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Voluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted
during "the heat of passion", under circumstances that would cause a reasonable person to become emotionally or
mentally disturbed.
Apart from the general defences, murder is served by three special (partial) defences which, if successful, reduce a
murder conviction to a conviction for voluntary manslaughter. It is called voluntary manslaughter because the
prosecution can prove the killing was voluntary (in the sense of being intended or almost intended),
Burden of proof
S.54 (5) - if sufficient evidence is adduced, the jury must assume that the defence is satisfied unless the prosecution
proves beyond reasonable doubt that it is not.
1. Loss of self-control
There is no requirement that the loss of self-control be sudden (s. 54(2)).
This represents a change from the law of provocation which required the loss of control to be sudden and
temporary (R v Duffy [1949]) which was a seen as a significant barrier to victims of domestic violence. See, R v
Ahluwalia [1992], R v Thornton [1996].
However, in each of those cases there was no loss of control, sudden or otherwise and thus the cases would have
the same outcome under the new defence.
The Law Commission had recommended that there should be no requirement of loss of control as this was the
element of the defence of provocation that operated against women.
By virtue of s. 54(4), if D acted in a considered desire for revenge they cannot rely on the defence. This upholds
the principle seen in: R v Ibrams & Gregory (1982)
2. Qualifying trigger
Under the old law of provocation virtually any act was capable of being used as evidence of provocation.
This was considered problematic in that it was too wide.
The provocative action did not have to be deliberate or aimed at the victim: R v Davies [1975].
Even a baby crying was accepted as a provocative act (R v Doughty (1986)).
The introduction of qualifying triggers have narrowed the ambit of the new defence quite dramatically.
The qualifying triggers are set out in s. 55 Coroners and Justice Act 2009.
A qualifying trigger may only relate to:
S.55 (3) Where D's loss of self-control was attributable to D's fear of serious violence from V against D or another
identified person. or
S.55 (4) Where 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.
The question of what constitutes circumstances of an extremely grave character and caused the defendant to
have a justifiable sense of being seriously wronged is decided objectively:
R v Hatter [2013]
The breakdown of a relationship will not normally be regarded as circumstances of an extremely grave character
nor entitle the aggrieved party to have a justifiable sense of being seriously wronged:
R v Hatter [2013] WLR (D) 130
The issue of justifiable sense of being wronged was considered in R v Bowyer [2013] WLR (D) 130
R v Bowyer [2013] WLR (D) 130
Sexual infidelity
The limitation based on sexual infidelity represents a major change from the defence of provocation which was
largely seen as an excuse for crimes of passion. This change is based on the view that in a civilised society there
can be no excuse for killing due to infidelity.
Whilst this sentiment is commendable its inclusion has received widespread criticism as to its workability in
practice.
This provision has already been subject to interpretation by the Court of Appeal:
R v Clinton [2012]
Incitement
The limitation based on incitement seemed to represent a move away from the law of provocation where self–
induced provocation could be relied upon:
R v Johnson [1989]
However, in the case of R v Dawes it was held that s.55(6)(b) did not change the position established in R v
Johnson
R v Dawes [2013]
Diminished responsibility
Diminished responsibility is one of three special defences which exist solely for the offence of murder.
It is contained in the Homicide Act 1957 as modified by the Coroners and Justice Act 2009.
Where the defence of diminished responsibility is successfully pleaded, it has the effect of reducing a murder
conviction to manslaughter.
The three special defences of diminished responsibility, loss of control and suicide pact differ from general
defences in that they do not apply to all crimes and also the effect is to reduce criminal liability rather than to
absolve the defendant from liability completely.
Diminished responsibility is set out in s.2 of the Homicide Act 1957 as amended by s.52 of the Coroners and
Justice Act 2009.
To rely on the defence, the defendant must be able to demonstrate the following:
1. An abnormality of mental functioning caused by a recognised medical condition.
2. Which provides an explanation for the defendant’s acts or omissions in being party to the killing.
3. Which substantially impaired his/her mental ability to either:
a) Understand the nature of their conduct or
b) Form a rational judgment or
c) Exercise self–control
2. The abnormality must provide an explanation for D’s act or omission in being party to the killing.
This is an issue of causation - S. 1B Homicide Act 1957 states that an abnormality of the mental
functioning provides an explanation for D's Conduct if it causes or is a significant contributory factor in causing D
to carry out that conduct.
This follows from the old law under S.2 Homicide Act 1957 which required the abnormality to be caused
by an arrested or retarded development of the mind or any inherent causes or induced by disease or injury.
This was interpreted by the courts as meaning that the abnormality must be caused by an inside source
and that outside factors causing the abnormality such as alcohol or drugs could not be taken into account unless
the abnormality was as a result of the disease of alcoholism or drug addiction or long term damage caused by
the intake of such intoxicants:
R v Tandy [1989]
R v Wood [2009]
R v Stewart [2009]
The same approach is applied where the defendant is intoxicated by prescription drugs:
R v O'Connell 1997 Crim LR 683
Where there exists an abnormality of the mind in addition to intoxicants, the legal position was stated in R v
Gittens and affirmed in R v Dietschmann:
R v Gittens (1984)
R v Dietschmann [2003]
Acute voluntary intoxication (binge drinking) alone is not capable of founding the defence of voluntary
intoxication:
R v Dowds [2012]
"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is
available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly
emphasised that this court would require much persuasion to allow such a defence to be raised for the first time
here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might
be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to
be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further
from the truth. Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this
court would view any wholly retrospective medical evidence obtained long after the trial with considerable
scepticism.
In deciding whether to admit fresh evidence the court must have regard to S. 23 of the Criminal Appeal
1968 which provides:
(1) For purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the
interests of justice --
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to --
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an
issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
The court is particularly reluctant to allow fresh evidence if the decision not to raise the defence of
diminished responsibility was made for tactical reasons as oppose to reasons relating to the capacity to instruct
the defence:
R v Erskine [2009] R v Neaven [2006] R v Diamond [2008] R v Hendy [2006] R v Martin [2002]
The courts are more willing to admit fresh evidence relating to diminished responsibility where there have been
advances in medical opinion since the time of trial:
R v Ahluwalia [1993] R v Hobson [1997] R v Campbell [1997]
Cases