What is Voluntary Manslaughter?
Establishing Voluntary Manslaughter
- Loss of Control: Coroners and Justice Act 2009, s 54.
- Diminished Responsibility: Homicide Act 1957, s 2.
Loss of Control
Establishing Loss of Control
To establish loss of control, the defendant must show that:
- The defendant’s acts or omissions in committing murder (or being an accessory to murder) resulted from the defendant losing control;
- There was a ‘qualifying trigger’ for the loss of control; and
- 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:
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).
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  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  EWCA Crim 322. The mere breakdown of a relationship will not generally suffice: R v Dawes  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  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  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  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  EWCA Crim 2336; R v Wilcocks  EWCA Crim 2043; R v Rejmanski  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  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  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.
Establishing Diminished Responsibility
To establish diminished responsibility, the defendant must show that he suffered from an abnormality of mental functioning which:
- Arose from a recognised medical condition;
- Substantially impaired the defendant’s ability to understand the nature of the their conduct, form rational judgement, or to exercise self-control; and
- 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  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.
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  UKSC 61; R v Squelch  EWCA Crim 204.
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.
The ability to form a rational judgement involves assessing whether the defendant’s thought process for choosing the outcome was rational: R v Conroy  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  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  1 AC 1209. It is likely this applies under the new law too.