Voluntary Manslaughter

• Same AR and MR as murder, but a partial defense may be applied to reduce this to voluntary manslaughter.

  • For voluntary manslaughter trial judge has complete discretion.

  • Two partial defences: Loss of Control (previously known as provocation); Diminished responsibility.

Loss of Control (Provocation)

• Coroners and Justice Act 2009 s. 54 & 56 changed the law; came into force on 4^th October 2010.

• The old Law

  • 19^th century this was a male-based partial defence. At the end of the century there was only two types of provocation

    • A husband witnessing adultery by his wife, and killing either wife or lover.

    • A father witnessing sodomy on his son, killing either son or sodomite.

  • Homicide Act 1957 – words alone were basis of provocation. Left for the jury to decide

  • R v Doughty (1986) – father killed 17 day old baby claiming provocation from excessive crying. The trial judge did not allow the jury to consider provocation.

    • On appeal substituted for manslaughter as provocation was available.

• Three issues with old law:

  • 1) However tenuous the evidence, the trial judge had to leave it to the jury to decide.

  • 2) There was only a two part test (see below)

  • 3) D bore the burden of proving the defence (s. 2(2))

• The two-part test (s.3)

  • 1) Subjectively, did that defendant lose control.

  • 2) Objectively, would the reasonable (or ordinary) person have reacted in the same way and lost control?

• Subjective test:

  • Based on R v Duffy [1949], per Devlin J: “causes a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind.”

  • Clearly to male responses (stereotype): anger, passion, immediate violence. A problem especially with regards to Battered Wife Syndrome

    • 90s Cases where abused women killed their abuser:

    • R v Ibrams (1981) – BWS, the trial judge did not allow the defence of provocation to be put before the jury as the planning indicated that there was no sudden and temporary loss of self control. The appeal was dismissed.

    • R v Thornton [1992] – BWS. On second appeal conviction was quashed on basis of medical evidence for BWS: jury should have been directed that they could take into account her mental characteristics in assessing the standard of control expected of the defendant (This went down DR route)

    • R v Ahluwalia [1992] – appeal allowed on groudns of DR.

    • R v Humphreys [1995] - CA said that the jury could consider the cumulative provocation up to the final killing.

      • There has to be a sudden and temporary loss of control when the fatal act occurred, but this can last for seconds, minutes, hours or day, provided that at the time of the killing the Jury still believed that there was a sudden and temporary loss of control. (also in Thornton II)

• Objective test

  • Did not take into account the actually characteristics of the defendants themselves.

    • Bedder v DPP [1954] – mocked by prostitute for being impotent, killed V. The court refused to dilute normative standard: appeal was dismissed.

    • DPP v Camplin [1978] - 15 year old boy who was raped against his will by the ‘victim’ (middle aged man) who subsequently mocked him. D killed V.

      • Lord Diplock: “the reasonable … ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him”

  • Court developed approach where there was a direct connection between the taunt and characteristic: Response Characteristics.

    • R v Morhall [1996] The appellant stabbed a man seven times after he taunted him about his addiction to glue sniffing.

      • Lord Taylor in CA - Where the characteristcs are repugnant to the characteristics of a reasonable person then they cannot be used to modify test.

      • HoL disagreed, Lord Goff: Morally neutral and morally negative characteristics may be taken into account provided they are response characteristics.

  • Control Characteristics: Can characteristics that lower the power of self-control be considered by the jury?

    • Humphries – When considering if a reasonable person would be provoked can take into account psychiatric illness or abnormal disorders (like BWS)

    • R v Dryden [1995] – D had eccentric and obsessional personality traits, shot planning officer who had come to enforce demolition order.

      • CA held that the personality traits were sufficiently permanent to be attributed to the reasonable man. However they were insufficient to overturn conviction.

    • R v Smith (Morgan) [2001] – an alcoholic suffering from a depressive illness, stabbed his drinking partner after a row over some stolen tools. 

      • HoL allowed provocation’s objective assessment of the reasonable man to account for very subjective characteristics of the defendant (with the jury to decide which characteristics specifically), arguably diluting the effectiveness of having an objective test at all

    • R v Weller [2003] – Possessiveness and jealousy were allowed in as characteristics.

    • A-G for Jersey v Holley [2005] – PC decision (HK statute was same as ours) D had various personality traits (depression, feelings of worthlessness, stress, anxiety, alcoholism).

      • HoL held that the decision in Smith (Morgan) allowing mental characteristics to be attributed to the reasonable man in assessing the standard of self-control expected of the defendant is no longer good law.

• Coroners and Justice Act 2009 (ss. 54-56), abolished provocation as a partial defence to murder. Replaced with ‘Loss of Self-Control’

  • Myers: a dogs-breakfast of reforms making fundamental changes to this defence.

• Created a tripartite test for loss of self-control:

  • 1) Subjective test: did that defendant lose self-control (s.54(1)(a))

    • This no longer has to be sudden and temporary.

    • Law Commission thought we should abandon this entirely and look to America where they merge partial defences for extreme mental and emotional defence.

    • But Susan Edwards points out that counsel will still use the same language (bezerk, straw on camels back)

    • Also still doesn’t help BWS as when there is a gap between event and killing it si still hard to show a loss of control.

  • 2) Did the loss arise out of a qualifying trigger: (s.54(1)(b))

    • A fear of serious violence (s. 55(3)): targeted to help BWS.

    • Circumstances of an extremely grave nature that caused a justifiable sense of being seriously wronged (s. 55(4)(a)-(b))

      • Commission gave exmaples of Camplin, Humphreys, Thornton

    • Norrie: consequently this has changed from a defence based on emotion, to one based on ‘imperfect justification’

      • “sympathy for human frailty is rejected in favour of a recognition of imperfectly justified anger.”

  • 3) A normative standard: whether a person of normal tolerance and self-restraint would have lost control in these circumstances.

    • We can now consider age and sex of defendant

    • But can no longer look at other characteristics.

    • Amanda Cluff (sp.?): lenses has gone we now look at all of the circumstances leading up to the killing apart from those that don’t reflect normal tolerance and self-restraint.

• Other changes

  • Things done or said constituting sexual infidelity are to be disregarded (s.55(6)): extremely controversial.

  • Excludes: Revenge killings and Occasions where defendant has incited the violence.

  • Old Law any evidence whatsoever judge had to leave defence open to the jury. Judge may now decide whether to leave it to the jury.

    • Norrie: empowering judges to make the moral and political call on what is a justifiable expression of provoked anger, albeit in the name of the "ideal jury".

  • Changed burden of proof to the prosecution.

    • The burden of proof  is placed on the prosecution, who must disprove the defence beyond reasonable doubt – but only once D has provided 'sufficient evidence' (s.54(5) 

• Cases since

  • R v Clinton (2012) – D and wife were depressed. D also experiencing stress at work and financial difficulties. Wife revealed affair. D asked to meet with children to tell everyone marriage was over. Arranged for kids to be elsewhere. At meeting killed her.

    • D argued had lost control as she had told him in detail about five other partners; taunted him about a suicide website he had been looking at; that she no longer wanted the children.

    • CA that the defence of loss of control should have been put to the jury. His conviction for murder was quashed and a retrial ordered.

      • While sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers.

  • R v Zebedee (2012) – abuse of a child not considered as under a qualifying trigger.

  • R v Asmelash (2013) – drug taking an alcoholism – not relevant under third limb of normal tolerance and self-restraint.

  • R v Dawes (2013) – D had stabbed victim to death who was asleep on sofa with D’s estranged wife. D argued that V had come at him with a bottle. Held the jury must allow for the defence of self-defence to be considered first.

• The changed role of the jury:

  • R v Jewell (2014) – driven to colleague’s house, shooting him twice at point blank range using father’s shotgun. Fled to Scotland.

    • Night before killing Mr Jewel had stayed up all night with the shotgun next to him. Written an handwritten note to neighbours saying he would be away – could they please feed the cat.

    • CA held (Rafferty LJ) there was insufficient evidence to leave to jury as there was every hallmark of a pre-planned execution.

  • R v Barnsdale-Quean (2014) – Victim strangled to death with a chain which had been tightened by using a rolling pin. D claimed that the victim had attacked defendant before death by self-strangulation.

    • CA held there was no evidence of loss of self-control: no jury properly directed could have concluded a loss of control on the part of the defendant.

  • R v Gurpinar; and R v Kojo-Smith (2015) – The trial judge should consider if there is sufficient evidence on each of the three component elements of the partial defence for it to be left to the jury

  • R v Rejmanski and R v Gassmann (2017) – Afghanistan Veteran suffering PTSD. Loss of control not left to jury. Judged on normal standards under the third limb rather than the abnormal standards of PTSD.

Diminished Responsibility

• Originally ‘A defect in reason on the part of the defendant who was suffering from a defect of the mind’

  • The defendant does not know that what they were doing was legally wrong.

• The burden of proof is on the defendant in this defence.

  • Insanity and DM are the only occasion where we reverse the burden of proof in a criminal trial.

  • R v Lambert [2001] this burden of proof was deemed compatible with Art. 6(2) presumption of innocence in ECHR. It was an evidential burden not a substantive one.

  • This led to the defence being stigmatised as the defendant had to prove their mental illness (especially re Battered Women Syndrome)

• S.2 Homicide Act 1957 replaced by s.52 Coroners and Justice Act 2009:

  • Applies if D was suffering from an abnormality of mental functioning which

    • arose from a recognised medical condition,

    • substantially impaired D's ability to [understand the nature of their conduct; form rational judgement or exercise self-control].

    • provides an explanation for D's acts and omissions in doing or being a party to the killing.

• The Changes:

  • No longer mentions the word responsibility – now reference to ability

    • Scope is more limited. Exacerbated by causal requirement.

  • Worthy of note that the vast majority of diminished responsibility pleas were formerly settled without a jury trial, in the sense that the defendant's plea of guilty to manslaughter on that basis was accepted by the prosecution and the court.

    • Now is it possible more will be contested?

  • Mercy Killings

    • ‘mercy killing’ cases which currently qualify for a diminished responsibility plea.

    • The wording of the current plea is so obscure, the court and the experts are sometimes able to enter into a benevolent conspiracy, thus permitting the psychiatric evidence to be stretched.

• 1) An abnormality of mental functioning…

  • Previously ‘abnormality of the mind’ caused by retarded development.

  • R v Byrne [1960] – murdered and mutilated body of young girl. Claimed to be suffering from irresistible impulses.

    • Lord Parker CJ: ‘abnormality of mind’ means a “state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal.”

    • Couldn’t plead insanity as he knew what he was doing was wrong, but the argument (upheld)

  • Mackay called this widely drawn partial defence a ‘benevolent conspiracy’

• 2) … arose from a recognised medical condition…

  • New addition in 2009 CAJA

  • Law Commission wanted to add in developmental immaturity for under-18 defendants but was rejected by MoJ and Parliament as covered anyway under RMCs.

    • Mackay - Law Commission and/or the MOJ urgently to conduct an in-depth review of the "age of criminal responsibility" rather than untested developmental immaturity.

  • Question of co-morbidity (e.g. defendant was both an alcoholic and had a mental disorder):

    • R v Dietschmann [2003] – D was an alcoholic who suffered from depression. Killed his partner. Question was ‘in spite of the drink’ had the depression (mental condition) been a substantial impairment of responsibility.

      • The primordial focus has to be on the mental condition, not the alcoholism, which must be distilled from the intoxication.

    • R v Kay (2017) - Paranoid schizophrenic, with history of drug/alcohol abuse. Knew use of drugs exacerbated his schizophrenia. On three-day bender he became psychotic and stabbed V.

      • Where action arose from voluntary intoxication and not from RMC then the defendant cannot avail themselves of this partial defence.

      • This is based on good public policy – was the defendant capable of forming the fault/intention at the time of the killing.

  • Alcoholism as a disease

    • R v Tandy (1988) – alcoholic strangled her 11yo daughter. Court held alcoholism only relevant where:

      • 1) On the evidence alcoholism had reached such a level that there was brain damage causing the gross impairment of judgement.

      • 2) The emotional responses of the defendant by the addiction had to render the taking of that first sip/drink wholly involuntary.

    • R v Wood [2008] – alcoholic killed another with a meat cleaver after two days of drinking. Had Alcohol Dependent Syndrome.

      • Both branches of Tandy were rejected; Court held we should widen the boundaries of the partial defence. No need for brain damage nor involuntary requirement.

        • It was simply whether the alcohol was consumed as a direct result of illness and disease.

    • R v Stewart [2009] – chronic alcoholic sleeping rough in Marble Arch. He killed a man in the course of a fight.

      • Followed Wood: held it was a misdirection to state that his consumption of alcohol must be totally involuntary.

    • R v Dowds (2013) – man stabbed partner after heavy binge drinking. Claimed to have ‘acute voluntary intoxication’ – once he started drinking he could not stop. Held this was not a recognized medical condition (despite being listed by the WHO).

    • Where the abnormality of mental functioning arose from voluntary intoxication then D cannot rely on DR (R v Kay)

• 3) …substantially impaired D's ability to

  • a) understand the nature of their conduct;

  • b) form rational judgement

  • c) exercise self-control.

  • Under Old Law: “substantially impaired his mental responsibility”

  • R v Tulloch [2000] – Defendant had manifest personality disorder, but had planned the killing and fabricated an alibi.

    • Held there was no substantial impairment of responsibility as pre-planned killing.

  • R v Brennan (2014) – D killed wife and pled DR. Held that the jury need not be directed on what is meant by ‘substantially’ the jury can approach it ‘as common sense people’ giving the words their ordinary English meaning.

    • Lord Hughes: they mean an ‘impairment of consequence and weight’

  • R v Squelch (2017) – Defendant stabbed victim 14 times after victim went on about defendant’s mother who had died 13-months ago. Defendant had paranoid personality disorder.

    • Tried to argue that partial impairment was sufficient. Trial judge (upheld on appeal) directed subnstantial must be given ordinary English meaning.

  • R v Conroy (2017) – D and V both residents at home for persons with Asperger’s. He strangled victim because he thought he could have sex with her.

    • Held that the jury may take into account all relevant circumstances in appraising the impact of the abnormality on D’s decision-making generally. This may be given weight when appraising D’s particular decision to kill.

• 4) …provides an explanation for D's acts and omissions in doing or being a party to the killing.

  • R v Sutcliffe (1981) – Yorkshire Ripper claimed he had been commanded by God to kill the prosititutes. In the interest of public policy the jury were left to decide if the defence of scitzophrenia was allowed. Found guilty of murder.

  • R v Brennan (2014) – Male escort killed a client. Expert evidence suggested that D’s “Schizotypal Disorder” and “Emotionally Unstable Personality Disorder” substantially impaired ability to form rational judgements. This medical evidence was ‘uncontradicted.’

    • On appeal held that murder should not have been left to the jury. New wording of s.2 gave significantly more scope to the importance of expert psychiatric evidence

  • R v Blackman (2017) – Insurgent in Helmand who was wounded but still alive. Blackman fired into the chest of the victim. Abject failure by defence team to investigate the possibility of a partial defence:

    • Father had just died, affecting mental state, lack of required training, sleep deprivation, acts of insurgents.

    • Murder conviction overturned.

    • Court held jury are entitled and bound to consider not just direct medical evidence but the whole evidence including the facts and circumstances leading up to the killing affecting decision making.

• Mackay and Mitchell (2003) argue that ‘loss of self-control’ in provocation and ‘impairment of mental responsibility’ in diminished responsibility are based on the same principle, namely ‘disturbance of reasoning.’

  • Argue the defences should be combined which in our view is the true root of both provocation and diminished responsibility.

  • Argue it should be left up to the jury on the facts whether the disturbance is sufficient to mitigate to manslaughter.

• Louise Kennefick: Criminal law and psychiatry are based on totally opposing paradigms.

  • Psychiatry, mental disorder and criminal justice do not make good bed fellows.

  • Criminal law focusses on justice and the protection of the public.

  • Psychiatry revolves around diagnosis and ultimately the wellbeing of the patient.

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