Published: Wed, 07 Mar 2018
HOMICIDE – 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.
HOMICIDE ACT 1957
If the defendant can prove on a balance of probabilities a defence of diminished responsibility, he will be guilty of manslaughter rather than murder under s2(1) of the Homicide Act 1957 which 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.”
1. ABNORMALITY OF MIND
An abnormality of mind is a state of mind which the reasonable man would consider abnormal. It is thus defined widely. The meaning of the phrase was considered by the Court of Appeal:
R v Byrne  2 QB 396. The defendant had strangled a young woman and then mutilated her body. He claimed he was subject to an irresistible or almost irresistible impulse because of violent perverted sexual desires which overcame him and had done so since he was a boy. There was evidence that he was a sexual psychopath, and could exercise but little control over his actions. The defence of diminished responsibility was rejected by the trial judge, and the defendant was convicted of murder. The Court of Appeal allowed the defendant’s appeal on the basis that the trial judge had been wrong to exclude, from the scope of the defence, situations where a defendant was simply unable to exercise any self-control over his actions. (This would cover the irresistible impulse situation.) Lord Parker CJ stated:
‘”Abnormality of mind”… means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgement.’
His Lordship pointed out that whether the defendant was suffering from any “abnormality of mind” is a question for the jury. On this question medical evidence is of importance but the jury are entitled to take into consideration all the evidence including acts or statements of the defendant and his demeanour. They are not bound to accept the medical evidence, if there is other material before them which, in their judgement, conflicts with it and outweighs it. The cause of the abnormality of mind does, however, seem to be a matter to be determined on expert evidence.
2. HOW THE ABNORMALITY ARISES
This is very widely defined. It covers:
- (a) A condition of arrested or retarded development of mind,
- (b) Any inherent causes
- (c) Disease or injury.
Although this excludes drink or drugs it does cover disease caused by long term alcoholism or drug-taking. Alcoholism is enough if it injures the brain, causing impairment of judgement and emotional responses, or causes the drinking to become involuntary.
3. THE EFFECT OF THE ABNORMALITY OF MIND
The abnormality of mind must substantially impair the defendant’s mental responsibility. The impairment therefore need not be total, but it must be more than trivial or minimal. The defendant may know what he is doing, know it is wrong, and have some control over himself but find it substantially more difficult than a normal person would to control his actions.
- 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… “.
4. DIMINISHED RESPONSIBILITY AND INTOXICATION
The fact that a defendant might have been drunk at the time of committing a murder is largely irrelevant to the issues of diminished responsibility, as it will not constitute an “inherent cause” within s2:
R v Gittens  QB 698. The defendant suffered from depression and had been in hospital. On a visit home he had an argument with his wife and he clubbed her to death. He then raped and killed his step-daughter. He had been drinking and taking drugs for medication. The Court of Appeal suggested that where the jury had to deal with both diminished responsibility and intoxication, they should be directed to consider:
(1) whether the defendant would have killed as he did without having been intoxicated, and if the answer to that was yes, (2) whether he would have been suffering from diminished responsibility when he did so.
5. BURDEN OF PROOF
Section 2(2) states clearly that the burden of proving the defence rests upon the defendant. Given that the standard of proof which the defendant has to achieve is the balance of probabilities, he will have to obtain cogent medical evidence as to his condition.
If successfully pleaded, the defence avoids the imposition of a mandatory life sentence and enables the court to give whatever sentence is regarded as appropriate. This can include a hospital order under s37 of the Mental Health Act 1983 thus ensuring treatment not punishment in appropriate cases. (This is now imposed in approximately one-third of diminished responsibility cases.)
Provocation is a common law defence which has been modified by s3 of the Homicide Act 1957 which 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.”
Section 3 does not state the effect of a successful defence – it is by virtue of the common law that the offence is reduced to manslaughter.
The procedure is as follows:
- (1) Once the judge has decided there is sufficient evidence that the defendant was provoked, whether or not the defence has been raised expressly by the defendant, he must leave it to the jury to answer the questions:
- (2) Was the defendant provoked to lose his self-control?, and
- (3) Was the provocation enough to make a reasonable man do as he did?
1. EVIDENCE OF PROVOCATION
Section 3 places an evidential burden on the defendant. He must raise sufficient evidence of provocation for the judge to leave the defence to the jury. Whether the defendant has produced sufficient evidence is a matter of law for the trial judge alone to decide. This evidence can be provided by any witness at the trial, not necessarily by the defendant alone. Since the 1957 Act, it has been capable for anything to constitute provocation, including words alone, actions by third parties, and provocation directed at third parties. For example:
R v Doughty  Crim LR 625. The defendant had killed his baby and wanted to argue that he had been provoked by the child’s persistent crying. On appeal it was held to be a misdirection for the trial judge to tell the jury that the persistent crying of a 17 day old baby could not constitute provocation, and therefore quashed the murder conviction and substituted a conviction for manslaughter. The jury should have been directed to consider how the reasonable man would have responded.
2. WAS THE DEFENDANT PROVOKED?
The first element of the provocation test is subjective – the requirement that the defendant must be shown to have actually lost his self-control. If there is evidence that his actions were premeditated, or that he had been able to compose himself between the provocation and the killing, then the defence cannot be left to the jury.
Where there is a gap in time between the provocation and the killing (described as “cooling time”), the defendant may encounter difficulties in trying to establish the defence of provocation:
R v Ibrams and Gregory (1981) 74 Cr App R 154. The defendants and a young woman had been terrorised and bullied by the deceased, over a period of time but the last act occurred on 7 October. On 10 October they devised a plan which involved the woman enticing the deceased to her bed, whereupon the defendants would burst into the room and attack him. The plan was carried out on 12 October. The defendants were convicted of murder and on appeal it was held that the judge was right to rule that there was no evidence of loss of self-control. Lawton LJ expressed the view that the time gap between the last act of provocation and the killing refuted any evidence that it had been carried out by the defendants suffering from a sudden and temporary loss of self-control as envisaged by Devlin J in Duffy .
The Court of Appeal recently made it clear that a defence of provocation can succeed if there is a series of incidents over time which drove the woman to murder:
3. THE REASONABLE MAN TEST
Having decided that the defendant was provoked, the jury must decide whether a reasonable man would have acted as the defendant did – the objective test. The reasonable man is attributed with the defendant’s particular characteristics which might be relevant to the provocation:
DPP v Camplin  AC 705. The defendant was a 15 year old boy who, having been buggered by the deceased, was then taunted by him. The defendant killed the deceased by hitting him over the head with a heavy frying pan. He was convicted of murder following a direction by the trial judge to the jury that they were to judge him by the standards of the reasonable adult, not by a reasonable 15 year old boy. The Court of Appeal allowed the defendant’s appeal on the basis that the more subjective test, which took account of the defendant’s age, should have been applied. This was endorsed by the House of Lords.
- Lord Diplock gave the following definition of the reasonable man: “… the “reasonable man” has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.”
- The judge should, according to Lord Diplock, explain to the jury that the reasonable man referred to in the section is a person having the power of self-control to be expected of an ordinary person of the sex and age of the defendant, but in all other respects showing such of the defendant’s characteristics as they think would affect the gravity of the provocation to him. The question is not merely whether such a person would in the circumstances be provoked to lose his self-control but also whether he would react to the provocation as the defendant did.
- Hence, whilst the age and sex of the defendant would always be attributed to the reasonable man, other characteristics such as racial origin, or physical peculiarity, would only be considered to the extent that they were relevant. Thus in the present case, the reasonable man would be the reasonable 15 year old, as the defendant’s youth was a relevant characteristic. As certain characteristics such as intoxication or excitability would be ignored for policy reasons, the defendant’s drunkenness was irrelevant.
The House of Lords more recently had to decide whether the judge should exclude from the jury’s consideration characteristics and past behaviour of the defendant at which the taunts are directed, which in the judge’s view are inconsistent with the concept of a reasonable man.
4. SELF-INDUCED PROVOCATION
If the defendant induces the provocation by some act of his own the defence will still be available.
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.
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.
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