any preference for applying the
gross negligence manslaughter prohibition in this context. These developments, therefore, arguably
circumvent the need for any unnecessary, some might say ‘undemocratic’,129 judicial development of
the already unwieldy gross negligence manslaughter offence.
A Specific Statutory Offence of Domestic Abuse–Induced Suicide?

One final option warrants some consideration here, and that is the creation of a separate, specific offence
of domestic abuse–induced suicide, a development that has been mooted at various junctures and has
been brought to fruition in some jurisdictions.130 There is some resistance to the construction of a
separate offence on the basis that the recent expansion of discrete homicide offences generally is
contestable.131 Conversely, others advocate the creation of a new statutory homicide offence could deal
more effectively and transparently with abuse-induced suicides, while simultaneously drawing much-
needed attention to the issue.132 Writing at a time when the adequacy of the law of homicide was under
scrutiny, Elliott and De Than argue that existing laws need to be ‘restructured more radically to reflect
the specific contexts in which [homicide offences] are now committed’.133 The contention is that there
should be a more profound change to the law of homicide to afford more respect to the principle of fair
labelling and to demonstrate that the life of a victim of domestic abuse is of equal value to those who
have lost their lives in other circumstances.134
In respect of the question of fair labelling, it is a well-established principle of criminal law that
offences should be ‘subdivided and labelled so as to represent fairly the nature and magnitude of the law
breaking’.135 The current two-tier structure of homicide, developed at common law, is arguably blind to
moral variations in the vast array of killings that can fall within its scope. Murder and manslaughter are
distinguished by virtue of the mens rea requirement alone, but as Elliott and de Than explain, this
approach permits ‘significant factual variations such as the vulnerability of the victim and the motive’, of
the defendant to be ignored, at least at the stage of establishing a conviction.136

129. Ibid. at 1046, although the authors point out that the European Court of Human Rights has not unequivocally denied the need
for judicial creativity if the circumstances justify it.
130. See the brief synopsis of the context-specific offences that have been developed in other jurisdictions in Munro and Aitken (n
6) at 741.
131. Horder and McGowan (n 5) at 1045–1046.
132. Elliott and De Than (n 5) at 69.
133. Ibid. at 70.
134. The authors also argue that distinct offences should be created to proscribe ‘general target killings’ and ‘drug killings’, but
this aspect of their discussion is beyond the scope of this article.
135. Ibid. at 70.
136. Ibid. at 71. It should be noted that these factors are currently taken into account at the sentencing stage, although as Victor
Tadros asserts, ‘treating important features of the defendant’s conduct as having a bearing only on sentencing fails to
Lodge 19
In recognition of the common law’s failure (or at least recalcitrance) to pursue manslaughter con-
victions in domestic abuse suicide cases on the basis of the existing manslaughter prohibitions, Elliott
and de Than propose that a new statutory homicide offence would more effectively capture the dis-
tinctive and devastating harm caused in such cases.137 They argue that the most effective way to provoke
change, and thus secure justice for victims of suicide induced by domestic abuse amidst this culture of
inaction, is ‘through a new statutory offence which officially recognises that homicide liability should be
pursued’.138
While there may be some benefits to the creation of context-specific offences, not least to incentivise
prosecution,139 criticisms of unnecessary particularism abound.140 Munro and Aitken have voiced
concern that a tailored offence ‘risks ghettoising domestic abuse, and providing limited justice for
victims whilst ensuring a symbolic victory in terms of legislative intent’.141 In creating separate
offences, there is a legitimate concern that the seriousness of the criminal behaviour would be under-
mined, although it could be counterargued that it is still better to have a statutory offence that carries this
hazard of marginalisation and has the effect of encouraging prosecution, if the alternative is to maintain
the current position which arguably provides no motivation to prosecute. As explored above, it is now
accepted that the coercive and controlling behaviour often at the root of domestic abuse is sufficiently
distinctive to warrant separate treatment as an offence in its own right, and this argument carries weight
when translated to domestic abuse–induced suicide cases. The circumstances that have driven a victim to
suicide are uniquely harmful and deleterious to the victim’s personhood; they are not mere factual
exemplifications of the wrongness of the conduct,142 but rather they mark it out as particularly harmful
and thereby warranting separate and specific treatment.143 There exists, therefore, at least an argument
that a particularised statutory offence of domestic abuse–induced suicide is desirable to satisfy the
principle of representative labelling.
Recognising that the consequence in all involuntary manslaughter cases is the same (death), outcomes
are not the only significant feature of such cases; the social significance of the harm caused and its
impact on society should arguably also be overtly accounted for.144 Whether this end is best achieved by
adding another offence to the statute books or by investing more time into operationalising the coercive
control offence and developing more transparent judicial approaches to interpreting other offence
requirements is a matter for debate. Given that the issue of domestic abuse–induced suicide has been
sidelined in the Domestic Abuse Bill, attention should be focused on developing more robust responses
to domestic abuse–related suicides within the confines of the existing provisions.
Conclusion
It is a sad indictment on society’s failure to assist them that some victims are so impacted by the
deleterious psychological consequences of domestic abuse that they feel compelled to end their lives.
For many, this is an outcome that they consider preferable to the perceived alternative: a life of chronic
appreciate the fundamental role of a trial . . . [which is] . . . intrinsically valuable in its declaratory role’, V. Tadros, ‘The
Homicide Ladder’ (2006) 69 Modern Law Review 601 at 618.
138. Ibid. at 83.
139. A precedent has been set in this regard by Parliament’s creation of specific statutory offence to tackle previously under-
prosecuted driving offences and to encourage the prosecution of those who kill vulnerable individuals in the home, see s. 5 of
the Domestic Violence, Crimes and Victims Act 2004.
141. Munro and Aitken (n 6) at 741.
142. A concern expressed by Horder in the context of offences against the person, see J. Horder, ‘Rethinking Non-fatal Offences
Against the Person’ (1994) 14 Oxford Journal of Legal Studies 335, at 340.
144. Ibid. at 73.
emotional (and sometimes physical) abuse. Judicial constructions of existing homicide laws have also
failed to secure justice for victims after their deaths. However, with the advent of a new offence of
coercive and controlling behaviour, the compelling policy reasons for criminalising the distinctive
features of patterned abuse in the context of an intimate relationship, previously ignored by the criminal
law, have been realised. The effects of coercive and controlling behaviour could be more overtly
recognised in the legal principles pertaining to constructive manslaughter. Victims may be so affected
by the psychological abuse they have endured, and perhaps so let down by a criminal and social justice
system that is struggling to provide required life-saving support, that their options for escape are (both in
perception and reality) non-existent. Ending one’s life after enduring a period of significant psycholo-
gical abuse is a ‘choice’ dictated by the circumstances, which are, in turn, created by the defendant. The
suicidal response will often be one of a range of reasonable responses from a victim displaying typical
vulnerabilities. The voluntariness of the victim’s suicidal reaction and the reasonableness of her response
therefore need to be given legal effect through liberal interpretations of causation principles.
As a final thought, it must also be remembered that while the criminal law has a vital role to play in
marking out the boundaries of acceptable behaviour, its prohibitions alone cannot prevent domestic
abuse and all of its life-limiting and potentially life-ending, consequences; a significant and wholesale
change in societal and institutional responses to domestic abuse is required. Given the current political
commitment to the eradication of violence against women, and the potential for groundbreaking legis-
lative developments in this regard, the time is right to reassess homicide liability in the context of
domestic abuse–related suicide. The creation of a specific statutory offence to mark out the seriousness
of the systematic harm that drove the abuse victim to death is one option. But, in recognition of the lack
of impetus towards statutory reform in respect of this particular manifestation of abuse, there exists a
more realistic and immediate prospect: the provision of more flexible and transparent judicial inter-
pretations of existing constructive manslaughter requirements to ensure that perpetrators of abuse are
held accountable for the fatal consequences of their behaviour. To promote respect for the equal value of
women’s lives in the application of homicide prohibitions, the courts must grasp this nettle.
Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication
of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.

Domestic Abuse, Suicide and Liability For Manslaughter

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Domestic Abuse, Suicide and Liability For Manslaughter

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Criminal law

The Journal of Criminal Law

The Harmful Effects of Domestic Abuse and Its Association with

8. Section 76 of the Serious Crime Act 2015.

The Imposition of Manslaughter Liability for Unintended or

17. Tadros (n 10) at 1000.

Unlawful Act Manslaughter: The Requisite Elements

Establishing the Unlawful Act

Dhaliwal and the Problem of ‘Bodily Harm’

29. This potential was accepted in Dhaliwal (n 5) at [7].

35. Dhaliwal (n 5) at [6].

44. R v Chan-Fook (Mike) (1994) 99 Cr App R 147.

Coercive and Controlling Behaviour: An Alternative Base Offence

57. Munro and Shah (n 16) at 264.

64. Serious Crime Act 2015, s. 76(1)(a).

77. Edwards (n 63) at 898.

Establishing a Causal Connection

Free, Deliberate and Informed Human Intervention

92. R v White [1910] 2 KB 124; R v Dalloway (1847) 2 Cox CC 273.

101. Munro and Shah (n 16) at 267.

Escaping from Threats and Reasonable Foreseeability

117. R v Williams [1992] 1 WLR 380.

Alternative Routes to Liability

Gross Negligence Manslaughter?

123. Horder and McGowan (n 5) at 1043.

A Specific Statutory Offence of Domestic Abuse–Induced Suicide?

128. Horder and McGowan (n 5) at 1043.

Declaration of Conflicting Interests

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