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Homicide – Voluntary Manslaughter. Diminished Responsibility – s.2(1) Homicide Act 1957 (as amended) . What is voluntary manslaughter?. Homicide Act 1957 & Coroners and Justice Act 2009. Diminished Responsibility s.2 Homicide Act as amended by s.52 CJA. Loss of Control s.54 – 55 CJA.

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Homicide – Voluntary Manslaughter

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Homicide – Voluntary Manslaughter

Diminished Responsibility – s.2(1) Homicide Act 1957 (as amended)

What is voluntary manslaughter?

Homicide Act 1957 & Coroners and Justice Act 2009



s.2 Homicide Act as

amended by s.52 CJA

Loss of Control

s.54 – 55 CJA

Survivor of a

Suicide Pact

s.4 Homicide Act

Murder (Abolition of the Death Penalty) Act 1965

In simple terms:

D must show that at the time of killing V:

  • Abnormality of mental functioning (AO2)

  • From arecognised medical condition

  • This must substantially impair D’s ability to do one of the following:

    • 1. to understand the nature of D’s conduct

    • 2. to form a rational judgement

    • 3. to exercise self-control and

      4. Provides an explanation to his act

Pleading DR

Read the transcript from R v Moyle 2008 and think why you might not want to plead DR

Read the transcript from R v Sutcliffe 1981 what might influence a judge to withdraw the defence?

Diminished Responsibility is a partial defence

Why do we need it?

Because the law on insanity and automatism is MAD! And the mandatory life sentence is not much better.

Proof and getting it before the jury.

You argue it, but only if the reasonable jury would think you’ve got a case.

Abnormality of mental functioning

  • R v Byrne (1960) – still applicable?

  • Abnormality of mind ‘includes a lack of ability to form a rational judgement or exercise the necessary will power to control one’s acts’ Byrne (1960)

  • Test now - “state of mind so different from that of an ordinary human being that the reasonable man would term it abnormal”

Recognised Medical Condition

World Health Organisation Classification & DSM – IV - TR

Think pieces…

  • Are the following .. recognised medical conditions?

  • Induced by disease - This covers mental, as well as physical diseases; (Sanderson 1993).

  • Induced by injury - This would include physical blows to the head, e.g. that left D suffering brain damage.

Substantially Impaired

The word substantial in the 1957 act did not mean total, nor did it mean trivial or minimal. It was something in between and Parliament had left it to juries to decide on the evidence.

In the act it actually specifies what is meant by this and D may argue any of these.

  • Understand the nature of their conduct

  • The ability to form rational judgements

  • The ability to exercise control

Lloyd (1967)

Confirmed in

Brown (2011)

Substantially impaired

  • The jury will decide this after listening to the evidence of doctors:

    • Sanders (1991)

    • Campbell (1997)

D’s abnormality must provide an explanation for the killing

‘Significant causal factor’

Explain why diminished responsibility mitigates liability for murder – why is it an excuse?

…does it really fit with modern medicine and psychiatric notions of explanation – can you just blame the condition for the reactions of the defendant?

How do you tell the difference?

Provides an explanation of D’s conduct

  • S2(1b) of Homicide Act 1957.

  • ‘… 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.’

  • This can be important where D is intoxicated at the time of the killing.

What if intoxication ‘substantially impaired’ D?

What’s the issue?

D is intoxicated AND suffers from an unrelated AoMF

D’s AoMF is CAUSED by the intoxication

Despite the drink

was D sufficiently


Gittens (1984)

Egan (1992)

If sober would he

have been impaired


Intoxication and unrelated AoMF

  • A plea of DR may not be supported with evidence of intoxication.

  • The jury should disregard the effect of the alcohol/drugs and consider whether D, had he been sober, would still be suffering from an abnormality of mind according to s.2. Gittens (1985) – O’Connell (1997)

Intoxication and unrelated AoMF

  • The vital question is thus whether D’s abnormality of mind was such ‘that he would have been under diminished responsibility, drink or no drink’ : Egan (1992);

  • See also Dietschmann (2002) – Hendy (2006) and Robson (2006).

R vDietschmann (2003)

Read the Dietschmann Case

Report and answer

these questions

  • What are the facts of the case?

  • On what grounds was D arguing diminished responsibility?

  • What is the general rule on intoxication and diminished responsibility?

  • When can drink give rise to a s.2 Homicide Act 1957 defence?

  • What is the ratio of the case?

  • Does s.2 require the abnormality of mind to be the sole cause of D’s acts in killing?

  • What is the question to be put to the jury when assessing whether the impairment is sufficient?

  • Which case did they follow Egan or Gittens? Why?

What if intoxication ‘substantially impaired’ D?

What’s the issue?

D is intoxicated AND suffers from an unrelated AoMF

D’s AoMF is CAUSED by the intoxication

Despite the drink

was D sufficiently


Must cause brain damage or irresistible impulse to drink

Gittens (1984)

Tandy (1989)

The clear lines drawn in Tandy are no longer appropriate. It is the overall syndrome not the nature of one drink as voluntary

Gittens (1992)

Wood (2008)

If sober would he

have been impaired


Stewart (2009)

Intoxication and unrelated AoMF

  • If D’s long-term alcohol/ drug abuse has actually damaged the mind itself, this may amount to an ‘injury’ within s.2 - Tandy (1989).

  • What was the ratio of the C of A in Tandy (1989)? – See also the case of Wood (2008).

Can intoxication alone be enough for ‘substantially impaired’?

This is where D does not suffer from Alcohol Dependency Syndrome (ADS)

but is just drunk. Is it enough to be a medical condition under s.2? The official

guides to mental conditions do list ‘acute intoxication’ as a condition!

Consider R vDowds 2012

D Killed his partner by stabbing her over 60 times.

He was a binge drinker. As he himself put it, he

could choose when to drink, but when drinking

could not stop.

Does he have a defence?

Medical Evidence

  • Note that medical evidence is crucial to the defence of DR. If there is strong medical evidence for the defence but the jury ignores it, the C of A may quash a murder conviction and substitute one of manslaughter: Matheson (1958)

Applying the law

Are these two defendants liable for the manslaughter of the victims?

Simon deliberately kills many women, claiming he was driven by God to rid the world of prostitutes (although several of his victims were not prostitutes). Medical experts all agree that he is a paranoid schizophrenic.

Bob, who was suffering from depression and an alcoholic, stabbed his brother Jim to death after drinking ½ bottle of whiskey. Bob had just been prescribed medication for the depression and thought that his brother had been stealing them and replacing them with sugar pills. He usually drank vodka, but had none in the house.

Higher order thinking

In your opinion, how accurate are these statements?

It should be a mitigating factor in sentencing instead (the Spencer/Lloyd Amendment)

The new version brings the law into line with medical knowledge.

It is imposing an unfair burden of proof on the defence

It classes those in abusive relationships as “abnormal” in some way

The new defence provides a much more strict approach to the interpretation of ‘abnormality of mental functioning’ and doesn’t allow the same flexibility as the old law. R v Higginbotham (2004)

It is almost impossible to separate intoxication and inherent causes.

The use of the defence can involve a range of overly complex and legal terminology which can be difficult for a jury to understand.

The Coroners and Justice Act 2009 is only a halfway effective reform. The government only included it because they wanted to reform provocation.

Statement A: Sam would be liable for the

murder of Susie as he intended to cause her

serious harm.

Statement B: Sam would not be able to argue

diminished responsibility as he was not suffering

from an abnormality of mental functioning.

Sam has recently been feeling very down as his girlfriend Susie has left him. He has been to the doctor, who has put him on medication to help. One night Sam meets his friend Mike for drinks and over the course of a couple of hours consumes a large quantity of alcohol. On the way home, he breaks into Susie’s house and strangles her.

Statement C: Sam would

not be able to argue DR

as he was not

substantially impaired at

the time of the death.

Statement D: Sam would not be able to argue DR as he was intoxicated at the time of the death.

Statement A: Jim cannot plead DR over Louis’

death as he was suffering from an abnormality

of mental functioning.

Statement B: Jim can still plead DR to the death

of Louis despite the alcohol as he was still

substantially impaired.

Jim, who is on medication for an adjustment disorder, drinks half a bottle of vodka with his friend, Louis. Jim, thinking that Louis has stolen his vodka, attacks him with a claw hammer, causing him serious injuries. Sebastian, the paramedic comes to help, but accidently breaks Louis’ rib, puncturing his heart. Louis is put onto a life support machine which is switched off by Steven, who is trying to save the hospital money.

Statement C: Jim is still

responsible for the death

of Louis despite

Sebastian’s actions

Statement D: Steven is not responsible for Louis’ death as he has only switched off the life support machine.

Apply the law

  • Answer the question that is on your desk using the knowledge you now have.

  • Remember IDEA

  • Use this sequence for the E and A parts:

Murder: Actus Reus

Murder: Mens Rea

Abnormality of mental functioning

Recognised medical condition

Substantially impaired

Causal factor?


  • Definethe elements of the partial defence of diminished responsibility

  • Explainin what circumstances the partial defence of DR can be used by a defendant

  • Describe the application of the partial defence by reference to case law and problem scenarios

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