Criminal Law Lecture 8: Murder and Voluntary Manslaughter

Criminal Law Lecture 8: Murder and Voluntary Manslaughter
By Feruza Bobokulova

Murder Offences against the person fall into two main categories: fatal (unlawful homicide) and non-fatal offences Homicide means the killing of a human being and in some circumstances it may be lawful – for example, in self-defense or during a military operation in war time To be liable for homicide offence, the D must cause the death of a human being

Killing an unborn child can still be an offence, but not a homicide
Murder A human being For the purposes of the homicide offences, a person is a human being when capable of having an existence independent of a mother Killing an unborn child can still be an offence, but not a homicide

Murder A human being In Attorney-General’s Reference (no.3 of 1994), where a man stabbed his pregnant girlfriend, the Court of Appeal stated that there was no requirement that the person who died had to be a person in being when the act causing the death was perpetrated. Thus, if a man injured a foetus and the baby was then born alive, but subsequently died form the injuries, the concept of a ‘human being’ would be satisfied for the purposes of a homicide offence. It would be manslaughter, not murder

Murder Death A person who is already dead cannot be the victim of homicide But the legal definition of death has proved elusive There is conventional death, when the heartbeat and breathing stop. But there is also brain death, when through artificial means the heart continues to beat and air circulates in the lungs Brain death is recognised by the British Medical Association and is the point when life-support machinery will be switched off.

Murder Death In R v Malcherek and Steel (1981) the court held that the death occurred when the victim was brain-dead, but this did not form part of the ratio decidendi of the decision Because there is not fixed definition of ‘death’, the point at which a person dies will be a question of fact for the court to decide in each case

Murder Causation Factual causation Legal causation
Failure to prove causation If the prosecution fail to prove both factual and legal causation of the death, the D will escape liability for murder (or any other unlawful homicide), on the ground that the original injury was not in law the cause of death However, the D may still be liable for the original act, for example, under a charge for a non-fatal offence against the person

Murder There are three types of unlawful homicide: murder, voluntary manslaughter, and involuntary manslaughter The degree of seriousness applied to each offence is essentially a reflection of the D’s state of mind with regard to the killing Murder is the most serious category of unlawful homicide and is designed to apply to those killings which society regards as most abhorrent

Murder The offence of murder is not defined in any statute It is committed under common law where a person causes the death of a human being, with malice aforethought Thus the actus reus comprises the common elements of all homicide offences and the mens rea is malice aforethought

GBH means ‘really serious’
Murder: Mens Rea The mens rea for murder is defined as malice aforethought, which has come to mean either an intention to kill or an intention to cause GBH GBH means ‘really serious’

Murder: Mens Rea Intention is purely subjective
The test of what the D foresaw and intended is always a subjective one, based on what the jury believes the D actually foresaw and intended and not what he or she should have foreseen or intended In DPP v Smith, a police officer tried to stop a car that had been involved in a robbery, by clinging to its bonnet as the car drove off, and was killed. The D said that he did not want to kill the officer; he ahd simply wanted to get away

Murder: Mens Rea Intention is purely subjective
In DPP v Smith, the House of Lords appeared to say that a person intended death or GBH if a reasonable person would have foreseen that death or GBH would result from the act of the D, even if the D did not actually foresee this This objective test changed by s 8 of the Criminal Justice Act 1967 The crucial element is what the D actually foresaw and intended, not what he or she should have foreseen or intended

Murder: Mens Rea Direct intent Indirect intent
In R v Moloney (1985), the D was a soldier who was on leave at the time of the incident that gave rise to his prosecution. He was staying with his mother and stepfather, with whom he was on very good terms. The family held a dinner party, during which the appellant and his stepfather drank rather a lot of alcohol. They stayed up after everyone else had left; shortly after 4 a.m. a shot was fired and the appellant was heard to say, ‘I have shot my father.’

Murder: Mens Rea Indirect intent
The court was told that Moloney and his stepfather had had a contest to see who could load his gun and be ready to fire first. Moloney had been quicker and stood pointing the gun at his stepfather, who teased him that he would not dare to fire a live bullet; at that point Moloney, by his own admission, pulled the trigger. In evidence he said, “I never conceived that what I was doing might cause injury to anybody. It was just a lark.’ clearly he did not want to kill his stepfather, but could he be said to have intended to do so? Lord Bridge pointed out that it was quite possible to intend a result which you do not actually want

Murder: Mens Rea Foresight is merely evidence of intent
Moloney established that a person can have intention where they did not want the result but merely foresaw it, yet the courts are not saying that foresight is intention. Foresight is merely evidence from which intention can be found Lord Scarman said that: ‘… the greater the probability of a consequence, the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended… But juries also need to be reminded that the decision is theirs to be reached upon a consideration of all the evidence’

Murder: Sentence Murder carries a mandatory sentence of life imprisonment under s 1(1) of the Murder Act 1965 In R v Lichniak (2002), the Ds argued that the life sentence was disproportionate to the offence, in breach of art 3 of the European Convention on Human Rights and arbitrary in breach of art 5 of the Convention. These arguments were rejected by the House of Lords

Voluntary Manslaughter
Most unlawful homicides, which are not classified as murder are manslaughter There are two kinds of manslaughter: voluntary and involuntary The basic difference between these two types of manslaughter is that for voluntary manslaughter the mens rea for murder exists, whereas for involuntary manslaughter it does not Voluntary manslaughter occurs where the accused has the necessary actus reus and mens rea for murder, but there are mitigating circumstances, which allow a partial defense, and so reduce liability to that of manslaughter

Partial defence is distinguished form other defences, which remove liability completely It is not therefore possible to charge someone with voluntary manslaughter; they will be charged with murder and must then put their defence during the trial

The three partial defences available are loss of self- control, diminished responsibility, and suicide pacts that were introduced in ss. 2,3, and 4of the Homicide Act 1957 Successful pleading of one of the three mens that on conviction the sentence is at the discretion of the judge and can be anything from life imprisonment to an absolute discharge, depending on the circumstances of the case

Voluntary Manslaughter:Loss of Self-Control
Loss of self-control is a new special and partial defence to murder, introduced by ss 54 and 55 of the Coroners and Justice Act 2009 It replaces the ancient common law defence of ‘provocation’, which was abolished by s 56(1) of the Act. The references in s 54(1) to ‘kills’ and ‘killing’ means that the defence will not be available to a charge of attempted murder. If the defence is successful, D will be found guilty of manslaughter instead of murder (s 54(7))

If D wishes to rely on the loss of self-control defence, they must provide ‘sufficient evidence’ of it The onus is then on the prosecution to disprove it, beyond reasonable doubt (s 54(5)) The 2009 Act states that the evidence must be ‘sufficient’, meaning that the trial judge must be satisfied that a jury, properly directed, could ‘reasonably conclude that the defence might apply’ (s 54(6))

The central issue to the defence is a ‘loss of self-control’, which was also key to the provocation defence Whether or not D has had a loss of selfcontrol will be a question for the jury Unlike the provocation defence, the 2009 Act explicitly states that the loss of control does not need to be ‘sudden’ This was an essential requirement under the old law of provocation (Duffy (1949) The new defence should, therefore, be available in some factual situations where provocation would not have succeeded

The ‘qualifying triggers’ D’s loss of control must be based on one (or both) of two ‘qualifying triggers’: a ‘fear of serious violence from V against D or another identified person’ or ‘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’

Trigger 1: a ‘fear of serious violence’ When will this trigger apply? Two situations present themselves Those who would be unable to plead self- defence because there was an anticipated attack, but no immediate threat, and hence no necessity to use force. This trigger could be used in domestic violence cases

Trigger 1: a ‘fear of serious violence’ Those who would be unable to plead self-defence because, although they were (or believed themselves to be) under attack, they had used excessive force An example given in the Law Commission’s Report (2006) is a householder who reacts spontaneously but with unreasonable force when confronted by an intruder Under the common law, the use of excessive force in self- defence is no defence at all to murder as a result of the House of Lords’ decision in Clegg (1995)

Trigger 1: a ‘fear of serious violence’ There are two important limitations on this trigger First, D must fear violence from V, as opposed to from some third party Second, D must fear that the violence will be used against D or ‘another identified person’ – a phrase not defined in the Act The case of Pearson (1992) illustrates the possible application of this trigger

In Pearson (1992), two brothers, Malcolm (16) and William (17), killed their violent, abusive father by taking it in turns to beat him over the head with a sledgehammer. M had suffered worst, being abused for eight years, during which time W had largely been abroad. However, W had returned home to protect M. M was convicted of manslaughter, but W of murder. On appeal, this was also reduced to manslaughter, on the ground that the judge failed to direct the jury to take account of the effect on W of the father’s treatment of M, even when W had been away

Trigger 2: a thing or things done or said (or both) This trigger covers roughly the same terrain as the old provocation defence, which also required things to be said or done However, the new defence is much narrower than provocation because s 3 of the Homicide Act imposed no further requirements whereas s 55(4) has two: circumstances of an extremely grave character a justifiable sense of being seriously wronged

Trigger 2: a thing or things done or said (or both) In Zebedee (2012), D was charged with the murder of V, his 94- year-old father, who had Alzheimer’s and was doubly incontinent. V lived with D’s sister, but D would often stay at her house to help out. One night, D punched and strangled V to death. D did not deny the killing but pleaded loss of control. He claimed that V had soiled himself during the night, after which D had cleaned him up, only for V to soil himself again only 20 minutes later, which had triggered D’s loss of self-control. The defence was rejected and D was convicted of murder. The Court of Appeal upheld the conviction.

A combination of triggers A loss of self-control triggered by a combination of both ‘fear of serious violence’ and ‘things done or said’ will also suffice The provocation case of Humphreys provides an example where both ‘qualifying triggers’ may have been present. D believed that V (her violent boyfriend/pimp) and his friends were going to gangrape her and hence she probably had a ‘fear of serious violence’; she also claimed that V had mocked her failed suicide attempt – this is a ‘thing said’ which could constitute ‘circumstances of an extremely grave character’ and give D a ‘justifiable sense of being seriously wronged’.

Self-inflicted triggers may not be relied upon Even if D has a ‘fear of serious violence’ or a ‘sense of being seriously wronged by a thing done or said’ and has a loss of self-control resulting in V’s death, he will not be able to rely on the new defence if the trigger was self-inflicted, that is, if D ‘incited’ something to be done or said ‘for the purpose of providing an excuse to use violence’ D will still be able to rely on either or both triggers if the violence that he fears or the things said and/or done were inadvertently self-induced

The ‘normal’ person test The 2009 Act requires that, whichever trigger is relied upon, 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’ This confirms the common law principles established in the context of provocation In DPP v Camplin (1978), Lord Diplock said that D’s reaction should be tested against a ‘person having the power of self-control to be expected of an ordinary person of the sex and age’ of D

The ‘normal’ person test The reference to a ‘normal degree of tolerance’ means that any irrational prejudices such as racism and homophobia are excluded, while the reference to a ‘normal degree of self-restraint’ means that characteristics such as bad temper and pugnacity are excluded from the ‘normal person’ test.

‘In the circumstances of D’ However, the ‘normal person’ must be placed in ‘the circumstances’ of D This reflects the common law development in the provocation defence that in certain cases D’s characteristics may be taken into account in determining the reaction to provocation of the ‘reasonable man’ Placing the ‘normal person’ in D’s circumstances is likely to be applicable more to trigger 2, specifically the requirement that the things said and/or done constituted circumstances ‘of an extremely grave character’

‘Might have reacted in the same or in a similar way to D’ It is not enough for the jury to be satisfied that the ‘reasonable man’ might have lost self-control – they had to be satisfied that the reasonable man might have gone on to kill V in the same way that D did Under the 2009 Act, the jury will have to consider whether the ‘normal person’ might have ‘reacted’ in the same or in a similar way to D

VM:Diminished Responsibility
The defence of diminished responsibility (DR) evolved at common law in the courts of Scotland and was introduced into English law by s 2 of the Homicide Act 1957 That section was amended by s 52 of the Coroners and Justice Act 2009, and it now provides that:

‘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 recognized 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; (c) to exercise self-control. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.’

DR is a ‘special’ defence in that it is purely a defence to murder This allows the trial judge more discretion in terms of sentencing than he would have were D to be convicted of murder, because of the mandatory life sentence D bears the burden of proving DR on the balance of probabilities

A successful defence results in a verdict of not guilty to murder but guilty of manslaughter Some defendants may receive an absolute discharge, others probationary or suspended sentences, while in appropriate circumstances some will receive hospital or guardianship orders under s 37(1) of the Mental Health Act 1983. Others may still face imprisonment, with some receiving life sentences for manslaughter (about 15 per cent of cases)

Pleading guilty to manslaughter on grounds of DR D may plead guilty to a charge of manslaughter on the ground of DR. Such a plea would be proper ‘where the medical evidence available, in the possession of the prosecution as well as the defence, showed perfectly plainly that the plea’ was one that could properly be accepted The plea was refused in the following case

In Walton (1978), D shot and killed a random stranger, a 16-yearold girl. Charged with murder, he pleaded DR. Two defence medical experts described D as ‘retarded in certain respects’, suffering from ‘an extremely immature personality’ and ‘having an inadequate personality enhanced by emotional immaturity and low tolerance level’. The jury, however, rejected the defence. The Privy Council rejected D’s appeal. Lord Keith said that the jury was entitled to regard the medical evidence as ‘not entirely convincing’.

Importance of medical evidence Medical evidence is crucial to the success of the defence The Court of Appeal in Dix (1982) declared that medical evidence was a ‘practical necessity if the defence is to begin to run at all’ The jury were not, however, bound to accept that evidence if there was other material, which, in their opinion, conflicted with and outweighed the medical evidence Occasionally, the jury may be faced with conflicting medical evidence. They are then required to weigh up and choose between the different opinions

Operation of the defence Section 2(1) breaks down into four components: There must be an ‘abnormality of mental functioning’. It must arise from a ‘recognised medical condition’. D must have a ‘substantially impaired’ ability to understand the nature of their conduct, or form a rational judgement, or exercise self-control The abnormality must provide an ‘explanation’ for D’s acts and omissions in doing or being a party to the killing

Operation of the defence There are no further requirements nor exceptions In Matheson (1958) it was accepted that the fact that a killing was premeditated did not destroy a plea of DR and this remains the position today.

it is not unreasonable to expect that the courts will accept the following conditions as recognized medical conditions: Adjustment Disorder Alcohol Dependence Syndrome Asperger’s Syndrome Battered Woman Syndrome Depression Epilepsy Othello Syndrome, a form of extreme jealousy Paranoia Premenstrual Tension and Postnatal Depression Psychopathy Schizophrenia

Diminished responsibility and intoxication It is now well established that a state of intoxication on its own cannot be used to support a plea of DR In Dowds (2012), D and his girlfriend, V, were both ‘habitual, heavy binge drinkers’. One night, D stabbed V 60 times, mostly in the neck, severing the carotid artery causing her to bleed to death. At the time, both had drunk a lot of vodka. At his murder trial, D did not deny being the killer but pleaded lack of intent due to intoxication and/or loss of control. The jury rejected both of these and he was convicted of murder. D appealed, arguing that DR, based on a state of ‘acute intoxication’, should have been left to the jury. The Court of Appeal disagreed and upheld his murder conviction.

Diminished responsibility and intoxication However, what is the situation where D suffers from an underlying abnormality of mental functioning (eg, depression) and kills whilst intoxicated? This issue has arisen on several occasions, and the courts have taken a consistent line: a plea of DR may not be supported with evidence of voluntary intoxication The trial judge should direct the jury to ignore the effects of the intoxication and consider whether the medical condition on its own would have been enough to amount to an abnormality of mental functioning

In Gittens (1984), D was suffering depression and had, on the night in question, consumed a large amount of drink and antidepressant pills. In this state he clubbed his wife to death with a hammer and then raped and strangled his 15-year-old stepdaughter. He was convicted of murder but the Court of Appeal allowed his appeal, on the basis that the underlying depression may on its own have amounted to an ‘abnormality of mind’. The Court did stress, however, that the jury should be directed to disregard the effect (if any) on D of any alcohol or drugs consumption.

Diminished responsibility and alcoholism Different rules apply where it is suggested that D’s ‘abnormality of mental functioning’ was itself caused by long-term alcohol and/or drug abuse, and that D has developed a medical condition, sometimes known as Alcohol Dependence Syndrome (ADS) In Fenton (1975), Lord Widgery CJ in the Court of Appeal envisaged the possibility that a craving for drink or drugs could produce an ‘abnormality of mind’

Diminished responsibility and alcoholism In Tandy (1989), Watkins LJ held that alcoholism on its own would not suffice for a plea of DR Instead, it would have to be proved (by the defence) that either D’s alcoholism ‘had reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of … judgment and emotional responses’ or, if not, that D’s ‘drinking had become involuntary, that is to say she was no longer able to resist the impulse to drink’.

However, in recent decisions, the Court of Appeal has shown more sympathy for defendants who kill whilst suffering from ADS. In Wood (2008) After a day’s heavy drinking, Clive Wood killed V in a frenzied attack with a meat cleaver. At Wood’s murder trial, four psychiatrists agreed that Wood suffered from alcohol dependence syndrome, but the trial judge told the jury that a verdict of manslaughter based on DR was only open to them if D’s consumption of alcohol was truly involuntary, and that simply giving into a craving for alcohol was not involuntary drinking. D was convicted of murder but the Court of Appeal quashed his conviction and substituted a verdict of manslaughter.

Voluntary Manslaughter: Suicide Pacts
S 4 of the Homicide Act 1957 states that: “It shall be manslaughter and shall not be murder for a person acting in pursuance of a suicide pact between him and another to kill the other or be party to the other being killed by a third person” Suicide was once a crime. This is no longer the case, but when the offence was abolished, the crime of aiding and abetting suicide remained

Voluntary Manslaughter: Suicide Pacts
Where someone dies due to acts of another and that person intended to cause the death, he or she could be liable for murder Where the person can show that the death was a suicide and was part of a pact in which that person too intended to die, liability will be reduced to manslaughter It is for the defence to prove this, on a balance of probabilities

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Criminal Law Lecture 8: Murder and Voluntary Manslaughter

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