Voluntary Manslaughter and Diminished Responsibility Cases

Voluntary Manslaughter consists of three significant factors which create defences when a person is charged with murder, this includes diminished responsibility, loss of control and insinuating a suicide pact.[1]

Diminished Responsibility has been created from Section 2 of the Homicide Act 1957 and amended through Section 52 of the Corners and Justice Act 2009; where the outcome of a defendant pleading diminished responsibility can have their conviction of Murder reduced to Manslaughter, which is considered as a partial defence towards this particular crime. When convicting a person of murder a judge is able to sentence life imprisonment, although for manslaughter the judge can deem a lower sentence depending on what they consider suitable and proceeds towards the outcome of the sentence or conviction.

However, this is only accomplished if all sections of the Diminished Responsibility test is satisfied, the defendant must also have medical proof in order for this conviction to decrease. In order for this particular defence to be ascertained the defendant must comply with the following;

• An abnormality of mental functioning caused by a recognised medical condition
• This abnormality provides an explanation for the defendant’s actions or omissions in being party to the killing
• This substantially impaired his/her mental ability to either:
  • Understand the nature of their conduct
  • Form a rational judgement
  • Exercise self-control[2]

An example of a defendant having and abnormal mental function is shown in the case of R v Byrne 1960, where the court held that Byrne was shown as a sexual psychopath who did not have the ability of controlling his perverted desires (his urge to kill), which results in him strangling a girl and mutilating her body. Originally Byrne was convicted of murder, however, this jurisdiction was quashed by the Court of Appeal and substituted to Manslaughter. This case stated that abnormality of the mind “means a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal”[3]. Therefore, Byrne was able to use this to reduce the conviction to Manslaughter

Other examples of abnormal mental functioning include jealousy, battered woman syndrome, pre-menstrual tension, epilepsy and chronic depression. The case of R v Smith 1982 where the constitution of an abnormal state of mind is shown through the defendants Pre-Menstrual Tensions. Within this case, the defendant stabs a barmaid to death and threatens to kill a policeman ‘in a grip of a biological force beyond her control’. Due to this compulsion of violence, triggered the Pre-Menstrual Tensions of the Defendant. Whereas in the case of R v Vinagre 1979[4] the D suffered from ‘Othello Syndrome’ which caused the defendant to have suspicion that his wife was having an affair, the judge at first instance accepted the plea of diminished responsibility due to his inability of having an abnormal mind.

To demonstrate the abnormal mental function of a defendant’s actions or omissions in being party to a killing is shown in the case of R v Tandy 1989. Where the defendant drank the majority of a bottle of vodka and strangled her eleven-year-old daughter. This was due to the craving for a drink which produced an abnormal mind which was induced by the disease of alcoholism. However, it was held in court that the defendant showed evidence that they are able to control their urge of alcohol and therefore was convicted of murder rather than manslaughter.[5] Additionally in this case it has been recognised that there is a medical condition called Alcohol Dependency Syndrome, however under old law she is guilty as her act had become involuntary.

To illustrate the abnormal mental function of a substantially impaired person is displayed in the case of R v Lloyd 1967 which created conflict between the case of R v Byrne which stated that it should be left to the jury to decide when expressing substantially impaired ability of a person. Whereas, within this case, the term substantially in the 1957 Act didn’t describe the terminology as total and created confusion when describing the definition of a substantial person. 

The Burden of Proof is initialised through the prosecution being able to prove by reasonable doubt that the Defendant is guilty. While the defence has to prove a balance of probability that they suffer from an abnormal state of mind. However, it has been argued that placing the burden of proof upon the defence breaches Article 6(2) of the European Convention of the Human Rights which states “everyone charged with a criminal offence shall be presumed to be innocent until proven guilty according to law” which makes the defendants plea for dismissed responsibility breaching this right. 

There has been a number of criticisms relating to the law reform of diminished responsibility, as many consider it holds a broad availability, however the changes made in 2009 enable ‘medical conditions’ to be recognised, which wasn’t the case previously which creates flexibility to allow the developments of future cases regarding medical knowledge. However, the definition of diminished responsibility now holds a clear outline to detect whether a person’s actions rely on their abnormality of mind, which incorporates with the decisions issued in Byrne 1960.

The development of Immaturity is outlined in the Law Commission Act 2006 which recommended that those under 18 would be included in Diminished Responsibility, due to the frontal lobes within the brain which positions a substantial role in the development of self-control and is not controlled until the maturity age of 14. However the government, then decided that the age of a person could not be in association with a person’s disability and therefore concluded that immaturity couldn’t be used as a defence and those aged 10 and over could be prosecuted with murder.

There has also been problems in the definition of the term “substantially impaired” as the court found that there is a gap between total and minimal and therefore created confusion when interpreting the law when going through the Diminished Responsibility test. However, if we were to excluded this problem the test is quite straightforward to use, especially due to the amendments made from the Homicide Act towards the Coroners and Justice Act.

A disadvantage towards using the defence of diminished responsibility is the fact that some people consider it is unfair that a defendant can use this principle to lessen their conviction. As it doesn’t give justice towards the victim’s family. However, this is contradictory as the principle of diminished responsibility highlights the distinction between what is considered a ‘normal mentality’ and an ‘abnormal mentality’ and therefore it is justifiable that the conviction is to be different due to their lack of understanding or awareness.

An advantage is that for diminished responsibility to be accomplished the defendant must have medical proof stating why they would act in such a way and how their disability hinders this. However, the problem is interceded whether the defendant’s disability is recognised in the law and created uncertainty, although this section in law does prevent anyone from using this defence, outlining this as good law.

Loss of control comes from Section 54 of the Coroners and Justice Act 2009 and removed the old law of provocation which had previously created a series of problems. Defendants can use this principle as a partial defence to reduce the liability for murder to manslaughter.

The court must apply the test of Section 54 and Section 55 of the Coroners and Justice Act 2009 to deem whether a person can use this defence when pleading guilty; this is accomplished through the following:

• He/she suffers from a loss of control; and
• The loss of control has a qualifying trigger; and
• A person of the defendant’s sex and age with a normal degree of tolerance and self-restraint might have reacted in the same or in a similar way [6]

Additionally, when applying the Loss of Control Test towards the defendant, they must part take in at least one or more qualifying triggers which create the outcome of his/her defence, these are listed in the Coroners and Justice Act 2009, Section 55;

• Section 55(3): Defendants fear of serious violence from Victim against Defendant or another identified person
• Section 55(4): thing(s) said and/or done which not only constituted circumstances of an extremely grave character but also caused D to have justifiable sense of being seriously wronged
• Section 55(5): a combination of S55(3) and S55(4)[7]

A defendant must be able to prove that they have lost self-control when committing their crime and this does not necessarily have to be sudden, which is recognised as a difference in accordance with the principle of Provocation (this was how the old law was previously reviewed and abolished through the Justice and Coroners Justice Act 2009) and outlined that loss of control did not have to be sudden.[8] Which is shown in the case of R v Hatter 2013 where the defendant uses the test of Loss of Control to demonstrate why he acted in a certain way. However, the defendant’s appeal was dismissed and they decided to uphold his conviction of murder. This was because there was no sufficient evidence that showed a relationship can cause the extreme behaviour of a party to lose control. The court stated that “circumstances must be extremely grave and the defendant’s sense of being seriously wronged by them must be justifiable”[9] and only through this verdict a court would be able to accept the possibility of using the principle of Loss of Control which Hatter failed to accomplish.

Although, there are restrictions accessible in accordance to these qualifying triggers in Section 55(6) of the Coroners and Justice Act 2009 which is represented by the following;

• Defendants fear of serious violence is to be disregarded to the extent that it was caused by a thing which the Defendant incited to be done or said for the purposes of providing an excuse to use violence
• This can be reviewed in the case of R v Ward 2012, the defendant pleaded loss of control after killing the V who had previously attacked his brother at a house party. The jury therefore accepted that the D had lost self-control due to serious violence issued by the victim. Although in this case the D didn’t directly fear the victim, but nevertheless he feared that violence would be applied upon his brother.
• The sense of being seriously wronged by a thing done or said is not justifiable if the Defendant incited the thing to be done or said for the purposes of providing an excuse to use violence.

In the case of R v Clinton (2012) the appellant stated he had lost his ability to control himself as both himself and his wife suffered from depression and required medication. He killed his wife as previously she had told him she was having sexual relations with many men, taunting him about suicide websites that he had recently visited and told him she no longer wanted their children. The court convicted him of murder but he appealed on the basis that the defence of loss of control should be decided by the jury. The Court of Appeal agreed and quashed the conviction.  

• The fact that a thing was done or said constituted sexual infidelity is to be disregarded[10]

In the case of R v Dawes (2013), the defendant came home where he found his wife and the victim entwined on the sofa. The defendant then stabbed him in the chest and presented the argument that he lost control. The Court of Appeal deemed that he would still be charged with the offence of murder and stated that a defendant could not solely rely on sexual infidelity as a qualifying trigger or the increase of fear of violence, which he himself caused. It is also quite clear that the defendant held a substantial capacity to maintain self-restraint, in order for him to use this Act he must be under grave circumstances that shall impose him to comply towards drastic measures.[11]   

An Objective Test is produced under Section 54(1) where the court will question whether a person of the same sex and age, with a ‘normal’ degree of tolerance and self-restraint would act in the same way as the Defendant in his/her circumstance. This decision comes from the case of Attorney General of Jersey v Holley (2005) where the court decided that they wouldn’t follow the old law and instead take into consideration the defendants, age, personal traits and his tolerance of self-restraint. Therefore, they came to the conclusion that he would be prosecuted with Manslaughter rather than Murder.[12] Whereas Section 54(3) refers to “circumstances” and applies all circumstances restricting those that may affect the Defendant’s capacity for tolerance and self-restraint. This is shown in the case of R v Asmelash (2013) within this case the jury decided that the defendant who was intoxicated couldn’t plead the defence of loss of self-control because this circumstance does not deprive a person from loss of self-control and must ignore this when regarding Section 54(3).[13]    

The burden of proof is designated through Section 54(5) which state sthat if there is suffiecient evidence of provocation created by the defendant the jury must pressume that the defence is satisfied, however if the prosecution can prove beyond reasonable doubt that it is not this is therefore forfitted. In the case of R v Jewell (2014) the defendant had driven to the victim’s house where he had shot him twice and convicted of murder, he appealed claiming he had lost the ability of control. However, it was clear that this was planned as this was his ordinary route to collect the victim before going to work and therefore is convicted of murder.

An advantage of Loss of control is when the jury considers the defence of loss of control they cast the similarities whether a normal person in the circumstances of the D would act in the way he/she did, if this is assured then the defence will fail, which creates a justification and shows this test is not used as an excuse to avoid punishment. However, it may be unfair as you could state that the jury has no legal knowledge and have the power to deem whether they are satisfactory with the defendants defence.

Another advantage is shown through the amendments of the law which previously has a wide gap and now is controlled by the qualifying triggers which have restriction to provide fairness within the law and thus creates a narrowed path of defence for the defendants. However, even though amendments have been made in the law, the meaning of a “reasonable man” creates confusion as you cannot necessarily apply this to anyone; as how do you define the term reasonable when it is face with ambiguity.

By comparing the old law with the new law, we are able to detect the problems that interfaced with the old law which shows that the terminology “sudden and temporary” when issuing with loss of control created even more confusion. This amendment removed the barrier for victim’s suffering from domestic abuse which is shown in the instance of the case of R v Ahluwalia (1993).

Involuntary Manslaughter (Constructive Manslaughter) is where the defendant creates an unlawful act and doesn’t have a direct reason (intention) towards why they killed a person and do not obtain the Mens Rea to kill someone or intend to cause Grievous Body Harm. There are three forms of involuntary manslaughter which are Gross Negligence, Reckless manslaughter and Unlawful Act of Manslaughter. The judge has an authority to give a sentence which they consider suitable for the defendant which can either be a custodial or non-custodial sentence.

There are four elements a court must consider in regards to Constructive manslaughter, for an unlawful Act the defendant must go through the following test:

• D must do an unlawful act which means the defendant has committed a crime resulting to a criminal act or the death of another being.

For instance in the case of R v Lamb the defendant and victim was playing with a gun and didn’t realise that the cylinder had turned when firing which resulted to Lamb killing his friend when pulling the trigger. As there was no fear emplaced upon the victim, the court could determine that there was no unlawful act or assault.

• D cannot act on an omission as the unlawful act must be dangerous when applying the objective test and an Act must be present.

Whereas, in the case of R v Lowe it showed that an omission cannot create the liability of an unlawful act of manslaughter, defining that there must be an Act and therefore, when Lowe neglected his son who died, due to the failure to act which was used as an unlawful act of manslaughter. Before the appeal, the jury convicted him of neglect and manslaughter, however, the appeal stated that the offence couldn’t be committed by an omission.

• D’s act cannot be a civil wrong as the act must be unlawful and lead to the creation of a criminal offence, it is considered that it would be irrelevant if the act committed is against civil law. 

Another case to consider is R v Franklin where the appellant threw a box from Brighton Pier which resulted to hitting a swimmer in the sea, who eventually died due to the result of being hit, this case arose the point that in order for a unlawful act to be present there must be a constitution of a criminal offence and cannot be civilly wrong.

• D’s act doesn’t have to be aimed necessarily at a person, however their dangerous act may result to the injury or death of a person even if it is aimed at the property rather than the intention of a person.

A case associated with this rule is R v Goodfellow where the defendant decided to set alight to his council flat so he could be rehoused, it went out of his control and resulted to the death of his wife, son and another woman. This case enabled that the unlawful act does not have to be directed at a specific person and a dangerous act may be aimed at property rather than a person. 

Another element that Constructive Manslaughter takes into consideration is the danger the defendant has evoked. This is shown in the case of R v Church where the victim mocked the defendant about his impotence, which slowly developed into a fight, where Church knocks the victim to unconsciousness, where he believe she was dead and therefore he panics. He throws her into the river where she drowns. His conviction resulted to unlawful act of manslaughter; Edmund Davies LJ sets the applicable test for constructive manslaughter and states that in order for a dangerous act to be applied a reasonable and sober person would be able to recognise that the act positions another person in some risk of harm. This idea also associates with the ideology formulated in the case of Larkin which needed both an unlawful act and an objective viewpoint which formed the risk of some harm.

Secondly the act may result into the death of the victim, the judge will apply the rules of causation which includes the Thin Skull principle and any intervening acts. A case which represents this is R v Cato where the appellant bought heroin and took it home, he shares his purchase with the victim who prepared the solution. Cato injects him with the pre-made solution and the V is later found dead the next day as this solution was injected repeatedly throughout the night. He was held guilty of unlawful act manslaughter, as his act caused the death of the victim even though he didn’t intentionally wish to kill him. 

Lastly is must be proved that the defendant had the Mens rea for unlawful act however, they may be unaware that it is an unlawful act or dangerous. This is outlined in the case of Newbury and Jones where teenagers were pushing a piece of paving stone from a bridge towards the railway line whilst a train was approaching, the stone resulted to hitting the train and killed a guard. The House of Lords decided that it wasn’t substantial to prove that a defendant didn’t foresee their actions and therefore convicted them of unlawful act manslaughter.

The law commission has proposed for the principle of Constructive Manslaughter to be abolished as the law states that even though he/she did not intend or foresee the victim dying they are still criminally liable. Which shows that this principle solely requires on the probability that there is a foreseeable risk of harm being caused. However, it does maintain justice for the victim and the victim’s family by asserting that the defendant is punished for his/her actions.

Secondly as we must presume that the defendant’s actions are foreseeable, the court as well as the jury will be facing confusion to determine what a reasonable person would consider, and this confusions creates uncertainty within the law as shown in Murder, Manslaughter and Infanticide Act 2006 which proposed new offences of criminal manslaughter, which suggested uncertainty throughout. However,

As involuntary Manslaughter covers a wide range of conduct it creates unbalance as it coincides with other offences and prevents the jury and judges to define the distinction between murder and manslaughter. Although as it covers a various range of situations it creates flexibility, furthermore you could state allows further cases to develop.

The Law Commission 1996 believed that there were problems facing with Mens Rea, as they didn’t believe it would be appropriate to convict a person when they only held the Mens Rea required for assault. Although, the Home Office Report 2000 disagreed with this statement as they stated that it maintained the jurisdiction that a person who commits any illegal violence or activity should be liable for his or her actions. These contradicting powers create an unbalance within the law.            

Involuntary manslaughter is also outlined through the principle of Gross Negligence which means that due to a specific duty of care the defendant owes which he/she failed to maintain leads to the death of the victim. This offence can be committed by an act or by an omission which doesn’t have to be unlawful, this is shown in the case of Adomako where the doctor failed to recognise that the oxygen tube wasn’t connected to the patient for the total of 6 minutes which resulted to the patient’s death. As the doctor owes a contractual and official position duty of care to his patients he failed to obtain this and convicted of for gross negligence. From this case we are able to illustrate the elements of Gross Manslaughter Negligence which outlines the defendant owed a duty of care, breached duty of care resulting to the death of the victim and the defendants action led to the consideration that it was/is criminal activity by the jury.

Gross Negligence Manslaughter also illustrates the principle of owing a duty of care to the victim which surrounds a wide range of situations and mainly based on civil law. This can be shown in the case of Donoghue v Stevenson where the victim found a snail in her bottle of ginger beer, she suffered a personal injury and claimed against the manufacturer. Her claim established the modern law of negligence and created the neighbour test. Where Lord Atkin states the principle to love you neighbour also applies in law in association that you must take reasonable care to others and avoid circumstances of acts or omissions which can foreseeable react to the injury of your ‘neighbour’.

Another act which relates to the conviction of Gross Negligence Manslaughter is shown when a defendant breaches his/her duty of Care. In the case of Andrews v DPP it was held that the D would be convicted of manslaughter due to his action of killing a pedestrian whilst driving beyond the speed limit. Lord Atkin stated that ‘a very high degree of negligence is required to be proved before the felony is established’[14]. There must be a factual and legal causation in order for the breach of duty caused the death of a victim, which highlights that just because a person appears careless, it doesn’t necessarily imply that his/her carelessness caused the death. Lastly, the negligence must be ‘gross’ which implies that it isn’t enough to convict the defendant due to his/her negligence. Which was explained in the case of R v Bateman where Lord Hewart CJ states the facts will affect the reasoning of the jury and that the accused negligence went beyond the “matter[s] of compensation between subjects and showed disregard for the life and safety of others”[15] which creates the judgement that there should be a conduct of punishment.

Gross Negligence Manslaughter relies upon the jurisdiction that the defendant owes a duty of care to the public/victims and fails to maintain this and by convicting the defendant of this principle, shows that justice may be served within law. However, there is the issue that in the case of Adomako, offences of both criminal and civil have been mixed and therefore created uncertainty within the law due to the arising terminology used in gross negligence manslaughter.

Secondly, the circular test proceeded to inconsistency of the jury making decisions to convict the defendant and giving reasons towards their decisions which questions the law as this power was never given to the jury as this power would be bestowed upon the judge. This also creates the jurisdiction formulating a circle, as there will never be a direct response towards whether the defendant has truly committed the crime. However, the law has outlined thoroughly how to apply gross negligence manslaughter in cases and this has been a success in many cases.

Lastly, there is also the criticism to consider whether the risk applied had to be a cause of death or personal injury, this was clarified in the case of R v Misra 2004 where the court stated that it is not enough to state that the victim has showed a risk of bodily harm or serious injury.   

The Law Commission 1996 proposed that gross negligence manslaughter should be categorised into reckless killing and killing by gross negligence. The government did create reforms in 2000 however, no further amendments were made from the proposals of the 1996 reports.

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[1] OCR Criminal Law for A2 – Jaqueline Martin, Editor: Sue Teal – Fourth Edition – Chapter 7 – Voluntary Manslaughter – Page 77-94

[2] Section 52 of Coroners and Justice Act 2009 http://www.legislation.gov.uk/ukpga/2009/25/section/52

[3] http://www.e-lawresources.co.uk/R-v-Byrne.php

[4] https://sixthformlaw.info/02_cases/mod3a/cases_33_vol_dim_res.htm  Accessed 06/10/17

[5] http://www.e-lawresources.co.uk/R-v-Tandy.php

[6] http://www.legislation.gov.uk/ukpga/2009/25/section/54 Accessed 06/10/17

[7] http://www.legislation.gov.uk/ukpga/2009/25/section/55 Accessed 06/10/17

[8] http://e-lawresources.co.uk/Loss-of-control.php Accessed 06/10/17

[9] http://e-lawresources.co.uk/cases/R-v-Hatter.php Accessed 06/10/17

[10] http://www.legislation.gov.uk/ukpga/2009/25/section/55 Accessed 06/10/17

[11] OCR CRIMINAL LAW A2 – JACQUELINE MARTIN – FOURTH EDITION – PAGE 86

[12] http://www.e-lawresources.co.uk/Attorney-General-for-Jersey-v-Holley.php Accessed 06/10/17

[13] https://webstroke.co.uk/law/cases/r-v-asmelash-2013 Accessed 06/10/17

[14] http://www.e-lawresources.co.uk/Andrews-v-DPP.php accessed 06th October 2017

[15] http://www.e-lawresources.co.uk/R-v-Bateman.php   Accessed 06/10/17