Voluntary Manslaughter
When a defendant has caused a victim's death, and has been proved to have had the necessary mens rea for murder, he may be able to avoid a conviction for murder by establishing that he comes within the scope of the defence of either: Diminished responsibility, Provocation, Suicide Pact or Infanticide.
In each case, if the defendant succeeds with the defence, his liability is reduced from murder to manslaughter, the sentence for which is at the discretion of the judge. This form of manslaughter is described as "voluntary" because there will have been evidence that the defendant did intend to kill or cause g.b.h., but certain kinds of extenuating circumstances partially excuse his conduct.
PROVOCATION
This defence to murder is contained in s3 of the Homicide Act 1957 and reduces murder to manslaughter. Section 3 provides:
“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”
Evidence
The judge must decide if there is any evidence of provocation to go before the jury. A person can be provoked by “things done or by things said”. A case example is Doughty, where the defendant killed his baby because of its constant crying.
Loss of Self-Control
The jury must then decide if there was a loss of self-control on the part of the defendant. They will be directed to apply the Duffy test and ask if there was a “sudden and temporary” loss of self-control. Where there is evidence of “cooling time”, it may be difficult for a defendant to establish provocation. For example:
- Duffy – a victim of domestic violence left the room her husband was in, changed her clothes and, returning with a hammer and a hatchet, killed her husband who was in bed. Her conviction for murder was upheld.
- Ibrams & Gregory;
- Ahluwalia; and
- Thornton
If there is a series of incidents over time which drives the defendant to kill, the defence will still be available according to:
- Humphreys – the defendant was physically and mentally abused by the deceased. The Court of Appeal held that the trial judge should have analysed the various strands of provocation from their first meeting until the victim’s death. It was insufficient to look only at the final taunts. A BBC News article is also available about this case.
- Thornton (No. 2) – The Court of Appeal stated that a jury may find that there was a sudden and temporary loss of control triggered by a minor incident if the defendant had endured abuse over a period of time, on the “last straw” basis.
The Reasonable Man Test
The jury must decide whether a reasonable man, sharing the defendant’s characteristics, would have acted as the defendant did. This leads to the question of what may be a relevant characteristic. In DPP v Camplin, the House of Lords stated that the reasonable man is:
- A person of the same sex and age;
- Not excitable or pugnacious (ready to fight);
- Has the powers of self-control expected from fellow citizens; and
- Has those characteristics which affect the gravity of the provocation.
- Other characteristics, such as racial origin or physical peculiarity, will only be considered if they are relevant. Intoxication will be ignored.
In Morhall, where the defendant was taunted about his glue-sniffing addiction, the House of Lords held that this could be taken into account (as opposed to being high on glue).
In Holley, a specially convened Judicial Committee of the Privy Council held that the House of Lords’ decision in Morgan Smith, that characteristics such as a depressive illness affecting a person’s level of control were relevant, was wrong.
Self-Induced Provocation
If the defendant induces the provocation by some act of his own the defence will still be available according to the Court of Appeal decision in Johnson.
DIMINISHED RESPONSIBILITY
This defence to murder is contained in s2 of the Homicide Act 1957 and reduces murder to manslaughter. Section 2 provides:
"Where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”
The defendant must establish three things, on the balance of probabilities:
Abnormality of Mind
This phrase was explained in Byrne. Lord Parker CJ stated that it means “… a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”.
This is decided by the jury. See the BBC News article: When jurors have to judge sanity.
A case example is Ahluwalia, where the defendant was suffering from "battered woman syndrome". Watch a BBC News video clip about the Ahluwalia film.
Cause
The abnormality of mind must be caused by one of the following:
- A condition of arrested or retarded development of mind;
- Any inherent causes (relevant to the cases under “abnormality of mind”);
- Disease (physical or mental); or
- Injury.
Substantial Impairment of Responsibility
The abnormality of mind must substantially impair (weaken) the defendant’s mental responsibility. In R v Egan, the Court of Appeal approved the following direction on the meaning of “substantial” impairment, to the effect that the jury should approach the word in a broad common sense way, and that the word meant “more than some trivial degree of impairment which does not make any appreciable difference to a person’s ability to control himself, but it means less than total impairment …”.
Intoxication and Diminished Responsibility
In R v Dietschmann, Lord Hutton suggested that a jury should be directed along the following lines where self-induced intoxication was present in conjunction with an abnormality of mind:
You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant’s mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink.
If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him.
SUICIDE PACT
Section 4 of the Homicide Act 1957 introduces the defence of suicide pact:
"(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between himself and another to kill the other or be a party to the other killing himself or being killed by a third person.
(2) For the purposes of this section 'suicide pact' means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact."
This defence would be used in a situation where A and B agree to end their lives by each injecting the other with a massive drug overdose at the same time. The plan is carried out, and A dies, but B is found by C and rushed to hospital, and is saved. B caused the death of A deliberately and is prima facie guilty of murdering him, but B would be able to avail himself of s4, provided he can show the purpose of the agreement with A was that they should both die, and that when he injected A with the drug, he himself was under a 'settled expectation' of dying.
INFANTICIDE
Section 1(1) of the Infanticide Act 1938 provides that where a woman kills her child before it reaches 12 months in age, and there is evidence to show that at the time of the killing the balance of her mind was disturbed by: the effect of giving birth, or the effect of lactation consequent upon giving birth to the child, a jury is entitled to acquit her of murder, but find her guilty instead of infanticide.
The defence is clearly designed to provide for women who may be very seriously affected by post-natal depression. Note that it would not provide a defence to a woman suffering from post-natal depression who killed one of her older children, but it is arguable that she would raise diminished responsibility in such circumstances.
REFORM
BBC News article: Murder law consultation unveiled.
Visit the Law Commission website for the 2006 Report on Murder, Manslaughter and Infanticide (LC304).
See also, the Ministry of Justice press release: Government launches consultation into review of murder law.