Criminal law - L8 - Lecture Notes PDF

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Criminal Law – Lecture 8 Voluntary Manslaughter Voluntary Manslaughter: What is it? -

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Voluntary manslaughter: The MR and AR of murder are present, but mitigating circumstances allow a partial defence (to murder only) There are three; 1. Loss of Control 2. Diminished Responsibility 3. Suicide Pacts These may reduce a murder charge to voluntary manslaughter, and a charge cannot be brought for voluntary manslaughter without it being murder first then partial defence These partial defences CANNOT be used against any other offence The Coroners and Justice Act 2009 has reformed the area

How shall we do this? -

Look over the law before reforms and after reforms To avoid confusion, will look at it in this order Provocation: Old Law (for reference only – DO NOT USE) Loss of Control: New Law Diminished Responsibility: Old Law (DO NOT USE) Diminished Responsibility: New law Suicide Pacts Old law before reform will be titled

Be careful

This area of law often combines objective and subjective elements in multiple part tests to see if defences apply Subjective means from the perspective of the individual defendant in the particular case, with all their idiosyncrasies (in D’s own mind, with their quirks)

Criminal Law – Lecture 8 Voluntary Manslaughter

Objective means whether the defendant “ought to have” (whether they did or not) Whether a reasonable person would Common sense approach Disregards whether individual saw it like that One size fits all -

This area of law often combines objective and subjective elements in multiple part tests to see if defences apply Subjective means from the perspective of the individual defendant in the particular case, with all their idiosyncrasies (in D’s own mind, with their quirks) Objective means whether the defendant “ought to have” (“whether they did not not”) Whether a reasonable person would Common sense approach Disregards whether individual saw it like that One size fits all

Partial Defences -

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Loss of Control  Section 54 CJA 2009 - Three part test  Did D have a loss of self control (subjective)?  Was the loss of self control caused by a qualifying trigger (specified in statute)? – and  Would a reasonable person have reacted in this way (objective)? Diminished Responsibility  Section 52 CJA 2009  D must have been suffering from an abnormality of mental functioning which has arisen from a recognised medical condition and impaired their ability to do one of three things  Understand the nature of their conduct  Form a rational judgement  Exercise self control  And the above must have provided an explanation  We will look at these more in the next lecture – but for now, back to murder…

Provocation: Old Law

Criminal Law – Lecture 8 Voluntary Manslaughter -

The old partial defence of provocation was contained in section 3 of the Homicide Act 1957, but originated from common law - Why did we have the defence:  The defence of provocation arose from past common law from years ago when gallantry was the done thing, gentlemen carried things about them, and insult had to be dealt with by an angry reaction - The defence of provocation was often used for men who killed their wives on discovering a sexual affair - The old defence of provocation was contained in section 3 of the Homicide Act 1957 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 things said or both together) to lose his self-control, the question whether the provocation was enough to make a reasonable person do as he did shall be left to be determined by the jury And in determining that question the jury shall take into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man - A two part test was used  Was the defendant provoked to have a sudden and temporary loss of self-control?  Subjective; Would a reasonable person have been provoked to react in this way?  Objective; Provocation was to do with loss of self control when lost temper, so reducing liability for violent outbursts - A sudden and temporary loss of self-control - Had to be due to a loss of temper – harsh in cases of mercy to terminally ill - Sudden and temporary Duffy [1949] 1 All ER 932 - If there was a cooling off period between act of provocation and killing, evidence not sudden and temporary Ibrams (1982) 74 Cr App R 154 - What of the law on battered women – slow burn anger or a cumulative effect, or fear of future serious harms? - Concern the defence could be used for revenge - Thornton [1992] 1 All ER 316  Husband had been beating her for years, and at one point she had declared the intention to kill him  After fresh provocation, sharpened a carving knife and returned to another room where she killed him  Original judge held despite time lapse, matter of provocation to be left to jury, convicted  CoA held issue of whether loss of self control was matter for the jury and that cooling off period not a matter of law but of evidence to decide on  Appeal in 1995 held that battered women’s syndrome could be considered when deciding if there had been sudden and temporary loss of control  Research by Susan Edwards 2004 showed that  Men who kill female partners tend to do it by bodily force but women who kill male partners use knives in 83% of cases - By things done or things said or both together - Provocative conduct did not have to be illegal or even wrongful, crying baby in Doughty (1986) - Provocative acts did not have to be aimed at the defendant Pearson (1992) - Davies [1975] QB 691

Criminal Law – Lecture 8 Voluntary Manslaughter

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 The acts of a lover of Mr D’s wife could be considered as provoking him to kill, useful case on acts of lovers The objective test of reasonable person and if they would have reacted that way Not reasonable to kill, so characteristics of D Which characteristics were relevant debated Usually age and sex Characteristics affecting gravity of provocation? Contrast cases of HL: Smith (Morgan James) [2001] 1 AC 146 PC: Holley [2005] 2 AC 58 For old defence of provocation, if evidence that person was provoked to lose self-control, judge required by s.3 of Homicide Act 1957 to leave partial defence to jury even when no reasonable jury could conclude that a reasonable person would have reacted as the defendant did The partial defence of provocation is not used (it was abolished) The new partial defence is loss of self control, or LOSC This is under section 54 of the Coroners and Justice Act 2009

Loss of Self-Control 1. The first point is whether there was a LOSC  Section 54(2) LOSC need not be sudden  Though delay can still be considered  Section 54(4) the defence not available if D “acted in a considered desire for revenge”  Meaning of the above self-explanatory  Clinton, Parker and Evans [2012] EWCA Crim 2 2. Qualifying Trigger  The second point is LOSC must have been caused by a qualifying trigger (s.55 of Act):  LOSC had a qualifying trigger (QT) if:  QT -1) LOSC was attributable to D’s fear of serious violence from V against D or another identified person  QT - 2) LOSC was attributable to a thing or things done or said (or both) which constituted circumstances of an extremely grave character, and caused D to have a justifiable sense of being seriously wronged  QT – 3) LOSC was a combination of both of the above  Qualifying trigger s.55 continued  In determining whether LOSC had a qualifying trigger  D fear of violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence  A sense of being seriously wronged by a thing done or said is not justified if D incited the thing to be done or said for the purpose of providing an excuse to use violence  The fact that a thing done or said constituted sexual infidelity is to be disregarded  Sexual infidelity not as simple as it seems, will discuss later  Qualifying trigger exists when LOSC occurred due to  Fear of serious violence from the victim  Things said or done  Combination of both

Criminal Law – Lecture 8 Voluntary Manslaughter  Acts of third parties or people who are not D or V is irrelevant if the trigger is fear of serious violence, as it has to be from V  Acts of third parties are potentially relevant to things said or done  First possible QT: A fear of serious violence from V o May be used for women and domestic violence, people who kill intruders o Could be used where self defence not available due to no imminence of threat or reaction disproportionate o Where trigger is fear of serious violence from V test is subjective o It must be genuine but need not be reasonable o Must be against D or a specific o Only possible if D fear from V – is it blaming V for death  Second possible QT: Things said or done o Can only be a trigger if amount to circumstances of an extremely grave character o And justifiable sense of being seriously wronged o Not enough that D felt wronged o Circumstances test narrower than the old law o Words require objective evaluation o Reasonable man test o Clinton, Parker and Evans [2012]  Third possible QT: QT could be a combination of both possible QTs  Sexual infidelity o Section 55(6)(c) o In determining whether a LOSC had a qualifying trigger the fact that the thing done or said constituted sexual infidelity is to be disregarded o Modern society, avoiding lenient treatment of cases where killing occurs after an affair becomes known o Problem that V is dead and cannot rebut affairs o Law to prevent killing after affairs  Sexual Infidelity: Case Law Shake up o Clinton, Parker and Evans [2012] EWCA Crim 2 o First appeal allowed (C), second two dismissed (P & E) o Mr C on trial separation from wife o She may have had an affair and D thought she may have had affairs with five different men o Mr and Mrs C met o D said she taunted him about her affairs o He violently killed her, semi naked photos o o o o o

Originally held that under CJA 2009 sexual infidelity had to be ignored and there was inadequate evidence to leave defence of LOSC to jury Convicted, appealed, appeal allowed On the facts, sexual infidelity could be considered Retrial – then what happened next ? Then sent texts to one of men may have had affair

Criminal Law – Lecture 8 Voluntary Manslaughter o o o o o

Difficulties with the form of sexual infidelity Is “sexual” arbitrary? What is sexual infidelity? Sexual infidelity cannot be a qualifying trigger in its own right If something else was the qualifying trigger, then sexual infidelity can be considered as part of the context in which to evaluate that trigger If act cannot be trigger itself then the words are the trigger but this could be problematic as the words are about sexual infidelity

3. Objective Test  The third part of the test for LOSC is objective  Defence only available if a person of D sex and age with an ordinary level of tolerance and self-restraint might have acted in the same way as the defendant  Circumstances includes all circumstances except those that are only relevant to D general level of tolerance and self restraint  Clinton, Parker and Evans [2012] o Sexual infidelity exclusion does not apply at all to the objective test o Even if sexual infidelity excluded for subjective test, would still be considered for objective test o Could produce odd result where court is told to ignore sexual infidelity in so far as it affected LOSC or to consider only as context but in determining if a reasonable man would have acted that way the circumstances can include sexual infidelity - R v Asmelash [2013] EWCA Crim 157  Where D’s voluntary intoxication is relevant only to his capacity for tolerance and selfrestraint, the imbibing of alcohol must be disregarded - R v Dawes, Bowyer and Hatter [2013] EWCA Crim 322  On violence feared by, or towards, D as a qualifying trigger  Violence towards D cannot be used by D as a qualifying trigger if D had deliberately sought to provide himself with an excuse to use violence by encouraging or manufacturing a situation for that reason. - R v Jewell [2014] EWCA Crim 414  Discussed further in your textbook – we will discuss briefly Burden of Proof -

If sufficient evidence of the partial defence is raised, burden of disproving the defence of loss of control beyond reasonable doubt rests with the prosecution Evidence is sufficient for the defence to be considered if a reasonable jury could conclude the partial defence might apply

Criticism of LOSC -

Some improvement to the law – not only anger now Previous law may be discriminatory May still possibly be so if planned to kill man Sexual infidelity

Criminal Law – Lecture 8 Voluntary Manslaughter Diminished Responsibility -

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Old law on Diminished Responsibility  s.2 Homicide Act 1957  D must prove he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or of any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing Diminish Responsibility DR  Created by s.2 of Homicide Act 1957  Developed due to problems with narrow insanity  Modernised by s.52 of the Coroners and Justice Act 2009

Diminished Responsibility - D was suffering from an abnormality of mental functioning which Arose from a recognised medical condition; and - Arose from a recognised medical condition; and - Substantially impaired D ability to do one or more things of the three below, and provides an explanation for D acts or omissions in doing or being a party to the killing 1. To understand the nature of their conduct 2. To form a rational judgement 3. To exercise self-control - An abnormality of mental functioning provides an explanation if it causes or is a significant contributory factor in causing conduct (this part must also be demonstrated). - Abnormality of mental functioning preferred to abnormality of the mind - Recognised medical condition - professionals - Includes psychological and physical conditions… - Under law, not restricted to mental health matters – broad concept, and so this can include epilepsy, sleep disorders, diabetes - Martin [2001] EWCA Crim 2245  The defence of DR can apply where a defendant has a paranoid personality disorder and depression  Anthony Martin, prior rural burglary victim  Owned without licence a pump action shotgun  Three men broke in and Martin shot one  He shot him three times, once in the back  Died of injuries, boy, another man seriously injured  Convicted of murder and GBH and sentenced to life  Appealed as medical evidence not made available at first trial, conviction quashed and voluntary manslaughter on ground of diminished responsibility -

Dietschmann [2003] UKHL 10  For the defence of DR the abnormality must have been a substantial cause of the killing but need not be the sole cause  D killed V – D was drunk when he did so

Criminal Law – Lecture 8 Voluntary Manslaughter

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 D was also suffering from an abnormality of the mind – a form of depression after his aunt died, they were in a relationship  HL held DR could be successful even if D would not have killed had he been sober  Abnormality of mind could still have been a substantial cause of the killing  If this happened under new definition, recognised? Abnormality of mental functioning must have substantially impaired ability to do one of 1. Understand the nature of their conduct 2. Form a rational judgment 3. Exercise self-control This is more specific on the nature of impairment than the old law was Substantial means less than total but more than trivial Lloyd [1967] 1 QB 175 Abnormality of D conduct must provide an explanation for involvement This will be so when abnormality was at least a significant contributory factor in causing conduct Abnormality should cause or be a significant contributory factor in causing D to kill If abnormality made no difference the defence will not be available, insanity may be alternative Burden of proof Defence must prove diminished responsibility on a balance of probabilities with evidence from at least two medical experts

Criticisms -

Old definition allowed for severe shock, mercy killing, premenstrual syndrome and battered women’s syndrome as abnormality of the mind New law needs a medically recognised condition Negative stereotype of women if used in cases of domestic violence as pathologises women’s actions, are women actually mentally impaired if they react Harsh on the mentally ill

Diminished Responsibility -

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Possibility of a combined defence, overlap between the partial defences Abolition of the mandatory life sentence for murder and use sentencing options Prosecution can argue insanity in response to a defence plea of diminished responsibility. This may seem odd as insanity may get an acquittal. Prosecution may prefer if D is acquitted by reason of insanity as may lead to indeterminate mental care Numerous cases – READ Comparing and Contrasting

Suicide Pacts -

The last partial defence is that of a suicide pact Section 4 of the Homicide Act 1957

Criminal Law – Lecture 8 Voluntary Manslaughter -

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It shall be manslaughter and shall not be murder for a person acting in pursuance of a suicide pact between him and another to kill the other party or be party to the other being killed by a third person Suicide not a crime, aiding and abetting suicide is a crime Suicide pacts are manslaughter not murder D has burden of proof to show evidence of suicide pact on balance of probabilities

Synopsis -

Loss of Control  Section 54 CJA 2009 (see also s.55) - Three part test 1. Did D have a loss of self control (subjective)? 2. Was the loss of self control caused by a qualifying trigger (specified in statute)? - and 3. Would a reasonable person have reacted in this way (objective)? - Diminished Responsibility  Section 52 CJA 2009  D must have been suffering from an abnormality of mental functioning which has arisen from a recognised medical condition and impaired their ability to do one of three things 1. Understand the nature of their conduct 2. Form a rational judgement 3. Exercise self control  And the above must have provided an explanation Debate Points Has the Coroners and Justice Act made the partial defences any easier?...