Voluntary Manslaghter - Notes and Evaluation.

Voluntary Manslaughter
Voluntary Manslaughter is the term given to situations in which the defendant would be guilty of murder (i.e. he had the intention to kill or cause GBH) but due to a mitigating factor he is only guilty of manslaughter. These mitigating factors are when the killing occurs when the defendant is under diminished responsibility, provocation or a suicide pact. All of these defences are set out in the Homicide Act 1957. The defences are only available to murder and are only partial defences, which means that the defendant is not completely acquitted; the charge is reduced to manslaughter.
Provocation - S3 Homicide Act 1957
"Where, on a charge of murder, there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury."
The defence consists of two elements; 1.) Did the defendant lose his self control? 2.) Would a reasonable person have lost his self-control?
1.) Did the defendant lose his self control?
This is a subjective test in which the jury must be satisfied that the defendant lost his self control as a result of the provocation. In Duffy (1949) it was said that there must be a "sudden and temporary loss of self control, rendering the accused so subject to passion as to make him not the master of his mind". This means that there must not be any evidence that the defendant was planning, acting in revenge or had clearly cooled down. This usually means that the longer the time lapse between the provocation and the killing, the less likely it is that the defence will succeed (Ibrams and Gregory 1981). However, the fact that the defendant had time to cool down is not fatal to the defence, provided that when he did retaliate he was out of control (Baillie 1995). It is argued that this need for a sudden loss of self control makes the defence more available to men than women, as many women take longer before they lose their self-control (Ahluwalia 1992). Ahluwalia's appeal against murder was rejected on the grounds of provocation as her reaction was not immediate, but was successful on the grounds of Diminished Responsibility as "slow burn anger" is a recognized symptom of battered women’s syndrome. The Court of Appeal has made it clear that a defence of provocation can succeed if there is a series of events over time which drove the woman to murder (Humphreys 1995).
2.) Would a reasonable person have lost his self-control?
This is an objective test in which the jury must be satisfied that a reasonable person would have lost his self control in the same circumstances. In Camplin (1978), the House of Lords gave examples of a number of characteristics which could modify the reasonable man test further than being an adult who was physically and mentally normal, as in Bedder v DPP (1954), but only if the characteristic of the defendant is relevant to the provocation. These included age, sex, race, colour, ethnic origin, physical deformity, impotence, their history or their circumstances at the time.

Diminished Responsibility - S2 Homicide Act 1957
"Where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omission in doing or being a party to the killing."
The burden of proving Diminished Responsibility is on the defendant, unlike other defences; this is because everybody is presumed to be sane unless proven otherwise. The defendant only needs to prove it on the balance of probabilities, which means that they must prove that they were suffering from 1.) an abnormality of the mind 2.) that arose from a specific cause 3.) which substantially impairs the defendants mental responsibility.
1.) An abnormality of the mind
This is "a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal" (Byrne 1957). The Court of Appeal held that "abnormality of mind" is wide enough to cover: the perception of physical acts and matters, the ability to form a rational judgment as to whether an act is right or wrong, and the ability to exercise willpower to control physical acts in accordance with that rational judgment. This final point covers 'irresistible impulse', as in Byrne's case, where he could not resist his perverted desires. Diminished Responsibility covers a wide range of mental conditions, including depressive illnesses, paranoia, epilepsy, severe trauma, PMT and battered women’s syndrome. The courts will not recognize abnormality of the mind if it is simply jealousy.

2.) It must arise from a specific cause
The abnormality must be caused by one of the matters set out in the brackets within S2 Homicide Act 1957. These are: 1.) A condition of arrested or retarded development - this includes an abnormality arising from a failure of the mind to develop beyond a certain point, e.g. Downs Syndrome. 2.) Inherent causes - this means a cause which is within the defendant like depression, pathological illness, trauma or paranoia as opposed to external factors such as alcohol or drugs. 3.) Induced by physical disease or injury - this is where some external cause has lead to a mental abnormality, e.g. being hit over the head by falling brickwork which causes a personality disorder or long term alcoholism or drug taking which leads to personality changes. Intoxication itself is never a cause for pleading diminished responsibility (Tandy). However many killings occur as a result of a combination of intoxication and mental abnormality (Sanderson). The defendants abnormality of the mind does not have to be the only reason for their act - the question is did he have an abnormality of mind when he was sober. The mental abnormality must exist independently of the intoxication and exist at the time of the killing.
3.) It must substantially impair defendants mental responsibilities
This is for the jury to decide whether the difficulty the defendant has with controlling his conduct has been substantially greater than the difficulty a reasonable man would have experienced in the same circumstances or not. However, as it is a question of fact, the judge can withdraw the point from the jury if there is no evidence on which a reasonable jury could conclude that the defendant’s mental responsibility was substantially impaired.

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Critical Evaluation Of Voluntary Manslaughter
Provocation
In 2003 the Law Commission issued a consultation paper on the special defences to murder. In it they pointed out a number of problems with the defence of provocation.
One of the main criticisms of this defence is the contradiction in S2(1) i.e. how can a person lose their self control and still be expected to react like a reasonable person? There is also the issue of whether or not a 'reasonable man' would ever respond to provocation by killing.
The term 'reasonable man' has proved hard to explain - the phrase has been considered 4 times in the past 20 years, with the last occasion, in Smith (2000), resulting in the judges being split three to two. The decision made in Smith (2000) also brings up the issue of which characteristics can be taken into account by the jury, for example, if the defendant is passionate about a certain topic, for example hunting, and are taunted by another person about it. This could lead to variable justice as one judge may take into account certain characteristics that another judge may not. Also, the objective test may call for a jury to decide how a 'reasonable glue sniffer' may behave in certain situations which may be difficult, as the jurors are not likely to have met such a person.
Provocation allows a defence for anger with an immediate reaction, but not one for compassion or despair and no defence if the defendant waits through fear before the attack, even though provocation exists. There is no limit to what can be considered as provocation, as the innocent crying of a baby proved when it was held to count as provocation in Doughty (1986).
The defence discriminates against women as, due to physical strength, women are more likely to use a weapon. Legal outcomes have shown that when knives and guns are used the likelihood of a conviction for murder increases, whereas when body force is used, for example strangulation, a conviction for provocation manslaughter or even no intent manslaughter is more likely. This is because abused wives have found it difficult to prove to the courts that they have lost their self-control.
The Law Commission suggested that the mandatory life sentence of life imprisonment should be abolished, which would mean that the defence of provocation would be abolished as the judge would have discretion in sentencing. However, it is also argued that a jury would be a better judge of the level of self-control to be expected from a defendant; if the defence of provocation is abolished then the matter would be entirely in the judges hands.
Diminished Responsibility
Although Diminished Responsibility has proven to be a more satisfactory defence than insanity for people who kill but are suffering from a mental abnormality, there are several problems with the defence.
One criticism of diminished responsibility is that it is not a satisfactory alternative for abused women as it defines them as mentally abnormal (Alhawalia). Those in abusive relationships should not have to claim to be mentally abnormal; the emphasis should remain on the abuse.
As the case of Thornton revealed, it is the abuser that is mentally unstable, not the victim.
There are also problems with the wording of the act. The law commission stated that the words are unclear which means that in different cases different doctors have classed the same conditions in different ways. Some doctors will testify that reactive depressions and dissociated states of mind are inherent causes, while other doctors disagree.
One main problem with diminished responsibility involves the jury. "Mental responsibility" and "abnormality of the mind" are difficult concepts for a jury to understand, and medical evidence is often complex and contradictory. lt can also be said that psychiatrists are usurping the role of the jury in that they are being asked to give an opinion on what many believe to be a moral question, when the psychiatrists should only state whether the abnormality actually exists.
It is also difficult for juries when dealing with a case where the defendant has an abnormality of the mind and is intoxicated at the same time. It is hard for them to separate the two issues (Dietschmann). The jury are asked the difficult question "Would the defendant have still had an abnormality had he been sober?" rather then "Would he have killed had he been sober?" and then they have to decide whether the abnormality of the mind amounts to diminished responsibility.
Finally, it can be said that the burden of proof should be on the prosecution to disprove the defence once the defendant has raised evidence of it, which is the case in most other defences. These problems were dealt with in the Butler Committee's proposal and the draft Criminal Code, but the government has not enacted either so these problems remain in the law.