Loss of control and DI essay PDF

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The defences of loss of control and diminished responsibility are anomalous in that they are defences only to the charges of murder. Do you agree?Typically in English law defences are available to all crimes. These so called general defences of insanity, automatism, duress, necessity and self defenc...

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The defences of loss of control and diminished responsibility are anomalous in that they are defences only to the charges of murder. Do you agree? Typically in English law defences are available to all crimes. These so called general defences of insanity, automatism, duress, necessity and self defence can apply to any crime, although worth bearing in mind that duress is not available for murder (Howe) or attempted murder (Gotts). As such we appear to have in our law a special treatment of the crime of murder. One could consider this hardly surprising being a creature of the common law created by judges founded in the religious conviction of thou shalt not kill, as Christianity has had an immense impact upon the development of our law. The reason that the law needs to have a special approach to murder is not only for the fact that one person has killed another intending to kill or cause GBH, Cunningham, but also because it is the only crime that carries a mandatory life sentence. Obviously the effect of such a sentence is that even once D has completed his tariff in prison he is never truly free, this is the biggest curtailment of autonomy that we as a civilized society can think of and as such is our most Draconian punishment. Further to this there is the stigma which comes attached to the label ‘murderer’, this is a label which should only be attached to those who satisfy the criteria for being one, if for any reason they should fall short then this shouldn’t be applied as it is, arguably besides rapist, one of the most damning indictments that society can pass on one of its members. Owing to the severity of the offence of murder and the consequences that are attached to being found guilty I believe it is the only crime which justifies having these unique defences. Although it has to be said the way in which they operate, especially loss of control, is to heavily skewed to favour men. The first partial defence to consider is loss of control, which was introduced to replace the common law defence of incitement. Which can be found in s54-55 of the Coroners and Justice Act 2005. It requires D to lose self control due to a qualifying trigger such as his fear of serious violence from V to him or another, things said or done of an extremely grave character which gave D a justifiable sense of being wronged and someone of D age and sex with a normal degree of self restraint would have acted in a similar way. This defence is acknowledging that although the defendant was in the wrong the victim played a part. Norrie says that here the law condemns for the act that is done and the loss of control but also holds out a hand as provocation is a concession to human frailty. As such here the partial defence is taking on the role of a reasonable excuse, partially vindicating the worst part of what the D done while condemning for the action of causing death which is not acceptable. D conduct here is viewed essentially as being imperfectly rightful. Norse suggests that the reason the law tolerates a loss of control defence and the reason it is phrased the way that it is, is because the loss of control is representative of the morality of the law. For instance a woman who goes out and kills her rapist deserves our support as her action of killing him is an emotional judgment about the wrongness of rape which is shared by the law. Here we are not able to distinguish between the D sense of emotional wrongfulness from the laws sense of appropriate retribution. It is for this reason that we should justify this defence as being only for murder as it seems unfair to call someone a murderer, the worst label we can give them, when the act which they committed is partly, although obviously not entirely lest we have a system of vigilantism, condonable. So despite being anomalous it would appear to make sense just because of the normative significance of murder to allow it this defence to be exclusive to it. However, D is still guilty of voluntary manslaughter even if he is able to access this defence. This is partly because of the recognition of the fact that he still killed the V which cannot be excused, his culpability is less. Further there is the risk that if he was to be acquitted simply because of the loss of control then we would essentially be putting a dead victim on trial and blaming them entirely for their own death. Such a situation isnt just on the victim. What is especially anomalous with this

defence is its gendered nature. Unlike the general defences which, overall, are fairly balanced loss of control is a defence which is primarily male. Although it is borne out in the statistics that most murders are committed by men this shouldn’t prohibit women from relying on the defence. The essence of the defence is the embodiment of male ‘righteous’ anger whereby they kill in the heat of the moment swinging round and hitting the person who has provoked them. Typically female loss of control doesn’t act like this but rather simmers beneath the surface before erupting, where a man would kill someone violently in the moment a woman will wait buy poison and kill that way. As such this gendered nature of the offence made it hard for battered women to use, although following Ahluwalia the slow burn effect is now allowed. Nevertheless this is a gendered offence and as such if it is to exist it should only do so for murder and not for other crimes as it would allow too many men who resort to violence to resolve their problems to escape liability. The defence of diminished responsibility is to be found in s2 of the homicide act 1957 and requires D to have suffered from an abnormality of mental functioning arising from a recognised medical condition which substantially impaired his ability to understand the nature of his conduct or form a rational judgment or exercise self control and therefore provided an explanation for his conduct. Herring suggests the essence of the defence is that the mental condition isnt severe enough to act as a full defence, as in the case of insanity, but they arent blameworthy enough to deserve a full murder conviction. In such a situation the moral character of the defendant is so distorted that they cannot critically evaluate their conduct. Although there is clearly a flaw in this defence as Sparks points out that if they wouldn’t have killed without the abnormality they should have full defence and if they would have without it then deserve no defence. As such there would appear to be no justification for having it as a partial defence. However, there is still the argument that it should be available as diminished responsibility may make it extremely hard although not impossible to avoid killing and therefore it should exist as a defence. Again as with loss of control to open this defence up to allow it to apply to all crimes would undermine the role that insanity has to play. I argue that insanity is the only appropriate defence to other crimes as it results in an acquittal as the mental abnormality is severe enough. The lower threshold in diminished responsibility would not serve justice as it would lower the threshold of abnormality needed to result in an acquittal which could arguably lead to a class of individuals who would be beyond the reach of criminal liability. Further anyway it has to be considered that diminished responsibility doesn’t result in an acquittal but rather a downgrading to manslaughter so to lead to an acquittal would change the very nature of the defence. From a final perspective perhaps it could be argued that these two partial defences, as with intoxication, could be used to acquit people of crimes of specific intent but forcing a conviction of the basic intent equivalent. How this would work though isnt certain, but it is certain we wouldn’t want to allow them to lead to a full acquittal as this could have potentially far reaching societal consequences. The idea of these defences being anomalous as they only apply to murder is true but murder is an anomalous crime as it is the only one which leads to a mandatory life sentence. As such with the normative severity of the punishment for murder there is reason to ensure that those who do not deserve the label of murderer avoid it and that is what these defences do. These defences acknowledge that killers that operate under them are less culpable than cold blooded killers....