Partial Defences to Murder – Voluntary Manslaughter
Homicide Offences
Where D has the intention to kill/do GBH
- The appropriate charge is murder
- Three partial defences are available on a charge of murder:
Loss of control
Diminished responsibility
Suicide pact
- Where D successfully pleads one of these partial defences, the conviction is for
“voluntary manslaughter.”
Where D kills, but does not have intention of murder/GBH
- Two possible charges – manslaughter by gross negligence / manslaughter via an
unlawful and dangerous act (constructive manslaughter).
There are two types of manslaughter known as ‘involuntary manslaughter.’
Elements of a plea of provocation under s.3 Homicide Act 1957
Provocative conduct
D had a sudden and temporary loss of self-control
Provocation was sufficient to make reasonable person do as D did.
1. Provocative Conduct
The main problem with this limb was the lack of adequate restrictions as to what could
amount to provocative conduct
“… provoked (whether by things done or said or by both together)…”
R v Doughty [1986]
Third party provocation – R v Pearson [1992] – R v Davies [1975]
Cumulative provocation – R v Pearson [1992] – R v Humphreys [1995]
Self-induces provocation – R v Johnson [1989]
, 2. Loss of Self Control
This created particular problems for abused women who would often not suffer from the
right type of loss of control.
R v Duffy [1949]
(Najinadr Singh (1992) The Times, January 30.) "Husband set free after strangling nagging
wife"
- Must be ‘sudden and temporary.’
- D must not be acting out of revenge.
- There must not be a cooling off period.
R v Richens [1993] – Loss of control means an inability to restrain oneself.
How long does a ‘cooling off period’ last?
- R v Ahluwahlia [1992]
- R v Baille [1995]
3. The provocation must be sufficient to make the reasonable do as D did
Who is the reasonable person?
What characteristics can be attributed to the reasonable person?
- Those affecting the gravity of the provocation
- Those affecting D’s levels of self-control
Luc Thiet Thuan v R [1997] (objective approach)
AG for Jersey v Holley [2005] (objective approach)
Confirmed in R v James and Karimi [2006]
R v Smith (Morgan) [2001] (subjective approach)
When must the defence be put to the jury?
There could only be an issue of provocation to be considered by the jury if the judge was of
the opinion that there was some evidence of a specific act or words of provocation resulting
in a loss of self-control.
Acott v R [1997] 1 WLR 306
The defence of loss of control under the Coroners and Justice Act 2009
Section 56
This section simply announces the abolition of the old defence of provocation by the repeal
of that (s.3 of the Homicide Act 1957).
- Burden and standard of proof and the role of judge and jury.
Homicide Offences
Where D has the intention to kill/do GBH
- The appropriate charge is murder
- Three partial defences are available on a charge of murder:
Loss of control
Diminished responsibility
Suicide pact
- Where D successfully pleads one of these partial defences, the conviction is for
“voluntary manslaughter.”
Where D kills, but does not have intention of murder/GBH
- Two possible charges – manslaughter by gross negligence / manslaughter via an
unlawful and dangerous act (constructive manslaughter).
There are two types of manslaughter known as ‘involuntary manslaughter.’
Elements of a plea of provocation under s.3 Homicide Act 1957
Provocative conduct
D had a sudden and temporary loss of self-control
Provocation was sufficient to make reasonable person do as D did.
1. Provocative Conduct
The main problem with this limb was the lack of adequate restrictions as to what could
amount to provocative conduct
“… provoked (whether by things done or said or by both together)…”
R v Doughty [1986]
Third party provocation – R v Pearson [1992] – R v Davies [1975]
Cumulative provocation – R v Pearson [1992] – R v Humphreys [1995]
Self-induces provocation – R v Johnson [1989]
, 2. Loss of Self Control
This created particular problems for abused women who would often not suffer from the
right type of loss of control.
R v Duffy [1949]
(Najinadr Singh (1992) The Times, January 30.) "Husband set free after strangling nagging
wife"
- Must be ‘sudden and temporary.’
- D must not be acting out of revenge.
- There must not be a cooling off period.
R v Richens [1993] – Loss of control means an inability to restrain oneself.
How long does a ‘cooling off period’ last?
- R v Ahluwahlia [1992]
- R v Baille [1995]
3. The provocation must be sufficient to make the reasonable do as D did
Who is the reasonable person?
What characteristics can be attributed to the reasonable person?
- Those affecting the gravity of the provocation
- Those affecting D’s levels of self-control
Luc Thiet Thuan v R [1997] (objective approach)
AG for Jersey v Holley [2005] (objective approach)
Confirmed in R v James and Karimi [2006]
R v Smith (Morgan) [2001] (subjective approach)
When must the defence be put to the jury?
There could only be an issue of provocation to be considered by the jury if the judge was of
the opinion that there was some evidence of a specific act or words of provocation resulting
in a loss of self-control.
Acott v R [1997] 1 WLR 306
The defence of loss of control under the Coroners and Justice Act 2009
Section 56
This section simply announces the abolition of the old defence of provocation by the repeal
of that (s.3 of the Homicide Act 1957).
- Burden and standard of proof and the role of judge and jury.
