Voluntary Manslaughter (AQA A-Level Law): Revision Notes
Voluntary manslaughter
Voluntary manslaughter encompasses two partial defences that reduce a murder conviction to manslaughter: loss of control and diminished responsibility. These are defences rather than offences, meaning they have no actus reus or mens rea requirements of their own.
These partial defences can only be used as defences to murder and cannot apply to any other crime. This is a crucial limitation that distinguishes them from general defences.
When a jury considers a murder charge, they will often be given the option to convict the defendant of manslaughter instead of murder if one of these partial defences is successfully established.
Loss of control
Loss of control is governed by s 54 of the Coroners and Justice Act 2009. This is an entirely new defence that replaced the old common law defence of provocation. In R v Gurpinar and Kojo-Smith (2015), Lord Thomas CJ emphasised that it should rarely be necessary to refer to cases decided under the old provocation law.
The three-stage test
To successfully rely on loss of control, the defendant must satisfy three requirements:
- The defendant must have lost control
- The loss of control must have been caused by a qualifying trigger
- A person of the defendant's sex and age, with a normal degree of tolerance and self-restraint, might have reacted in the same or similar way in the same circumstances
Each stage of this test must be satisfied for the defence to succeed. If any one stage fails, the entire defence fails and the defendant remains liable for murder.
Stage 1: Loss of control (s 54(1)(b))
The defendant must demonstrate that they actually lost self-control. Unlike the old provocation defence, the loss of control does not need to be sudden. This means the defence can still be raised even where there has been a delay between the trigger incident and the killing.
In R v Jewell (2014), Lady Justice Rafferty adopted the definition from Smith and Hogan's textbook, stating that loss of control means "the loss of an ability to act in accordance with considered judgment or a loss of normal powers of reasoning". This provides important guidance on what constitutes a genuine loss of control beyond merely experiencing strong emotions.
The Revenge Exclusion
The defence is explicitly unavailable to those who act in a considered desire for revenge under s 54(4). Even if the defendant loses self-control as a result of a qualifying trigger, the defence will fail if they were primarily motivated by revenge. This was confirmed in R v Dawes (2013).
Stage 2: Qualifying triggers (s 55)
Section 55 defines two types of qualifying trigger that can cause a loss of control:
The fear trigger (s 55(3))
The first qualifying trigger is the defendant's fear of serious violence from the victim. To establish this trigger, the defendant must show that they genuinely feared the victim would use serious violence against them or another identified person. This fear does not need to be objectively reasonable, but it must be genuine.
Limitation on the Fear Trigger
The defendant cannot rely on the fear trigger if they incited the violence themselves (s 55(6)(a)). This prevents defendants from deliberately provoking violence to create an excuse for killing.
The anger trigger (s 55(4))
The second qualifying trigger involves things done or said (or both) which:
- Constituted circumstances of an extremely grave character, and
- Caused the defendant to have a justifiable sense of being seriously wronged
Both elements must be present and are assessed by the jury applying an objective test. The circumstances must be genuinely grave, and the defendant's sense of being wronged must be justified in the eyes of the reasonable person.
In R v Hatter (2013), the Court of Appeal held that the breakdown of a relationship is not, by itself, sufficient to constitute circumstances of an extremely grave character. Similarly, in R v Bowyer (2013), the defendant had no justifiable sense of being wronged because he was committing a burglary at the time of the offence.
Sexual infidelity
Section 55(6)(c) states that sexual infidelity cannot by itself constitute a qualifying trigger. However, this does not mean sexual infidelity must be completely ignored.
The Clinton Principle: Sexual Infidelity as Context
In the landmark case of R v Clinton (2012), the Court of Appeal held that sexual infidelity can be considered as part of the overall context or "bigger picture" where other qualifying triggers are present. In this case, the defendant killed his ex-wife following taunts, revelations about affairs and references to his mental illness.
The court ruled that while sexual infidelity alone cannot qualify, it can add to a defence where other qualifying triggers exist. Furthermore, "things said" can include admissions of sexual infidelity (even if untrue), as well as reports of infidelity by others. This ensures a realistic assessment of what actually caused the defendant's loss of control.
Stage 3: Objective test (s 54(1)(c))
The third stage requires an objective assessment by the jury. They must determine whether a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of the defendant, might have reacted in the same or similar way.
The defendant's sex and age are specifically taken into account, recognising that these factors may affect how someone responds to certain triggers. Additionally, the jury may consider the defendant's circumstances when assessing whether the reaction was reasonable.
The Self-Control Standard
Section 54(3) makes clear that circumstances relating to the defendant's general capacity to exercise tolerance and self-restraint must be disregarded. This prevents defendants from arguing that their naturally aggressive or volatile temperament should lower the standard of self-control expected of them.
The impact of sexual infidelity on the defendant can be considered when assessing the circumstances, even though it cannot be a qualifying trigger in itself.
Intoxication and loss of control
In R v Asmelash (2013), the court held that a defendant cannot rely on loss of control when self-administered drugs or alcohol impaired their normal judgement. Voluntary intoxication cannot be used to support a claim that the defendant lost control or to lower the standard of self-control expected.
Special considerations: PTSD and mental conditions
In R v Rejmanski (2017), the court recognised that post-traumatic stress disorder (PTSD) could, in principle, justify a loss of control. The defendant in this case had been a soldier and was taunted about his service in Afghanistan. This demonstrates that mental health conditions may be relevant to the circumstances the jury considers under s 54(1)(c).
Burden of proof for loss of control
Burden of Proof: Prosecution Must Disprove
The burden of proof operates differently for loss of control than for diminished responsibility:
If the defendant raises the issue of loss of control and the judge believes that a jury, properly directed, could reasonably conclude that the defence might apply, then the burden shifts to the prosecution. The prosecution must then prove beyond reasonable doubt that there was no loss of control. This places the legal burden on the prosecution rather than the defence.
Diminished responsibility
Diminished responsibility is governed by s 52 of the Coroners and Justice Act 2009, which amended s 2 of the Homicide Act 1957. Unlike loss of control, which is an entirely new defence, diminished responsibility simply amended the existing law.
The four-stage test
To establish diminished responsibility, the defendant must prove four elements:
- Was the defendant suffering from an abnormality of mental functioning?
- If so, had this arisen from a recognised medical condition?
- If so, had it substantially impaired their ability to:
- Understand the nature of their conduct, or
- Form a rational judgement, or
- Exercise self-control (or any combination of these)?
- Does the abnormality provide an explanation for the defendant's conduct in carrying out the killing?
Where there is unchallenged medical evidence supporting diminished responsibility, the judge should withdraw the charge of murder from the jury, as established in R v Brennan (2014).
Stage 1: Abnormality of mental functioning
An abnormality of mental functioning means a state of mind so different from that of ordinary human beings that the 'reasonable person' would term it abnormal. This encompasses the defendant's ability to exercise willpower or to control physical acts in accordance with rational judgement.
Whether an abnormality of mental functioning exists is ultimately a question for the jury to decide, though expert medical evidence will be crucial.
Stage 2: Recognised medical condition
The abnormality of mental functioning must arise from a recognised medical condition. These conditions can be found in the World Health Organization's International Classification of Diseases (ICD).
Not All ICD Conditions Qualify
In R v Dowds (2012), the court clarified that just because a condition appears in the ICD does not automatically mean it can be relied upon to show an abnormality of mental functioning. The court held that acute intoxication from voluntary alcohol consumption, while listed in the ICD, could not constitute a recognised medical condition for the purposes of diminished responsibility.
The condition must be one that genuinely affects mental functioning in a way that reduces culpability.
Stage 3: Substantial impairment
The abnormality of mental functioning must have substantially impaired the defendant's ability to do one or more of the following:
- Understand the nature of their conduct - the defendant's comprehension of what they were doing
- Form a rational judgement - the defendant's ability to make reasoned decisions
- Exercise self-control - the defendant's capacity to control their actions
There must be evidence of substantial impairment, and this must be raised by the defence. The key question is whether the impairment was significant enough to reduce the defendant's culpability.
What Does "Substantial" Mean?
In R v Golds (2014), the Supreme Court addressed the meaning of "substantial". The defendant, who had a history of mental disorder, killed his partner by inflicting 22 stab wounds following an argument. The court held that the judge should leave interpretation of the word "substantial" to the jury, but may advise them that substantial means "big or large" - more than merely trivial but not necessarily total.
This guidance originated in R v Simcox (1964) and was reiterated in R v Lloyd (1967) and R v Golds (2014). The key passage states:
"Do we think, looking at it broadly as common-sense people, there was a substantial impairment of his mental responsibility in what he did? If the answer is 'no', there may be some impairment, but we do not think it was substantial."
The test recognises that there may be some impairment without it being substantial enough to reduce murder to manslaughter.
Stage 4: Explanation
The abnormality of mental functioning must provide an explanation for the defendant's conduct. This means it must have been at least a significant contributory factor in causing the defendant to act as they did.
Importantly, the abnormality does not need to be the only cause of the defendant's behaviour, nor does it need to be the most important factor. However, it must be more than a merely trivial factor.
The defence should not succeed where the defendant's mental condition made no real difference to their behaviour - where they would have killed regardless of their medical condition. There must be a meaningful causal connection between the abnormality and the killing.
Alcohol, drugs and diminished responsibility
The relationship between voluntary intoxication and diminished responsibility is complex and has generated significant case law.
The basic rule is that the effects of alcohol or drugs do not amount to an abnormality of mental functioning. Voluntary intoxication alone cannot support a diminished responsibility defence, as confirmed in R v Dowds (2012).
However, there are two important exceptions:
Alcohol Dependency Syndrome
In R v Tandy (1989), the court held that where the defendant suffers from Alcohol Dependency Syndrome (a recognised medical condition involving physical addiction to alcohol), this can potentially support a diminished responsibility defence. The key is that the defendant's drinking must be involuntary due to the disease, rather than voluntary.
R v Atkinson (1985) also dealt with alcoholism as a potential basis for diminished responsibility, though the defence failed on the facts.
Brain damage from chronic alcohol abuse
A defendant may be able to show diminished responsibility from brain damage caused by chronic alcohol abuse. This is because the brain damage itself is a recognised medical condition that can cause an abnormality of mental functioning, separate from the intoxication.
The Dietschmann principle
The Dietschmann Test: Mental Abnormality Plus Intoxication
In R v Dietschmann (2003), the House of Lords clarified how to approach cases where the defendant has both a mental abnormality and has been drinking. The defendant killed a friend who had broken his watch, which was a gift from a deceased relative. The defendant was being medicated for suicidal thoughts relating to the relative's death and had been drinking at the time of the killing.
The court held that if the defendant's mental abnormality substantially impaired his mental responsibility despite the alcohol, he can succeed with diminished responsibility. The jury should ask: Would the defendant's abnormality of mental functioning have substantially impaired their ability even if they had not been drinking? If yes, the defence can succeed even though alcohol was also involved.
The key point is that the abnormality, not the alcohol, must be the substantial cause of the impairment.
Burden of proof for diminished responsibility
Burden of Proof: Defendant Must Prove
Unlike loss of control, where the burden of proof is on the prosecution, for diminished responsibility the defendant must prove the defence on the balance of probabilities (the civil standard).
This means the defendant must show it is more likely than not that they were suffering from diminished responsibility. This is a lower standard than the criminal standard of beyond reasonable doubt, but it still places the burden on the defendant rather than the prosecution.
This difference in burden of proof reflects the fact that diminished responsibility involves complex medical evidence about the defendant's mental state, which is particularly within the defendant's knowledge and ability to prove.
Exam guidance
This content is assessed in Paper 1 of the AQA A-Level Law examination.
When answering problem questions on voluntary manslaughter:
- Clearly identify which partial defence(s) may apply
- Work methodically through each stage of the relevant test
- Apply the law to the facts, citing relevant cases
- Consider whether the burden of proof can be satisfied
- Remember that these are partial defences to murder only
When answering evaluation questions:
- Consider whether the defences achieve an appropriate balance between culpability and fairness
- Evaluate the differences between loss of control and diminished responsibility
- Assess whether the reforms in the Coroners and Justice Act 2009 have successfully addressed problems with the old law
- Consider criticism of specific aspects, such as the sexual infidelity rule or the burden of proof requirements
Key Points to Remember:
- Voluntary manslaughter consists of two partial defences (loss of control and diminished responsibility) that reduce murder to manslaughter
- Loss of control has three stages: actual loss of control, qualifying trigger (fear or anger), and objective test based on person of D's sex and age
- Sexual infidelity cannot be a qualifying trigger by itself, but can be considered as part of the overall context (R v Clinton)
- Diminished responsibility has four stages: abnormality of mental functioning, from recognised medical condition, causing substantial impairment, that explains the conduct
- Burden of proof: For loss of control, prosecution must disprove it beyond reasonable doubt; for diminished responsibility, defendant must prove it on balance of probabilities
- Voluntary intoxication cannot support diminished responsibility, but Alcohol Dependency Syndrome or brain damage from chronic alcohol abuse can (R v Dietschmann)
- Substantial impairment means "big or large", more than trivial but not necessarily total (R v Golds)