Homicide (Voluntary manslaughter) W3

Structure of homicide offences

Murder? No homicide
No offence has been
Actus Reus: Has D unlawfully killed a person? committed.

Yes

Murder? Mens Rea: Did D act with the intention to kill or cause GBH?

Yes No

Voluntary manslaughter? Involuntary manslaughter?

D satisfies the actus reus and mens rea of D satisfies the actus reus but not the mens rea
murder. of murder.

Does D satisfy the elements of a partial Does D satisfy the elements of an involuntary
defence? manslaughter offence?

No Yes Yes No

D is liable for murder D is not liable for

D is liable for
(unless she satisfies one murder or manslaughter.
manslaughter.
of the general defences). Consider other offences.

 Loss of self-control: D kills while out of control owing to fear of serious violence or a
justifiable sense of being seriously wronged (Coroners and Justice Act 2009, s54);

 Diminished responsibility: D’s recognised medical condition led to an abnormality of

mind and caused her to kill (Homicide Act 1957, s2); and

 Suicide pact: D kills V in pursuance of an agreement that they will both die together
(Homicide Act 1957, s4).

Loss of self-control

Problems with the Old Law - What types of conduct can qualify as provocation? *
 Under the old law, provocative acts were reacted to acts of violence. This was
expanded in common law to “anything said or done to create that violent passion.”
 [HOWEVER, this created uncertainty] R v Doughty (1986) 83 Cr App R 319. The
provocation here amounted to the crying of a baby. [i.e. The law did not want to
defend actions caused by said crying baby]
What characteristics of the defendant can be considered when deciding if her reaction
should qualify for the defence? *
  It should be the reasonable man of the same age and gender of the defendant.
 [HOWEVER, what if the defendant has other characteristics which make
 the unique?]
 R v Smith (Morgan) [2001] AC 146 The House of Lords: The reasonable person
standard could include ALL UNIQUE CHARACTERISTICS. [Therefore, there is difficulty
in dealing with the whole situation of this reasonable man.]
 AG for Jersey v Holley [2005] UKPC 23 The Privy Council: Overruled the House of
Lords in the case above and reset the test. [i.e. Reasonable man of the same age and
gender of the defendant.]

Is the defence gender biased in its operation? *

 R v Ahluwalia [1992] 4 All ER 889 Problems with provocation seen in this case. The
abused wife TOOK A DELAY when killing her abusive husband (therefore
undermining the idea of “sudden loss of self-control” needed for provocation) AND
was unable to rely on the defence.

Is the defence designed as a partial justification? *

 The defendant acted wrongly, but as others would have OR can it be viewed as a
partial excuse where the defendant’s weakness makes her action less blameworthy?

Law Commission reforms*

 Loss of Self-Control - Section 54 of the Coroners and Justice Act 2009
 Where a person (“D”) kills or is a party to the killing of another (“V”), D is
 not to be convicted of murder if —
 The defendant's acts and omissions in doing or being a party to the
 killing resulted from defendant's loss of self-control.
 the loss of self-control had a qualifying trigger, and
 a person of defendant's sex and age, with a normal degree of
 tolerance and self-restraint and in the circumstances of defendant,
 might have reacted in the same or in a similar way to defendant…
 (7) A person who, but for this section, would be liable to be convicted of
 murder is liable instead to be convicted of manslaughter

Exclusion
Defendants’ role in the killing must have resulted from a loss of self-control
Section 54(4)
Where there is a ‘considered’ desire, the defence is not available.
*The defendant MUST NOT act in a considered desire of revenge*
 Section 54(4) of the Coroners and Justice Act 2009: The defendant does not have the
defence where he/she acted in revenge.
 *The defendant must have lost self-control*- This is a subjective requirement: “Did
the defendant lose control at that point?”
 R v Ahluwalia (pre-2009 case) - The defendant killed her abusive husband after years
of violence. The defendant admitted murder and intended to kill her husband.
 [i.e. Claimed partial defence of provocation under the old law]
 Court of First Instance: Loss of self-control must be “sudden & temporary” so
therefore, she was convicted.

D’s loss of self-control must have been caused by a qualifying trigger:

i) a fear of serious violence from V against D or another, or
ii) 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.
 R v Jewell - The defendant killed his workmate after a long period of provocation
from the victim. Because of this provocation, the defendant claimed he was unable
to sleep and began to “mentally and physically shutdown.” The defendant was
charged for murder (i.e., Actus reus and mens rea was fulfilled). Therefore, could he
rely on the partial defence of loss of control? Crown Court: Was found liable for
murder. Court of Appeal: Affirmed the Crown Court decision because planning the
killing undermined any basis for the loss of self-control. The judge here referred to
this subjective requirement as ("the loss of rational control"): “Loss of ability of act in
considered judgement and the power of reasoning.

A third party, of D’s age and sex, might have reacted in the same way.
 R v Asmelash - The defendant spent the day drinking and arguing with the victim,
culminating in a fight thus killing the victim.
 [The defendant therefore was charged with murder as he fulfilled the actus
 reus and mens rea.]
 The defendant tried to use the defence of loss of self-control. [i.e., Could courts
consider the fact that the defendant was heavily
 intoxicated?]
 Court of First Instance: Intoxication could not be considered. [i.e., A reasonable
sober person should be applied when the reasonable man test is applied.]
 Court of Appeal: Upheld the Court of First Instance’s decision.

Voluntary manslaughter – Diminished responsibility

D’s recognised medical condition led to an abnormality of mind and caused her to kill
2(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of
murder if D was suffering from an abnormality of mental functioning which —
(a) arose from a recognised medical condition,
(b) substantially impaired D's ability to do one or more of the things mentioned in
subsection (1A), and
(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.
(1A) Those things are—
(a) to understand the nature of D's conduct.
(b) to form a rational judgment.
(c) to exercise self-control.

D must demonstrate an abnormality of mental functioning.

 R v Bryne (Sets out the pre-2009 test for diminished responsibility) 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.
 Court 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.

The abnormality must have arisen from a recognised medical condition.

 The Courts usually borrows a lot of information from medical glossaries such as the
World Health Organization (WHO) and American Medical Journal. Also, the courts
also accept medical conditions where there is a group of reasonable people who
believe that such a condition SHOULD BE RECOGNISED. [It should be noted: Although
medical glossaries are used, courts ARE NOT bound by them]
 R v Dowds the defendant killed his partner while drunk through 60 stab wounds. He
then attempted to plead diminished responsibility because he was very drunk and
importantly as part of this defence; the WHO recognized being drunk as a recognized
medical condition.
 Crown Court: Found liability for murder and refused to allow the defence of
diminished responsibility.
 Court of Appeal: Refused to allow the appeal and upheld the defendant’s liability.
[i.e., They stated that they were not bound by such medical glossaries]
 Therefore, being drunk on ITS OWN cannot give rise to the defence of diminished
responsibility.
 HOWEVER, if there is an addiction to alcohol (which is a recognized medical
condition), there can be the defence of diminished responsibility. It should be noted:
Developmental immaturity is NOT a recognized medical condition.
 As per Parliament: Where one is suffering from developmental immaturity, they
would also be suffering from a recognized medical condition [i.e., keep the law
simple!]
*Substantially impairing responsibility*
  An example provided as per the Law Commission: A child who plays violent video
games kills someone who believes they will regenerate. [i.e. The failure to
comprehend the circumstances.]
 R v R [2010] Court of Appeal: It was held that where a defendant pleads diminished
responsibility, it is for the jury to decide whether he suffered a “substantial
impairment” of his mental responsibility.
 In the case, there was disagreement between the expert witnesses as to whether the
defendant’s abnormality of mind was indeed a “substantial impairment” of the
defendant’s mental responsibility. [i.e., It is important to note the difference
between trivial, significant and total, which should be determined by the jury using
their common sense.] The defendant’s appeal against the murder conviction was
dismissed as the two directions given by the trial judge were held not to reflect
uncertainty and to have helped the jury. This was not held to alter the burden of
proof, and there was no uncertainty to the statutory language or judge’s directions.

The abnormality must provide an explanation (or cause) of the killing.

 There must be a causal link between what is going on in the defendant’s mind and
the defendant’s actions. [i.e., Although this requires medical evidence; it is still tough
in its application.] There can be however MULTIPLE CAUSES: The defendant kills the
victim because he has a recognized medical condition which is caused by an external
element (i.e., loss of job, death of a loved one, etc)
 R v Dietschmann - The defendant was drunk and killed the victim. [He also suffered a
mental condition due to the death of the defendant’s aunt.]
 Court of First Instance: Rejected his defence of diminished responsibility.
 Court of Appeal: Upheld the decision of the court of first instance.
 House of Lords: Allowed the defence and held him liable for voluntary
 manslaughter. [i.e., The defence should not be excluded because there are multiple
causes] Therefore, being drunk with an external mental condition/circumstance; the
defence of diminished responsibility will be accepted.

Suicide Pact
D kills V in pursuance of an agreement that they will both die together
Homicide Act 1957, s4
4(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a
suicide pact between him and another to kill the other or be a party to the other . . . being
killed by a third person…
(3) For the purposes of this section “suicide pact” means a common agreement between
two or more persons having for its object the death of all of them, whether or not each is to
take his own life, but nothing done by a person who enters into a suicide pact shall be
treated as done by him in pursuance of the pact unless it is done while he has the settled
intention of dying in pursuance of the pact.