- Created by: Holly Stevenson
- Created on: 27-10-10 15:26
- Was introduced by parliament by the Homicide Act 1957.
- Cover the situation where the defendant has both Actus Reus and Mens Rea of murder but because of the surronding circumstances of the offence the defendent's liability is reduced from murder to manslaughter.
- The homicide Act refers to the acts of manslaughter as dimished responsibility, suicide pacts and provocation.
Abnormality of Mind
This is refered to by Lord Parker as a state of mind so different from that of ordinary people that the reasonable man would term it abnormal. This is up to the Jury to decide and is based on the medical evidence. CASE: R v Byrne (1960).
Arising from a cause specified in the Act - A condition of arrested or retarded development of mind - covers mental deficiencies.
Any inherited cause - Something internal and covers a wide variety of situations, such as epilepsy, premenstrual tension, battered-wife syndrome and shock. Depression is only accepted if it is due to a chemical imbalance in the brain and not caused by a reaction to an event.
Induced by disease or injury - this covers both physical and mental diseases, such as brain damage. Alchol and drugs don't normally give rise to abnormality of mind unless they have caused brain damage. CASE: R v Tandy (1989)
Dimished Responsibility continued.
Substantial impairment of the defendant's mental responsibility - the abnormality must have substantially impaired the defendant's mental responsibility for his or her acts or omissions. This is up to the Jury to decide, and means that the defendant who knows what he or she is doing but who finds it extremely difficult to control his or her actions will be covered by the defence.
Abnormality need not be the sole cause of the defendants actions - In the case of Dietschmann (2003) the house of lords held that a defendant might be able to rely on the defence of diminshed responsibility despite being intoxicatedas long as the abnormality of mind was still a substantial cause of the killing. The jury would be told to ignore the fact that the defendant was intoxicated and consider if the defendant still suffered from abnormalilty of mind that would impair their responsibility for the killing. CASE: R v Dietschmann (2003).
Burden and standard of proof - the defendant must prove that they were suffering from diminished responsibility at the time of the killing, medical evidence is required.
Diminished responsibility evaluation.
- It is unclear what diminished responsibility means as there is little to assist in determining what constitutes as 'abnormalilty of mind'.
- Opponents of the current law say that the burden of proof should be changed so that the onus is on the prosecution.
- Those in an abusive relationship who kill their abuser must claim that they are mentally abnormal.
- In some cases the court have been to willing to accept the defence of diminished responsibility in some instances such as in cases of euthanasia where the defendant doesn't deserve to be labelled as a murderer. CASE: R v Heginbotham (2004).
Provocation is a partial defence to murder and may be seen a a concession to human frailty. This is a factor that reduces the defendants culpability.
- The judge must decide whether there is enough evidence of provocation to leave the defence to the jury. Under S.3 of the Homicide Act 1957 provocation may be caused by things said or things done or both. CASE: R v Doughty (1986), R v Pearson (1992).
- Burden and standard of proof - once there is proof of provocation the judge must leave the matter to the jury to decide whether the defendant was provoked by things said or done, whether the defendant lost self-control and whether a person of the same age and sex would have reacted in the same way.
- If the Jury find that the defendant was provoked then the defendants liability for murder will change to manslaughter.
Test for Provocation.
- This is where the jury decide whether the defendant was provoked to lose his or her self-control. CASE: R v Miao (2003).
- The loss of self control must be sudden and temporary as held in Duffy (1949).
- Pre-planned attacks are not the same as provocation. CASE: R v Ibrams and Gregory (1981), R v Crocker (1989).
- If the Jury is satisfied that the defendant suffered a sudden and temporary loss of self-control they must then ask whether a reasonable person would have acted in the same way.The questions usually arises as to what a 'reasonable person' is. CASE: DPP v Camplin (1978).
- There have been complaints about the way the Provocation defence operates as it is believed that they discriminate against women. They claim that the provocation is based on male reactions to violence, when faced with aggression a male reacts with violence whereas a woman they may not use violence such as cause a delay while getting a weapon.
- To combat the sexism the court introduced Cumulative provocation where previous acts or words would be taken into account when deciding whether the defendant was provoked.
- Slow-burn provocation is used in domestic violence cases where women who suffer years of abuse at the hands of their partner 'snap' and kill them. Since it is likely that they would wait for an opportunity to attack provocation was denied to them.
CASE: R v Thornton (No.1)(1992), R v Ahluwalia (1992).
- The present law is in need of statutory reform.
- Some critics believe that it is never justified to kill as a result of any provocation, and a sane defendant who kills another unlawfully should be convicted of murder.
- The Law Commission argues that the defenition of provocation is too broad as it includes behaviour that most people would not describe provocative.
- The scope of provocation is to narrow.
- If the victim has provoked the defendant then the focus should be placed on the vicitims conduct.
- Provocation is criticised for discrimination as seen in Cumulative provocation.
- This occurs when to or more parties make a pact to die.
- But if one person survives he or she may be charged with murder.
- E.g. A husband and wife agree to a suicide and the husband shoots his wife and then himself but he survives.
- This partial defence only applies to a charge of murder, it must be shown that there was a suicide pact in place and that all parties wanted to die.
- The defendant must prove the existence of the suicide pact on the balance of probability.