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VOLUNTARY MANSALUGHTER

On a charge of murder, D can plead the partial defences of loss of control or diminished responsibility so that
he is liable only for manslaughter

LOSS OF CONTROL

1. The old law of provocation

- s56 Coroners and Justice Act 2009: the common law of provocation is abolished and replaced by sections
54 and 55

2. The effect of successfully pleading loss of control

- s54(7): liable instead to be convicted of manslaughter

3. Burden of proof

- s54(5): if sufficient evidence is adduced to raise an issue with respect to the defence, the jury must
assume that the defence is satisfied, unless the prosecution proves beyond a reasonable doubt that it is
not
- s54(6): sufficient evidence is adduced where the judge is of the opinion that a jury could reasonably
conclude that the defence might apply

4. Elements of the defence

a) s54(1)(a): D’s act or omission resulted from a loss of self control

- s54(4): the defence does not apply if D acted in a considered desire for revenge
- s54(2): does not matter whether the loss of control was sudden
- EN337:
- the partial defence might still apply though where there was a delay between the provocative
incident and the killing
- The length of time between the incident and the killing does however affect whether there is
sufficient evidence of a loss of self-control for the judge to leave the issue to the jury, and how
readily a jury accepts that the defendant had indeed lost his or her self-control at the time of
the killing
- the judge (in deciding whether to leave the defence to the jury) and the jury (in determining
whether the killing did in fact result from a loss of self-control and whether the other aspects
of the partial defence are satisfied) can take into account any delay between a relevant
incident and the killing
- Cocker (1989):
- V was suffering from an incurable disease and had repeatedly begged her husband (D) to kill
her
- She became increasingly irritable and one morning after deliberately keeping awake for most
of the night, woke him by clawing at his back and demanded that he kill her
- D put a pillow over her face, which killed her
- D told the police that his wife’s behaviour had been the last straw and that her requests
became too much for him
- It was held that there is no evidence of a loss of control
- “… in the present case the tragic victim's railing against her husband might have caused him to
lose his temper. It did not. Instead it caused him to cast off the self-restraint which had enabled
him to refuse her entreaties, and calmly and quietly to asphyxiate her. That he was not out of
control appeared from his evidence in court that he had made to remove his hands from her
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throat at one point when he thought that was what she wanted, only to increase the pressure
when she begged him not to stop.”
- Goodwin (2018):
- V attacked D with a hammer
- D grabbed that hammer and hit V 18 times over a period of 5 minutes
- “the fact that the administering of the blows seems (on the forensic evidence) to have lasted
over a period of at least 5 minutes, and when for the most part if not the entire part of which
the deceased was lying on the ground, would tell strongly against [a loss of self control]”

b) s54(1)(b): the loss of self control had a qualifying trigger

(i) s55(3): D’s loss of self control was attributable to D’s fear of serious violence from V against D or
another identified person

- EN345:
- subjective test
- D will need to show that he lost self control due to a genuine fear of serious violence
- Whether or not the fear was in fact reasonable
- Must be in respect of violence against D or another identified person
- E.g.: it could be in respect of a child of D, but it could not be a fear that V would in the future
use serious violence against people generally
- David Ormerod in Smith & Hogan:
- ‘violence’ is undefined
- It is unclear whether a mistake induced by voluntary intoxication precludes reliance on the
defence
- In self defence, mistakes due to intoxication will negate the defence, notwithstanding that
murder is a specific intent offence
- This seems to suggest that LOSC is also unavailable
- However, several arguments could be marshaled in favour of adopting a more generous
approach in LOSC:
- the policy driven approach in self defence has been heavily and cogently criticised
- this is a partial defence which leads to a manslaughter conviction – it is not the case
that D will be acquitted completely
- under the old law of provocation, an intoxicated mistake did not preclude reliance
- subject to the exclusion in s55(6)(a)

(ii) s55(4)(a),(b): D’s loss of self control was attributable to 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

- s55(4): thing(s) said or done

- mere circumstances cannot constitute a qualifying trigger
- there must be something actually said or done
- mistaken beliefs: David Ormerod in Smith & Hogan –
- when nothing was in fact said or done à it is hard to see how the qualifying trigger is
satisfied on a literal interpretation
- D mistakes that was in fact said or done à the defence ought to be available, even if the
mistake is unreasonable
- If D’s mistake was induced by voluntary intoxication à there is no longer a ‘justifiable’
sense of being seriously wronged and so the mistake must be ignored; unless it was one
that D would have made even if sober
- s55(4)(a): circumstances of an extremely grave character
- Doughty (1986): the sound of a baby’s constant crying could amount to a provocation
- Law Commission: “the jury should be trusted to evaluate the relative grossness of provocation,
in whatever form it comes, according to their own sense of justice in an individual case”
- Hatter (2013):
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- A breakup does not create circumstances of an extremely grave character, nor does it
give D a justifiable sense of being seriously wronged
- “The circumstances must be extremely grave and the defendant's sense of being
seriously wronged by them must be justifiable. In our judgment these matters require
objective assessment … If it were otherwise it would mean that a qualifying trigger would
be present if the defendant were to give an account to the effect that, ‘the circumstances
were extremely grave to me and caused me to have what I believed was a justifiable
sense that I had been seriously wronged’ ”
- Zebedee (2012):
- D’s father was 94 years old and was incontinent
- D killed his father after he soiled himself
- This did not create circumstances of an extremely grave character

- s55(4)(b): justifiable sense of being seriously wronged

- EN 346: Whether D’s sense of being seriously wronged is justifiable will be an objective
question
- Law Commission: “take into account all the characteristics of D”
- Ministry Of Justice: “take into consideration the situation D was in. We do not believe it is
necessary to spell that out on the face of the statute”
- subject to the exclusions in s55(6)(b) and s55(6)(c)

(iii) s55(5): combination of both

- David Ormerod in Smith & Hogan:

- e.g.:
- D who kills V whom he found raping his daughter at knife point
- A woman who kills her abusive husband after years of torment when she lost self control
fearing another violent attack by him
- one problem that may arise is D who relies on both triggers, there is insufficient evidence of
each limb considered in isolation, but in combination would satisfy s54(5) – the defence should
be allowed

(iv) exclusions

i. s55(6)(a): D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing
which D incited the thing to be said or done for providing an excuse to use violence

ii. s55(6)(b): a sense of being seriously wronged is not justifiable if D incited the thing to be done or
said for the purpose of providing an excuse to use violence

- Dawes (2013): “One may wonder (and the judge would have to consider) how often a
defendant who is out to incite violence could be said to “fear” serious violence; often he may
be welcoming it. Similarly, one may wonder how such a defendant may have a justifiable sense
of being seriously wronged if he successfully incites someone else to use violence towards him.
Those are legitimate issues for consideration, but, as a matter of statutory construction, the
mere fact that in some general way the defendant was behaving badly and looking for and
provoking trouble does not of itself lead to the disapplication of the qualifying triggers based
on section 55(3)(4)(5) unless his actions were intended to provide him with the excuse or
opportunity to use violence.”
- Johnson (1989): the mere fact that D causes a reaction in others, which in turn led D to lose
his self control does not result in the issue of provocation being kept outside the jury’s
consideration

iii. s55(6)(c): the fact that a thing said or done constituted sexual infidelity is to be disregarded

- EN 349:
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- It is the fact of sexual infidelity that falls to be disregarded, so the thing said or done can
still amount to a qualifying trigger if (ignoring the sexual infidelity) it amounts nonetheless
to circumstances of an extremely grave character causing D to have a justifiable sense of
being seriously wronged
- E.g.: where a person discovers their partner sexually abusing their child (an act that
amounts to infidelity) and loses self control and kills
- The fact of the infidelity must be discounted but the act may still potentially amount to a
qualifying trigger on the basis of other aspects of the case (i.e. child abuse)

- Clinton (2012):
- “To begin with, there is no definition of "sexual infidelity" … Is sexual infidelity to be
construed narrowly so as to refer only to conduct which is related directly and exclusively
to sexual activity?”
- “What acts relating to infidelity, but distinguishable from it on the basis that they are not
"sexual", may be taken into account? Is the provision directly concerned with sexual
infidelity, or with envy and jealousy and possessiveness, the sort of obsession that leads
to violence against the victim on the basis expressed in the sadly familiar language, "if I
cannot have him/her, then no one else will/can"?”
- “The notion of infidelity appears to involve a relationship between the two people to
which one party may be unfaithful. Is a one-night-stand sufficient for this purpose?”
- “Only the words and acts constituting sexual activity are to be disregarded: on one
construction, therefore, the effects are not”
- “Where there is no other potential trigger, the prohibition must … be applied”
- “experience over many generations has shown that, however it may become apparent,
when it does, sexual infidelity has the potential to create a highly emotional situation or
to exacerbate a fraught situation, and to produce a completely unpredictable, and
sometimes violent response”
- “This may have nothing to do with any notional "rights" that the one may believe that he
or she has over the other, and often stems from a sense of betrayal and heartbreak, and
crushed dreams”
- “in relation to the day to day working of the criminal justice system events cannot be
isolated from their context”
- “It may not be unduly burdensome to compartmentalise sexual infidelity where it is the
only element relied on in support of a qualifying trigger, and, having compartmentalised
it in this way, to disregard it”
- “However, to seek to compartmentalise sexual infidelity and exclude it when it is integral
to the facts as a whole is not only much more difficult, but is unrealistic and carries with
it the potential for injustice”
- “In our judgment, where sexual infidelity is integral to and forms an essential part of the
context in which to make a just evaluation … the prohibition … does not operate to
exclude it”
- Hansard: “if something else is relied on as a qualifying trigger, any sexual infidelity that forms
part of the background can be considered but it cannot be the trigger”

c) s54(1)(c): a person of D’s age and sex, with a normal degree of tolerance and self restraint in the
circumstances of D might have reacted in the same or similar way

- the reasonable man under the old law:

- AG for Jersey v Holley (2005):
- cited Camplin (1978): “the reasonable man referred to in the question is a person having
the power of self-control to be expected of an 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”
- “If the defendant was taunted on account of his intoxication, that may be a relevant
matter for the jury to take into account when assessing the gravity of the taunt to the
defendant. But the defendant's intoxicated state is not a matter to be taken into account
by the jury when considering whether the defendant exercised ordinary self-control”
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- Luc Thiet Thuan (1996): D’s mental abnormality was only relevant if it formed the subject of
the taunts
- The reasonable man under the current law:
- s54(3): reference to ‘the circumstances of D’ is a reference to all of D’s circumstances other
than those whose only relevance to D’s conduct is that they bear on D’s general capacity for
tolerance or self restraint
- EN 338: D’s history of abuse at the hands of V could be taken into account but D’s generally
short temper cannot be taken into account
- David Ormerod in Smith & Hogan:
- “The words ‘in the circumstances of D’ may enable the jury to adopt a more generous
approach when judging D’s response than might have been possible under [the old law]”
- “Judges will have to be vigilant to ensure that the broad nature of the test for including
D’s circumstances in considering how a person of his age etc might have reacted does not
lead to evidence of tenuous relevance being admitted and distracting the jury from the
central inquiry”
- Asmelash (2013): voluntary intoxication is to be disregarded

DIMINISHED RESPONSIBILITY

1. Amendments

- s2 Homicide Act 1957 has been as amended by s52 Coroners & Justice Act 2009

2. The effect of successfully pleading the defence

- s2(1): D is not to be convicted of murder

3. The elements of the defence

a) s2(1): abnormality of mental functioning

- the definition of AMF:

- Byrne (1960): “a state of mind so different from that of ordinary human beings that the
reasonable man would term it abnormal. It appears to us wide enough to cover the mind’s
activities in all of its aspects … and the ability to form rational judgment … but also the ability
to exercise will power to control physical acts in accordance with that rational judgment”
- Alcoholism as an AMF
- Tandy (1988): “If the alcoholism had reached the level at which her brain had been injured by
the repeated insult from intoxicants so that there was gross impairment of her judgment and
emotional responses” or “that alcoholism had reached the level where although the brain had
not been damaged to the extent just stated, the appellant's drinking had become involuntary,
that is to say she was no longer able to resist the impulse to drink, then the defence of
diminished responsibility would be available to her”
- Stewart (2010): “however chronic the alcoholism, an alcoholic always had a choice whether to
drink at all, and if he did, in the amount that he drank … an identifiable mental disorder did not
necessarily amount to an abnormality of mind”
- Voluntary drunkenness as an AMF
- Dowds (2012):
- “It is enough to say that it is quite clear that the re-formulation of the statutory conditions
for diminished responsibility was not intended to reverse the well established rule that
voluntary acute intoxication is not capable of being relied upon to found diminished
responsibility. That remains the law”
- “The presence of a 'recognised medical condition' is a necessary, but not always a
sufficient, condition to raise the issue of diminished responsibility”
- e.g.: a concussion – it is more appropriate to plead automatism
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b) s2(1)(a): which arose from a recognized medical condition

- Basis of recognition: ICD-10 and/or DSM-IV

c) s2(1)(b): which substantially impaired D’s ability

- s2(1A)(a): understand the nature of D’s conduct

- s2(1A)(b): form rational judgment
- s2(1A)(c): exercise self control

d) s2(1)(c): which provides an explanation for the killing

- s2(1B): the abnormality of mental functioning provides an explanation for D’s conduct if it causes, or
is a significant contributory factor in causing, D to kill
- The effect of voluntary drunkenness:
- Gittens (1984): “The jury should be directed to disregard what, in their view, the effect of
alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or
drugs is not (generally speaking) due to inherent causes and is not therefore within the section.
Then the jury should consider whether the combined effect of the other matters which do fall
within the section amounted to such abnormality of mind as substantially impaired D’s mental
responsibility …”
- Dietschmann (2003): “But, of course, alcohol can have a disinhibiting effect and can lead to
violence on the part of a person who does not suffer from an abnormality of mind … and the
jury can take this into account in deciding whether the defendant’s underlying subnormality
did substantially impair his mental responsibility for the fatal acts, notwithstanding the drink
he had taken”