Voluntary and Involuntary Manslaughter in English Law

Voluntary vs. Involuntary Manslaughter

Voluntary manslaughter refers to a situation where the defendant committed an unlawful homicide with criminal intent or malice aforethought, while involuntary manslaughter refers to a scenario where a defendant has committed an unlawful homicide but without the requisite criminal intent. Instead of malice, the intent required for involuntary manslaughter is either recklessness or criminal negligence. Recklessness involves a blatant disregard for the dangerousness of a situation. Criminal negligence can encompass a wide variety of scenarios, but essentially involves either extreme carelessness or incompetence. In fact, criminal negligence can be very fact-specific, because the carelessness or incompetence of a defendant may depend largely upon that defendant's personal background. For example, professionals are held to a different standard than non-professionals. The Court of Criminal Appeal determined that gross negligence involuntary manslaughter involves a defendant with a duty to the deceased, a breach of that duty, a causal link between the breach and the deceased's death, and negligence amounting to a disregard for the life or safety of others (R v Bateman (1925) 19 Cr App R 8).

It is important to distinguish voluntary manslaughter from other types of homicide; for a charge to be manslaughter rather than murder, there must be mitigating circumstances. The reason voluntary manslaughter exists as a distinct category is that the UK imposes a mandatory life sentence on those convicted of murder, whereas a voluntary manslaughter conviction does not carry the same mandatory provisions. There are four main areas of voluntary manslaughter under British law: provocation, diminished responsibility, suicide pact (which is expanding to encompass mercy killings, even in scenarios where the killer never intended to take his or her own life after killing the victim), and infanticide.

Types of Voluntary Manslaughter

The four main types of voluntary manslaughter are: loss of control (also referred to as provocation), diminished responsibility, suicide pact, and infanticide. The Homicide Act 1957 provides the diminished responsibility and suicide pact defences to a charge of manslaughter. While the law has not completely changed to encompass mercy killings, there has been a trend suggesting that mercy killings should be encompassed within the suicide provisions of the Homicide Act 1957. The Coroners and Justice Act 2009 creates the defence of loss of control, which was previously referred to as provocation at common law. In England, the Infanticide Act 1938 permits a mother charged with killing an infant under the age of 12 months to be charged with infanticide — a manslaughter charge — rather than a murder charge. It also permits her to be found guilty of manslaughter rather than murder.

The most significant effect of succeeding in one of the defences encompassed by voluntary manslaughter is that the defendant is not subject to the mandatory life sentence that automatically accompanies a murder conviction in the UK.

The Defence of Loss of Self-Control

The defence of loss of self-control developed under the common law as provocation, and has been recognized, in some form, as a defence to murder since the 1612 case E.G. Royley's Case (1612) Cro. Jac. 296; 79 ER 254. In modern times, the defence of provocation has been codified as the defence of loss of self-control. In the Homicide Act 1957, section 3, one finds the modern statutory definition: "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining the question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

The defence of loss of self-control is not a burden-shifting defence. A criminal defendant does not carry the burden of proving that he or she lost self-control. In fact, a criminal defendant does not even have to raise the defence in order for it to be applicable. The judge determines whether there is sufficient evidence for the jury to consider whether the defendant has a meritorious loss of self-control defence. The burden of proof remains with the prosecution to disprove the contention that the defendant was sufficiently provoked to commit the crime.

There are two prongs to the defence of loss of self-control: a subjective prong and an objective prong. The subjective prong is a question of fact, and asks whether the defendant actually lost self-control. To satisfy this prong, the loss of control must be both sudden and temporary. However, this does not mean that the underlying provocation needs to be either sudden or temporary; the loss of control can result from long-term behaviour that ultimately triggers it. What this means in practice is that there will usually be no significant delay between the triggering act and the killing, because of the suddenness requirement.

The objective prong is also a question for the jury, but is not purely a question of fact. Instead, the jury is asked to consider whether the provocation was sufficient to allow a reasonable person to behave in the same way as the defendant. Under English law, the reasonable man standard is tailored somewhat to the defendant — that is, the reasonable man under consideration would be the reasonable person in the defendant's situation. For example, one would expect a small, young female to perceive certain behaviour differently than a tall, older male, and that difference in perception forms part of the defence. However, it is equally important to recognize that this tailored standard does not give a defendant a free pass; the reasonable man is never intoxicated and possesses a reasonable capacity to exercise self-control. In other words, a defendant who is a drunken hothead is not judged against the standard of another reasonable drunk hothead.

One of the most significant ways in which the defence of loss of control is being applied in modern English law concerns the battered woman who strikes back at and kills her abuser after years of sustained violence. R v Ahluwalia (1993) Crim LR 63 provides an important example. The defendant was charged with murdering her husband, against whom there was a long history of domestic violence, including an episode in which he knocked her unconscious. The defendant purchased caustic soda and petrol. On the night of 8–9 May 1989, the deceased threatened to beat and burn his wife and demanded money from her. The defendant threw the petrol and caustic soda at the deceased while he lay in bed and threw a lighted stick into the petrol. The deceased died of the burns sustained in this attack. During her police interview, the defendant stated that her intent had been to hurt, not to kill, her husband. She was convicted of murder but appealed on the basis that the trial judge had misdirected the jury on provocation and on the characteristics of the reasonable person under the provocation test. She also challenged her conviction on the ground of diminished responsibility, although this issue had not been raised at trial.

The Court of Appeal determined that the trial court had properly instructed the jury regarding the sudden and temporary loss of control necessary for a provocation defence. The Court also held that the trial judge had properly instructed the jury on the personal characteristics of the reasonable man, noting that special characteristics — such as those relating to battered woman syndrome — could be considered as part of the reasonable man assessment. However, the Court noted that the defendant had produced no medical evidence that she suffered from battered woman syndrome or post-traumatic stress disorder. Despite this, the Court found that the defendant may have been able to raise a diminished responsibility defence on account of an underlying depressive condition, and held that this should have been considered at trial.