Tutorial 7: Murder and Voluntary Manslaughter

Key Cases:
R v Cunningham [1982] A.C. 5668; Hyam v. D.P.P. [1975] A.C. 55; R v Moloney [1985] 1 All
E.R. 1025; R v Hancock and Shankland [1986] 1 All E.R 641; R v Woollin [1999] AC 82; Re A
(Conjoined twins) [2000] 4 All ER 961; R v Mathews and Alleyne [2003] 2 Cr. App. R 30; R
(Nicklinson and Lamb) v Ministry of Justice and R (AM) v DPP [2013] EWCA Civ 961;
Nicklinson v UK (2015) 61 EHRR 360; R v Ahluwalia [1992] 4 All ER 889; R v Clinton, Parker
& Evans [2012] EWCA Crim 2; R v Dowds [2012] EWCA Crim 281; R v Dawes, Hatter,
Bowyer [2013] EWCA Crim 322; R v Asmelash [2013] EWCA Crim 157; Golds (2014) EWCA
248.
Presentation:
The Law Commission (LAW COM No 304) MURDER, MANSLAUGHTER AND
INFANTICIDE (2006) (Be prepared to discuss the major recommendations of the Law
Commission with regard to reforming the structure of murder and partial defences thereto).
Reading:
Herring, Criminal Law, pp. 230-268, 288-321 (72 pages)
Matthew Gibson, “Diminished Responsibility in Golds and Beyond: Insights and Implications”
(2017) 7 Criminal Law Review 543-553. Available on QMplus (11 pages)
Questions:
1. When will a person not be guilty of murder although (s)he acted knowing that that
act would virtually certainly cause the death of or serious injury to the deceased?

- A defendant who successfully pleads loss of control or diminished responsibility to

a charge of murder [partial defence]

Loss of control
- Replaces the common law partial defence of provocation – s54 of the Coroners and
Justice Act 2009
- Defendant must prove that he had lost self-control, loss of self-control caused by a
qualifying trigger, person of defendant’s age and sex with a normal degree of
tolerance and self-restraint would have reacted in the same way
1) Loss of control
- Subjective question – whether the defendant actually lost his self-control rather than
considering whether a reasonable person would have lost his self-control
- Loss of self-control cannot require that the defendant has completely lost control of
he actions or was so angry that she was not aware of what she was doing
- Knows what they are doing – severely impaired powers to restrain themselves from
acting
- Acts out of a desire for revenge – defence will not be available s54(4)
- No need for loss of self-control to be sudden (s54(2)) – longer the time lapse after the
trigger the more likely it is that the jury will decide that the trigger did not cause the
loss of control

2) Qualifying trigger
- Thing said or done must fall within one of the 3 categories in s55 – fear of serious
violence, extremely provocative act, combination of both
a) Fear of serious violence
- Fear of serious violence, need not show violence
- S55(3) – threat of violence can be to D or another person
- S55(6)(a) – D cannot rely on this trigger if what caused the fear of violence was a
thing which D incited to be done or said for the purpose of providing excuse to use
violence
- Must be a loss of self-control
b) Extremely provocative act
- D is facing circumstances of an extremely grave character and has a justifiable sense
of being seriously wronged
- Circumstances of grave character – must have been unusual – Dawes – ending of a
relationship would not itself normally amount to a qualifying trigger
- S55(6)(b) – D cannot rely on something said or done if he incited it for the purpose of
providing an excuse to use violence
- S55(6)(c) – sexual infidelity is not a thing said or done that can amount to a
qualifying trigger
- R v Clinton – D’s wife admitted to him that she had been having an affair and
described in detail various sexual encounters she had had. He told his wife he was
going to commit suicide and she replied that he had not got the balls to do it. He
killed his wife after beating her around the head with a baton and strangling her –
where a situation involves pure sexual infidelity, s55(6)(c) applies; cannot amount to
a qualifying trigger – mixed case where sexual infidelity plus other facts, sexual
infidelity can be taken into account where it is integral to the facts as a whole, being
one of the factors which caused the defendant to lose control [can only provide
context for a permitted trigger, not becoming the trigger]

3) Person of defendant’s age and sex with a normal degree of tolerance and self-
restraint would have reacted in the same way
- R v Ahluwalia – entered an arranged marriage, suffered many years of violence and
abuse, one evening husband threatened to attack her, while he was asleep, Ahluwalia
poured petrol over him and set it alight, husband died.

Diminished responsibility
- 3-part test
 - D must show that he or she suffered from an abnormality of mental functioning,
arising from a recognised medical condition, which provides an explanation for
committing the killing. It must be shown that the abnormality substantially impaired
his or her ability to understand the nature of his conduct from a rational judgment and
exercise self-control.

1) Recognised mental condition

- Depression (Gittens)
- Bipolar (Inglis)
- Paranoid schizophrenia (Sutcliffe)
- Paranoid personality disorder (Martin)
- Psychopathy (Byrne)
- Post-natal depression (Reynolds 1988)
- Asperger’s syndrome (Reynolds 2004)
- Chronic alcoholism (Wood, Tandy)
- Battered women’s syndrome (R v Josephine Smith)
- Voluntary drunkenness is not a recognised medical condition (Dowds)

2) Substantially impaired D’s ability to understand the nature of his conduct,

forming a rational judgment, exercising self-control
- R v Mark Richard Golds – killed partner at family barbecue, expert evidence that he
had psychosis and depression, for which he received medication, also had personality
disorder – meaning of substantial: ‘important or weighty’

3) Provides an explanation for the killing

- There must be a relationship of cause and effect between mental condition and killing

2. Adam and Eve load a revolver with one bullet. They play a game of Russian
Roulette. The game is to last 3 rounds. Each in turn is to revolve the chamber, place
the barrel to the other’s head and pull the trigger. On Eve’s third and final throw
she blows Adam’s brains out. Discuss Eve’s criminal liability.

- Issue: should Eve be held criminally liable?

- AR: unlawful killing of Adam
- Act: shooting, result: death
- Causation: but for – yes, legal causation – substantial and operative, any NAI
- MR: 1 bullet – enough to be virtually certain? Third attempt – possibility – ¼ -
25 percent chance – low to be certain – Woollin – virtually certain – tripartite?
Give guidance to jury? The more the gun fired, higher chance of being shot –
high likeliness – virtual certain?
- Woollin tripartite – 1)Circumstance and result are virtual certainties, 2) D
foresees it and the 3) jury decides its intention
 - I: whether Eve would be charged for murder?
- P+A+C:
Actus reus: has Eve unlawfully killed Adam?
Act: shooting the gun
Result: Adam’s death
Causation: factual – Adam would not have died but for Eve’s firing of the gun, legal
– substantive and operational cause, no novus actus interveniens

Mens rea: did Eve act with intention to kill or cause grievous bodily harm?
Direct intention: no, both hoped to survive, do not want the other to die
Indirect intention: virtually certain? A revolver has 6 chambers, only one bullet
loaded. High probability, foresight not enough (Moloney). Must be virtually certain
and D realised it to be certain (Woollin). As the revolver is not fully loaded, no virtual
certainty that Adam would be shot?

3. Jim and Margaret are friends. They both work in the field of public relations. Dan,
an associate of Jim, envies Jim's friendship with Margaret and malevolently spreads
rumours alleging unethical professional behaviour on Margaret's part. As
anticipated by Dan, a violent quarrel ensues when Jim calls on Margaret during
which Margaret hurls a large tin of beans at Jim. In attempting to avoid being
struck by the tin, Jim strikes his head on an open door suffering a fractured skull.
Margaret immediately telephones for an ambulance. When Jim reaches hospital,
owing to staff shortages, he is not attended to by a doctor until a further hour
elapses. By the time Jim is eventually examined his condition has deteriorated so
much that he expires before any treatment can be administered. Discuss the
criminal liability, if any, arising from this incident.

Margaret liable for murder?

- 3 elements: AR, MR, causation
- Causation: Not an NAI (paramedics), Jim – Roberts (victim’s reaction)
(reasonably foreseeable to move head away from object thrown at)
- MR: intention to kill / GBH – intended to harm – hurling constitutes a GBH?
- Result: CPS break bone GBH – fractured skull, there is MR, hurl a large tin –
directly intend to cause harm?
- Allege – rumour – not grave – unlikely to succeed for that reason – likely
charged for murder but depends on what has been said? [grave?]

- MAYBE – reckless – Parker – smashes telephone case – closed mind?

Recklessness isn’t enough for murder – thus manslaughter

I: is Margaret liable for murder?

P:
AR
Act: throwing the can of beans
Result: Jim dies
Causation: Factual – but for throwing the can of beans him wouldn't have struck his head
on the open door, legal – substantive and operating cause – it is operating and substantive
at the time of death
novus actus interveniens – (victim) Roberts – reasonable reaction to escape from harm –
Jim does not break the chain, (third party) The hospital under-staffed and unable to attend
to him within an hour – not out of the ordinary for there to be a wait time. In order for a
third party to break the chain of causation it needs to be grossly negligence; a delay of
treatment would not give rise to gross negligence, no break of chain, only in
extraordinary cases that the treatment was so negligent and outside the treatment it would
be considered as NAI (Jordan); AR is present

MR
Direct intention? No intention to kill but could be an intention to cause GBH... but could
also be argued that it’s not intention to cause GBH [not as heinous as stabbing]
Indirect/oblique intention: virtually certain that one of them will die and D realised it is
certain? No. It does not require the injury to be life threatening. (Cunningham, Gamble)
Unlikely to have MR, if there is, could rely on loss of control.

Loss of control
1) Loss of control
- Yes, the fact that she immediately called an ambulance right after the incident
suggests that she lost self-control during the heated moment.
- NB – Break up of relationship not enough to justify loss of control – Dawes, Hatter
2) Qualifying trigger
- Did the circumstances of an extremely grave character cause the justifiable sense of
being wronged?
- Untrue rumours could cause Margaret to have a sense of being wronged and the fact
that they are friends, such a rumour could be of an extremely grave character
3) Person of defendant’s age and sex with a normal degree of tolerance and self-restraint
would have reacted in the same way

Could rely on loss of self-control if charged with murder

4. Eve discovers her husband, Adam, having sex with Ruth, her daughter and his
stepdaughter. Eve loses self control and kills Adam. Is the defence of loss of self
control excluded under section 55(6)?

- Infidelity
- R v Clinton – where a situation involves pure sexual infidelity, s55(6)(c) applies;
cannot amount to a qualifying trigger – mixed case where sexual infidelity plus other
facts, sexual infidelity can be taken into account where it is integral to the facts as a
whole, being one of the factors which caused the defendant to lose control [can only
provide context for a permitted trigger, not becoming the trigger]
- Depends on whether there is any other qualifying trigger besides infidelity; Eve could
argue that the fact that the daughter might be abused, then infidelity can be taken into
account as one of the factors to lose control.

- Is it consensual? In the eyes of the mother, could argue that it’s a molest
- Sole factor – infidelity not a QT

5. If A calls B a ‘dirty paedophile’ and B loses his self control and kills A under what
circumstances will A not be able to successfully raise the defence of loss of control.

- Under s54(1) of the Coroners and Justice Act 2009, defendant must prove that he had
lost self-control (a), loss of self-control caused by a qualifying trigger (b), person
of defendant’s age and sex with a normal degree of tolerance and self-restraint
would have reacted in the same way (c)
1) Lost self-control
2) Qualifying trigger
3) Person of D’s age and sex with normal degree of tolerance and self-restraint
would have reacted in the same way
- S54(2) does not matter whether or not the loss of control was sudden
- S54(6) – disregarded to the extent that fear was caused by a thing that D incited to be
done or said for the purpose of providing an excuse to use violence (a), sense of being
seriously wronged is not justifiable if D incited the thing to be done or said for the
purpose of providing an excuse to use violence (b)

- When will lost of control not work? Might be grave because of his circumstances –
traumatic experience? Continued situation? Every day insults are not enough? Not
something of grave nature; judge only look at age and sex
- If B acted out of revenge, s54(4), longer time btw trigger and act, might look like
revenge
- Provocation can be by words (e.g. taunts) but there are other requirements that must
be met
- If calling B a dirty paedophile does not amount to a provocative act or a serious
wrong doing, it will not qualify as a trigger and thus B will not be able to rely on the
 defence of loss of control. The act must be of extremely grave character. If the jury is
not able to find that a reasonable person of the same sex and age would have reacted
in the same way B, would fail to use loss of control as a defence

6. Compare and contrast diminished responsibility and the statutory defence of loss of
self control.

Diminished responsibility (3 part test)

- D suffered a recognised mental condition
- Mental condition substantially impaired D’s ability to think rationally, understand
what he was doing, exercise self-control
- Explains/partially explains why D killed the victim
Loss of self-control
- Lost self-control
- Qualifying trigger
- Person of defendant’s age and sex with a normal degree of tolerance and self-restraint
would have reacted in the same way

- Similarity
- Overlap? In DR, third element (as a result of abnormality, sub impaired ability to
think rationally – lose control as well? – but only need to show recognised mental
condition
- Difference

7. Under what circumstances will a person be able to raise the defence of diminished
responsibility although (s)he was drunk at the time of killing?

- Where D does not suffer from alcohol dependency syndrome but suffers an
abnormality of mental functioning due to disease of inherent condition and is
intoxicated
- R v Joyce and Kay
- Kay – paranoid schizophrenia, took large amounts of alcohol, heroin, cocaine and
drugs, became psychotic, stabbed victim 35 times – appeal unsuccessful because his
schizophrenia on its own was not substantially impairing his responsibility, but it was
his intoxicated state
- Joyce – paranoid schizophrenic, took drugs, stabbed customer at a shop, the evidence
was that his paranoid schizophrenia was the main or significant factor in impairing
his responsibility

- Where D suffers from alcohol dependency syndrome then that will be treated as an
abnormality of mental functioning for the purposes of the defences, if it is a severe
 case. If jury decides the syndrome has caused involuntary drinking then impact of
involuntary intoxication can be included as an abnormality of mental functioning
- R v Dowds – D consumed a vast amount of alcohol and killed partner, did not claim
to be an alcoholic but a heavy but elective drinker. Held: condition was not capable of
amounting a recognised medical condition, condition was a transitory or temporary
one.
- Tandy
- Wood – claimant said forced to drink, claim failed
- Gittens – killed W, raped daughter, also been drinking – court X consider
intoxicated – depression enough

8. Do the defences of loss of self control and diminished responsibility adequately

address the problem of battered partners who kill their abuser such as Mrs
Ahluwalia?

- In R v Duffy provocation is defined as the sudden and temporal loss of control. This
case sought to reclassify the definition of provocation.
- In Ahluwalia the court held that in cases of abused wives, the act is usually a result of
a slow burn reaction rather than an immediate loss of self-control.
- However, the longer the delayed reaction – the more time of deliberation and it is less
likely for it to become a defence to succeed
- The more time that has elapsed the less likely it will look like a loss of self-control
and more likely to look like revenge --> Look to diminished responsibility
- In Ahluwalia’s case her conviction was overturned, and she was no longer liable for
murder but voluntary manslaughter due to diminished responsibility
- Her submission for provocation failed and so defence for loss of control failed -->
new medical evidence proved that she was suffering from depression- diminished
responsibility succeeded
- Section 54(2) includes that it does not matter whether the loss of self-control was
sudden so if the first requirements are met in 54(1)
- Yes? What if they don’t have medical condition but traumatic exp?
- DR sometimes overuse medical expertise; children taken away from her – further
prob?