Manslaughter in UK are refered to homicides which are not classified as murder. There are two kinds of manslaughter: voluntary, involuntary. The basic difference between these two types of manslaughter is that for voluntary manslaughter the mens rea for murder exists, whereas for involuntary manslaughter it does not.
TABLE OF CONTENT
- Introduction to Voluntary manslaughter in UK.
- Loss of control in Manslaughter in UK.
- Diminished responsibility in Manslaughter in UK.
- Suicide pacts.
Introduction to Voluntary manslaughter in UK.
Voluntary manslaughter occurs where the accused has the necessary actus reus and mens rea for murder, but there are mitigating circumstances which allow a partial defence. And so reduce liability to that of manslaughter (we call this a partial defence to distinguish it from other defences which remove liability completely). It is not therefore possible to charge someone with voluntary manslaughter in UK, they will be charged with murder, and must then put their defence during the trial.
The three partial defences available are loss of control, diminished responsibility, and suicide pacts in Voluntary manslaughter in UK. Successful pleading of one of the three means that on conviction the sentence is at the discretion of the judge, and can be anything from life imprisonment to an absolute discharge, depending on the circumstances of the case, unlike murder, which carries a mandatory sentence of life imprisonment.
This area of law (manslaughter in UK law) has been the subject of a major legislative reform in the Coroners and Justice Act 2009 The Act has abolished the old defence of provocation and replaced it with a new defence of loss of control; it has also replaced the old definition of the defence of diminished responsibility with a new definition.
In looking at the new defence of loss of control, we will at each stage compare it with the old defence of provocation. The observations regarding the old defence of provocation will be placed in tinted boxes entitled ‘Provocation’ so that the reader can see clearly what the current law is and what the current law used to be on each aspect of the defence. This is a useful exercise both to highlight differences between the new and old defences and to consider how the new legislation might be interpreted in the future.
The only case on the 2009 Act which has reached the Court of Appeal to date is R v Clinton, Parker and Evans (2012). The court stated that the new statutory defence of loss of control is ‘self-contained’ and its ‘common law heritage is irrelevant’ So the old case law on provocation is only of limited legal interest now.
Loss of Control in Manslaughter in UK
The Homicide Act 1957, s. 3 contained a statutory partial defence of provocation. This defence was the subject of considerable criticism and, as a result, the Government decided this area of law was in need of reform. Research was carried out by both the Law Commission and the Ministry of Justice and the following reports were published:
- Law Cornmission Report (2004), Partial Defences to Murder
- Law Commission Consultation Paper (2005), A New Homicide Act for England and Wales?
- Law Commission Report (2006), Murder, Manslaughter and Infanticide
Ministry of Justice Consultation Paper (2008), Murder, Manslaughter in UK and Infanticide Proposals for Reform of the Law. These reports all concluded that the judges alone could not cure the defects in the defence of provocation and legislation was required. While the Law Commission put forward proposals for reforming the provocation defence, it did not feel that this reform could be successful while there was a mandatory life sentence for murder.
This mandatory sentence means that judges have no discretion in the choice of sentence following a murder conviction. Where judges felt sympathy for the defendant and considered that a life sentence was not appropriate they would in practice try to stretch the definitions of the partial defences to try to bring the defendant within them, so that
they then had a sentencing discretion.
Thus, the Law Commission considered that any reform to the partial defences would be unsuccessful in practice until the mandatory life sentence for murder had been abolished. The Government, however, decided to push ahead with reform while retaining the mandatory life sentence for manslaughter in uk. It considered that the old defence of provocation was too generous to those who killed out of anger and too hard on those who killed out of fear of serious violence.
While the old defence of provocation was based on anger the new defence of loss of control prioritises the emotion of fear as justifying the killing, for example killings following domestic abuse The Government was particularly concerned that the defence of provocation treated men and women differently in cases of domestic violence.
It considered that it was too easy for men to rely on the defence of provocation, saying they killed their female partner because of sexual infidelity (how far this had actually been a problem in practice is open to debate) while women with abusive partners found it hard to mount a defence.
The Law Commission’s recommendation would have amended the existing defence of pro-
vocation, whereas the Coroners and Justice Act 2009 has abolished the defence of provocation altogether and replaced it with a new defence of loss of self-control.
The defence of loss of control in manslaughter in UK is defined in the following terms.
54(1) Where a person (‘D’) kills or is a party to the killing of another (V). D is not to be convicted of murder if-
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) 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 in a similar way to D.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3) In subsection (1)(c) the reference to ‘the circumstances of D’ is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.
(4) Subsection (1) does not apply if, in doing or being a party to the killing. D acted in a considered desire for revenge.
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could conclude that the defence might apply.
(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be con victed of manslaughter.
(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.
There are three key elements to the new defence which will be considered in turn: loss of control, a qualifying trigger (which can be linked together as a subjective test) and an objective test considering whether a reasonable person would have reacted in the way the defendant did.
Loss of self-control
For the new defence under the Coroners and Justice Act 2009 the defendant must have lost their self-control at the time of the killing. Under the old defence of provocation the loss of control had to be sudden. This requirement was heavily criticised as potentially discriminating against women who might lose their self-control more slowly than men (sometimes known as a ‘slow burn’ reaction). Where there was a ‘cooling off’ period the defence was likely to fail. For the new defence of loss of control, s. 54(2) expressly states that the loss of self-control need not be sudden.
Though the explanatory notes to the Act state that delay could be evidence as to whether defendants had actually lost their self-control, so in practice women may still find that the defence discriminates against them. Where there is delay then there is a greater possibility that the defendant acted out of calculated revenge and s. 54(4) expressly states that the defence is not available if the defendant ‘acted in a considered desire for revenge’. It will be up to the courts to distinguish ‘considered’ revenge from other forms of revenge.
Presumably an impulsive, spur of the moment act of revenge might come within the defence, but where the killing is an act of premeditated vengeance the defence will be excluded. In R v Clinton, Parker and Evans (2012) the Court of Appeal stated that the concept of ‘considered revenge’ was self-explanatory, the jury would understand it, and there was no need for the trial judge to explain the concept further to the jury.
The Law Commission had recommended that the requirement of loss of self-control should be dropped altogether because it is the wrongful words or conduct which provide the justification for the defence, there is no need for a loss of control to justify providing a defence. Alan Norrie (2010) has noted:
Indeed to be out of control might take the moral edge off what has been done in righteous, but sanctionable, anger [or fear] But the Coroners and Justice Act places loss of control at the heart of the redrafted partial defence.
The defence will often only work in practice if the meaning of loss of control is strained to include situations which on the surface might not really fit. Thus, has a woman who has been subjected to years of abuse and eventually kills her abusive partner really suffered from a loss of self-control at the time of the killing?
The academic Chris Morgan has observed: The mere fact that a defendant has performed an act suggests that in some way he was in control, facilitating the argument that a loss of self-control, defined scientifically, can never really occur while the defendant remains able to act.
The Government chose to keep the concept of loss of control because it thought the concept was needed to exclude people who killed in cold blood, particularly as the requirement the killing be sudden was being removed.
However, the provision in the legislation that the killing could not be committed for revenge would probably have been sufficient. In R v Dawes, Hatter and Bowyer (2013) it was noted that the loss of control might follow from the cumulative impact of earlier events.
Resulting from a qualifying trigger
The loss of self-control must have been caused by a qualifying trigger, defined in s. 55 of the 2009 Act:
55(1) This section applies for the purposes of section 54.
(2) A loss of self-control had a qualifying trigger if subsection (3). (4) or (5) applies.
(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.
(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which- (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger (a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D
incited to be done or said for the purpose of providing an excuse to use violence: (b) a sense of being seriously wronged by a thing done or said is not justified if D incited the thing to be done or said for the purpose of providing an excuse to use violence, (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
(7) In this section references to ‘D’ and ‘V’ are to be construed in accordance with section 54.
So the qualifying trigger exists when the defendant has a loss of self-control attributable to:
- a fear of serious violence from the victim,
- or things said or done.
The qualifying trigger can also be a combination of both of these. Thus the defence will be available both where there is fear and where there is anger The Law Commission partly justified this by pointing out that there is psychiatric evidence that fear and anger are not distinct emotions but are frequently present together in violent action.
A fear of serious violence from the victim
This form of the defence might be used by a woman who has been subjected to domestic violence and who reacts by killing her abusive partner. It could also be used by a homeowner who kills a burglar or a policeman who shoots dead an unarmed suspect. The defence could be available where self-defence is not available because there was no imminent threat or their reaction was considered disproportionate for the purposes of self-defence. In the past it was difficult for defendants to argue both that they behaved rationally in self-defence and alternatively that they lost their self-control due to provocation, as the defences seemed to contradict each other.
With this alternative form of the new loss of control defense it might be easier to argue self-defenses in the alternative, though there remains the complication that the Government kept the requirement for a loss of control which the Law Commission would have dropped. Where excessive force has been used self-defenses will not be available but the partial defense may be available because the excess amount of force might be explained by the loss of self-control. Thus it avoids the ‘all or nothing’ approach by allowing a partial defense where the complete defense of self-defenses cannot succeed, but there is still some justification for the killing.
The reformed defense might be fairer on, for example, battered women who kill their abusive partners after a relatively minor attack, but in a context where they fear a more significant attack in the future. Where the qualifying trigger is a fear of serious violence from the victim, this is a subjective test.
Thus, the fear of violence must be genuine but it need not be reasonable. The fear of serious violence needs to be in respect of violence against the defendant or against another identified person (s. 55(3)). The explanatory notes to the Act state that the relevant fear could be in respect of a child or other relative of the defendant, but it could not be against an unidentified group of people (for example, a political group).
When the defendant’s fear of serious violence was caused by something that the defendant
incited for the purpose of providing an excuse to use violence, it is to be disregarded (s. 55(6)(a)) The defence will only succeed where the victim is the source of the violence feared by the defendant.
This is slightly ironic because the campaigners on behalf of domestic violence victims were unhappy that victims could be blamed for their own deaths when a defence of provocation had been relied on, but in the context of a killing in fear of serious violence the new defence effectively that by defining the defence to require the defendant to have feared serious violence from the does blame (male) victims for their own death. Mackay and Mitchell (2005) have therefore argued victim, instead of the other possible reformulation of ’emotional disturbance’, the proposed reformn places an undesirable focus on the victim’s conduct rather than the defendant’s.
Things said or done
Things said or done can only amount to a qualifying trigger of manslaughter in UK, if they amount to circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged (s. 55(4)). It is not enough that defendants felt wronged, only if they had a justifiable sense of being seriously wronged will the trigger apply.
The requirement that the circumstances must be of an extremely grave character means that this form of the defence will have a narrower application than the old provocation defence. This requirement is a response to concerns that under the old
provocation defence even trivial words or conduct had to be left to the jury to consider.
Thus under the old defence of provocation, in the case of Rv Doughty (1986), it was held that the persistent crying of a baby could amount to provocation. This case would be decided differently under the loss of control defence because a baby crying does not constitute circumstances of an extremely grave character which could give the defendant a justifiable sense of being seriously wronged.
In R v Zebedee (2012) the defendant helped care for his 94-year-old father who was suffering from senile dementia and was incontinent. After he had cleaned his father following an incidence of incontinence in the night, his father had soiled himself again. The defendant had lost his control and killed his father. The jury rejected his defence of loss of control and he appealed against his sentence.
The Court of Appeal noted that whatever had triggered the defendant’s violent outburst, the jury must have concluded the trigger did not amount to circumstances of an extremely grave character. In practice, this requirement may work against a battered woman who kills her abusive partner, leading Carol Withey to observe that the law may “take back with one hand what it gives with the other.
Susan Edwards (1996) has pointed out: The battered woman has a different perception of threats and an expert knowledge based on experience of the aggressor’s likelihood of carrying them out; she is in a constant state of anticipation and fear knowing from past experience that anything or nothing at all may result in him assaulting or trying to kill her.
The question is how far will the jury recognise this reality when faced with an apparently trivial incident that has triggered an abused woman to kill. The defendant must have a sense of being seriously wronged but the defence will only be allowed if the sense of being wronged was justifiable.
The Court of Appeal noted in R v Clinton, Parker and Evans (2012), that these requirements require an objective evaluation. In other words, the issues of whether the trigger was of an ‘extremely grave character’ and whether the defendant had a justifiable sense of being ‘seriously’ wronged all had to be decided objectively (focusing on what a reasonable person would think, rather than what the defendant him- or herself thought).
An example given by the Law Commission was of a parent who arrives home to find his or her child has just been raped, and in response the parent loses self-control and kills the offender as he tries to escape. The wording suggests that defendants should have some moral right on their side in relation to the victim rather than their conduct simply being an example of human frailty Presumably, grossly defamatory comments or racist taunts would suffice. Where homeowners killed a burglar they would have to argue that the burglary was something of an extremely grave character which caused them to have a justifiable sense of being seriously wronged.
In R v Dawes, Hatter and Bowyer (2013) there were three separate appeals where the defendants had unsuccessfully raised the defence of self-defence. All three appeals were rejected. Bowyer had tried to burgle a house. The victim came home unexpectedly and revealed that Bowyer’s girlfriend was a part-time prostitute.
A defence of loss of control was left to the jury but was rejected and Bowyer was found liable for murder. The Court of Appeal held that on these facts the defence should not even have been left to the jury because the defendant had no justification for feeling seriously wronged when he himself was the burglar. In the appeal of Hatter, the court noted that the break-up of a relationship would not normally constitute circumstances of an extremely grave character giving rise to a justifiable sense of being seriously wronged.
If the defendant’s sense of being seriously wronged relates to something the defendant incited for the purpose of providing an excuse to use violence, it is to be disregarded (s. 55(6)(b)). In Dawes, Hatter and Bowyer (2013) Dawes had come home to find the victim lying on the sofa with Dawes estranged wife. Dawes said he had thrown a bottle at the victim and the victim had then approached him with the bottle. Dawes took a knife from the kitchen and killed the victim.
The trial judge ruled that the defence of loss of control was not available because Dawes had incited the violence offered to him by the victim with the bottle so that a qualifying trigger was excluded under s. 55(6). This interpretation of the law was found to be wrong by the Court of Appeal because the defendant had not incited the violence with the specific purpose of providing an excuse for his violence. But no injustice had been caused by this misdirection because there was no evidence the defendant had actually lost his control. Cases that fall within this narrow interpretation of s. 55(6) are likely to be very rare indeed.
Diminished responsibility in manslaughter in UK
The defence of diminished responsibility was created by s. 2 of the Homicide Act 1957. This
defence was introduced because of problems with the very narrow definition of insanity under the M’Naghten Rules (see p. 353), and had been given quite a broad interpretation. The Law Commission initially suggested in its consultation paper Partial Defences to Murder (2004) that this area of law should remain unchanged as ‘[t]here appears to be no great dissatisfaction with the operation of the defence’.
However, the Law Commission recommended in its subsequent report Murder, Manslaughter in UK and Infanticide (2006) that the defence of diminished responsibility should be modernised to work more closely with the medical understanding of mental health problems. The Government accepted the Law Commission’s recommendations and the definition of the defence was changed by s. 52 of the Coroners and Justice Act 2009 which has substituted a new definition of the defence of Manslaughter in UK.
The aim is to bring the terminology up to date in a way that will accommodate future medical developments and encourage defences to be grounded in a valid medical diagnosis. By doing this. However, the defence may lose some of its flexibility which had been its strength in practice, allowing courts to do justice in the individual case, such as reduc-
ing liability from murder to manslaughter in uk for a mercy killing by a relative of a person who was terminally ill and in pain.
The new definition of the defence is still found in s. 2 of the Homicide Act 1957 but that provision has been completely changed by s. 52 of the Coroners and Justice Act 2009. Section 2 of the Homicide Act 1957 now states:
(1) A person (D) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which-
(a) arose from a recognised medical condition.
(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.
(1A) Those things are-
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
(1B) For the purposes of subsection
(1)(c), an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing. D to carry out that conduct.
Thus, the defence of diminished responsibility is available where: 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 do one of three things: (1) to understand the nature of his conduct; (2) to form a rational judgment; or (3) to exercise self- control; the abnormality provides an explanation for the defendant killing the victim. Each of these requirements will be considered in turn.
An abnormality of mental functioning
Before 2009 the defence referred to an abnormality of mind, now it refers to an abnormality of mental functioning. The Law Commission stated that ‘mental functioning’ is a term preferred by psychiatrists to ‘mind’. To come within the defence, the defendant must have been suffering from an abnormality of mental functioning which satisfies the three requirements discussed below.
(1) A recognised medical condition
The abnormality of mental functioning must have arisen from a recognised medical condi-
tion. The main aim of this reform is to modernise the defence to bring it into line with medical understanding of mental ill health. Thus, the defence will only be available if the defendant was suffering from a condition recognised by medical professionals.
The legislation refers to a recognised ‘medical condition (not ‘mental’ condition), so it includes both psychological and physical conditions and is not restricted to mental disorders. It could, therefore, include conditions like epilepsy, sleep disorders and diabetes. The adjective ‘recognised’ will exclude the opinion of ‘quack medics’ whose views do not represent established opinion in the medical profession.
Potentially, this definition gives more power to the medical experts to influence the jury’s verdict in a trial. As new cases progress through the courts, we will see whether the verdicts are as scientific as intended.
Medical experts are likely to refer to the tenth edition of the World Health Organization’s International Classification of Mental and Behavioural Diseases (WHO ICD-10) or the American equivalent, the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). In R v Dowds (2012) the Court of Appeal noted that just because a disease is listed in one of these publications does not automatically mean it will be a recognised medical condition for the purposes of the defence of diminished responsibility in Manslaughter in UK.
This is because these publications have been produced for a medical purpose rather than for the purpose of delineating the boundaries of criminal liability, so the criminal law must take into account certain public policy issues which are not relevant to medical science. As a result, while acute intoxication is listed in the WHO ICD-10, it is not in itself a recognised medical condition for the purposes of the defence. The ‘recognised medical condition’ requirement is not a sufficient filter in determining the availability of a potential defence of diminished responsibility.
The international medical publications identify an array of disorders including ‘unhappiness’, ‘irritability and anger’ and ‘paedophilia’. Which a court would not want to give rise to a defence. As the Court of Appeal stated: The presence of a ‘recognised medical condition’ is a necessary. But not always a sufficient, condition to raise the issue of diminished responsibility.
The Government has not adopted the Law Commission’s recommendation to include developmental immaturity as a possible basis for reducing murder to manslaughter in UK. so the defence provides no special protection for children accused of murder. The Ministry of Justice considered that normal immaturity should not be enough to give rise to this defence, and abnormal immaturity could come within a recognised medical condition. Thus, a man of 40 with a mental age of 10 will be treated as having diminished responsibility, but a child of 10 will not.
(2) A substantial impairment of the defendant’s ability
The abnormality of mental functioning must have substantially impaired the defendant’s ability to do one of three things in Manslaughter in UK:
(a) understand the nature of their conduct;
(b) form a rational judgment; or
(c) exercise self-control.
The previous definition of the defence simply required a person’s mental responsibility to have been diminished, but did not specify in what way. Thus, the new definition spells out more clearly than before what aspects of a defendant’s mental functioning must be affected in order for the partial defence to succeed. The scenario referred to in (a) looks similar to the defence of insanity which considers whether defendants knew the nature and quality of their acts.
The term ‘substantially impaired’ was considered in the case of R v Golds (2014). The defendant had been prosecuted for murder and argued in his defence diminished responsibility. Three medical experts concluded that the conditions for the defence had been satisfied. The defence lawyer asked the trial judge to direct the jury that ‘substantially impaired’ meant more than trivial. The trial judge refused to give this direction, stating the jury needed no assistance on the matter.
The jury convicted the defendant of murder and the defendant appealed, arguing the jury could have been confused on the meaning of ‘substantial’. His submission was that the word had two possible meanings.
First, that the impairment was substantial if it was more than merely trivial or minimal, so that the impairment had substance. Secondly, that it was substantial if it did not totally impair but significantly impaired in a way that was more than just trivial or minimal. An example of this second meaning would be if a salary was described as substantial, that does not mean it is more than minimal. On the contrary it suggests it is significantly more than that.
The defendant’s submission was that the trial judge should have clarified to the jury that the word in the legislation had the former and not the latter meaning. The appeal was rejected. The court stated that trial judges should either give no direction at all on the meaning of substantial or, if the jury asked for further guidance, they should
explain that the word had the second, narrower meaning. This effectively makes it more difficult for a defendant to succeed in arguing the defence of diminished responsibility.
(3) A significant contributory factor to the killing
The explicit requirement that the defendant’s abnormality of mental functioning should provide an explanation for the killing’ is a new addition to the diminished responsibility defence. Section 2(1B) clarifies that this will be the case where the abnormality was at least a significant contributory factor in causing the defendant to carry out the conduct. Thus it is clear that the abnormality should cause, or be a significant contributory factor in causing, the defendant to kill.
If the abnormality made no difference to the defendant’s behaviour and he or she would have killed anyway. Then the defence will not be available. While the Government did not consider that this emphasis on causation changed the law and practice, the new definition does appear to put a tighter requirement on causation. As a result, it may sometimes be easier for a mentally ill defendant to prove the defence
of insanity rather than the new diminished responsibility plea.
In R v Osbourne (2010) the defendant had been smoking cannabis with friends. He saw the
victim walking with a female companion; his attention was drawn to them because they were Asian. A fight broke out, the victim punched the defendant in self-defence and then left with his companion. The defendant was angry about being punched and crossed the road to arm himself with a plank of wood.
By this time the victim and his companion were out of sight, but the defendant and his friends ran in the direction they had gone and, catching up with them, the defendant hit the victim over the head from behind with a plank of wood. At his trial, he was convicted of murder. On appeal the defendant sought to introduce fresh evidence that he suffered from attention deficit hyperactivity disorder (ADHD) which made him behave in an impulsive way. And impaired his ability to form rational judgements and control his actions. His appeal was rejected. The Court of Appeal accepted that it would be possible for ADHD to support a defence of diminished responsibility.
However, on the facts of the case the ADHD suffered by the defendant did not substantially impair his mental responsibility for his actions at the time of the killing. The court considered that it was more likely that the drug-taking and his anger explained his conduct.
Under the old definition of the defence, there was case law looking at the issue of drink and
causation. This case law concluded that drink consumed voluntarily could not be taken into account as a cause of the killing that could reduce the defendant’s mental responsibility (Rv Wood (2008)).
Sometimes the defendant’s mental abnormality and drink both play a part in causing the defendant to kill. As long as the abnormality was a substantial cause of the killing. It did not matter that the drink was also a cause of the killing. But the defendant had to go on to satisfy the next aspect of the defence, that the mental abnormality substantially impaired his or her mental responsibility for the fatal acts. In practice it will be very difficult for a jury to determine whether an alcoholic consumed a particular drink voluntarily or involuntarily (due to an irresistible alcoholic craving).
If the defendant would not have killed if he or she had not taken drink, the mental abnormality could still have been a cause of the defendant’s acts. In Fenton the defendant would not have killed if he had not taken drink, but nevertheless the trial judge was found to have correctly left the issue of diminished responsibility to the jury. The emphasis under the 2009 Act will be whether the abnormality of mental functioning (rather than the drink) was a significant contributory factor to the killing.
Suicide pacts
Section 4 of the Homicide Act 1957 states that: It shall be manslaughter and shall not be murder for a person acting in pursuance of a suicide pact between him and another to kill the other or be party to the other being killed by a third person. Suicide was once a crime. This is no longer the case, but when that offence was abolished. The crime of aiding and abetting suicide remained, on the ground that helping someone to take their own life might well be done with an ulterior motive – by a beneficiary of the deceased’s will, for example.
Where someone dies due to acts of another and that person intended to cause the death.
he or she could be liable for murder. Where the person can show that the death was a suicide and was part of a pact in which that person too intended to die, liability will be reduced to manslaughter in uk. It is for the defence to prove this, on a balance of probabilities. The legality of this reverse burden of proof was confirmed by the Court of Appeal in R v H (2003).
The prosecution accused the defendant of injecting his wife with a huge dose of insulin, thus killing her. He took a minor dose of insulin which did not kill him. He said that he was the survivor of a suicide pact. The court held that the defendant had the burden of
proving the existence of a suicide pact on the balance of probabilities. This reverse burden of proof was necessary to protect vulnerable members of society from being murdered and the offender disguising his conduct as a suicide pact.