Criminal Law: Voluntary Manslaughter

Voluntary Manslaughter

What is Voluntary Manslaughter?

Establishing Voluntary Manslaughter

Voluntary manslaughter happens when the prosecution proves the actus reus and mens rea of murder, but the defendant prove one of two defences:

Loss of Control

Establishing Loss of Control

To establish loss of control, the defendant must show that:

  1. The defendant’s acts or omissions in committing murder (or being an accessory to murder) resulted from the defendant losing control;
  2. There was a ‘qualifying trigger’ for the loss of control; and
  3. A person of the defendant’s age and sex, with normal self-restraint and tolerance, in the defendant’s circumstances, might have reacted in the same way as the defendant (or a similar way).

Coroners and Justice Act 2009, s 54(1).

What are the Qualifying Triggers?

There are two qualifying triggers:

gun, revolver, shoot

The defendant feared serious violence from the victim against the defendant or against another identified person (s 55(3)), except to the extent that the defendant incited the victim’s acts with the intention of having an excuse to be violent: s 55(6)(a).

Talking on the phone

There were things said and/or done (whether by the victim or someone else) which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged: s 55(4). The defendant’s sense is not justified if he incited the thing said or done with the intention of having an excuse to be violent: s 55(6)(b).

It is also a qualifying trigger to be triggered by a combination of these two circumstances: s 55(5).

If the defendant incited the victim’s acts, it is not enough that it was foreseeable that violence may ensure – the defendant must have the purpose of creating an excuse to use violence: R v Dawes [2013] EWCA Crim 322.

Whether violence is ‘serious’, the circumstances are of ‘an extremely grave character’ or the defendant felt ‘justifiably’ wronged are assessed from the perspective of a reasonable person, not from the defendant’s perspective: R v Bowyer [2013] EWCA Crim 322. The mere breakdown of a relationship will not generally suffice: R v Dawes [2013] EWCA Crim 322.

It is not clear what the position is if the defendant mistakenly believes there is a qualifying trigger. The case-law on the role of mistake in mens rea in other contexts are likely to be equally applicable here.

What is ‘Loss of Control’?

Loss of control has not yet been well defined. It is said to be something greater than ‘normal irritation’ or even ‘serious anger’, assuming the defendant has a normal capacity for restraint: R v Dawes [2013] EWCA Crim 322. Relevant factors include the conditions the defendant was under (including any previous actions by the victim which might be treated as cumulative), the nature of the trigger, the defendant’s sensitivity, and how much time passed between the trigger and the act: R v Jewell [2014] EWCA Crim 414.

How Would a Normal Person Respond?

Whether a normal person might have acted in a similar way to the defendant is assessed objectively. The normal person is given the defendant’s sex and age. They are also given any other characteristics which are relevant for reasons other than bearing on capacity for self-control.

For example, the fact that the defendant is an alcoholic is disregarded to the extent that it is relevant because the defendant was drunk at the time he killed: R v Asmelash [2013] EWCA Crim 157. The normal person in such a case is treated as a sober, non-alcoholic with normal self-control. By contrast, the fact that the defendant is an alcoholic is to be taken into account if it is relevant because the victim was making fun of the defendant’s alcoholism. In such a case, the normal person is a sober alcoholic with normal self control.

The same is true for mental illnesses such as depression – they are only relevant if they affect the gravity of the trigger and not the defendant’s capacity for control: R v McGrory [2013] EWCA Crim 2336; R v Wilcocks [2016] EWCA Crim 2043; R v Rejmanski [2017] EWCA Crim 2061.

Exclusions to Loss of Control

There is no need to show that the loss of control was sudden: Coroners and Justice Act 2009, s 54(2). However, the defence is not applicable if the defendant was acting under a ‘considered desire for revenge’: s 54(4). In practice, therefore, the more time the defendant has had to think about killing the victim, the less likely the defence will apply: R v Clinton [2012] EWCA Crim 2.

Anything said or done which constitutes sexual infidelity is to be disregarded: Coroners and Justice Act 2009, s 55(6)(c). However, this exclusion only applies if sexual infidelity is the only trigger, and not mixed in with other triggers: R v Clinton [2012] EWCA Crim 2. The meaning of sexual infidelity, and what ‘constitutes’ infidelity (as opposed to evidence of or a report on infidelity), is currently unclear.

Diminished Responsibility

Establishing Diminished Responsibility

To establish diminished responsibility, the defendant must show that he suffered from an abnormality of mental functioning which:

  1. Arose from a recognised medical condition;
  2. Substantially impaired the defendant’s ability to understand the nature of the their conduct, form rational judgement, or to exercise self-control; and
  3. Provides an explanation for the defendant’s acts and omissions in doing or being a party to the killing.

Homicide Act 1957, s 2.

What is a Recognised Medical Condition

‘Medical condition’ includes any physical or mental illness, disorder or disease. An illness is normally recognised if it is included on an official list of illnesses recognised by the medical community, such as the DSM V: R v Dowds [2012] EWCA Crim 281. Not all illnesses meeting this criteria will be recognised however. This is particularly if the condition is deliberately self-induced. For example, in Dowds acute alcohol intoxication was stated not to be a recognised illness, for example. Alcoholism is a recognised illness, by contrast.

In the Parliamentary debates surrounding the passing of the updated diminished responsibility defence, it was stated that there is some flexibility to include newly discovered illnesses which have not yet made it onto official lists like the DSM V.

Substantial Impairments

An impairment is ‘substantial’ if it is ‘important’ or ‘weighty’ – this is a higher threshold that being more than merely trivial, but does not require the defendant to prove gross or total impairment: R v Golds [2016] UKSC 61; R v Squelch [2017] EWCA Crim 204.

Spiral Staircase

The Law Commission suggested that whether the defendant understood the nature of their conduct is a similar test as applied under the defence of insanity.

Rational judgement, thought

The ability to form a rational judgement involves assessing whether the defendant’s thought process for choosing the outcome was rational: R v Conroy [2017] EWCA Crim 81.

An Explanation for the Killing

An abnormality of mental functioning provides an explanation for the killing if it has a causal link to the killing (even if it is not the only cause): R v Golds [2016] UKSC 61.

Under the old law, the defence would apply even though the defendant was voluntarily intoxicated at the time and was the main cause, so long as the mental abnormality also contributed causally to the killing: R v Dietschmann [2003] 1 AC 1209. It is likely this applies under the new law too.

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Fatal Offences Against the Person Quiz

Test yourself on the principles governing the fatal offences against the person.

1 / 27

Laura has severe depression. Peter makes fun of her, telling her if she is so depressed she should go kill herself. She has a fit of anger and kills him. At trial for murder, she relies on the defence of loss of control. Can the jury take into account her depression when assessing whether the defence is established?

2 / 27

Yulia shoots Mia in the abdomen, causing Mia to miscarry her child. Yulia intended to kill Mia. Has Yulia committed murder against the baby?

 

3 / 27

What is grievous bodily harm?

4 / 27

What is the mens rea of murder?

5 / 27

For the purposes of constructive manslaughter, can a defendant rely on mistaken beliefs they possess?

 

6 / 27

Celia falls out of the window of her 8th storey apartment. When she passes the 4th storey window, she is hit by a bullet fired by William and killed instantly. It was certain that Celia would have died on hitting the ground. Did William cause Celia's death?

 

7 / 27

Camilla is fed up with her partner, Adrian. She deliberately winds them up to let off some steam. She knows there is a risk that Adrian will become seriously violent if she does this, but is past the point of caring. When Adrian becomes violent, Camilla draws a knife and stabs them. Does Camilla have a qualifying trigger for when she tries to establish the defence of loss of control?

 

8 / 27

Daphne is a doctor who is treating Gillian for a terminal disease. Gillian is in considerable pain and asks for morphine. Daphne agrees and gives him a dose which causes him to die several days before he would otherwise. When questioned by police, she did what she did because she thought it would be better if Gillian died, given he was in so much pain. Has Daphne committed murder?

9 / 27

Can an offence of negligence form the basis of constructive manslaughter?

 

10 / 27

For the purposes of constructive manslaughter, when is an unlawful act dangerous?

11 / 27

For the purposes of gross negligence manslaughter, what factors are relevant to determining whether the negligence was gross?

12 / 27

For the purposes of gross negligence manslaughter, what facts may the jury take into account when determining whether there was an obvious and serious risk of death?

13 / 27

Daphne is a doctor who is treating Gillian for a terminal disease. Gillian is in considerable pain and asks for morphine. Daphne agrees and gives him a dose which causes him to die several days before he would otherwise. When questioned by police, she says she was just trying to help his pain and did not want him to die, though she knew that it was certain that he would. Has Daphne committed murder?

14 / 27

Chip learns that his husband Frederick is no longer in love with him. When confronted, Frederick calmly explains that Chip has not done anything wrong, they just drifted apart. Chip responds by shooting him dead in a fit of anger. At trial for murder, he argues that he lost control in response to circumstances of an extremely grave character that caused him to feel justifiably and seriously wronged. Is he likely to establish a qualifying trigger for the loss of control defence?

 

15 / 27

Camilla wants to kill her partner, Adrian. She deliberately winds them up, knowing that it will cause them to become violent. When Adrian become violent, Camilla draws a knife and stabs them. Camilla tells police that Adrian is normally very seriously violent when they start a fight. Does Camilla have a qualifying trigger for when she tries to establish the defence of loss of control?

 

16 / 27

What must the prosecution show to establish unlawful act manslaughter?

17 / 27

What three elements must a defendant show to establish diminished responsibility?

18 / 27

When is a person legally considered dead?

19 / 27

Caleb and Cassandra have a blazing argument about Cassandra's drug taking habit. Caleb hands Cassandra a needle full of heroin, and tells her to knock herself out, and that he won't help her again if she overdoses. Cassandra overdoses, and Caleb does nothing. Cassandra dies. Caleb is charged with unlawful act manslaughter. The prosecution rely on his supplying Cassandra drugs as the unlawful act. Will Caleb be found guilty?

 

20 / 27

Which two are qualifying triggers for the loss of control defence?

21 / 27

What four elements does the prosecution need to show to establish gross negligence manslaughter?

22 / 27

The prosecution are trying to establish unlawful act manslaughter against a defendant who burned down a shed. While the defendant admits to committing the unlawful act, they convince the jury that a reasonable person would have thought the shed was empty. Are the prosecution likely to succeed?

 

23 / 27

What three elements must the defendant show to establish loss of control?

24 / 27

A defendant is on trial for murder. They are relying on the defence of loss of control. Part of the reason they killed the victim is that they discovered the victim was cheating on them. Can the jury take this into account?

25 / 27

Yulia shoots Mia in the abdomen, causing Mia to go into early labour. The child is born alive, but dies a few days due to complications from the premature birth. Yulia intended to kill Mia. Has Yulia committed murder against the baby?

 

26 / 27

Can an offence of strict liability form the basis of constructive manslaughter?

 

27 / 27

The prosecution is trying to establish unlawful act manslaughter against the defendant. While the defendant admits to committing the unlawful act, they argue that their unlawful act was not directed against the victim, but against the victim's property. The defendant foresaw that the victim might be injured by his act. Are the prosecution likely to succeed?

 

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