Voluntary manslaughter PDF

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Voluntary manslaughter ■ Murder - when there is a death, always start with murder! if for some reason a murder charge does not succeed, we consider: ■ Manslaughter ■ No single set of rules; can be committed in a number of ways. Two distinct categories: § Voluntary manslaughter (yes mens rea for murder) § Involuntary manslaughter (no mens rea for murder) § (in both of these the AR for murder is complete) § Voluntary manslaughter involves a partial defence to murder § Involuntary manslaughter involves a separate offence (next week!) Ø There are also many statutory manslaughter offences e.g. corporate manslaughter, death by dangerous driving, etc Partial defences 1. Loss of self-control: D kills while out of control owing to fear of serious violence or a justifiable sense of being seriously wronged (Coroners and Justice Act 2009, s54); 2. Diminished responsibility: D’s recognised medical condition led to an abnormality of mental functioning and caused her to kill (Homicide Act 1957, s2) Ø (Note these are only available on a Murder charge). ■ LoC and DR are often argued, but will only be put to the jury if the judge is satisfied there is sufficient evidence for the jury (Gurpinar [2015]) ■ Where the defence raise LoC or DR, the prosecution will seek to disprove one of the elements of these defences beyond reasonable doubt ■ Loss of Control Sections 54 & 55, Coroners and Justice Act 2009 54(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if — (a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control, (b) the loss of self-control had a qualifying trigger, and (c) a person of D's sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of D, might have reacted in the same or in a similar way to D… (7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter. ■ Where the defence raise LoC, the prosecution must disprove one of the elements beyond reasonable doubt (a)D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control ■ The defence does not apply if ‘in doing or being a party to the killing, D acted in a considered desire for revenge.’ (s.54(4)) Evans [2012]; NOTE: significant hurdle for ‘battered wives’ ■ It does not matter whether or not the loss of control was sudden. ( s.54(2)) ■ D must have actually lost control. • Jewell [2014] ‘extreme emotion and/or loss of rationality’; ‘loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning’

■ Battered wives’ or abuse and killing Ahluwalia [1992] (pre-Coroners & Justice Act 2009) ■ D had killed her husband after years of abuse, setting fire to him while he was asleep ■ The old defence of Provocation used to require loss of control to be ‘sudden and temporary’ so the defence failed (she could use diminished responsibility bec of depression) ■ Is the new defence better? Not sure! ■ Jewell [2014] D killed V after prolonged abuse. Hadn’t slept for days, acted in dreamlike state. Killed V point blank. Had brought ‘survival kit’. ■ CA: the planning that preceded the killing undermined a claim of loss of control. (b) the loss of self-control had a qualifying trigger ■ i) a fear of serious violence from V against D or another (s.55(3)) [subjective], or ■ ii) a thing or things done or said (or both) which constituted circumstances of an extremely grave character, and caused D to have a justifiable sense of being seriously wronged (s.55(4)). [partly subjective and objective] ■ Or a combination of the two (s.55(5)). [note difference/self-def.] ■ Trigger cannot be: D consciously caused the conditions of her own defence; or sexual infidelity (s.55(6)). • Dawes & Ors [2013] consciously provoking retaliation?; Clinton [2012] where sexual infidelity isn’t the sole trigger • (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 in a similar way to D. • In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint. (s.54(3)) • Asmelash [2013] where D and V had been drinking and arguing all day resulting in D killing V, D’s intoxication was rightly excluded. BUT what about e.g. mental illness? • Diminished Responsibility • Homicide Act 1957 (as amended): • s. 2(1): A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which — • (a) arose from a recognised medical condition, • (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and • (c) provides an explanation for D's acts and omissions in doing or being a party to the killing. • (1A) Those things are— • (a) to understand the nature of D's conduct; • (b) to form a rational judgment; [or] • (c) to exercise self-control.

(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter. • DR Schematically: • A. D must demonstrate an abnormality of mental functioning • B. the abnormality must arise from a recognised medical condition • C. the abnormality must have substantially impaired D’s ability to: • Understand the nature of her conduct, or • Form a radical judgment, or • Exercise self-control • D. the abnormality must provide an explanation for (cause0 the killing 1. D must demonstrate an abnormality of mental functioning (s.2(1)) • Byrne (1960) 44 Cr App R 246 • The abnormality must have arisen from a recognised medical condition (s.2(1)(a)) • World Health Organisation’s International Classification of Diseases (ISD-11) or the US version, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) Excluded, e.g.: • Extreme drunkenness ( Dowds [2012]) • Developmental immaturity • The abnormality must have substantially impaired D’s ability to (s.2(1)(b)): i) understand the nature of her conduct; or ii) form a rational judgment; or iii) exercise self-control (s.2(1A)) R v Golds [2016] UHSC: ‘substantial is an ordinary English word’; ‘more than merely trivial, but not necessarily anything more than trivial will suffice’ •

Rejmanski (Bartosz) [2017] ■ R killed his housemate after an argument. ■ R was drunk and suffered from PTSD having served in the military in Afghanistan. ■ His defence argued LoC. Crown court: Jury has to assess whether 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. Judge did not direct jury to take PTSD into account. Convicted of murder. ■ Appeal Court: D must be compared against a normal person, in D’s circumstances of having served in Afghanistan and being taunted about this....