Voluntary Manslaughter

Partial Defences to Murder

Voluntary manslaughter is the offence committed where the elements
of the offence of murder are present, but where a partial defence is
available:

Partial Defences: These result in a reduction of the offence from

murder to one of voluntary manslaughter, a less serious offence
with a discretionary sentence (maximum life imprisonment):

Diminished Responsibility

Loss of Control (formerly Provocation)

Hence: voluntary manslaughter will only arise is the elements of

murder are made out, and one of these defences can be successfully
pleaded.
 Partial Defences to Murder
Voluntary manslaughter thus has several significant dimensions:

Moral judgment: making finer grained, more appropriate

distinction between more and less culpable intentional killings

Pragmatic: It avoids the mandatory life sentence for murder, so that

factors which are thought to mitigate D's culpability can be taken into
account by the judge in sentencing.

Symbolic/communicative: It allows the moral label of murder for

only those cases of murder that are deemed to be most culpable, that
lack mitigating features: i.e. sending out a more appropriate message
about the wrongdoing

– Although it does not do this very systematically, since

diminished responsibility and loss of control do not cover all
factors that might be thought to lessen the culpability of an
intentional killing...
 Recap: Murder

In order for any issue of defence to arise, the elements of murder must be made out:

Actus Reus
D causes death of another human being by his act or omission within
the Queen’s Peace.

Mens Rea
Intention (direct or oblique/indirect) to cause death or serious bodily
injury
 Murder and Madness:
Insanity
The insanity defence is a complete defence to all crimes.

But: the possibility of an indefinite period of incarceration in a secure

mental health unit – ‘special verdict’.

-Insanity based on the M’Naghten Rules:

i) D was labouring under such a defect of reason

ii) caused by a disease of the mind
iii) as to not know a) the nature and quality of his act, or b) that he was doing
what was (legally) wrong

M’Naghten (1843)

-This three-stage test embodies the cognitivism of the law’s view of madness
in stage i) and iii)
-Narrow test of insanity
 Murder and Madness:
Insanity
Insanity as Overnarrow?:

Psychotic baddie the Joker: Batman is always calling him insane,

but is he insane in the criminal law's sense?
 Diminished Responsibility
Reasons for diminished responsibility: a) the narrowness of the insanity rules;
b) the mandatory life sentence for murder

Diminished Responsibility:

i) D was suffering from an abnormality of mind

ii) which substantially impaired their responsibility for... the killing
iii) the abnormality of mind arose from a condition of arrested
development or retarded (sic!) development of mind or any inherent
causes or induced by disease or injury
Homicide Act 1957, s. 2

Reduces murder charge to one of voluntary manslaughter by reason of

diminished responsibility: i.e. Avoids mandatory life sentence.

* This section has now been substantially amended by Coroners and

Justice Act 2009, s. 52.
 Diminished Responsibility
Byrne [1960]
D killed young woman; medical evidence that D was a sexual
psychopath...
-Abnormality of mind: ‘a state of mind so different from that of
ordinary human beings that a reasonable man (sic) would term it
abnormal.’
(Is this test helpful or simply circular? Who is it addressed to? The
unreasonable juror?)

-Diminished responsibility wider than M’Naghten insanity – includes

volitional as well as cognitive aspects.
-Thus: unlike insanity, ‘inability to exercise will-power, or
difficulty in doing so’ would come within diminished
responsibility.

Why might the trial judge have been reluctant to admit that sexual impulses
which were impossible or difficult to control would come with the defence?
 Diminished Responsibility
Cause of the ‘abnormality of mind’:
Arrested development or retarded (sic!) development of mind or any
inherent causes or induced by disease or injury

Sanderson (No 2) [1993]

-D beat V to death with a bat or club, hitting her 100 times.

Held: abnormality of mind could be caused by ‘‘any inherent cause’
which covered functional mental illness as well as organic or physical
injury or disease of the body, including the brain.’
-This was broad enough to include paranoid psychosis; murder
conviction substituted with manslaughter by reason of diminished
responsibility.
 Diminished Responsibility
‘Substantially impaired mental responsibility’:

This element of the test introduces a large dose of moral discretion into the
defence, however this is often not a barrier to using the defence:

‘Judges, counsel, doctors and juries have approached it with a

compassionate pragmatism rather than with the rarefied verbal
analysis[...] The great majority of diminished responsibility
defences are accepted by the prosecution, and only in around a
quarter of cases does the prosecution contest the defence
evidence and thus require the jury to apply s. 2.’

Ashworth, Principles of Criminal Law (2009) p. 265-6

 Diminished Responsibility and
Intoxication

Cases where D is intoxicated and also claims diminished responsibility have

caused difficulties:

-This is particularly difficult where D was suffering from alcoholism; the

courts’ general attitude is to reject claims that drinking is involuntary
merely because one is an alcoholic...

Tandy [1989]
D, an alcoholic, strangled her daughter on finding out that the daughter had
been sexually abused by D’s husband. D had been particularly intoxicated at
the time, and claimed to have no recollection of the event.
Held: diminished responsibility would require that the alcoholism,
rather than the intoxication itself, were the inherent cause of the
abnormality of mind; since there was no evidence that the alcoholism
had been such as to render the drinking of alcohol involuntary, the
defence was not available.
 Diminished Responsibility and Gender

How does the criminal law treat women who act violently, often in some way
related to a response to male violence and abuse?

‘Tandy’s defence counsel chose a particular strategy, that of

arguing that her responsibility was diminished; this forced a
concentration on her weaknesses rather than on the absent
villain’s (the abuser’s) responsibility[...] Tandy shows how
partial defences to murder are of limited assistance to women who
act in response to male violence...the Court of Appeal showed no
understanding of the emotional trauma Tandy must have
experienced when she discovered her husband had abused her
daughter.’

(Lacey, Wells and Quick: Reconstructing Criminal Law, p. 771)

 Diminished Responsibility and Gender

Kiranjit Ahluwalia [1993]

D was abused by her husband V over a long period.

She killed him after he attacked her with an iron.
-Denied provocation, a retrial was ordered on the basis of evidence of
diminished responsibility – a ‘major depressive disorder’ having been
induced by the years of abuse.

She was freed at her retrial; a happy ending?

What problems might there be with constructing Ahluwalia’s, and other

abused women in similar situations, as abnormalities of their minds? Does
this capture the moral character of the situation, or does it suppress it?
 Diminished Responsibility

Coroners and Justice Act 2009, s. 52

s.2 of the Homicide Act has been amended, mainly to incorporate elements of
the case law on diminished responsibility: s.2 as amended now defines
diminished responsibility:

i) Abnormality of mental functioning

ii) caused by a recognised medical condition
iii) which substantially impaired D’s ability to;
a) understand the nature of their conduct
or b) form a rational judgment
or c) exercise self-control
iv) which provides an explanation for D’s conduct
 Diminished Responsibility

ii) Caused by a recognised medical condition:

This simplifies the more complicated set of possible causes in the old law;
however, it may end up excluding some of the more ambiguous cases. It is
unlikely that it will become more inclusive than the previous test,
which generally recognised any medical illness or injury (Sanderson). It
will significantly include ‘Battered Wife Syndrome’ (a recognised
medical condition) of the sort suffered by Ahluwalia.
 Diminished Responsibility

iii) which substantially impaired D’s ability to;

a) understand the nature of their conduct
or b) form a rational judgment
or c) exercise self-control

This codifies the wider interpretation of the defence given in Byrne, to

explicitly include exercise of self-control within the heads.

This element effectively replaces the ‘substantial impairment of responsibility’

test, by articulating particular effects which will count as diminishing
responsibility.
 Diminished Responsibility

iv) Provides an explanation for D’s conduct

This means that it is a ‘significant contributory factor in causing’ D’s conduct,

thus codifying the decision in Dietschmann, which held that the
abnormality of mind did not need to be the sole cause of D’s conduct.
 Diminished Responsibility

-Position on voluntary intoxication unchanged: Dowds (2012)

-The new position gives 'significantly more scope to the

importance of expert psychiatric evidence' than the old law:
Brennan (2014)

-It has been suggested that the new form of the defence is
narrower and lacks the flexibility of the old version, in part
because of the requirement of a recognised medical condition
(see Mackay, 'Coroners and Justice Act 2009 – Partial Defences
to Murder (2)' (2010) Crim LR.
 Diminished Responsibility

To what extent is diminished responsibility a compromise

solution?
– Legal v psychiatric concepts of insanity, agency and responsibility:
harmonious cooperation or clash of worldviews?

Is Diminished responsibility too narrow?

Recognises the narrowness of the M’Naghten rules, but:
– Only applies to murder: why should someone who commits GBH
or another serious offence not be entitled to have the diminishment of
their responsibility (and thus culpability) formally recognised? Is
recognition in sentencing enough?
– May operate to exclude situations which used to fall within
diminished responsibility where prosecutors or jury looked
sympathetically on D's plight but where a recognised medical
condition might not have been demonstrable (such as assisted
dying/'mercy killing' cases).
– Court of Appeal has narrowed the scope of the defence, finding that
not all recognised medical conditions (e.g. intoxication) will count
(Dowds).
 Provocation and Loss of Control

Traditionally, the other partial defence available to a murder charge was

provocation. This existed at common law and was partially codified in
Homicide Act 1957 s.3.

Provocation has now been abolished and replaced by ‘loss of

control’:

Coroners and Justice Act 2009, ss. 54-56

We will examine the old provocation law, to understand why there was a
perceived need to change the law, before examining the underlying logic of
the new ‘loss of control’ defence.
 Provocation

Provocation: partial defence to murder only; reduce murder to voluntary

manslaughter by reason of provocation

The old provocation defence consisted of two elements:

Subjective element: D actually lost their self-control in response to

provocation by words of deeds
Objective element: A reasonable person in D’s circumstances could
have lost their self-control as D did

Excuse: D lost their self-control in circumstances where this was

understandable response to provocation.
 Provocation

Difference from diminished responsibility:

Diminished responsibility minimises the agency of D by

focusing on an internal pathology or abnormality that caused
them

Provocation partially excuses D’s actions by focusing on an external

cause in the provocation of V: D is not seen as abnormal, but on
the contrary, as acting as the reasonable person (sic!) would have...

Would you prefer to plead diminished responsibility or provocation?...

 Provocation

Both subjective and objective limbs of the defence have, however, created
difficulties – which is why the defence has been replaced by loss of control.

Subjective limb
‘Actual loss of self-control provoked by words or deeds’:

Duffy [1949]
D killed her abusive husband and raised the defence of provocation
Provocation requires a ‘sudden and temporary loss of self-
control’
- This excludes circumstances which ‘induce a desire for revenge or a
sudden passion of anger’.
-The presence of a ‘cooling off period’ may negative provocation.

This decision has produced difficulties especially for women in raising the
provocation defence...
 Provocation

Ahluwalia [1993]
Killed abusive husband
-Held: Affirming Duffy, that the ‘sudden and temporary loss of self-
control’ was correct; and that this is for the jury.
-However, qualified Duffy by emphasising that the essence was
whether D could be said not to be master of their own mind at the time of
the offence. A ‘cooling off’ period not conclusive, but: longer delay and
evidence of deliberation will be likely to negative provocation.

Thus Ahluwalia was unable to rely on provocation; she eventually got

manslaughter by diminished responsibility at her retrial.

But does this reflect the moral reality of the facts in this case? Would
provocation not have been the more just verdict?
 Provocation Problems

The Duffy rule has been criticised for being gender-biased:

‘Sudden’ loss of control = privileges a masculine model of sudden, impulsive,

spur-of-the-moment violence, and fails to recognise the experience of
provocation that women abused by their husbands can experience...

-This is compounded by the fact that in the common law, a man could
claim provocation where he killed his wife on finding her having sex with
another man (this has now been abolished by CJA 2009)

In practice, the provocation defence was much more readily available to men
who killed their wives than it was to abused women who eventually killed
their husbands, often because men are more likely to react ‘suddenly’ to some
provocative word or deed.
 Provocation Problems

The medical recognition of ‘Battered Wife Syndrome’ (BWS) helped to change

awareness about these issues.

‘The syndrome postulates that, after repeated violence, a woman

is likely to become immobilised, passive and unable to act to
escape the oppression of her situation.’
Lacey, Wells and Quick, p. 781

But this did not help the situation:

Thornton [1993]
D killed abusive husband;
Held: provocation failed because of the sudden loss of self-control
requirement.

The development of the recognised medical condition ‘Battered Wife

Syndrome’ may in fact have made it more difficult to raise the provocation
defence... Why might this be?...
 Provocation Problems

The development of BWS as a ‘medical’ category tended to present it as an

internal pathology of the woman rather than as an understandable response
to another's wrongdoing:

This made it seemingly more appropriate for diminished responsibility than

provocation.

-Both Ahluwalia and Thornton eventually had their convictions

reduced to manslaughter by diminished responsibility (the court in
Thornton's appeal were unclear on the ground) rather than provocation.

-Remember individual autonomy: diminished responsibility foregrounds

D's lack of autonomy rather than the moral context of violation in which their
actions took place. Its logic is one of partial excuse or partial exemption rather
than moral appraisal of D as a fallible moral person
 Provocation

Objective limb

‘A reasonable person would have been provoked in the

circumstances’

Who is the reasonable person?

Luc-Thiet Thuan v The Queen [1997] (Privy council)

-D convicted of murder; raised defence of provocation on grounds of a
mental disability arising from brain-damage which made him liable to
lose- his temper because of minor provocations.
-Held: the standard of self-control expected of the reasonable man was
that of a reasonable person of D’s age and sex; it did not include other
characteristics of D, such as mental disability, which was relevant only to
diminished responsibility.
Following Camplin
 Provocation

Who is the reasonable person?

The reasonable glue-sniffer...

Morhall [1995]
-D was addicted to sniffing glue; V taunted him about his addiction and
he killed V
-Held: D’s addiction to glue-sniffing was relevant to the reasonable man
test not insofar as it affected his ability for self-control, but insofar as it
affected the gravity of the provocation

Should there be a limit to what can be taken into account in the ‘reasonable
man’ test? Is it really an objective test or has it become subjective?

Why should one be able to raise questionable characteristics where they are
relevant to the gravity of the provocation, but not able to raise morally neutral
ones which are not? (e.g. Brain-damage in Luc-Thiet Thuan)?
 Provocation

Morgan Smith [2000] (House of Lords)

D was convicted of murder and raised provocation
Held: D’s clinical depression was to be taken into account in
considering how the reasonable man would have reacted: the
reasonable man in this case is the reasonable depressed man - factors other
than sex and age can be relevant to the standard of self-control

But:
A-G for Jersey v Holley [2005] (Privy Council)
Considered both Luc-Thiet Thuan and Morgan Smith, and came
down on the side of the established Camplin rule applied in Luc-
Thiet Thuan – that the standard of self-control expected is that of a
reasonable person is of D’s age and sex; that other characteristics
can be considered only insofar as they directly relevant to the gravity
of the provocation – if the provocation is about that characteristic, not
the standard of self-control.

Thus: confusion over the objective limb...

 Loss of Control

Coroners and Justice Act 2009, ss. 54-6:

-Provocation abolished (s. 56)

New ‘loss of control’ defence:

i) D lost self-control (s. 54)

ii) in response to a ‘qualifying trigger’: either a) Fear: a fear of serious

violence from V against D (55 (3)), or b) Justifiable Anger: things said or
done, which constituted circumstances of an extremely grave character and
caused D to have a justifiable sense of being seriously wronged (s. 55 (4))

iii) a person of D’s sex and age, with a normal degree of tolerance and self-
restraint in the circumstances might have lost control (s. 54 (1) (c))

iv) D’s circumstances involve all circumstances except those which relate
only to D’s general capacity for tolerance and self-restraint
 Loss of Control: Key Points

Subjective element:

No requirement that the loss of control is ‘sudden’ (54 (2)) – abolishing

Duffy rule

Objective element:

Follows and refines the Camplin approach: of person with ordinary level of
self-restraint in D's circumstances

-But adds ‘tolerance’ to the ordinary person test – this creates a moral
constraint on D’s reactions as well as the volitional one
 Loss of Control: Key Points

Qualifying triggers:

-D’s loss of control must be due to either fear of serious violence or

serious justifiable anger

Exclusions:

-Not available where D acted out of a considered desire for revenge

-Sexual infidelity cannot in itself count as a qualifying trigger

Judicial gate-keeping:

Unlike provocation, the judge must be satisfied that the evidence could
reasonably support a jury finding of loss of control before putting it to the jury
 Loss of control

Sexual infidelity proviso: Clinton, and others (2012)

-Sexual infidelity not a qualifying trigger in itself, but is relevant to evaluating

whether a reasonable person might have reacted in a similar way: all the
circumstances are relevant except those bearing only on D's capacity for self-
control.
– Yet this may limit the force of this provision which was aimed
primarily at the disproportionate incidence of men killing women
because of infidelity
– It is unfortunate that all the Ds in Clinton were men who had killed
their female partners.
– Interestingly, Clinton was suffering from depression and intoxication:
the sort of case that in the past with regard to women Ds was pushed
into diminished responsibility...

Voluntary intoxication: not to be taken into account when considering the

question of reasonableness of D's reaction: Asmelash (2013)
 Loss of Control
How has the law changed? Has it improved?

Suddenness requirement:
The abolition of the Duffy ‘suddenness’ requirement, may make it easier for
abused women to raise the loss of control defence as opposed to diminished
responsibility

The reasonable glue-sniffer:

The Morhall reasonable glue-sniffer may still apply, where the taunts,
aimed at D’s glue-sniffing, but only if they are deemed to constitute grave
circumstances that led to a justifiable sense of being seriously wronged.
– However, the introduction of moral constraints on what factors are
relevant, such as the requirement for reasonableness of ‘tolerance’ as
well as ‘self-restraint’ may tighten the defence against e.g. a D who
claimed to be provoked by V’s homosexual advances, or expressing
reasonable views (c.f. Judge's gate-keeping role...)

-D will no longer be able to claim to have been provoked by conduct

which reasonable people ought to be able to 'tolerate', whereas this may have
been a possibility under the old law (because it was left to the jury).
 Coroners and Justice Act

What effect does it have on the moral judgment of intentional

killing?

-Does the new layout of the defences of diminished responsibility and loss of
control carve at the moral joints more adequately?

– -Respect for individual autonomy?

– -Fair moral labelling?
 The Moral Focus of Loss of Control

Loss of control shifts the focus more explicitly onto the moral
relation of D's reaction to V's wrongdoing: was D’s anger a justified
sense of being seriously wronged in response to circumstances of a
grave character?

-The moral dimension of the ‘anger’ trigger and the requirement for
reasonableness of ‘tolerance’ as well as ‘self-restraint’ may tighten the
defence against morally objectionable claims

Is this justified, appropriate? What advantages or disadvantages might there

be to this approach? (think what cases might be excluded or included?)

*In light of this, do you think the new loss of control defence is an
excuse, like provocation, or a justification?...