Voluntary Manslaughter, notes pdf PDF

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Worksheet 2, Notes A ) Introduction & Review What are the three components of criminal liability? 1 ) Actus Reus 2 ) Mens Rea or Strict Liability 3 ) Absence of a Defence What is Social Agency Framework? Social Agency Framework is a form of expert testimony that is an alternative to Battered Women expert testimony. SAF expert testimony places emphasis on the social reality of the battered woman’s situation rather than her psychological reactions. EG lack of effective community alternatives, inadequate police response etc. With this, individual pathology is not the root (IE it is not within the woman, which helps with the plea of self-defence. ) SAF highlights the social inadequacies with getting help for the woman as well as the threats that a battered woman may face if they seek help. With SAF testimony, a woman’s response to the violence within the social structure is highlighted she may fear that she is in imminent danger and has no other option than to rely on lethal force, which in light of her circumstances and experience is reasonable. What is Urban Survival Syndrome? it is another PTSD that can be used to negate specific elements of a crime. Defendants assert that growing up in an indigent, violent, urban neighbourhood triggers a heightened sense of fear or danger causing them to commit criminal acts that would seem irrational to the ordinary person. Defendants contend that their criminal behaviour is from a mental illness stemming from the presence of inner city violence in their lives. How prevalent is domestic violence and gender based violence in the Caribbean? Intimate partner violence : UNDCP survey, 11% of people across the region reported problems with domestic violence. DV is experienced by both males and females, but females are more likely to be subjected to partner abuse and are hence more fearful of this type of violence. Did Rhianna commit murder? Why or why not?

B ) Murder v Manslaughter What is the difference between murder and manslaughter? Think about homicide as a spectrum, with murder at one end, being the most culpable and accidental killing at the other end, being the less culpable. Manslaughter would be in the middle. murder – manslaughter – accidental killings – from most culpable to least culpable. (Difference between invol and accidental killing is a sense of unlawfulness)

Manslaughter occurs when D commits the actus reus of murder, but there are either mitigating circumstances considering the mens rea of murder (VOL) or the defendant lacks the mens rea for murder (INVOL.) How to draw the line between M & Vol Mans – defences is where the lines are drawn. What is the difference between voluntary and involuntary manslaughter? Manslaughter happens in 2 scenarios : 1. D does possess the necessary mens rea for murder, but there are mitigating circumstances (voluntary) 2. D does not have the necessary mens rea for murder but can nevertheless be regarded as being blameworthy to some extent (involuntary) Voluntary Manslaughter Reason for partial defences : The sentence for murder is mandatory life sentence. Hence, the judge is unable to take into account mitigating circumstances. If there are special circumstances, and D is able to successfully use these defences, then they can be convicted of voluntary manslaughter where the judge can pass a discretionary sentence (which does not have to be life in prison.) Actus reus is the same for muder- the unjusitified killing by act or omission of a human being who was alive at the time of the D’s actions. The mens rea is also the same for murder. IE, intention to cause death or GBH. If they are the same then what is the difference? There are 3 mitigating criteria : • Provocation • Diminished Responsibility • Suicide Pact C ) Provocation What is the common law definition of provocation? “Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to cause him to retaliate.” - R v Julien What are the historical origins of provocation as a doctrine? It developed historically as an excuse for men who killed after they found their wives cheating. The rationale was that adultery was an invasion of property and would lead to serious anger : “Jealousy is the rage of man and adultery is the highest invasion of property.” “Sexual infidelity and its publication can arouse uncontrollable anger.”

We think of the law being rational and objective, yet this defence was built for certain people in certain circumstances (not just men, but a particular type of man). What happens if you aren’t one of those people? What happens if you were a woman? Or a gender-non conforming person? Over time there has been a shift. During the 19th century, the idea that it was desirable for dignified men to respond with violence if they were insulted started to fade, and was replaced with the view that it was a human reaction which resulted from a loss of self-control. How is provocation defined by statute? Offences Against the Person Act 1994 Barbados Cap 141 Section 5 Where on a charge of murder, there is evidence on which the jury can fund that the accused was provoked, whether by things done or things said or by both together, to lose his self-control, the question whether the provocation was enough to make a reasonable man 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 both done and said according the effect which, in their opinion, it would have on a reasonable man. What are the governing principles of the modern doctrine of provocation? 1 ) Only a defence to murder (Julien v R, R v Lett) 2 ) There must be evidence that the person was provoked (R v Acott, R v Vasquez) 3 ) The provocation defence can be raised even if the defendant doesn’t raise it herself (R v Acott, R v Vasquez) 4 ) The provocation does not need to come from the victim (R v Davies, R v Gross) 5 ) The provocative conduct need not be directed at the defendant (R v Pearson) 6 ) The provocation can be self-induced…so I can start a fight but still say that I was provoked (R v Johnson.) What is the feminist critique of provocation? Provocation favours people who are quick tempered and who get angry in the instant. This is problematic for women, who tend to react differently from men (hence, this defence is still to an extent protecting those who it was originally created to protect. ) For women who are abused, they tend to wait for when the danger is less imminent because she may be smaller or weaker etc. However, men do not solely benefit from this defence. How do we prove provocation? In order to prove the defence, a hybrid test must be passed. It is both subjective and objective. Prosecution must disprove the following : 1. 2.

That the defendant lost their self-control (subjective element) That the defendant responded in a way that the reasonable person would have responded (objective element.)

Subjective : R v Julien 1 ) Did the defendant “lose her self-control” causing her to kill? 2 ) Did the defendant have time to cool off?

The duffy explanation is lacking because it requires D to, for the moment, not be master of his mind. Julien reasons that if provocation has the same mens rea for murder, the appreciation that your actions would virtually certainly led to death or GBH that was caused, then you can’t say that you can’t be master of you mind, because you have to appreciate that it was virtually certain that the kind of harm that was brought about could be brought about. This is why our Julien definition makes more sense because it’s not a matter of not being master of your mind, its more a sudden and temporary loss of control that leads D to be engulfed in passion, that leads him to lose self-control (its more about retaliation.) Also, if there is time to cool off, then there is time for passion to cool and for reason to regain dominion over the mind (R v Duffy.) Though we don’t know how long this takes to cool off, the longer the delay the stronger the evidence that it was not provocation, but more likely revenge (R v Ahuluwalia) Objective Element : 1 ) Would the reasonable person have been provoked? (AG for Jersey v Holly says that the reasonable person is someone of the same age and sex) Also, look at DPPv Camplin 2 ) Would the reasonable person have responded in the same way? Mode of resentment must bear a reasonable relationship to the provocation

What party has the burden of proof? The burden of proof is on the prosecution to prove the absence of provocation beyond a reasonable doubt (IE they must disprove the elements.) R v Vasquez

D ) Diminished Responsibility What is the statutory definition of diminished responsibility? “Where a person kills or is party to a 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." What are the elements of diminished responsibility? 1 ) Suffering from an abnormality of the mind, which 2 ) Was due to a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury; and 3 ) The abnormality of mind was such as to have substantially impaired his mental responsibility for his acts or omissions in killing or being a party to the killing. The burden is on the defendant. Must prove all the elements.

Abnormality of the mind does not have a scientific meaning. Hence, there is a tension between medicine and law. R v Byrne says that it is a state of mind so different from that of ordinary human beings, that a reasonable man would term it abnormal. (Basically a state of mind so different that one would not think that they were in their right mind.) D must also prove that the abnormality of the mind was caused by a medically recognised condition (Anything in the DSM5) Depression accounts for 30% of DR cases in the UK Schizophrenia for a 1/4 Personality disorder just above 10% Psychosis just above 10% But what does this mean? If you can find the right psychiatrist, you can stretch the interpretation to include whatever it is that you have, then you can benefit from this defence. (Affluenza.) IE, trying to fit whatever it is under PTSD, which is a medically recognised condition. (BWS, Urban survival syndrome etc.) Affluenza is the exact opposite of the idea of urban survival syndrome. The abnormality of mental functioning reduces culpability. But it’s also a question of morality….often you just need a jury to sympathise with D…that shares particular biases with D and see the world through the same lens. But what happens if you are different from the vast majority of people in the jury? DR is justified by those who argue that the defence enables jurors to convict someone for murder, who would otherwise acquit altogether. Sir Dennis Byron, former president of the CCJ, said that when the death penalty existed, people did not convict people of murder and hence the murder convictions went down, because they didnt want to be the one to send someone to their death. DR gives one culpability, rather than acquittal overall (A argument for the defence.) It is also not justified to label as murderers those who are not fully responsible for their actions. Though they may have killed, they aren’t necessarily a murderer. What is the difference between provocation and diminished responsibility? • 1) Provocation - Prosecution has the burden of proof, beyond a reasonable doubt. • 1 ) With Diminished Responsibility, D has the burden to prove her illness on the balance of probabilities. • •

2 ) Provocation - The triggering circumstance can be external. It often is. It doesn’t even have to come from the victim. 2 ) Diminished Responsibility - The triggering circumstance must be internal and it must be a recognised medical condition.

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3 ) Both can only be used as a defence to murder

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4 ) Provocation - It does not carry the same stigma (If you kill because your provoked it is different than if you kill when not provoked.) It can also account for some subjective characteristics (if you’re teasing a man with erectile disfunction issues, that is taken into account to access the gravity of the provocation), when talking about the gravity of the provocation. 4 ) Different from Diminished Responsibility because it is argued that DR and having to force someone to be considered bad or sick tends to over-pathologise and obscures the effects of social context. (IE you are saying that this PARTICULAR person is sick, e.g. an abused woman who kills per partner ….you aren’t thinking about the prevalence of many women being affected by society. Hence the argument used by feminists. Hence, some would rather provocation, as it is not as stigmatising. It suggests yes I did it, but if you were in my position, you would have done it too.)

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5 ) Both reduce culpability from murder to manslaughter. (NOT complete defences…only partial.)

E ) Suicide Pact The third defence to voluntary manslaughter is suicide pact. It is found in our criminal codes and some OAPA. In section 12 of OAPA of Barbados, anyone who persuades someone to kill themselves, or advises someone to kill themselves and succeeds in persuading them or helps someone to commit suicide, is criminally liable. Under section 13 of OAPA, it shall be manslaughter for a person engaging in activity that will bring about a suicide pact. The statute refers to ‘suicide pact’ as an agreement between two or more people to commit suicide together, to kill the other person or be involved in killing themselves or being involved in a third party killing another.

If you agree with someone to commit suicide, and you still live, you won’t be charged for murder, you’ll be charged for manslaughter. The message being sent is that suicide and attempted suicide is culpable…if you have the bad luck to live then you are convicted of a crime. What about those situations where you enter the pact, but YOU don’t really want to die? You just push another to die. Once that is proven ,you can’t benefit from the defence. Burden is on D to prove the defence on the balance of probabilities....