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  • Malcolm Simmons

Defences to Murder in English Law

Introduction


Subject to three exceptions (see Voluntary Manslaughter below) the crime of murder is committed, where a person:

· Of sound mind and discretion (i.e. sane);

· unlawfully kills (i.e. not self-defence or other justified killing);

· any reasonable creature (human being); 

· in being (born alive and breathing through its own lungs - Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936;

· under the Queen's Peace (not in war time);

· with intent to kill or cause grievous bodily harm (GBH).


Murder cannot be committed by a company or other corporation. (However see Corporate Manslaughter elsewhere in the Legal Guidance).


Intent


The intent for murder is an intention to kill or cause grievous bodily harm (GBH). Foresight is no more than evidence from which the jury may draw the inference of intent, c.f. R v Woollin [1999] 1 Cr App R 8 (HOL). The necessary intention exists if the defendant feels sure that death, or serious bodily harm, is a virtual certainty as a result of the defendant's actions and that the defendant appreciated that this was the case - R v Matthews (Darren John) [2003] EWCA Crim 192.


Partial Defences to Murder


Partial defences are different to complete defences, such as self-defence, as they bear all the ingredients of murder but if successfully argued, reduce the offence to an act of voluntary manslaughter not murder.

Partial defences are:

i. Diminished responsibility,

ii. Loss of control and

iii. Killing in pursuance of a suicide pact.

Note: Duress is not a defence to a charge of murder or attempted murder.

Pleas to manslaughter based on the alleged behaviour of the deceased should not be readily accepted because the prosecutor feels that this cannot be disproved.

Prosecutors should be alert to the risk of victim blaming where the deceased is not there to provide an answer. This includes attempts to portray the victim as complicit in their own abuse. Early case building to secure an understanding of the context in which the offence was committed may provide information and leads to witnesses and evidence that can be used in rebuttal.


Diminished Responsibility


Elements of the offence


Section 52 of the Coroners and Justice Act 2009 (the Act) replaces the definition of diminished responsibility in Section 2 of the Homicide Act 1957. It applies to any prosecution for a murder occurring before 4 October 2010.

There is a four-stage test, of which all four elements must be proved:

  1. Whether the defendant was suffering from an abnormality of mental functioning

  2. f so, whether it had arisen from a recognised medical condition

  3. If so, whether it had substantially impaired his ability either to understand the nature of his conduct or to form a rational judgment or to exercise self-control (or any combination)

  4. If so, whether it provided an explanation for his conduct

Where section 2 applies the conviction is for manslaughter but that does not prevent other parties to the killing from being convicted of murder.

The abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to kill. Abnormality of mental functioning means a state of mind so different from that of ordinary human beings that the reasonable person would term it abnormal - R v Byrne [1960] 2 QB 396. It covers the ability to exercise willpower or to control physical acts in accordance with rational judgement. It does not have to be the only cause or even the most important factor in causing the behaviour. But it must be more than a merely trivial factor. It is a question for a jury.

R v Conroy [2017] EWCA Crim 81 is a case where a murder conviction was upheld following an irrational decision to kill a fellow inmate in order to have undisturbed sexual intercourse but which was executed relying on logical and rational decisions.

Substantial impairment means "important or weighty" - R v Golds [2016] UKSC 61.


Medical evidence


An expert psychiatrist is permitted to express an opinion not only on all elements of the section but also on the ultimate issue - R v Brennan [2014] EWCA Crim 2387.

The jury is not bound to accept medical evidence. However if there are no other circumstances to consider, unequivocal, uncontradicted medical evidence favourable to a defendant should be accepted by a jury and they should be so directed. If there are other circumstances to be considered, the medical evidence even if unequivocal and uncontradicted, must be assessed in the light of the other circumstances - R v Sanders [1991] Crim LR 781. Where there is unchallenged medical evidence of diminished responsibility and no other evidence which, looked at in the round, was at least capable of rebutting the defence, the trial judge should withdraw a charge of murder from the jury: R v Brennan [2014] EWCA Crim 2387.

The prosecution should normally adduce its own expert evidence where it proposes to contest a defence of diminished responsibility. Further, if there are other facts or circumstances which might cast a different light on defence expert medical evidence that is not contradicted and the matter is to be left to the jury, those facts and circumstances ought to be highlighted by prosecuting counsel in discussion with the judge before closing speeches and in due course specifically identified to the jury by the judge in the summing-up R v Brennan [2014] EWCA Crim 2387 (paras 2, 49-51, 67-68).

R v Bunch (Martin John) [2013] EWCA Crim 2498 upheld and followed R v Byrne (Patrick Joseph) [1960] 2 Q.B. 396. This line of cases establishes that medical evidence is a practical necessity if a s.2 defence is to succeed because the onus is on the defendant. The defence must have medical evidence that is relevant to whether the defendant was suffering from an abnormality of mental functioning; whether that arose from a medical condition; whether it substantially impaired his ability to do one of the three things listed in s.2 (1A); and whether it caused, or was a significant contributory factor in causing him to carry out the killing.


Recognised medical condition


Recognised medical conditions can be found in the World Health Organisation's International Classification of Diseases (ICD-10) and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

The fact that a recognised medical condition appears in the classificatory lists does not necessarily mean that it is capable of being relied upon to show an abnormality of mental functioning attributable to a recognised medical condition sufficient to allow diminished responsibility to be left to the jury. (Dowds v The Queen [2012] EWCA Crim 281)

There is also scope for a condition which is not included in such a list to be deemed a recognised medical condition for the purposes of this test. This applies to emerging conditions which, while being recognised, might not yet have been included in the accepted classificatory lists. The defence could call an acknowledged specialist who has had their work validated, to give evidence to this effect.

Voluntary acute intoxication cannot found diminished responsibility - R v Dowds (Stephen Andrew) [2012] EWCA Crim 281. In cases where a defendant who suffered from a mental abnormality was also intoxicated the correct approach is for the jury to ignore the effects of intoxication and to ask whether the defendant's other condition(s) of mental abnormality substantially impaired his responsibility for the killing - R v Dietschmann [2003] UKHL 10

· R v Joyce Kay [2017] EWCA Crim 647 A person suffering from a recognised medical condition, in that case schizophrenia, relied on the partial defence of diminished responsibility where voluntary intoxication had triggered the psychotic state. The condition was of such severity that, even without intoxication, it would have impaired responsibility

· R v Wood [2008] EWCA Crim 1305 - D had a recognised medical condition in the form of alcohol dependency syndrome and was intoxicated at the time of the killing: The jury should be entitled to have regard to the alcohol dependency syndrome and D's intoxication, but leaving out of account, insofar as it is possible, D's voluntary intoxication.


Burden of Proof


On a charge of murder, it is for the defence to prove that the person charged is not liable to be convicted of murder on the basis of diminished responsibility (Sections 2(2) and 2(3) Homicide Act 1957). It is for the defence to establish the defence, on the balance of probabilities. This reverse burden of proof applies to diminished responsibility and not to loss of control (below) because diminished responsibility depends on the internal mental condition of the defendant, whereas loss of control depends on an objective judgment of his actions as a reaction to external circumstances - R v Foye [2013] EWCA Crim 475, at para 43.


Acceptability of Plea


The Supreme Court have commented on acceptance of pleas and the need to do so only where it is proper to. Lord Hughes, in I[2015] UKPC 34, stated that: "It is accepted practice to accept pleas of guilty to manslaughter by reason of diminished responsibility where, on careful analysis, it is plain to the Crown that that is the right outcome. It remains of great importance that pleas are accepted only in cases where it is proper to do so. Generally that means cases where there is no significant material dispute either of underlying fact or of medical analysis, and moreover it is clear that the defendant's mental responsibility for the killing can properly be described as substantially impaired. There may still be the very occasional case which is of such public profile or concern that it has to be the subject of full trial. So long as this careful consideration is given to each case, it is plainly of public benefit for pleas of guilty of manslaughter to be accepted. This avoids trials on non-issues which will be both expensive to the public and distressing to many of those involved, whether as witnesses, or relatives of the deceased, or as defendants and their families".


Loss of Control


The common law defence of provocation was replaced with Sections 54 and 55 Coroners and Justice Act 2009. It applies to defendants charged with murder, where the acts or omissions resulting in the death of the victim took place on or after 4 October 2010 (Schedule 22 paragraph 7). The statutory defence is self-contained within the statutory provision so it should rarely be necessary to look at cases decided under the old law of provocation.


Elements of the offence


The loss of control defence has three components in Section 54(1)(a)(b) and (c) Coroners and Justice Act 2009:

· Loss of control (the first component),

· A qualifying trigger (the second component), and

· An objective test (the third component) - A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

The trial judge should consider the three components sequentially.

There must be sufficient evidence on a charge of murder before a judge can leave the defence to the jury - Section 54(5)(6).


Burden of Proof


Section 54(5) Coroners and Justice Act 2009 clarifies the burden of proof for loss of control. Sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. It is a matter of law and therefore an issue for the judge to decide whether there has been sufficient evidence raised to put the partial defence before a jury. Thereafter, the prosecution retains the legal burden of proving, to the criminal standard of proof, that the defence is not satisfied. Provided the statutory conditions are met, loss of control should be left to the jury.


Loss of Control


Prosecutors should consider whether sufficient evidence exists to show that the killing resulted from loss of control. If this first component of the partial defence cannot be met there would be no need to consider the further components - I [2015] EWCA Crim 178. In R v Dawes, Hatter and Bowyer [2013] EWCA Crim 322, the second appellant (H) had fatally stabbed his victim after the break-up of their relationship. The judge decided that the defence of loss of self-control should not be left to the jury because there was insufficient evidence to raise that as an issue.

In R v Christian [2018] EWCA Crim 1344, although there was evidence to support the existence of both a loss of control and a qualifying trigger, the judge ruled that D's reaction was so extreme and so protracted that no jury properly directed could conclude that the notional reasonable person might have reacted or behaved in the same or a similar way (as required by the final element of the partial defence). D appealed on the basis that the evidential threshold that must be crossed before the partial defence is left to the jury is minimal and that the judge had adopted the incorrect approach by not viewing the evidence in a fashion that was most favourable to D. The CACD held that the judge had taken the right approach. The court recognised that the terms of section 54(5) and (6) of the 2009 Act refer to sufficient evidence. The court cited Gurpinar [2015] EWCA Crim 178 in which Lord Thomas CJ stated that, it is clearly the judges task to analyse the evidence closely and be satisfied that there is, taking into account the whole of the evidence, sufficient evidence in respect of each of the three components of the defence. The judge is bound to consider the weight and quality of the evidence in coming to a conclusion.

It does not matter whether or not the loss of control was sudden. The partial defence could still be put before a jury even where there has been delay between the trigger incident and the killing. However, the judge will have to determine and the prosecutor must consider whether the time delay was sufficiently substantial to render the defence of loss of control untenable and therefore not sufficient to put before the jury (Section 54(2)).


A qualifying trigger


Was there a meaningful qualifying trigger? In Section 55(3), it is not enough that the defendant is fearful of violence. He must fear serious violence. At Section 55(4)(a) the circumstances must not merely be grave, but extremely so. At Section 55(4)(b) it is not enough that the defendant has been caused by the circumstances to feel a sense of grievance. It must arise from a justifiable sense not merely that he has been wronged, but that he has been seriously wronged - R v Clinton and others [2012] EWCA Crim 2, at para.11. Prosecutors must consider the gravity of the circumstances and the extent to which the defendant was seriously wronged, and whether he had a justifiable sense that he had been seriously wronged.

Did the defendant deliberately seek to provide himself with an excuse to use violence by inciting, encouraging or manufacturing a situation for that purpose so that so that neither qualifying trigger in Section 55(3)(4) or (5) should be available as set out in Section 55(6)(a) and s.55(6)(b)?

Sexual infidelity cannot by itself qualify as a trigger for the second element of the defence - Section 55(6)(c). However, sexual infidelity might properly be taken into consideration by virtue of Section 54 where it is integral to the facts as a whole, being one of a number of factors which caused the defendant to lose control. In such circumstances, the prohibition in Section 55(6)(c) would not operate to exclude it R v Clinton and others [2012] EWCA Crim 2. The prosecutor should conduct an objective evaluation to assist the judge as to the features identified by the defence which are said to constitute a permissible trigger or triggers. In appropriate cases, it can also be taken into account when deciding whether a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

Even if the defendant lost control as a result of one of the qualifying triggers, if he acted in a considered desire for revenge the defence is not available. (Section 54(4))


An objective test


A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

Whether the circumstances were extremely grave and the defendant's sense of being seriously wronged by them was justifiable are matters that require objective assessment by the judge at the end of the evidence and, if the defence is permitted to stand, by the jury considering their verdict - R v Dawes [2013] EWCA Crim 322.

A mental disorder may be a relevant circumstance of the defendant and may be relevant to the gravity of the qualifying trigger. However, in applying the objective test at Section 54(1)(c), a mental disorder cannot be relevant to the question of the degree of tolerance and self-restraint exercised by the hypothetical person. That hypothetical person is a person with a normal degree of tolerance and self-restraint and the defendants conduct is to be judged against normal standards see R v Rejmanski (Bartosz) [2017] EWCA Crim 2061.

A mental disorder can, however, be a relevant circumstance of the offender and may be relevant to the partial defence of diminished responsibility. The law does not therefore ignore a mental disorder that, through no fault of a defendant, rendered them unable to exercise the necessary degree of self-control (see paras 12-30 of Rejmanski)

Self-induced intoxication is not a specific defence to a criminal charge. However, if a sober person in the defendant's circumstances, with normal levels of tolerance and self-restraint, might have behaved in the same way as the defendant, the defendant would not be deprived of the loss of control defence simply because he was intoxicated. Different considerations would arise if a defendant had a severe problem with alcohol or drugs and was mercilessly taunted about the condition, to the extent that it constituted a qualifying trigger: the alcohol or drug problem would then form part of the circumstances for consideration - R v Asmelash (Dawit) [2013] EWCA Crim 157


Sufficiency of Evidence


Whether there is evidence on which a reasonable jury properly directed could conclude that the partial defence might apply. This requires a common-sense judgment based on an analysis of all the evidence. Prosecutors should note that the judge should not reject disputed evidence which the jury might choose to believe -

R v Clinton and others [2012] EWCA Crim 2. However the judge should assess the weight and quality of the evidence adduced - R v Jewell [2014] EWCA Crim 414 at paragraphs 51-54.


Acceptability of Plea


Before accepting a plea to manslaughter on the ground of loss of control, ensure that the investigating officer has been consulted; CPS and counsel are satisfied that there is insufficient evidence to continue with murder; and that the family of the victim have been consulted.

It is generally desirable that the possibility of loss of control arising should be notified to the judge as early as possible in the management of the case, even though it may not form part of the defence case. If, at the conclusion of the evidence, there is a possibility that the judge should leave the issue to the jury when it is not part of the defence case, the judge must receive written submissions from the advocates so that he can carefully consider whether the evidence is such that the statutory test is met - R v Gurpinar (Mustafa) [2015] EWCA Crim 178.

The Crown should invite the judge to withdraw the loss of control defence from the jury where there is insufficient evidence on any one of the three elements to allow the defence to be put to the jury. The Court of Appeal have emphasised this in R v Clinton and others [2012] EWCA Crim 2, at para. 105 and at para. 82 of R v Rejmanski (Bartosz) [2017] EWCA Crim 2061.


Suicide Pact


A person, acting in pursuance of a suicide pact between him and another, who kills the other or is a party to the other being killed by a third person, is guilty of manslaughter and not murder (Section 4 of the Homicide Act 1957).

The defence must prove the existence of a suicide pact, as defined at Section 4(3) Homicide Act 1957, and that at the time of the killing the Defendant had the intention of dying himself Section 4(2) Homicide Act 1957.

Once the killing has been proved, the jury must answer the following two questions:

  1. as there a suicide pact?

  2. If there was, was the defendant at the time of the killing acting in pursuance of the pact; did he have the settled intention of dying in pursuance of it?

Proof of a suicide pact is not conditional on proof of a mental abnormality - R v Wood [1990] Crim.L.R 264.

This reverse legal burden under Section 4(2) is analogous to that of diminished responsibility and is compatible with the presumption of innocence - R v Foye [2013] EWCA Crim 475.

Pleas to manslaughter on the grounds of a suicide pact may be accepted where all the evidence, all the medical reports and the representations from the defence are available. Ensure also that the family of the victim have been consulted.

Any case involving consideration of assisting or encouraging suicide should be referred to the Special Crime and Counter Terrorism Division. The guidance can be found here.

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