Murder and Voluntary Manslaughter

Murder and Voluntary Manslaughter

Murder is the most serious criminal offence. It is a common law offence (not defined by statute) carrying a mandatory life sentence. Where the defendant satisfies the elements of murder but can establish a partial defence, the conviction is reduced to voluntary manslaughter, which carries a discretionary sentence.

Murder

Definition

The classic definition derives from Sir Edward Coke (17th century):

> "The unlawful killing of a reasonable creature in being under the King's peace with malice aforethought express or implied."

Elements

Actus reus:

• Unlawful killing — a killing that is not authorised by law (e.g. lawful self-defence negates unlawfulness)
• Of a reasonable creature in being — a human being who has been born alive and has an independent existence from the mother (Attorney General's Reference (No. 3 of 1994) [1998]). A foetus is not a "creature in being" — R v Poulton [1832]
• Under the King's/Queen's peace — excludes killings in wartime of enemy combatants
• Causation must be established (see causation principles in actus reus)

Mens rea — "malice aforethought":

• Express malice — intention to kill
• Implied malice — intention to cause grievous bodily harm (GBH) — R v Vickers [1957], confirmed by R v Cunningham [1982]

The defendant need not intend to kill; an intention to cause really serious harm suffices for murder. This remains controversial — the Law Commission recommended reform in its 2006 report Murder, Manslaughter and Infanticide.

Oblique intention may be found using the R v Woollin [1999] direction (virtual certainty test).

Voluntary Manslaughter

The Coroners and Justice Act 2009, ss.52–56 reformed the partial defences to murder, replacing the old Homicide Act 1957 provisions for diminished responsibility and abolishing the defence of provocation, substituting loss of control.

Diminished Responsibility (s.52, amending Homicide Act 1957, s.2)

Definition (s.2(1) Homicide Act 1957 as amended):

The defendant must prove on the balance of probabilities (this is one of the rare cases where the burden of proof shifts to the defence — R v Foye [2013] confirmed this is compatible with Article 6 ECHR) that at the time of the killing:

1. D suffered from an abnormality of mental functioning — an abnormality is a "state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal" (R v Byrne [1960] — still relevant post-2009)

2. Which arose from a recognised medical condition — this replaced the old "inherent causes" test and requires a clinically recognised condition (e.g. depression, schizophrenia, PTSD, battered woman syndrome, Asperger's syndrome). In R v Dowds [2012], the Court of Appeal held that acute voluntary intoxication alone was not a "recognised medical condition" for this purpose, even though it appears in diagnostic manuals

3. Which substantially impaired D's ability to:

• Understand the nature of their conduct, or
• Form a rational judgment, or
• Exercise self-control

4. Which provides an explanation for D's acts or omissions — there must be a causal connection between the abnormality and the killing (s.2(1B))

Key cases:

• R v Golds [2016] — the Supreme Court held that "substantial" means something important or weighty, not trivial or minimal, but the judge is not obliged to give this direction unless the jury asks
• R v Brennan [2014] — alcohol dependency syndrome (ADS) is a recognised medical condition, but the jury must disregard the effects of alcohol consumed voluntarily and focus on whether the underlying condition substantially impaired D's abilities
• R v Dietschmann [2003] — where D has both a mental abnormality and is intoxicated, the question is whether the abnormality, even without the intoxication, substantially impaired D's mental responsibility

Loss of Control (Coroners and Justice Act 2009, ss.54–55)

Definition (s.54):

The defence applies where:

1. D's acts resulted from a loss of self-control — the loss need not be sudden (s.54(2)), which is a significant change from the old provocation defence and benefits those who suffer cumulative domestic abuse (R v Ahluwalia [1992] raised this issue under the old law)

2. The loss of control had a qualifying trigger (s.55):

(a) Fear trigger (s.55(3)) — D's loss of control was attributable to D's fear of serious violence from the victim against D or an identified person

• Example: an abused spouse who kills their abuser in fear of further serious violence

(b) Anger trigger (s.55(4)) — D's loss of control was attributable to 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

• This sets a higher threshold than the old provocation defence
• Sexual infidelity alone cannot be a qualifying trigger (s.55(6)(c)) — R v Clinton [2012] — but it may be considered alongside other triggers

(c) Combined trigger — a combination of both fear and anger triggers

3. 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 a similar way (s.54(1)(c))

• This is an objective test with some subjective elements
• R v Asmelash [2013] — voluntary intoxication is not a relevant circumstance for the objective test
• The reference to "circumstances of D" includes factors such as a history of abuse or particular vulnerabilities, but not characteristics that contradict the requirement for "normal tolerance and self-restraint"

Exclusions:

• D cannot rely on self-induced loss of control — if D incited the thing said or done as an excuse to use violence (s.55(6)(a))
• Considered desire for revenge is not loss of control (s.54(4))

Burden of proof:

• If sufficient evidence is raised, the prosecution must disprove the defence beyond reasonable doubt (s.54(5)–(6))

Evaluation

Issue	Old Law	New Law (2009 Act)
Suddenness	Required (R v Duffy [1949])	Not required (s.54(2)) — benefits slow-burn abuse victims
Sexual infidelity	Could be provocation	Cannot be sole trigger — but Clinton allows it in combination
Fear of violence	Not a trigger for provocation	Standalone trigger (s.55(3))
Threshold	Lower — "provocative" words or conduct	Higher — "extremely grave" + "justifiable sense of being seriously wronged"
Diminished responsibility	Vague "abnormality of mind"	Clearer "recognised medical condition" test

Key exam points:

• Compare the old provocation defence with loss of control — has the 2009 Act improved the law?
• Evaluate whether the mandatory life sentence for murder justifies the existence of partial defences
• Discuss the treatment of domestic abuse victims under the loss of control defence
• Assess whether the Woollin direction adequately distinguishes murder from manslaughter
• Consider the Law Commission's proposal for a two-tier structure of murder (first degree and second degree)