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Law 2160 Voluntary Manslaughter Notes
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Criminal LawTopic 6- Voluntary Manslaughter
Voluntary Manslaughter
D has the mens rea for murder and performed the actus reus of murder but is able to plead a partial
defence
Two partial defences available to a charge of murder
1. Loss of Control AND
2. Diminished Responsibility
If established, they reduce a possible conviction for murder to one of voluntary manslaughter.
Consider the following two scenarios:
Do the individuals deserve to be:
a) Convicted of murder?
b) Convicted of manslaughter?
c) Acquitted?
Murder, Manslaughter or Acquittal?
David comes home from work to find his wife engaged in sexual relations on the kitchen table with
the next door neighbour. He is so upset at this that he loses his temper and takes a kitchen knife and
stabs both of them to death.
Mary has been sexually and physically abused by her husband for ten years. Two days after a
particularly savage beating, Mary loses control of her temper and kills her husband while he is
sleeping by pouring oil over him and lighting it.
The Partial Defence of Loss of Control
Replaces Provocation; Previous law of Provocation:
It had to be shown that:
1. D was provoked by something said or done so as to lose self-control; and
2. a reasonable person would have been provoked to lose his self control and do as D did
Problems with the law on Provocation
1. Concept of Provocation had become too loose:
Doughty – crying baby
Weller – wife packing her bags to leave
Bisla – nagging wife
, 2. Women who killed were excluded: worked well for violent and angry men. Women excluded
because criteria was:
Duffy – sudden loss of control; there has to be an immediate reaction with legal violence to
provocation, in this case it is the woman who kills her partner after a long history of domestic abuse,
unless a woman kills immediately with the most violent reaction, she cannot rely on laws of
provocation, there is a belief that women cannot react suddenly due to conditioning.
Thornton – BWS may explain why a ‘minor’ incident triggered the loss of control – idea of ‘last
straw’. Loss of control need not be immediate but must be a sudden loss of control at time of killing.;
stabbed husband after years of violence, she is threatened and so kills him first with a knife she had
previously just been to sharpen in the kitchen. It was argued the process of getting the knife and
sharpening is a cooling off period and so does not equate to a loss of control as it is not sudden.
Ahluwalia – slow burn anger; 10 years of violent marriage, husband threatens to attack, when he
goes to sleep, she pours petrol around the bedroom and sets him on fire. Surely this shows
premeditation and no loss of control. Here there is no calming period, the anger is instead building
up.
Both cases attempt to include women more in the law. It was argued that the law was overly
sympathetic to angry men who killed their nagging wives and not sympathetic enough to frightened
women who killed their abusive partners
Women who killed were excluded:
Hard to satisfy the reasonable persons test:
R v Smith (Morgan) (comments obiter)- Lord Clyde: The reasonable person in such a case [domestic
violence] should be one who is exercising a reasonable level of self-control for someone with her
history, her experience and her state of mind.
AG for Jersey v Holley - Lord Nicholls: The jury will then decide whether in their opinion, having
regard to the actual provocation and their view of its gravity for the defendant, a woman of her age
having ordinary power of self-control might have done what the defendant did.
Problems with the law on Provocation – continued:
3. Objective reasonable person test became overly complicated and arguably too subjectivised:
Could the reasonable man share characteristics of D if relevant:
(1) to powers of self control,
(2) Relevant when considering the gravity of the provocation?
Was there a constant standard of self control applied to all?
Morhall – reasonable glue-sniffer
Problems with the Reasonable Person test
Smith (Morgan) – Lord Clyde: Society should require that he exercise a reasonable control over
himself, but the limits within which control is reasonably to be demanded must take account of
characteristics peculiar to him which reduce the extent to which he is capable of controlling himself.
, This pushed towards a more subjective version of this test. Characteristics impacting powers of
control should be considered. We blurred boundaries of diminished responsibility and provocation
which shouldn’t be accepted.
Holley – Lord Nicholls: Under the statute the sufficiency of the provocation … is to be judged by one
standard, not a standard which varies from defendant to defendant.
Problems with the law on Provocation- continued
4. The rationale of the defence seemed to shift from justification to excuse and for some this
undermined the validity of the defence as a whole
To reduce murder to manslaughter due to anger is justified. Loss of control was supposed to be
looking for a justified sense of being wrong and anger.
Parameters of Loss of Control Defence
A defence only to murder
A partial defence only – reduces Murder to Manslaughter (LC recommendation – Second Degree
Murder)
D must produce some evidence of loss of control for the defence to be considered but burden of proof
remains on prosecution
Loss of Control: Judge as Gatekeeper
Section 54(6) Coroners and Justice Act 2009:
Now the judge can decide whether a case goes ahead, the judge now decides if the defence should be
allowed to be put forward, unlike previously such as Doughty etc, where it was simply just heard.
R v Clinton – common sense judgment based on all of the evidence
R v Dawes, Hatter, Bowyer – must have evidence of all elements of the defence
R v Gurpinar – judge must analyse evidence closely
Prevents trivial cases being run, the judge acts as the gatekeeper to prevent this.
Loss of Control- Coroners and Justice Act 2009:
Section 56 – abolishes provocation
Section 54 sets out the loss of control defence; Section 54 - Three stage test:
1. D lost self-control;
2. The loss of control was caused by a ‘qualifying trigger’; and
3. A person of D’s age and sex with a normal degree of tolerance and self-restraint and in the
circumstances of D might have reacted in the same/similar way
1. The D must lose self-control
Loss of control need not be the result of anger (although this is often the case), this can accommodate
women more by recognising other emotions such as grief, despair or depression- possibly enabling
battered women, mercy killers to more easily establish the defence??
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