Criminal Law

LAW2221

Seminar Worksheet

SEMINAR 3: MURDER AND VOLUNTARY

MANSLAUGHTER
Content warning
The study of voluntary manslaughter involves engagement with material and cases
related to intimate partner violence and abuse. If you find you are impacted by the
content of this seminar, please reach out for support:
 Sources of support at Durham and external to the University are provided in
the document “Support Following Sexual Violence or Intimate Partner
Violence and Abuse”, available on the module Learn Ultra page.
 Contact the Module Leader to discuss.
You may also find the document “Suggestions for Managing Difficult Content”
(available on the module Learn Ultra page) contains useful suggestions.

Required reading
It is expected that you will have completed the required reading for lectures four to
six prior to this seminar. The lecture required reading can be found at the top of the
lecture handouts.

 N Galappathie and K Jethwa, ‘Diminished Responsibility and Alcohol’ (2010)

16 Advances in Psychiatric Treatment 193.
 R. McKay, ‘The Impairment Factors in the New Diminished Responsibility
Plea’ (2018) Crim LR 462.
 J. Rogers, ‘The Law Commission’s Proposed Restructuring of Homicide’
(2006) 70 J Crim L 223.
 V Tadros, ‘The Homicide Ladder’ (2006) 69 Modern Law Rev 601.

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You may also find it helpful to briefly review the Law Commission paper on Reform
of Murder, Manslaughter and Infanticide, published in 2006, and the Government’s
response, published in 2008.

Further readings are available on the Talis Aspire reading list. Please note that there
is no expectation that you will read everything (or even close to everything) listed as
further readings. These pieces have been highlighted to you as sources of further
research if you have a particular interest in an area and/or wish to understand the
subject better.

LEARNING OUTCOMES
By the end of this seminar you should be able to:
• Analyse a scenario and apply the elements of murder to determine the
offence has been committed.
• Analyse a scenario to determine if the partial defence of loss of control or
diminished responsibility could apply.

SEMINAR ACTIVITIES
1. Critically assess the extent to which the law of homicide in England and
Wales is in need of reform.

Introduction
 Context: Overview of the current law of homicide, primarily governed by
common law and statutes like the Homicide Act 1957, Coroners and
Justice Act 2009, and case law.
 Issues:
o Criticisms of the complexity, inconsistency, and outdated nature of
homicide laws.
o Debate on the adequacy of partial defenses and the "ladder" of
offenses.

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  Thesis: The law of homicide in England and Wales is in need of substantial
reform to address systemic inconsistencies, ensure clarity, and reflect modern
societal values.

1. Key Features of the Current Homicide Framework

 Offenses:
o Murder: Unlawful killing with malice aforethought.
o Voluntary Manslaughter: Killing with partial defenses (diminished
responsibility, loss of control, or killing in response to a suicide pact).
o Involuntary Manslaughter: Gross negligence manslaughter or
unlawful act manslaughter.
 Partial Defenses:
o Diminished responsibility and loss of control (Homicide Act 1957, as
amended by the *Coroners and Justice Act 2009).
 Criticisms of the Framework:
o Lack of clarity in distinguishing degrees of culpability.
o Reliance on outdated statutory language and judicial interpretation.

2. Criticisms of the Law of Murder

a. Mandatory Life Sentence
 Problem:
o The mandatory life sentence for murder does not allow for flexibility in
sentencing.
o No distinction between intentional killings with varying levels of
culpability (e.g., premeditated murder vs. mercy killing).
 Case Law:
o R v Gotts [1992]: Intent to kill under duress is still treated as murder.
 Proposed Reform:
o Introduce degrees of murder (e.g., first-degree vs. second-degree) as
suggested by the Law Commission (2006).
b. Broad Definition of Malice Aforethought
 Problem:

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 o Includes both intent to kill and intent to cause GBH (R v Cunningham
[1982]), which creates issues of proportionality.
 Case Law:
o R v Vickers [1957]: Intention to cause GBH suffices for murder.
 Proposed Reform:
o Limit malice aforethought to cases of direct intention to kill.

3. Criticisms of Manslaughter
a. Voluntary Manslaughter
1. Diminished Responsibility:
o Strengths:
 Recognizes mental health conditions as a mitigating factor.
o Weaknesses:
 Challenges in proving "substantial impairment" and reliance on
medical evidence (R v Byrne [1960]).
 Complexities in cases involving intoxication (R v Dietschmann
[2003], R v Wood [2008]).
o Reform Suggestion:
 Provide clearer statutory guidance on "substantial impairment."
2. Loss of Control:
o Strengths:
 Replaced provocation with more objective tests (R v Clinton
[2012]).
o Weaknesses:
 Difficulty in proving "qualifying triggers" (e.g., grave insult).
 Limited recognition of cumulative abuse in domestic violence
cases.
o Reform Suggestion:
 Broaden the scope of qualifying triggers to include cumulative
abuse.
b. Involuntary Manslaughter
1. Gross Negligence Manslaughter:
o Problem:

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  Lack of clarity in defining gross negligence (R v Adomako
[1994]).
o Proposed Reform:
 Codify the principles of gross negligence manslaughter for
clarity.
2. Unlawful Act Manslaughter:
o Problem:
 Overly broad, capturing minor unlawful acts with unintended
fatal consequences (R v Goodfellow [1986]).
o Proposed Reform:
 Restrict its application to serious criminal acts.

4. The Ladder Principle

 Concept:
o The law lacks a coherent "ladder" of offenses to reflect varying degrees
of culpability in killings.
 Criticism:
o No distinction between levels of murder or between murder and
manslaughter based on intent or circumstances.
 Proposed Reform:
o Adopt a three-tier structure (e.g., first-degree murder, second-degree
murder, and manslaughter) as recommended by the Law Commission
(2006).

5. Need for Modernization

 Outdated Statutory Language:
o Many terms in the Homicide Act 1957 are archaic and ambiguous
(e.g., "malice aforethought," "provocation").
 Failure to Address Modern Issues:
o Insufficient recognition of psychological abuse, coercive control, and
euthanasia.
o Case Law:

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  R v Burstow [1997]: Psychological harm recognized within GBH
but not consistently within homicide.
 Proposed Reform:
o Replace the 1861 and 1957 statutes with a modern, cohesive
framework that reflects current legal and societal standards.

6. Arguments Against Reform

 Judicial Flexibility:
o Judges can adapt common law principles to address gaps in homicide
law (R v Ireland [1997]).
 Cost and Practicality:
o Legislative reform is expensive and time-consuming, with uncertain
outcomes.
 Risk of Over-Categorization:
o Introducing degrees of homicide may complicate rather than simplify
the system.

Conclusion
 Summary:
o The law of homicide in England and Wales is inconsistent, outdated,
and often disproportionate in its treatment of offenses. Reform is
necessary to address structural deficiencies and reflect modern
societal values.
 Reform Recommendations:
o Introduce a structured "ladder" of offenses.
o Codify principles of gross negligence manslaughter.
o Modernize statutory language and expand partial defenses.
 Final Thoughts:
o While reform faces challenges, a comprehensive overhaul is essential
to ensure justice and proportionality in the application of homicide law.

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 2. Yasmine is ten years old and has been in a wheelchair since a car crash at
the age of six. Her mother, Shantelle, caused the car crash as she drove the
car whilst drunk. Shantelle is an alcoholic whose drinking has become much
worse since the accident due to her feelings of guilt. One day, Shantelle (who
has been drinking heavily) was 10 minutes late picking up Yasmine from
school. As Shantelle walked across the playground, she saw Yasmine
surrounded by a group of three teenage girls. The girls had taken Yasmine’s
bag and were ripping her schoolbooks to pieces. As Shantelle approached,
she heard one of the girls, Alice, shout, “You’re pathetic, you’re in that
wheelchair because your mum doesn’t love you, she only loves her vodka!”
Shantelle could see that Yasmine was crying. Shantelle, furious, took a knife,
which she carried for protection, and stabbed Alice in the back, intending to
cause serious harm. Alice died immediately from a single stab wound.

Assess Shantelle’s possible criminal liability for the death of Alice.

Assessment of Shantelle’s Criminal Liability for Alice’s Death

To determine Shantelle’s criminal liability, we will assess the offense of murder and
any potential partial defenses under the Homicide Act 1957 and common law. The
following framework will guide the analysis:

1. Framework for Establishing Criminal Liability

1. Murder:
o Actus reus: Unlawful killing of a human being under the Queen’s
peace.
o Mens rea: Malice aforethought, which includes:
 Intention to kill (direct or oblique), or
 Intention to cause grievous bodily harm (GBH).
o Case law: R v Vickers [1957], R v Cunningham [1982].
2. Partial Defenses:
o Diminished responsibility (s.2 Homicide Act 1957 as amended by the
Coroners and Justice Act 2009).
o Loss of control (s.54 and s.55 Coroners and Justice Act 2009).

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 3. Outcome:
o If murder is proven and no defense succeeds, Shantelle will be guilty of
murder.
o If a partial defense succeeds, the charge may be reduced to
manslaughter.

2. Murder
Actus Reus
 Key Elements:
1. Unlawful killing:
 Shantelle’s act of stabbing Alice with a knife caused Alice’s
death. This constitutes an unlawful killing.
2. Human being:
 Alice was a living human being at the time of the act.
3. Under the Queen’s peace:
 The killing was not part of any lawful act such as war or state-
sanctioned execution.
 Factual Causation:
o But-for test (R v White [1910]): But for Shantelle stabbing Alice, Alice
would not have died.
o Causation is satisfied.
 Legal Causation:
o Substantial, blameworthy, and operative cause (R v Smith [1959], R v
Pagett [1983]):
 Shantelle’s deliberate act of stabbing Alice was the direct and
operative cause of Alice’s death.
 There are no intervening acts to break the chain of causation.
 Conclusion on Actus Reus:
o The actus reus of murder is satisfied.
Mens Rea
 Requirement:
o Intention to kill or cause GBH.
 Case Law:

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 o R v Vickers [1957]: Intention to cause GBH suffices for murder.
o R v Cunningham [1982]: Direct intention involves a decision to bring
about the prohibited consequence.
o R v Woollin [1999]: Oblique intention may apply if death or serious
harm was a virtually certain result of D’s actions, and D appreciated
this.
 Application:
o Shantelle’s deliberate stabbing of Alice in the back with a knife
demonstrates a clear intent to cause serious harm (GBH), which
satisfies the mens rea for murder.

3. Partial Defenses
a. Diminished Responsibility (s.2 Homicide Act 1957)
 Framework:
o The defendant must demonstrate:
1. An abnormality of mental functioning arising from a
recognized medical condition.
2. The abnormality substantially impaired D’s ability to:
 Understand the nature of her conduct,
 Form a rational judgment, or
 Exercise self-control.
3. The abnormality provides an explanation for D’s act.
o Case Law:
 R v Byrne [1960]: Defined "abnormality of mental functioning" as
a state of mind so different from that of ordinary people.
 R v Dowds [2012]: Voluntary intoxication alone is insufficient but
may contribute to a defense if linked to an underlying condition.
 R v Dietschmann [2003]: The abnormality need not be the sole
cause but must be a significant factor.
 Application:
o Shantelle is an alcoholic, which may qualify as a recognized medical
condition if it has led to brain damage or dependence syndrome (R v
Wood [2008]).

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 o Her feelings of guilt and emotional distress after causing the car crash
may indicate a mental disorder, potentially PTSD or depression.
o The abnormality may have substantially impaired her ability to exercise
self-control when stabbing Alice.
o This defense could reduce the charge to manslaughter.
b. Loss of Control (s.54 and s.55 Coroners and Justice Act 2009)
 Framework:
o D must show:
1. Loss of self-control.
2. The loss of control had a qualifying trigger:
 Fear of serious violence (s.55(3)).
 Things said or done that constituted a grave provocation
and caused D to feel seriously wronged (s.55(4)).
3. A person of D’s sex, age, and characteristics with a normal
degree of tolerance and self-restraint, might have acted in the
same way (s.54(1)(c)). – objective case
o Case Law:
 R v Clinton [2012]: Words alone may suffice as a trigger if they
meet the grave nature threshold.
 R v Duffy [1949]: Loss of control must be sudden (note that this
is less strict post-2009 reforms).
 Application:
o Loss of Control: - Subjective - Hearing Alice’s cruel comments about
Yasmine being "pathetic" and suggesting Shantelle "loves her vodka"
more than her child likely caused Shantelle to lose self-control. YES,
SHE STABBED A CHILD.
1. Did Shantelle lose self-control? High threshold. Excluded –
Revenge, because premeditated. Has to be beyond mere
irritation.
o Qualifying Trigger:
 Things said and done (s.55(4)): The insult to Yasmine,
combined with the emotional context of Shantelle’s guilt and
intoxication, may be sufficient. Subjective + objective -

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  Fear of violence (s.55(3)): This does not appear relevant here.
o Objective Standard:
 A reasonable person in Shantelle’s position might not have
reacted with fatal violence, making this defense harder to
establish.

4. Conclusion
 Murder:
o The actus reus and mens rea for murder are satisfied.
o Shantelle intended to cause GBH, which suffices for murder under R v
Vickers [1957].
 Partial Defenses:
o Diminished Responsibility:
 If Shantelle can prove an abnormality of mental functioning (e.g.,
alcohol dependence syndrome or PTSD), the charge may be
reduced to manslaughter.
o Loss of Control:
 Shantelle may argue she lost control due to grave provocation,
but this defense might fail on the objective test of
reasonableness.
 Final Likely Outcome:
o Shantelle is likely to be convicted of murder unless diminished
responsibility is successfully proven. Loss of control may be more
difficult to establish.

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