Defences

Question 1

What are the special defences to murder and their effect?

Answer 1

Diminished responsibility and loss of control.

If proved, reduces the charge to one of voluntary manslaughter.

Question 2

What are the requirements to prove diminished responsibility?

Answer 2

Active defence so burden on defence to prove on balance of probabilities. Not available for charge of attempted murder.

1) Abnormality of mental functioning
2) Arose from a recognised medical condition
3) Substantially impaired Ds ability to understand the nature of his conduct, form a rational judgment or exercise self control;
4) Provides an explanation for Ds acts and omissions (i.e causes / seriously contributes).

Question 3

What are the requirements to prove loss of control?

Answer 3

Burden of proof on prosecution to prove beyond reasonable doubt once issue raised.

1) D lost control
2) Because of fear / anger
3) A person of Ds sex, age and circumstances, with a normal degree of tolerance and self-restraint might have acted in the same or a similar way.

Question 4

What is a loss of control?

Answer 4

Need not be a complete loss of control but must be to the extent that D did not know what he was doing and was unable to restrain himself. Need not be sudden but defence is lost if D is acting out of a ‘considered desire for revenge’. Consider length of delay.

Question 5

What must the loss of control be attributable to?

Answer 5

1) Things said or done which constitute circumstances of an extremely grave character and which caused D to have a justifiable sense of being seriously wronged;
2) Ds fear of serious violence from the victim against D or another person.

NOT a thing said or done which was incited by D for the purpose of providing an excuse to use violence.

NOT sexual infidelity alone.

Question 6

How does the “normal person test” apply in the context of loss of control?

Answer 6

1) Assess gravity of the qualifying trigger to a person in Ds circumstances (e.g taunt about mental illness, addiction, race, disability etc).
2) When considering whether a person of Ds sex, age and circumstances with a normal degree of tolerance and self-restraint would act in same/similar way, must not consider things that would affect a normal person’s tolerance and self-restraint e.g bad temper, PTSD, intoxication, personality disorder.