Expert Legal Adviser MILTON FIRMAN asks: What is the Definition of MANSLAUGHTER?

Oct. 18, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

He advises immediately.  He is on call 24/7.  No appointments required.  He will see you at your home.  In the evenings or at weekends.  Fixed fees or no fees at all.  He is fearless and straight talking.  He is an experienced legal adviser, an expert in this field of law and offers advice regarding the best way forward for you.

Section 52 of the Coroners and Justice Act 2009 (the Act) replaces the definition of diminished responsibility as contained in the 1957 Homicide Act and will apply 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.

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. It covers the ability to exercise willpower or to control physical acts in accordance with rational judgement. It is a question for a jury. They are not bound to accept medical evidence: R v Sanders [1991].

Impairment must be substantial, there must be evidence of this and it must be raised by defence, c.f. R v Campbell [1987] 84 Cr App R 255, R v Kooken [1982] 74 Cr App R 30. The new section 2(1)(b) states that the abnormality of mental functioning must have substantially impaired the defendant's ability to do one or more of those things as mentioned in the new section 2(1A):

a) to understand the nature of the defendant's conduct;
b) to form a rational judgement;
c) to exercise self-control.

Subsection (1B) provides that an abnormality of mental functioning provides an explanation for the defendant's acts or omissions in doing or being party to the killing, if it was at least a significant contributory factor in causing the defendant to act as he did. This does not require that it should have been the only cause or even the most important factor in causing the behaviour. But it must be more than a merely trivial factor. The defence should not be able to succeed where the defendant's mental condition made no difference to their behaviour - when they would have killed regardless of their medical condition.

It is for the defence to prove that the person is, by virtue of this section, not liable to be convicted of murder. The evidential burden is on the defence on the balance of probabilities i.e. the civil standard (in contrast to Loss of Control, see below).
If diminished responsibility is not raised at trial, it is unlikely that the Court of Appeal will allow evidence that was available then to be called at appeal. It will not therefore substitute manslaughter for murder.

However, there are conflicting authorities. In R v Campbell [1987] 84 Cr App R 255, on a subsequent Home Secretary's reference, the Court of Appeal accepted medical evidence and ordered a retrial, but in R v Tony Martin [2002] 1 Cr App R 27 and R v Neaven (2006) EWCA Crim 955, the Court of Appeal allowed medical evidence to be adduced at the appeal, even though diminished responsibility was not raised at trial.

The effect of alcohol consumed by the defendant cannot be ignored entirely. Section 2(1) does not require the abnormality of mind to be the sole cause of the killing, even if he would not have killed but for the additional impact of the alcohol, the section still provides a defence: R v Dietschmann (2003) 1 All ER 897 (disapproving R v Egan (1992) 4 All ER 470 and R v Atkinson 1985 CLR 314).

The effects of alcohol do not amount to an abnormality of mental functioning: R v Fenton (1975) 61 Cr App R 261; R v Egan (1992) 4 All ER 470; R v Atkinson 1985 CLR 314. However, for cases involving alcoholics see R v Tandy (1989) 1 WLR 350 and R v Inseal 1992 CLR 35.

As murder is a crime of specific intent, if the defendant cannot show diminished responsibility from brain damage caused by alcohol, if he was so drunk or drugged at the time of the killing as to be unable to form the intent to kill, or cause grievous bodily harm, he will be acquitted of murder. However he is still liable to be convicted of unlawful act manslaughter, see below.

There is a link between diminished responsibility and provocation (now loss of control): R v Ahluwalia (1992) 4 All ER 889.

Section 56 Coroners and Justice Act 2009 (the Act) abolished the common law defence of provocation and replaced it with sections 54 and 55 Coroners and Justice Act 2009. These provisions apply 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. See schedule 22 paragraph 7 of the Act.

In relation to the reference "loss of self-control" within section 54(1)(b) Coroners and Justice Act 2009 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 murder. However the judge will have to determine 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.

The defence is not available to those who act in a considered desire for revenge. (Section 54(4)). This is so, even if the defendant loses self control as a result of one of the qualifying triggers.
Section 54(5) of the Act clarifies the issues in relation to the burden of proof. For the purposes of the section, 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.

Section 55 Coroners and Justice Act 2009 defines what is meant by "qualifying trigger" for the purposes of section 54. Prosecutors should note the following:

•Subsection (3) (fear of serious violence from the victim) introduces a subjective test that must be applied as in cases involving self-defence. The defendant will have to show that he genuinely feared that the victim would use serious violence, whether or not that fear was reasonable.
•Subsection (4) (things said or done). Whether the defendant was seriously wronged and he had a justifiable sense to act in the manner that he did is for the jury to determine having applied an objective test.
•Subsection (6) (c) It is the issue of sexual infidelity that falls to be disregarded under subsection (6) (c) however certain parts of the case may still amount to a defence under section 55(4). For example a defendant who kills her husband because he has raped her sister (an act that could be deemed to be one of sexual infidelity). The act of sexual infidelity may be disregarded however her actions may still fall to be a qualifying trigger under section 55(4).

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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