Murder and Voluntary Manslaughter PDF

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Murder and Voluntary Manslaughter Murder Actus reus of murder Actus reus element

Explanation

Unlawful killing

Human Being

Causing Death

Under the Queen’s Peace

Having considered the actus reus of murder, we can turn immediately to the factor which distinguishes murder from manslaughter – the mens rea.

Mens rea - ‘malice aforethought’ The traditional term used for the mens rea of murder is ‘malice aforethought’. However, there need be neither ‘malice’ nor ‘aforethought’. Equally there is no need to prove that the intentional killing was done with any ‘aforethought’. A spur of the moment decision to kill suffices. What then is ‘the necessary mental element’ for murder? The answer is surprisingly simple. In Moloney [1985] 1 All ER 1025 it was held it means either:

(a) (b)

an intention to kill; or an intention to cause grievous bodily harm (implied malice)

Intention Since the House of Lords’ decision in Woollin, we can state the mens rea of murder with reasonable if not complete confidence. See the lectures regarding intention for a full discussion.

Voluntary Manslaughter be

There are two distinct sets of circumstances we will considering that can mitigate what would otherwise be murder to voluntary manslaughter. One of the main reasons for doing this is to allow the judge discretion in sentencing to reflect the reduced culpability of the accused, despite the fact that he intended to kill P or cause him serious harm.

Loss of Self-Control At this time, the provocation defence provided by section 3 of the Homicide Act 1957 is no longer available. The new defence – ‘loss of self-control’ - is similar in certain respects but is subject a new statutory regime under sections 54 and 55 of the Coroners and Justice Act 2009. However, to understand how the new law may operate and why it was felt necessary to abolish provocation we must spend some time considering the scope of old law and why it was eventually overhauled.

Provocation under the Homicide Act 1957 The essence of the provocation defence was that D killed someone in the heat of the moment, having momentarily lost his self-control. However, to prevent the defence unduly favouring those who were prone to lose their self-control at the slightest provocation, D’s loss of self-control was judged against the yardstick of how an

ordinary, average person might have reacted in the same situation. The law regarded it as fair to excuse D’s lack of self-restraint and lethal reaction only if the average person might have done as D did in the same circumstances.

(a) Provocative Conduct Encompassed ‘things done or things said or both together’. This was enacted to overrule the case of Holmes v DPP [1946] 2 All ER 124, HL which appeared to hold that words of abuse were incapable of constituting provocative conduct for the purposes of the defence. This has been changed significantly by the loss of control defence.

(b) The subjective limb: actual loss of self-control by D This was an entirely subjective test: did the accused actually lose his self-control? If D did not lose his self-control, the defence would fail, even if a reasonable person would have done (cf. Cocker [1989] Crim LR 740). Whether D in fact did lose his self-control was a question of fact for the jury, which had to take into account all the circumstances. Duffy [1949] ‘‘a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind’. Excluded non-sudden (or non-immediate) losses of self-control Effect on battered women who kill? See, Ahluwalia The issue of provocation was only left to the jury where the judge was satisfied that there is, in the words of s. 3, ‘evidence on which the jury can find that the person charged was provoked . . . to lose his self-control . . .’. If, therefore, he was satisfied that on the evidence given, no reasonable jury could possibly have concluded that the accused lost his self-control, he would have had to withdraw the issue from the jury and the defence would have failed. (c) The objective limb

The appellant stabbed a man seven times after he taunted him about his addiction to glue sniffing. The question for the court was whether the defendant who was precluded from saying that his addiction was a characteristic could be taken into account when considering the objective test, because such a characteristic was inconsistent with the concept of the reasonable man. The House of Lords rejected that approach, holding that a characteristic such as this

Section 3 made it clear that the provocative conduct had to be such as might cause a reasonable person to lose their self-control and do as the accused did. How a reasonable person might have reacted provided the standard against which D’s actions were judged. As Lord Goff put it: ‘The function of the test is only to introduce, as a matter of policy, a standard of self-control which has to be complied with if provocation is to be established in law.’ ( Morhall [1995] 3 All ER 659, HL). The nature of the reasonable person The primary difficulty for the courts in this area had been the question of what characteristics may be afforded to the reasonable person when deciding whether he would have acted as the D did. To maintain this objective yardstick, there was always one objective characteristic which the reasonable man should possess in every case: he should always possess the average degree of self-control so that he can never be invested with the accused’s ‘exceptional excitability… or pugnacity or ill-temper’ (per Lord Simon in Camplin). Equally, the reasonable man would never become temporarily excitable through the effect of alcohol. Morhall confirmed that the reasonable person is always sober, even if D’s self-control is impaired by alcohol or drugs. The issue identified by Lord Goff is that there was a difference between characteristics which affected D’s general level of self control and those which affected the gravity of the provocation.

Provocation and the Coroners and Justice Act 2009 – THE CURRENT LAW As you may have gathered from the above the parameters of the defence of provocation had become so contentious and unclear so as to make reform inevitable. The Coroners and Justice Act 2009 abolished the defence of provocation and replaced with a new defence of ‘loss of self-control’.

Although there is some degree of overlap with the old provocation defence, there are a number of significant differences. It is worded in much clearer and certain terms, which means that it is likely to be narrower in scope than the old defence. Basically sections 54 and 55 of the C&JA 2009 establish three elements: • A loss of self-control (which need not necessarily be sudden) • Which is attributable to a ‘qualifying trigger’ • A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

But – if you If you act out of a ‘considered desire for revenge’ (s.54(4)) there is no defence

Breaking down the elements of the defence 1.Loss of Self-control You should note that the key difference is that the loss of self-control needs no longer be sudden. We can assume, however, that it must still be temporary in nature or else the appropriate defence would be insanity. - This represents a change from the law of provocation which required the loss of control to be sudden and temporary – R v Duffy [1949] and R v Ahluwalia [1992] - The Law of Commission had recommended that there should be no requirement of loss of control as this was the element of the defence of provocation that operated against women. - If you were not in control of your body it would be a different defence – automatism)

Dawes [2013] EWCA Crim 32

In Jewell [2014] EWCA Crim 414 the Court echoed the terminology that had been used in the old cases decided under provocation and spoke of a loss of control as where the D has lost the ability to consider his actions or has “lost his normal powers of reasoning”.

2. Qualifying Trigger (things that make you lose control) There must be a qualifying trigger for the loss of self-control (s.55) or the defence will fail. There will be a qualifying trigger only if; • Fear Trigger - D had a fear of serious violence from V against D or another person (s.55(3)). This subsection should include the battered spouse cases (see above). It includes where there has been a course of cumulative events that have worn down D – see Dawes, Hatter and Bowyer [2013] EWCA Crim 332 in Loveless.

OR • Anger Trigger there was a thing or were things either said or done or both which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged (s.55(4)). While this appears to be expressed broadly in the same terms as the 1957 defence some commentators have expressed concern about the provision. Human rights group Liberty have commented; ‘The concept of being “seriously wronged” is entirely subjective, and therefore the defence would add little certainty or clarity to the current law. It is particularly concerning that this applies where the victim said something that caused the offence. Given the amendment provides that the loss of control need not be sudden, this could give rise to a situation where the killing has a vigilante element to it or a sense of revenge.’ OR both

Fear Trigger - Must be fear of serious violence, but serious violence is not defined. - Certainly, includes a genuine fear of your life. - Allows a defence for fail in a plea of self-defence because they have acted disproportionately to a threat.

Anger Trigger - In Dawes the court held that - “the presence, or otherwise, of a qualifying trigger is not defined or decided by the defendant” - The D cannot say “the circumstances were extremely grave to me and caused me to have what I thought to be a justifiable sense that I was seriously wronged” as “in our judgement these matters require objective assessments by the judge at the end of the evidence and, if the defence is left, by the jury considering their verdict”. - In Hatter (heard at the same time as Dawes) the Court held: - “the break-up of a relationship, of itself, will not normally constitute circumstances of an extremely grave character and entitle the aggrieved party to feel a justifiable sense of being seriously wronged.” See the conjoined appeals of Dawes, Hatter and Bowyer [2013] EWCA Crim 332 in Loveless for an example of where someone has not got a justifiable sense of being seriously wronged.

Excluding where… • D has incited the trigger as an excuse to use violence, thus excluding where D has purposely ‘wound up’ V in order to retaliate. and/or  (6) In determining whether a loss of self-control had a qualifying trigger— 

(a) D's fear of serious 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;



(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

(c) the fact that a thing done or said constituted • the reason for the loss of self-control is sexual infidelity (s.55(6)) see R v Clinton, Parker and Evans [2012] EWCA Crim 2.

[extracts from Clinton] Para. 21. The question however is whether it is a consequence of the legislation that sexual infidelity is similarly excluded when it may arise for consideration in the context of another or a number of other features of the case which are said to constitute an appropriate permissible qualifying trigger. The issue is complex. A number of examples are given here that illustrate how difficult it is to interpret what sexual infidelity is and how difficult it is to divorce it from a broader context. 23... A much more formidable and difficult example would be the defendant who kills her husband when she suddenly finds him having enthusiastic, consensual sexual intercourse with her sister. Taken on its own, the effect of the legislation is that any loss of control consequent on such a gross betrayal would be totally excluded from consideration as a qualifying trigger. Let us for the purposes of argument take the same example a little further. The defendant returns home unexpectedly and finds her spouse or partner having consensual sexual intercourse with her sister (or indeed with anyone else), and entirely reasonably, but vehemently, complains about what has suddenly confronted her. The response by the unfaithful spouse or partner, and/or his or her new sexual companion, is to justify what he had been doing, by shouting and screaming, mercilessly taunting and deliberately using hurtful language which implies that she, not he, is responsible for his infidelity. The taunts and distressing words, which do not themselves constitute sexual infidelity, would fall to be considered as a possible qualifying trigger. The idea that, in the search for a qualifying trigger, the context in which such words are used should be ignored represents an artificiality which the administration of criminal justice should do without. And if the taunts by the unfaithful partner suggested that the sexual activity which had just been taking place was infinitely more gratifying than any earlier sexual relationship with the defendant, are those insults – in effect using sexual infidelity to cause deliberate distress - to be ignored? On the view of the legislation advanced for our consideration by Mr Edis, they must be. Yet, in most criminal cases, as our recent judgment in the context of the riots and public order demonstrates, context is critical. 28. …Discussion of the third component - 'a person of D’s sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of D, might have reacted in the same or in a similar way to D.' 31. For present purposes the most significant feature of the third component is that the impact on the defendant of sexual infidelity is not excluded. The exclusion in section 55(6)(c) is limited to the assessment of the qualifying trigger. In relation to the third component, that is the way in which the defendant has reacted and lost control, "the circumstances" are not constrained or limited. Indeed, section 54(3) expressly provides that reference to the defendant’s circumstances extends to "all" of the circumstances except those bearing on his general capacity for tolerance and self-restraint. When the third component of the defence is examined it emerges that, notwithstanding section 55(6)(c), account may, and in an appropriate case, should be taken of sexual infidelity 34...The question is whether or not sexual infidelity is wholly excluded from consideration in the context of features of the individual case which constitute a permissible qualifying trigger or triggers within section 55(3) and (4). 35. The legislation was designed to prohibit the misuse of sexual infidelity as a potential trigger for loss of control in circumstances in which it was thought to have been misused in the former defence of provocation. Where there is no other potential trigger, the prohibition must, notwithstanding the difficulties identified earlier in the judgment, be applied. 39. … In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.

WILSON (W. WILSON, CRIMINAL LAW, 5TH ED.) STATES IN EFFECT CLINTON INTERPRETS SECTION 55(6) TO MEAN THAT SEXUAL INFIDELITY WHICH PROMPTS A LOSS OF SELF-CONTROL DUE TO SEXUAL JEALOUSY, POSSESSIVENESS, OR FAMILY HONOUR IS NOT A QUALIFYING TRIGGER. HOWEVER, IF THE SEXUAL INFIDELITY PROVIDES THE CONTEXT WITHIN WHICH ANOTHER TRIGGER (THAT IS, WHICH IS NOT JEALOUSY, POSSESSIVENESS OR FAMILY HONOUR) OPERATES IT MUST BE CONSIDERED THE EXPLANATORY NOTES GIVE THE FOLLOWING EXAMPLE WHERE A PERSON DISCOVERS THEIR PARTNER SEXUALLY ABUSING THEIR YOUNG CHILD (AN ACT THAT AMOUNTS TO SEXUAL INFIDELITY) AND LOSES SELF-CONTROL AND KILLS. THE FACT THAT THE PARTNER’S ACT AMOUNTED TO SEXUAL INFIDELITY MUST BE DISCOUNTED BUT THAT ACT MAY STILL POTENTIALLY BE CLAIMED TO AMOUNT TO THE QUALIFYING TRIGGER IN SECTION 55(4) ON THE BASIS OF THE OTHER ASPECTS OF THE CASE (NAMELY THE CHILD ABUSE).

3. The objective test The Act has essentially given legislative effect to the dicta in Camplin and Holley and the reasonable person is a person of D’s age and sex with a normal degree of self restraint and in the circumstances of D. They will have to react in the same or in a similar way to D for this test to be satisfied (s.54 (1)(c)). Loveless is not particually clear on this point, their discussion of the self-restraint point is rather confusing. The best example is given in Smith, Hogan and Omerod’s text where Child and Omerod write “For example, if D is insulted for being mentally disabled, her status (i.e her disability) may effect both the degree of provocation [the qualifying trigger, so feeling seriously wronged for example] and D’s ability to control herself [so may be taken into account as per the reasonable person’s response in the circumstances]… Where D’s circumstances have a bearing only on her ability to control herself they will be excluded [so for example where they are intoxicated].

The burden of proof Problems with the loss of control defence You may find it helpful to read Norrie, A. The Coroners and Justice Act 2009 - partial defences to murder (2010) Loss of Control Criminal Law Review for a discussion of the defence and outstanding problems.

Diminished Responsibility Diminished responsibility under the Homicide Act 1957 and the Coroners and Justice Act 2009 This defence was first created by the Homicide Act 1957 and was quite a straightforward defence (comparatively!). Section 2 of the Homicide Act 1957 set out; “Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or 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.” 4 conditions must be satisfied: 1) The accused must suffer from an abnormality of mental functioning 2) Arising from a recognised medical condition 3) That substantially impaired his ability to understand the nature of his conduct and/or to form rational judgement or exercise self control 4) Which provides an explanation for the killing? Section 52 of the Coroners and Justice Act 2009 has substantially amended this section and has substituted the original wording with; (1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which— (a) arose from a recognised medical condition, (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and (c) provides an explanation for D's acts an d omissions in doing or being a party to the killing. (1A) Those things are— to understand the nature of D's conduct; (a) to form a rational judgment; (b) to exercise self-control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.

The mental abnormality Abnormality of mental functioning This concept of ‘abnormality of mind’ was vague and elastic and courts and juries took full advantage of the ability to stretch i...