definition Voluntary manslaughter - defences

AR
MR
In order to drop the charge from murder to V.M,
need to explain the defences
HOMICIDE the victim is dead - victim has been murdered.
INTRODUCTION
What is Homicide?
• Homicide is defined as killing of a human being. It must be noted that not all killing
of human beings are criminal in nature. For example, if someone is killed in self-
defence, executed by the state, this will not attract criminal liability as the killing is
lawful.
• There are 2 terms that you will need to be familiar with under homicide which are
murder and manslaughter. Murder is the most serious offence one can commit which
is taking away one’s life intentionally. Manslaughter on the other hand, although
sounds a lot more serious but is the lesser evil of the 2. Manslaughter is committed
when the killing is done unintentionally.
• In this notes, we will first discuss the law relating to murder. This will be followed by
the discussion on manslaughter which can be classified as voluntary manslaughter and
involuntary manslaughter.
procesutor - will charge the defendant under murder will drop the charge from murder to
Defense counsel - loss of self control, diminish responsibility mansalughter.

MURDER
• As most offence today is largely legislated, murder still remains a common law
offence. The impact of being found guilty for murder is mandatory life imprisonment.
Take note of the word mandatory. This shows that the judge does not have any
discretion as to the term of imprisonment when it comes to murder.
• As most offence will carry a punishment maximum of certain term, provides the judge
with some discretion as to the duration of sentence.
• This is nevertheless understandable since murder attach itself the highest degree of
moral blameworthiness. It involves the taking of another individual’s life thus the
punishment should be harsh to serve as deterrence for others.
• Always remember, if one kills intentionally, one deserves to be separated from the
society completely.

Actus Reus for Murder

• The ingredient of any offence which is the actus reus and mens rea of an offence, is
always found in the definition of the offence.
• The classic definition of murder is provided by Sir Edward Coke as ‘Murder is when
a man of sound memory, and of the age of discretion, unlawfully killeth within any
country of the realm any reasonable creature in rerum natura under the King's peace,
with malice aforethought, either expressed by the party or implied by law, so as the
 party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after
the same’.
• The definition after 1996 have excluded the requirement that murder must take place
within a year and a day (Law Reform (Year and a Day Rule) Act 1996).
• Today, the definition can be shorten to just ‘unlawful killing of another human being
with malice aforethought’.
• Everything excluding ‘with malice aforethought’ amounts to the actus reus of murder.
• Thus, the main focus of our discussion will be ‘unlawful killing’ and ‘human being’.

Unlawful Killing
• The term ‘unlawful’ suggest that if the killing is justified or excused then it will not be
considered as murder. Self-defence is the best example to show that when pleaded
successfully has the effect of making the act lawful killing thus not murder.
• Same can be said about police shooting criminals or state executing criminals will be
considered lawful thus once again not murder.
• In the extended definition the term King’s peace is used which represents that killing
enemy during war time will also be considered lawful.
• As will be seen later on in offences like assault and battery, the offence can be
negated by consent. Consent has the impact of rendering certain unlawful activities to
being lawful. The question is whether the same can be done for murder? Can one
consent to being killed?
• Of course this will seem like a ridiculous question but consider mercy killing. These
are situations where a person may be paralysis or incapable of walking or in
tremendous pain who seek to be relieved from this pain by being put out of their
misery. In some situations, that person himself may not be able to kill themselves thus
requiring someone else to do the deed for them.
• Although seems like a noble deed, the position of the UK courts have always been
that you can refuse treatment that could potentially save your life but you cannot give
one the right to do a positive act of taking your life that will still be murder.
• This was highlighted in the recent case of R v Nicklinson (2014), where Mr
Nicklinson after a stroke suffered from paralysis of all the muscle in his body from his
eyelid and below, sought declaration that it will be lawful for his doctor or wife to
terminate his life. The Court of Appeal however, rejected the application.

Human Being
• Although this will look as if no discussion is required because it is apparent who a
human being is and what is not, nevertheless we will need to be certain when a foetus
becomes a human being and due to expansion of technology in the medical field,
when does a life end.
Beginning

• Killing a foetus will not result in liability for homicide as foetus is not yet considered
as human being. Nevertheless, killing foetus will attract criminal liability for abortion
or child destruction depending upon the age of the foetus when killed.
• So when does a foetus become human? To become human, the foetus must be
completely separated from the mother. Thus as long the child departs from the
mother’s birth canal it will be considered human. Umbilical cord need not be severed.
• The child is human so long it is alive for the purposes of homicide. It does not matter
if the child is weak or unstable.
• The problem with this of course is what charge is appropriate if the act that causes the
death occur while the foetus still in utero but subsequently born prematurely and died.
Will this be homicide?
• The old authorities like Senior (1832) and West (1848) suggest that the defendant
will be guilty of criminal homicide depending upon mens rea. This certainly raises
some difficulties because the mens rea in such a case was intention to kill an unborn
child which is different from murder which is intention to kill a person.
• The recent approach to this question was in Attorney-General’s Reference (No 3 of
1994), where R stabbed his girlfriend, M, knowing that she was in an advanced state
of pregnancy. As a result the child was born prematurely suffering from the stab-
wounds. R subsequently pleaded guilty to wounding M with intent to cause grievous
bodily harm. Later, the child died and he was also charge for the murder of the child.
The Court of Appeal held the defendant liable following the doctrine of transferred
malice.
• However, the House of Lords rejected this view as transferred malice applies only to
living persons and the charge was substituted with constructive manslaughter.
According to the House of Lords, the charge for murder could only be successful if
the intention to kill was not directed to the mother but the foetus.
• The decision of course can be criticized. R, full aware that M was pregnant in the
advanced stage yet goes on to stab her in the abdomen. Does that not show intention
to harm the baby as well?

End

• Traditionally, one dies when one stops breathing, the heart stops pumping and the
brain ceases to function. Medical advancement have cause some doubts in this area as
one can still be kept breathing on a machine even though brain function may have
ceased. Such condition is known as ‘brain death’.
• It is worth noting that such conditions are irreversible thus a good argument to say
that one is already dead. On the other hand, it is also argued that such condition is still
a kind of life just not a quality life.
 • It is no surprise that the position that the law takes is that when one suffers from
‘brain death’ he is considered legally dead.
• In R v Malcherek & Steel (1981), the actions of the doctors removing a brain-dead
patient from life support was said not to be the cause of death, thus the person who
brought upon that condition will be responsible for homicide. The test of death is
where the brain stem has died.

Actus Reus of Murder and Causation

• Homicide is a result crime thus it is important to link the defendant’s conduct to the
harm.
• The prosecution will have to prove ‘but for’ the defendant’s action, the victim would
not have died (factual causation) and that voluntary act of another or abnormal even
has not broken the chain of causation (legal causation).
• Whether the defendant’s act caused the victim’s death is a matter for the jury to
decide not the judge. Nevertheless, the judge will give proper direction to the jury on
this matter. but for the defendant's conduct, will the victim die? Yes, then causation not satisfied.

No, causation is satisfied.

Mens Rea for Murder

Malice Aforethought
• The best definition of the mens rea for murder is provided by Lord Goddard CJ in R
v Vickers (1957):

“Murder is, of course, killing with malice aforethought, but ' malice 'aforethought' is
a term of art. It has always been defined in English law as either an express intention
to kill, as could be inferred when a person, having uttered threats against another,
produced a lethal weapon and used it on a victim, or implied where, by a voluntary
act, the accused intended to cause grievous bodily harm to the victim, and the victim
died as the result”.

Intention to cause GBH

• In Cunningham (1981), Vickers was affirmed after a lengthy debate whether the test
should return back to pre-1957 position.
• Today, person who forms the intention to do really serious injury to another person
may be guilty of murder if the victim subsequently dies from the injuries, even though
there was no intention to kill but only to cause serious injuries.
Intention to Kill

• In some situations where a person shooting or stabbing his victim, poisoning him or
subject him to a savage beating, whether such action was accompanied by intention
will be left to the ‘good sense’ of the jury. The definition of intention will not be
provided by the judge.
• In some rare cases, where the intention was not direct, rather indirect in causing the
consequence, a direction will be given to the jury as approved in R v Woolin which
goes as:

‘Where the charge is murder and in the rare cases where simple direction is not
enough, the jury should be told that they are not entitled to find the necessary
intention, unless they feel sure that death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of the defendant’s action
and that the defendant appreciated that such was the case. The decision is one for the
jury to be reached upon a consideration of all the evidence’.
In order to drop the charge from murder to voluntary manslaughter, defenses must be applied/satisfied.

VOLUNTARY MANSLAUGHTER
• When successfully found guilty of murder, it carries a mandatory life imprisonment.
This is rather unique because the judge is not given any discretion as to the amount of
punishment.
• To counter this harshness, for some intentional killing, the charge can be reduced
from murder to voluntary manslaughter which carries a punishment of maximum life
imprisonment, provided ‘partial’ defence raised successfully.
• There are mainly 2 murder specific partial defences which are loss of self control and
diminished responsibility.
other defences,

--> self defence

--> intoxification
Loss of Self Control
• Replaced the old defence of provocation.
• This defence is only available for the offence of murder since only murder carries
punishment of mandatory life imprisonment.
• Like many other defences, the defendant will have the evidential burden in proving
this defence which simply means that the job is primarily the prosecution’s in
disproving this defence.
• This defence can be found under S.54 Coroners and Justice Act 2009 (CAJA 2009).
• S.54 (1) provides 3 elements that must be proven in establishing this defence. There
are: Time gap
Ahluwalia - time gap - defence succesful
Ibrams - defence unseccusful, because one week gap
a. D’s acts or omission in doing or being a party to the killing resulted from D’s
loss of self control. On the fact,
Aiman (D). 25
b. The loss of self control had a qualifying trigger, and On the fact, years

X,
c. A person of D’s sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of D, might have reacted in the same or
similar way to D.

• The requirements are mixtures of subjective and objective elements.

a. The Loss of Self-Control

▪ This is a subjective element which means it does not matter if a reasonable man
thinks he would not have loss his self control over the situation.
▪ The only things matter is the mindset of the defendant at the time of the incident.
▪ This defence fails if the killing was carried out as part of revenge (S.54(4)).
▪ In Ibrams (1981), this defence was unsuccessful because 2 people carried out an
attack on man who had subjected them to substantial acts of violence. The killing
took place at night a week after the last act of violence had been committed and
while the man was asleep.
▪ When it comes to this defence, the main question that must be asked is that was
the killing done in “hot blood”. The best way to understand this is that the killing
was not planned in anyway and it happened in the moment.
▪ So, must it be sudden?
▪ The answer is a no as S.54(2) makes it clear that sudden loss of self-control is not
a requirement.
▪ The reason for this was the famous case of Ahluwalia (1993).
▪ Here, the defendant wife suffered a long period of ill-treatment and savage
brutality at the hands of her husband. She remained with him as she felt it was her
wifely duty and due to the cultural code. The matter was worsen by the fact that
the husband was having an affair and threatened to leave her to which she pleaded
him not to leave the family. Eventually, she poured petrol on him while he was
asleep and set him on fire. He died six days later due his injuries.
▪ There was clear evidence that the killing was planned and not done in “hot blood”.
There was a significant time difference between the last act of provoking and the
reaction of the wife.
▪ The defence put forward the argument that in such cases the women suffers a
‘slow burn’.
▪ The court held that as long as evidence remained that the defendant killed ‘during
a temporary and sudden loss of self-control’ the time lapse was not fatal. She was
nevertheless convicted for murder as the killing was done in ‘cold-blooded’ and
cannot be mitigated.
▪ The only importance here for us is that the defence still can be pleaded even if
there is some time lag between the last act of provocation and the sudden loss of
self control.
▪ However, it must be noted, the longer the gap the less likely there was loss of self
control. Highly likely, defence will be unsuccessful
b. The Qualifying Triggers
▪ The basic idea of QT is that these are the trigger(s) that caused the loss of self
control. The act specifically excludes sexual jealousy and infidelity (S.55(6)(c))
from the range of qualifying triggers.
▪ The Act only specify 2 ‘qualifying triggers’ (S.55)

S.55(3) – to D’s fear of serious violence from V against D or another identified

person, OR

S.55(4) – to a thing or things done or said (or both) which –

a. constituted circumstances of an extremely grave character, AND
b. caused D to have a justifiable sense of being seriously wronged

S.55(5) – combination of both mentioned above.

▪ This first trigger is rather simple and is that the defendant feared serious violence.
The fear alone is sufficient which means the violent need not happen.
▪ Also, this is a subjective element which means so long the defendant feared
serious violence is sufficient. Whether a reasonable person in the same
circumstance would have feared violence is irrelevant.
▪ The main thing to note here is that this defence requires D’s response to be
directed against the person who creates the sense of fear. For example, if A fears
that B is going to hit him and due to fear killed C, this defence is not available.
▪ The second qualifying trigger state that something said or done must ‘constitute
circumstances of an extremely grave character’ and the defendant must have a
justifiable sense of being wronged.
▪ The wording was such to exclude trivial triggers such as ‘sexual jealousy’,
‘nagging’, ‘screaming baby’, everyday taunting, and anti-social behaviour.
Examples of grave characters could be previous rape, act of violence or blackmail.
▪ The trigger particularly tries to avoid everyday situations which means the
situation must be such that it’s a one off thing and it must be really gross.
▪ This is made further difficult by the fact that the defendant must need to have
‘justifiable’ sense of being wronged. This will be put to the jury to decide but the
best example that one could think of is ethnic or sexual orientation abuse suffer by
 the defendant. Note, the act was silent as to the definition of this but these are just
some examples put forward by Professor William Wilson.
▪ S.55(6) excludes 2 types of scenarios that will prevent the defendant from relying
on the qualifying triggers. The defence of loss of self control will not be available
if the loss of self control was self induced i.e. defendant himself said or did
something hoping the victim will react to it, giving him the opportunity to kill and
rely on this defence and it will also not be available in situations of sexual
infidelity.
▪ R v Clinton, Parker & Evans, interpreted S.55(6) to mean sexual infidelity
which prompts a loss of self control due to sexual jealousy, possessiveness or
family honour is not a qualifying trigger. However, do note, that if within sexual
infidelity there is another qualifying trigger (that is not those mentioned above) it
must be considered. Simply put, sexual infidelity was just one of the reason to lose
self control not the main reason.
▪ This was further added by the case of Dawes and Hatter (2012) where the Court
of Appeal, while approving Clinton, agreed with the trial judge that the fact of the
break up of a relationship, of itself, will not normally constitute circumstances of
an extremely grave character and entitle the aggrieved party to feel justifiable
sense of being seriously wronged.

c. The Objective Element

▪ Here, the jury must consider whether ‘a person of D’s sex and age, with normal
degree of tolerance and self restraint and in the circumstances of D, might have
reacted in the same or similar way to D.
▪ The general idea is to allow the jury to step into the defendant’s shoe and decide if
they would have reacted in the same manner.
▪ In R v Hill it was agreed the jury should take into account the fact the defendant
was a child victim of sexual abuse.
▪ In R v Asmelash, the Court of Appeal made it clear that being voluntarily
intoxication is not one of the circumstances the jury should take into account. The
reason for this is simple, intoxication will affect one’s tolerance and self restraint
and thus it should not be taken into account as the act makes it clear that jury must
judge from the perspective of someone with normal degree of tolerance and self
restraint.
 ▪ To sum up, if the circumstances is something suffered by the defendant for
example being abused as child, suffering violence from the spouse, then the jury
must take into account. However, it that circumstance affects the defendant
tolerance or self restraint for example drugs or alcohol then it must not be taken
into account.

Diminished Responsibility

• This is a partial defence as well and unlike loss of self control, the burden to prove
this defence is upon the defendant and only the defendant can raise it.
• This defence was defined by S.2 Homicide Act 1957 as amended by the Coroners
and Justice Act 2009 (Note to students: write this in full when doing a question on
this area).
• This defence also requires the defence to prove 3 elements

a. Abnormality of mental functioning (AMF) which arose from a recognised

medical condition. (S.52(1)(1)(a))

b. Substantially impaired D’s ability to do one or more thing provided under

S.52(1)(1A) – to understand the nature of D’s conduct, to form a rational
judgement, to exercise self control. (S.52(1)(1)(b))

c. Provides an explanation for D’s acts and omissions in doing or being a party
to the killing. (S.52(1)(1)(c))

a. AMF arising out of Recognised Medical Condition

▪ The scope of diminished responsibility is much wider compare to its counter part
insanity. A defendant can rely on this defence even if he is aware that what he is
doing is wrong.
▪ A person has an abnormality of mental functioning if the person’s mental
functions of understanding what she was doing, and/or forming a rational
judgement, and/or exercising self control were substantially impaired such that it
would be inappropriate to treat her as fully responsible.
 ▪ As for the ‘recognised medical condition’ requirement means the condition must
be recognised by the International Statistical Classification of Diseases and
Related Health Problems (simply known as ICD 10).
▪ Some examples include Severe Depression (Gittens), Bipolar (Inglis), Paranoid
Schizophrenia (Sutcliffe), Brain Damage, Psychopathy (Byrne), Paranoid
Personality Disorder (Martin), Post Natal Depression (Reynolds), Battered
Woman Syndrome (Ahluwalia), Autism, ADHD (Osborne) and Premenstrual
Syndrome (R v (Sadie) Smith 1982).
▪ What if, the defendant is a drug addict or an alcoholic?
▪ 2 Possible Situations defence
▪ 1. The defendant took alcohol or drugs before killing.
alcoholic ▪ Here, the general rule is that intoxication alone will not give the defendant to
plead this defence. That will indeed be absurd. However, in Stewart, the Court of
Appeal indicated that alcohol dependency syndrome (chronic alcoholism) could
be considered a mental condition capable of causing abnormality of mind.
▪ 2. The defendant suffers from abnormality of mind (besides that related to
alcohol) and becomes intoxicated.
▪ This would certainly complicate the matter. In Dietschmann, the House of Lords
ruled that diminished responsibility could be relied upon where a mentally
alcoholic &
suffering from abnormal man killed while intoxicated so long as the mental abnormality played a
another medical
condition part in the killing (jury will usually decide this but one can see that this could be
very difficult).

b. Substantially Impaired D’s Ability To Do One or More of the Things Mentioned

in Subsection (1A)
▪ Note the word ‘substantial’ which suggest AMF must almost overpower the
defendant’s actions.
▪ This is a matter of opinion but this in practise will be easier to establish by
medical experts who can use clinical criteria to determine this.
▪ Previously it was decided by the jury which led to Lloyd which stated, that juries
should be asked to approach the notion of substantial impairment in a broad
common sense way, referring to impairments which are more than trivial but less
that total.
 ▪ In recent cases of Osbourne (2010) and Jackson (2013), murder conviction of
defendant suffering from ADHD and PTSD respectively was upheld showed that
the courts will still analyse the conditions suffered properly and not just assume
that since there was AMF the defendant would have impaired one of those
abilities mentioned in (1A).

c. Provide Explanation for the Killing

▪ Interestingly enough, under the old law, this was not a requirement which means
jury could conclude that a person suffering from AMF would be less likely
responsible for his actions.
▪ The new provision requires the AMF to provide explanation for the defendant’s
acts and omissions in doing or being a party to the killing.
▪ It must form part of the story as to why this killing took place.
▪ The actor’s reason was impaired, she did not fully understand what she was doing,
her self control was lacking and so on and that is why or one of the reasons why
she did what she did.
▪ The again is ultimately a question for the jury to decide.
▪ This will be challenge if there were multiple causes. For example, intoxication and
severe depression.
▪ (This part could form problems for students since you would not have the medical
knowledge, therefore just be careful when writing an answer, if you have any
arguments write them down, if not you could superficially deal with the
requirement in 2 lines).