Voluntary Manslaughter (OCR A-Level Law): Revision Notes
Voluntary manslaughter
What is voluntary manslaughter?
Voluntary manslaughter is not an offence in itself. It arises when a defendant has committed murder (with the necessary actus reus and mens rea), but successfully raises one of two special, partial defences that reduce the conviction from murder to voluntary manslaughter. These defences are:
- Loss of control (s 54 Coroners and Justice Act 2009)
- Diminished responsibility (s 52 Coroners and Justice Act 2009)
Because these are defences rather than offences, there are no separate actus reus or mens rea requirements for voluntary manslaughter itself. Instead, the defendant must first satisfy the elements of murder, then prove they meet the requirements of one of these defences.
These defences can only be used for murder. They cannot reduce liability for any other crime.
Loss of control
Overview
Loss of control is defined in s 54 of the Coroners and Justice Act 2009. This defence replaced the old common law defence of provocation and is an entirely new statutory creation. In R v Gurpinar and Kojo-Smith (2015), Lord Thomas CJ stated that it should rarely be necessary to look at cases decided under the old law of provocation.
Loss of control is a special, partial defence to murder only, argued where an unlawful killing occurs following the defendant's loss of self-control.
The three-stage test
To successfully raise the defence, 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
All three elements must be established for the defence to succeed.
Section 54(1)(b): loss of control
Under s 54(1)(b), the loss of control does not need to be sudden. There can be a delay between the triggering incident and the killing. However, the defendant must genuinely have lost control at the time of the killing.
In R v Jewell (2014), Lady Justice Rafferty explained 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.
The defence is not available to those who act in a considered desire for revenge (s 54(4)), even if they lose self-control as a result of a qualifying trigger – see R v Dawes (2013).
Section 55: qualifying triggers
A qualifying trigger can take one of two forms:
Fear trigger
The defendant's fear of serious violence from the victim against the defendant or another identified person (s 55(3)).
Key points:
- The defendant must genuinely fear serious violence
- The fear does not need to be objectively reasonable
- The violence cannot have been incited by the defendant themselves – s 55(6)(a)
Anger trigger
Things done and/or said by the victim which:
- Constituted circumstances of an extremely grave character, AND
- Caused the defendant to have a justifiable sense of being seriously wronged (s 55(4))
This is assessed using an objective test – it is for the jury to determine whether the circumstances were extremely grave and whether the sense of being wronged was justified.
Case law examples:
- R v Hatter (2013): the breakdown of a relationship is not, by itself, sufficient
- R v Bowyer (2013): the defendant had no justifiable sense of being wronged when he was committing a burglary at the time of the offence
Sexual infidelity
Sexual infidelity cannot by itself qualify as a trigger under s 55(6)(c). However, it can be taken into account as part of a bigger picture alongside other qualifying triggers – see R v Clinton (2012).
Things said can include:
- Admissions of sexual infidelity (even if untrue)
- Reports of sexual infidelity by others
Section 54(1)(c): the objective test
This section requires that 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.
This is a question for the jury to decide.
Important points:
- Only the defendant's sex and age are fixed characteristics
- The jury must consider whether a person with a normal degree of tolerance and self-restraint might have reacted similarly
- Additional characteristics may be relevant when assessing the circumstances of the defendant
- The impact of sexual infidelity on the defendant is not excluded from consideration
- Under s 54(3), circumstances which relate to the defendant's general capacity to exercise tolerance and self-restraint are to be disregarded
Burden of proof for loss of control
When 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, the burden shifts to the prosecution to disprove it beyond reasonable doubt.
Key cases for loss of control
| Case | Facts | Relevant area | Legal principle |
|---|---|---|---|
| R v Clinton (2012) | D killed his ex-wife following taunts and revelations about affairs and mental illness | All elements | Sexual infidelity can add to a defence where there exist other qualifying triggers. The case examined: whether things done or said amounted to extremely grave circumstances; a justifiable sense of being wronged under s 55(4); examining the defendant's circumstances under s 54(1)(c) |
| R v Dawes (2013) | D attacked V with a bottle after finding him asleep with his estranged wife. V took the bottle and attacked D, who grabbed a kitchen knife and fatally stabbed V | Qualifying triggers | Qualifying triggers based on s 55(3)(4) and (5) still apply despite D's bad behaviour, unless his actions were intended to provide him with the excuse or opportunity to use violence |
| R v Asmelash (2013) | The defendant was intoxicated when he murdered the victim | Alcohol and drugs | D cannot rely on loss of control when self-administered drugs or alcohol impaired his normal judgment |
| R v Rejmanski (2017) | D had been a soldier and was taunted about his service in Afghanistan | Qualifying triggers | In principle, post-traumatic stress disorder could justify loss of control |
Diminished responsibility
Overview
Diminished responsibility is defined in s 52 of the Coroners and Justice Act 2009. Unlike loss of control, this defence simply amended the existing common law defence rather than creating an entirely new one.
Where there is unchallenged medical evidence, the judge should withdraw the charge of murder from the jury – see R v Brennan (2014).
The four-stage test
To successfully raise the defence, the defendant must establish:
- The defendant was suffering from an abnormality of mental functioning
- The abnormality arose from a recognised medical condition
- The abnormality substantially impaired the defendant's ability to:
- Understand the nature of their conduct, OR
- Form a rational judgment, OR
- Exercise self-control (or any combination of these)
- The abnormality provides an explanation for the defendant's acts or omissions in committing the killing
All four elements must be satisfied.
Element 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.
Case Application: R v Byrne (1960)
In this case, the court established that abnormality of mental functioning covers the ability to:
- Exercise willpower
- Control physical acts in accordance with rational judgment
The test is whether the defendant's state of mind was so different from ordinary human beings that a reasonable person would consider it abnormal.
This is a question for the jury to decide, applying an objective test: what would a reasonable person consider abnormal?
Element 2: recognised medical condition
Recognised medical conditions can be found in the World Health Organization's International Classification of Diseases.
However, in R v Dowds (2012), the court clarified that just because a condition appears in these lists does not automatically mean it can be relied upon to show an abnormality of mental functioning.
Examples of recognised conditions include:
- Alcohol dependency syndrome (ADS) – R v Woods (2008)
- Post-traumatic stress disorder
- Depression
- Paranoid schizophrenia
Important limitation: voluntary acute intoxication is not a recognised medical condition capable of founding diminished responsibility – R v Dowds (2012).
Element 3: substantial impairment
The abnormality must have substantially impaired the defendant's ability to do at least one of the following:
- Understand the nature of their conduct
- Form a rational judgment
- Exercise self-control
There must be evidence of this impairment, and it must be raised by the defence.
In R v Golds (2014), the Supreme Court held that judges should leave interpretation of the word "substantial" to the jury, but can advise that substantial means big or large. It is more than minimal or trivial but does not need to be total.
Earlier cases suggested different meanings:
- R v Simcox (1964): substantial means more than trivial
- R v Lloyd (1967): substantial does not mean total, but it must be more than minimal
Element 4: explanation for the behaviour
The abnormality of mental functioning must provide an explanation for the defendant's behaviour. This means it must be at least a significant contributory factor in causing the defendant to act as they did.
Key points:
- It does not need to be the only cause
- It does not need to be the most important factor
- It must be more than a merely trivial factor
The defence should not succeed where the defendant's mental condition made no difference to their behaviour – when they would have killed regardless of their medical condition.
Diminished responsibility and alcohol
The effects of voluntary alcohol consumption alone do not amount to an abnormality of mental functioning.
However, the defendant may be able to show diminished responsibility from:
- Brain damage caused by long-term alcohol dependency
- Alcohol dependency syndrome (ADS) – a recognised medical condition
Case Application: R v Dietschmann (2003)
The court held that if the defendant's mental abnormality substantially impaired their mental responsibility despite them drinking alcohol, they can be guilty of manslaughter rather than murder.
The key question is: would the abnormality, on its own, have been enough to substantially impair them?
This means the court must consider whether the mental abnormality alone (ignoring the alcohol) would have caused substantial impairment.
Key cases:
- R v Woods (2008): alcohol dependency syndrome is a recognised medical condition
- R v Dowds (2012): voluntary acute intoxication is not capable of being relied upon to found diminished responsibility
Burden of proof for diminished responsibility
Unlike loss of control, the evidential burden is on the defence to prove diminished responsibility on the balance of probabilities (i.e., the civil standard – more likely than not).
This is in contrast to loss of control, where the burden is on the prosecution to disprove the defence beyond reasonable doubt.
Key cases for diminished responsibility
| Case | Facts | Relevant area | Legal principle |
|---|---|---|---|
| R v Golds (2014) | D, who had a history of mental disorder, killed his partner by inflicting 22 stab wounds on her following an argument | Substantial impairment | The court should leave interpretation of the word "substantial" to the jury but can advise that substantial means big or large |
| R v Byrne (1960) | D, a sexual psychopath, was not guilty of murder when he strangled a young woman, and after her death mutilated her body | Abnormality of mental functioning | Objective test: what would a reasonable person consider abnormal? |
| R v Dietschmann (2003) | D killed a friend who had broken his watch, which was a gift from a dead relative. D was medicated for suicidal thoughts relating to the relative's death | Abnormality of mental functioning and alcohol | If D's mental abnormality substantially impaired his mental responsibility despite drinking alcohol, he is not guilty of murder but can be guilty of manslaughter |
| R v Woods (2008) | D, an alcoholic, attacked V, stabbing him 37 times with a meat cleaver | Effects of alcoholism | Alcohol dependency syndrome (ADS) is a recognised medical condition |
| R v Dowds (2012) | D had been drinking heavily when he had an argument with his partner and killed her | Voluntary acute intoxication | Voluntary acute intoxication is not capable of being relied upon to found diminished responsibility |
Exam guidance
Applying the defences in problem questions
When answering a problem question on voluntary manslaughter:
- Always start with murder: establish that the actus reus and mens rea of murder are satisfied
- Consider both defences: even if one seems more obvious, briefly discuss why the other might not apply
- Apply the tests systematically: work through each element of the relevant defence in order
- Use the facts: link the legal tests to the specific facts provided in the question
- Cite key cases: use cases to support your application of the law
- Reach a conclusion: state whether the defence is likely to succeed
Always demonstrate your understanding of both defences, even if one clearly doesn't apply to the facts. Briefly explaining why a defence is inappropriate shows comprehensive knowledge and analytical thinking.
Essay technique
When writing an essay on voluntary manslaughter:
- Compare and contrast the two defences (e.g., burden of proof, whether they are new or amended defences)
- Evaluate the effectiveness of the defences (e.g., are the requirements too strict or too lenient?)
- Consider reform: discuss any proposed or potential changes to the law
- Use judicial criticism: include comments from judges about the operation of these defences
Common mistakes to avoid
Critical Errors to Watch For:
- Confusing the burden of proof: remember that loss of control puts the burden on the prosecution, while diminished responsibility puts it on the defence
- Applying the defences to other offences: these are partial defences to murder only
- Treating sexual infidelity incorrectly: it cannot be a trigger on its own but can form part of the context
- Forgetting the objective test: in loss of control, consider whether a person with normal tolerance might have acted similarly
- Overlooking the medical evidence requirement: diminished responsibility requires evidence of a recognised medical condition
Remember!
Key Points to Remember:
- Voluntary manslaughter is a partial defence to murder, not a separate offence – it reduces murder to manslaughter
- Loss of control has a three-stage test: loss of control, qualifying trigger (fear or anger), and reasonable person test
- Sexual infidelity cannot be a qualifying trigger on its own but can be part of the context (R v Clinton)
- Diminished responsibility has a four-stage test: abnormality of mental functioning, recognised medical condition, substantial impairment, and explanation for behaviour
- Burden of proof differs: loss of control is on the prosecution (beyond reasonable doubt), diminished responsibility is on the defence (balance of probabilities)
- Voluntary intoxication alone cannot found diminished responsibility (R v Dowds), but alcohol dependency syndrome can (R v Woods)
- The word "substantial" in diminished responsibility means big or large – more than trivial but not necessarily total (R v Golds)