Manslaughter (Voluntary and Involuntary)

Self - Defence
Voluntary Manslaughter

 “Partial defences” to murder:

 loss of control (formerly provocation)
 diminished responsibility
 Old provocation law (common law codified and
expanded in 1957)
 Available to whoever was exposed to so much
provocation that even a reasonable person
might have acted as he did
 Subjective and objective element
 Available for a husband who found his wife having
sexual intercourse with another man;
 (b) a person of the defendant’s age and of
ordinary temperament, i.e., ordinary tolerance
and self-restraint, in the circumstances of the
defendant might have reacted in the same or in a
similar way.

 (2)The partial defence should not apply where:

 (a) the provocation was incited by the defendant for

the purpose of providing an excuse to use violence;
or

 (b) the defendant acted in considered desire for

revenge.
 (4) A person should not be treated as having acted
in considered desire for revenge if he or she acted
in fear of serious violence, merely because he or
she was also angry towards the deceased for the
conduct which engendered that fear.
New Loss of Control
Defence
 Coroners and Justice Act 2009 ss. 54-56:
provocation abolished and replaced with loss of
control
 Loss of self control
 In response to a qualifying trigger
 Fear of serious violence from V against D or
another person;
 Anger: things said or done, which constituted
circumstances of an extremely grave character
and caused D to have a justifiable sense of being
seriously wronged
 A person of D’s sex and age, with a normal degree
of tolerance and self-restraint in the
circumstances would have lost control;
 D’s circumstances involve all circumstances except
those which are related only to D’s general capacity
for tolerance and self-restraint
 Note:
 requirement of suddenness is abolished;
 revenge motives explicitly excluded.
 Mere sexual infidelity is also explicitly excluded as a
source of justifiable anger
 loss of control retained, against the recommendation of
the Commission.
Diminished Responsibility
Section 52 of the Coroners
and Justice Act 2009

 Replaces the definition of diminished

responsibility as contained in the 1957 Homicide
Act
 Abnormality of mental functioning - a state of
mind so different from that of ordinary human
beings that the reasonable person would term
it abnormal
 ability to exercise willpower or to control physical
acts in accordance with rational judgement.
 Test includes the following
 whether the defendant was suffering from an abnormality
of mental functioning
 whether it had arisen from a recognised medical
condition
 whether it had substantially impaired his ability either
to understand the nature of his conduct or to form a
rational judgment or to exercise self-control (or any
combination).
 Stephen Andrew Dowds v The Queen [2012] EWCA
Crim 281 re acute voluntary intoxication: the
fact that a recognised medical condition appears in
the relevant classificatory lists does not
necessarily suffice;
 And on the other hand, emerging conditions
which, while being recognised, might not yet
have been included in the accepted classificatory
lists can be relied upon
 Abnormality must be at least a significant
contributory factor in causing the defendant to act
as he did (subsec. 1B) - more than a merely trivial
factor
 The evidential burden is on the defence on the
balance of probabilities
R v Byrne

 The D had strangled a young woman and then

mutilated her body. He claimed that he was
subject to an irresistible impulse because of
violent perverted sexual desires which overcame
him and had done so since he was a boy.
 He was a sexual psychopath
 “Abnormality of mind means a state of mind so
different from that of ordinary human beings that
the reasonable man would term it abnormal”.
Involuntary manslaughter

 Involuntary manslaughter is an unlawful killing

where the accused did not have the specific
intention for murder.

There are two possible ways in which a person may

be guilty of involuntary manslaughter:
- By an act which is unlawful and dangerous;
- By gross negligence
Unlawful act manslaughter
(UAM)/Constructive
manslaughter

 It refers to involuntary manslaughter offence in which,

by her acts, D commits a criminal offence (the base
offence), the base offence carries an objective risk of
harm to V, and V dies as a result.
 Unlawful act manslaughter:
- The D must do an unlawful act;
- The act must be dangerous
- The act/rather than omission must cause the
death;
- The defendant must have the required mens rea
for the unlawful act.
Unlawful act manslaughter

Unlawful Unlawful act

Objectively Causing
act (base manslaught
dangerous death
offence) er
 Unlawful act
manslaughter
• UAM can also(constructive
apply where D commits a relatively
minor offence without foreseeing such fatal risks,
manslaughter)
where as a matter of ‘bad luck’ death results.
• D commits a battery and V falls and hits her head and
dies – UAM.
• D does not require any mens rea as to the
dangerousness of his act.
 The unlawful act (base
offence)
• Must be a criminal offence (usually OAP) (Franklin)
• Must be an offence that requires subjective mens rea –
this means that offences that require negligence or
strict liability offences will not suffice.
• The base offence must have been completed by an act
rather than an omission (most omissions cases will
be dealt with under the alternative involuntary act
manslaughter offence of gross negligence
manslaughter. (Lowe [1973] QB 702) criticised for
lacking any coherent basis)
• Every element of the base offence must be satisfied.
• If D has a defence to the base offence then there is no
unlawful act (self defence)
 Andrews v DPP – Careless driving – killed a
pedestrian – negligence based driving offence, not
capable of UAM
 Lowe – ommitting to care for his child, under 1933
Act C and YPA - not capable of UAM as D’s
offence was negligence based.
 Lamb [1967] 2 QB 981
(all elements of base offence must be present )

• D pointed a loaded gun as a joke. Neither D nor V

understood how a revolver worked, and did not know
that the gun was loaded and thus neither realised that
the barrel of the gun would revolve and the bullet
would be fired. It did and V was killed.
• Crown Court – Guilty of UAM
• Court of Appeal – allowed the appeal. The base offence
was assault or battery was not complete because D
lacked the requisite mens rea, he did not intend or
foresee risk to V or a risk of causing V to apprehend
harm.
Dangerous Act

 It is not simply a requirement that D’s actions

must be dangerous in fact.
 It is a requirement that a sober and reasonable
person in D’s position would have foreseen that
her acts carried a risk of harm to V at the time D
acted.
 R v Church [1985] EWCA
Crim 1 CofA
• A man brought a woman to his van for sex, she was
unsatisfied and slapped him in the face.
• They had a fight and he knocked her unconscious. He tried
unsuccessfully to wake her up.
• He dragged her out and put her in a river, where she died of
drowning. He said he thought she was dead at this stage.
• The Judge directed that whether or not he thought she was
dead when he threw her in, this was manslaughter.
• Appealed (appeal was dismissed but important judgement on
UAM)
It was a misdirection by the judge.
“The unlawful act must be such as all sober and
reasonable people would inevitably recognise that it
must subject the other person to, at least, the risk of
some harm resulting therefrom, albeit not serious
harm.”
 Cause death: CAUSATION

• D’s base offence as well as being foreseeably

dangerous must cause V’s death.

• This requires application of the standard causation

rules: ‘but for’ and ‘proximate, substantial and
operating cause of the death’.

• Time delay irrelevant as long as causal link

established.
AG’s reference (No 3 of
1994) [1998]
 D stabbed his girlfriend (M), with the intention
required for murder and knowing that she was
pregnant. Although M survived, the attack caused
her to enter premature labour. The baby (V) was
born, but only survived for four months in
intensive care before it died. D was charged with
the murder of V.
 House of Lords: D is not liable for murder.
However, D should have been liable for UAM.
Gross Negligence
Manslaughter

Where a person owes a duty of care then if he or

she performs that duty so negligently that someone
dies, he may be guilty of manslaughter

- The degree of negligence needed to make a

person guilty is one which ‘ ..showed such a
disregard for life and safety of others as to amount
to a crime against the state and conduct deserving
of punishment”.
 Duty of care
• D owes V a duty of care
• e.g. doctors/patients, transport carriers to passengers,
employers/employees
• However, duties will be recognised far beyond these
examples – definition taken from civil law, it has been
interpreted broadly where D’s conduct carries a risk.
• Can be committed by an act or omission
• Where D’s positive acts cause death then it is only a
requirement to demonstrate a duty of care.
• Where omissions the standard rules of omissions apply
– i.e. there must be a ‘legal duty to act’.
 Evans [2009] EWCA Crim
650
Duty of care
• D supplied her half sister with heroin which S then self
injected. Seeing symptoms of an overdose, D stayed with S
but did not alert the authorities for fear of personal liability
for supplying the heroin.
• S died and D was charged with GNM on the basis of her
omission to aid S (DUTY ARISING FROM HER CREATION OF A
DANGEROUS SITUATION WHEN SUPPLYING THE DRUGS).
• Her duty was to summon help for S.
• Conviction upheld on appeal.
 Breach of duty of care

• D breaches duty of care and duty to act.

• For action based GNM, would a reasonable person have

refrained from the acts carried out by D or whether a
reasonable person would have acted differently.

• For omission based GNM, would a reasonable person in D’s

position have acted differently.
 Causing death

• Apply standard causation rules.

• But for

• Proximate, substantial and operating cause.

 Grossly negligent

• It must be sufficiently grossly negligent (sufficiently bad) to

warrant criminal liability.

Lord McKay in Adamako:

• “having regard to the risk of death involved, (was) the

conduct of the D, so bad in all the circumstances to amount
to an omission?”

Adomako [1994]
D ( an anaesthetist) failed to notice that a tube supplying
oxygen to his patient (V) had become detached. As a result, V
died. D was charged with GNM on the basis that his conduct fell
dramatically below the standards expected of a reasonable
anaesthetist.
Convicted on GNM
Self-Defence
The Nature of
Justifications
 In many of their instances, self-defence and
prevention of crime are justifications.
 Despite the existence of actus reus and mens rea,
the conduct was, all things considered,
permissible; It had a good reason.
 In the typical case, it was a conduct that the law
would like to encourage;
 In other cases, it was a conduct that the law
permits retrospectively, but would not encourage
prospectively;
 Hence the actor is not liable.
Legal Sources and Main
Principles
 "It is both good law and good sense that a man
who is attacked may defend himself. It is both
good law and good sense that he may do, but
only do, what is reasonably necessary.“ (Palmer v
R, [1971] AC 814)
 "A person may use such force as is reasonable in
the circumstances in the prevention of crime, or in
effecting or assisting in the lawful arrest of
offenders or suspected offenders or of persons
unlawfully at large.“ (sec. 3 of the Criminal Law
Act 1967)
Reasonable Force

 Purposes:
 Self defence
 Defence of another
 Defence of property
 Prevention of crime
 Lawful arrest
 was the use of force necessary in the
circumstances, i.e. was there a need for any force
at all?
 was the force used reasonable in the
circumstances?
The two elements of self
defence
 A) Trigger: D must have believed (subjective) that
force was immediately required in order to protect
her public or private interest; and
 B) Response: the amount of force used by D must
have been reasonable (objective) on the facts as
D believed them to be
 The test is (partly) subjective: both questions are
to be answered on the basis of the facts as the
accused honestly believed them to be (R v Williams
(G) 78 Cr App R 276)
 And (partly) objective: The jury must further ask
themselves whether, on the basis of the facts as the
accused believed them to be, a reasonable person
would regard the force used as reasonable or
excessive.
Gladstone Williams (1984)

 V witnessed X rob a woman in the street. V caught

X and held him down, knocking X to the ground on
a second occasion when X attempted to get away.
D witnessed the second altercation, and thought V
was assaulting X. D then punched V in the face in
an attempt to defend X.
 Held: the requirement element must be based on
an honest belief. (must not be reasonable).
 Evaluating objective reasonableness: "If there
has been an attack so that self defence is
reasonably necessary, it will be recognised that a
person defending himself cannot weigh to a nicety
the exact measure of his defensive action. If the
jury thought that that in a moment of unexpected
anguish a person attacked had only done what he
honestly and instinctively thought necessary, that
would be the most potent evidence that only
reasonable defensive action had been taken ...“
(Lord Morris in Palmer)
 Clarifications by sec. 76 of the Criminal Justice and
Immigration Act 2008:
 Section 76(3): the question whether the degree of force
used by D was reasonable in the circumstances is to be
decided by reference to the circumstances as the
defendant believed them to be.
 Section 76(4): the more unreasonable the belief, the
less likely it is that the court will accept it was honestly
held;
 Section 76(7) adopts the test of reasonableness as
described in Palmer;
 Section 76(6): no duty to retreat; not retreating is just
a factor taken into account in evaluating reasonableness.
‘Household Cases’
(Tony Martin as an example)

 Andrew Ashworth (Principles of Criminal Law, pp.

122-3):
 “If D believes there is a threat of violence from the
intruder, as will often be the assumption, then
surely life should be placed before property
and D should retreat rather than (if this is
possible) using a weapon against the intruder.
Although popular sentiment appears to be
otherwise, any other approach would value property
interests more highly than life and limb. But in
several cases in which a firearm, sword, or knife has
been used against a burglar with fatal results, the
householder has been either acquitted or not
prosecuted”
‘Householder Cases’ – the
law
• Subsection (5A) allows householders to use
disproportionate force when defending themselves
against intruders into the home; only grossly
disproportionate force would be unreasonable;
 Applies where householders defend themselves or
others; not their property (sec. 8A(a)); and
 They are in or partly in a building or part of a building that is
a dwelling or is forces accommodation (see (8A)(b)); and
 They are not in the building as a trespasser ((8A)(c));
and
 They genuinely believed (rightly or wrongly) that the person
in respect of whom they used force was in or entering the
building as a trespasser (8A)(d))