The law surrounding homicide carries a wide scope of controversial issues; this can include the topics of Murder, Manslaughter, Infanticide and Vehicular homicide. 1 For the purposes of this assignment only murder and manslaughter will be dealt with. Murder carries with it the sentence of life imprisonment and therefore provides a rigid fixed sentence in which to punish someone for his or her crime. To allow certain individuals to become less liable for a killing, the offence of manslaughter creates, in certain circumstances, allowances.
2 Manslaughter can be broken down into two categories – voluntary and involuntary. Voluntary Manslaughter allows cases concerning the defences of diminished responsibility and provocation to reduce murder charges. 3 Involuntary manslaughter carries with it two types of involuntary acts i. e. unlawful act or constructive manslaughter and gross negligence manslaughter, all of which will be explained in further detail. For any crime the basic requirements for an offence to be successful are an 'Actus Reus', 'Mens Rea' and an absence of a valid defence.
The actus reus of murder is the unlawful killing of another person in the Queen's peace. 4 The definition still stands today and until recently the definition included the "year and a day" rule but this has now been abolished. 5 It is up to the prosecution to prove the defendant (D) caused the V's death,6 that there was a causal link starting from the D's act leading to the V's harm. In cases where a V is stabbed or shot and dies immediately from the wound it is obvious that D caused V's death.
7 It must be asked whether the act of stabbing Robbie was a voluntary one and it appears so. The next step is to prove Mens Rea. Mens Rea is the mental element of an offence. For murder it is defined as "malice aforethought" (S. 1 of the Homicide Act 1957)8 the term "malice aforethought" has provided uncertainties9 therefore the House of Lords in R v Cunningham10 removed the uncertainties11 and mens rea in murder cases has come to mean an intention to kill or cause Grevious bodily harm (GBH). GBH means "really12 serious harm"13. The test for determining this is a subjective test,14 S.
8 of the Criminal Justice Act 1967 stated that the important thing to look for in cases was what the D actually foresaw and intended, not what the D should have foreseen or intended. 15 Two types of intention need to be discussed16 – Direct intention refers to the direct aim or purpose of a D's act, Oblique or indirect intention is where the D does not have a direct aim or purpose but is aware that harm is virtually certain. 17 The Criminal Justice Act of 1967 discussed that the jury would infer the intention the D had, this caused problems and therefore Lord Steyn in R v.
Woolin18 stated that the jury are not entitled to "find" the necessary intention unless it was virtually certain that death or serious bodily harm would occur from D's action. 19 Woolin bought about a 2-part test to be considered in murder cases, which is to ask whether death or serious harm was a virtual certainty of D's actions and whether D appreciated that such was the case. 20 It must be asked then, whether Gary knew that death or serious harm was virtually certain to occur in relation to stabbing Robbie. It can be said that it appears so as he was aware of his actions.
This would make him liable for murder. In this scenario Gary can plead Diminished Responsibility and Provocation as defences to his actions. Diminished responsibility is defined in S. 2 (1) of the Homicide Act 1957 as being a defence to murder and the D will not be convicted of murder but of a lesser offence, if he is seen as suffering from an abnormality of the mind arising from an arrested or retarded development of the mind or an inherent cause or an injury or disease which substantially impaired the defendant's responsibility for his acts and omissions in doing or being a party to the killing.
The burden of proof is on the D to prove they had diminished responsibility. 21 Lord Parker CJ in R v. Byrne22 stated that an "abnormality of the mind… means a state of mind no different from that of ordinary human beings that the reasonable man would term is abnormal". An abnormality of the mind can arise in one of three ways, through an arrested or retarded development of the mind, which is permanent (R v. Egan23), any "inherent" causes, which covers all mental disorders. 24
Gary "heard voices in his head telling him that he had to kill Robbie" this could be seen as an abnormality of the mind. However it is also apparent in this scenario that Gary may have been suffering from an abnormality of the mind and intoxicated as he was an alcoholic and relied on anti-depressants and had just returned from the "pub". The case of R v. Sanderson25 shows the difficulties that the jury may face where a D is intoxicated and suffering an abnormality of the mind.
It has been doubted whether the temporary effect of alcohol can bring the D within the scope of S. 2 of the 1957 Act. 26 In the case of R v. Fenton27 it was first established that drink does not give rise to an abnormality of the mind due to inherent causes. 28 The court of Appeal in R v. Gittens29 and R v. Atkinson30 showed that the jury should concentrate on asking whether the D would have killed as he did if he had not been drunk and if the answer to this was yes then they should ask whether he was actually suffering from diminished responsibility when he did so.
The case of R v. Tandy31 stated that an alcoholic state arising from voluntary drinking did not amount to a defence it could only arise from an abnormality of the mind, which is induced by the disease of alcoholism, which impaired mental responsibility substantially. In R v. Dietschmann32, Lord Hutton stated that there are two circumstances where the effects of alcohol can be regarded as an abnormality of the mind, where the brain becomes damaged from taking alcohol and that the defendant involuntarily took alcohol.
33 It can be seen that Gary took anti-depressants and was an alcoholic due to the abuse he was suffering. He had also however just returned from the "pub" and was about to take another drink from the fridge. It can be suggested that Gary is an alcoholic and that his abnormality of the mind of him hearing voices may have been affected by the fact that he was an alcoholic therefore making the fact that he was drinking become blamed on the idea that this was involuntary. It can be argued that like in the case of R v. Tandy the first drink of the day was voluntary as it is not clear how much or how little Gary drunk that day as he was at the "pub" however it may be suggested that because it is made clear that Gary is an alcoholic and that because of his involuntary cravings for alcohol he is suffering from an abnormality of the mind34 he may therefore rely on this defence.
Provocation is defined in S. 3 of the Homicide Act 1957; a defendant must show that he or she was provoked (R v. Acott35) by something said or done (R v. Doughty36) which made the D suffer a sudden and temporary loss of self-control and a reasonable person would have done the same thing. 37 There have been many problems concerning the words "sudden and temporary" loss of self-control. In R v. Luc Thiet Thuan38, Lord Goff stated that the provoking act that causes the D to lose self-control might be the last of a series of acts, which finally provoked the D to lose self-control. 39 Devlin LJ in R v.
Duffy40 created a requirement that stated that the D must have suffered a "sudden and temporary loss of self-control"; if there is a period of time between the provocation and the act of the D41 then the law assumes the D has killed in anger. 42 A problem occurs in cases of murder arising out of domestic violence where in the majority of cases a woman has suffered provocation, over the years from a partner and then kills that partner as a result of a final act of provocation.
This is referred to as a "slow burn" and goes against the test laid out in R v. Duffy. 43 Women suffering from this sort of provocation are said to have suffered "Battered woman's syndrome". 44 It was discussed in Ahluwalia that although it is necessary to show that the D suffered a loss of self-control because of provocation, a break in the time period between the provocation and death does not remove the availability of the defence. The sudden and temporary loss of self-control will only become harder to prove.
45 In this scenario it can be said that Gary was provoked by Robbie when taking into account the "slow burn" factor Gary had been "beaten up on numerous occasions" throughout their relationship and the final provocative act was that of the abusive behaviour which Gary received when returning from the "pub" with Robbie.
Gary received acts of provocation from Robbie in the format of the abusive comments he made and through the slap. It could be stated that Gary suffered from a form of "Battered woman's syndrome" or even Battered persons syndrome as can be seen in Attorney General's reference (No.24 of 2003)46 where it was seen that gender is irrelevant in battered woman's syndrome cases. As cases throughout the years have been more about women it is called "Battered woman's syndrome". The Crown Prosecution Services definition47 of "domestic violence" and who it can be directed to states that it is "any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners regardless of gender or sexuality".