Fatal offences-Voluntary manslaughter (Loss of control) Flashcards
Where does voluntary manslaughter arise from?
Where the definition of murder appears to be satisfied (both AR and MR) but 1 of 2 defences can be successfully pleaded:
Loss of control
Diminished responsibility
If the D successfully pleads loss of control OR diminished responsibility, what will he be charged with?
Voluntary manslaughter
What is the judge allowed to pass instead of a mandatory life sentence if a person has been successfully charged with voluntary manslaughter?
Discretionary sentence
What is a discretionary life sentence?
Sentence which is available for serious offences but is not fixed by law.
Chosen by judges
Loss of control and diminished responsibility are defences only available for charges of murder.
True or false?
True.
This is why they are referred to as “special defences”.
What are these “special defences” also sometimes referred to as?
Partial defences
Why are these defences, if successful, not given the not guilty verdict?
They are only partial defences and result in reduced sentences.
What old defence does the defence of loss of control replace?
Provocation
What section and Act was the defence of loss of control introduced?
s.54 of the Coroners and Justice Act 2009
How many tests must be met for a defence of loss of control to be successful?
3
Where a person kills or is party to the killing of another, the defendant is not to be convicted of murder if:
What is the 1st test?
- Acts of omissions in killing resulted from loss of control
Where a person kills or is party to the killing of another, the defendant is not to be convicted of murder if:
What is the 2nd test?
- Loss of control had a qualifying trigger
Where a person kills or is party to the killing of another, the defendant is not to be convicted of murder if:
What is the 3rd test?
- A person of D’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D, would have reacted in the same/similar way.
What does s.56 of the Coroners and Justice Act state?
That the “common law defence of provocation is abolished and replaced”
What does s.56 of the Coroners and Justice Act mean?
The pre-2009 cases referred to in textbooks are no longer binding in court
What does s.54 (4) state?
The defence of loss of control cannot be used if the act of killing was a “considered desire for revenge”
What question do you need to consider for the 1st test because of s.54 (4)?
Was there a loss of control or a considered desire for revenge?
Under the old defence of provocation, what did the loss of control have to be?
Sudden
How has time delay changed in the new 2009 act?
s.54 (2) states that “it does not matter whether or not the loss of control was sudden”
Why did the 2009 act introduce the change in time delay?
To better protect abused wives, who often could not access this partial defence as their actions in killing their husband were not “sudden”.
What case is used to explain why the 2009 act introduced the change in time delay?
Ahluwalia (1992)
Facts of Ahluwalia (1992).
D had been abused by her husband over many years.
One night, after a day on which she had again suffered violence, she poured petrol on him while he slept and set him alight.
The husband died from the injuries
Did the defence of provocation work in Ahluwalia (1992) and why?
No as loss of control was no “sudden”
Had the incident in Ahluwalia (1992) occurred after 2009, would a defence of loss of control worked and why?
Yes as loss of control does not have to be sudden after the 2009 Act
What was the result of Ahluwalia’s prosecution?
Was downgraded to voluntary manslaughter but based on a defence of diminished responsibility
There can be a time delay between a qualifying trigger and the murder but what is the general rule?
The longer the time delay, the more likely it is that the jury will decide there was a “considered desire for revenge” rather than a loss of control.
Case for length of time delay.
Baille (1995)
Facts of Baille (1995).
D discovered his sons had been supplied with drugs and threatened by the dealer.
Took his own sawn-off shotgun and cut-throat razor to where the dealer lived.
On the way, there was a delay caused by a road accident.
At house, there was an argument and D shot V.
Did the defence of provocation work in Baille (1995)?
Yes, on appeal.
Why did the defence of provocation work in Baille (1995)?
Although there was a short time delay between the loss of control and the AR, the D had not recovered his control in this time.
If the incident in Baille (1995) had occurred after 2009, would a defence of loss of control have worked?
The stipulation (condition) that the loss of control must be sudden is gone, so certainly the new defence would be available if the old one was.
Which section of the Act sets out the qualifying triggers for the 2nd test?
s.55
What are the qualifying triggers?
Fear of serious violence from the victim
Things done and/or said
Combination of both of the above
What subsection of s.55 is used to state the qualifying trigger of things done and/or said?
s.55 (4)
What subsection of s.55 is used to state the qualifying trigger of fear of serious violence?
s.55 (3)
What subsection of s.55 is used to talk about the combination of both of the qualifying triggers?
s.55 (5)
What are the 2 things s.55 (4) say things done and/or said must make up this trigger?
a. constituted circumstances of an extremely grave character, and
b. caused D to have a justifiable sense of being seriously wronged.
Is the defendant having to fear violence a subjective or an objective test?
Subjective
What is a subjective test?
Concerned with the D’s perspective
What are the rules for the s.55 (3) qualifying trigger?
D must have feared violence
Anticipated violence must have been serious
Anticipated violence must be against the D or an identified person (e.g., the D’s child)
The act does not state whether anticipated violence in the s.55 (3) qualifying trigger needs to be imminent, although what does it seem reasonable to suggest?
That the defence is more likely to work when the threat is imminent (close)
When will loss of control from a fear of serious violence normally be pleaded?
Where the amount of force used is considered excessive in response to the threat
What is the s.55 (4) qualifying trigger also known as?
The “anger trigger”
Is the s.55 (4) qualifying trigger subjectively or objectively tested?
Objectively i.e. would a reasonable person consider feeling seriously wronged due to things said/done
What are the 2 restricted qualifying triggers?
Incitement
Sexual infidelity
What subsection of s.55 is states that the qualifying trigger is to be disregarded if the D incited it?
s.55 (6)
Define incited
Encouraged or stirred up
Which section and subsection states that sexual infidelity is to be disregarded as a potential qualifying trigger?
s.56 (5)
Which case included sexual infidelity in its defence but was still considered as voluntary manslaughter?
Clinton (2012)
Give facts of Clinton (2012).
D was on trial for murdering his wife, who had recently:
Left him and posted photos on Facebook showing she was having affairs
Said she didn’t want custody of the children
Told him he would not have guts to commit suicide (he was suicidal)
What was the original verdict of Clinton (2012)?
Murder
What did the CoA decide in Clinton (2012)?
Voluntary manslaughter as sexual infidelity not the only trigger
Is the 3rd test subjective or objective?
Known as “objective” test.
Why is the 3rd test seen as “objective” not objective?
Some parts, for example when considering the age and gender of the D are subjective but it is mostly objective
What does s.54 (3) say about the 3rd test?
All aspects of the D’s circumstances are to be taken into account-except those which affect his capacity for tolerance and self-restraint.
Cases for the 3rd test.
Camplin (1978)
Mohammed (2005)
Holley (2005)
Facts of Camplin (1978).
D, 15 year old boy, killed a middle-aged man by hitting him over the head with a chapati pan.
What defence did the D in Camplin (1978) raise at his murder trial?
Defence of provocation stating that the deceased had raped him and then laughed at him, at which point he lost control
What did the trial judge direct the jury to consider in Camplin (1978) and what did the jury convict the D of?
Whether a reasonable adult would have acted as the D did (rather than take the D’s age).
Jury convicted D of murder.
What did the D argue in Camplin (1978) when he appealed?
Argued the judge was wrong to direct the jury that age was irrelevant
What was the result of the appeal in Camplin (1978)?
Appeal was allowed
What was the old provocation principle deriving from Camplin (1978) which has now been written into the new law?
The jury should be allowed to consider the age of the D
Facts of Mohammed (2005).
Mohammed was a strict Muslim father with a reputation for being violent and bad tempered.
Found his daughter in her bedroom with her boyfriend.
Man ran away by Mohammed went to get a knife and stabbed his daughter to death.
What was not relevant in deciding what the reasonable man would have done in the circumstances in Mohammed (2005)?
Mohammed’s bad tempered character
What is the old provocation principle deriving from Mohammed (2005) which has been written into the new law?
The jury should not take into account the D’s capacity for tolerance and self-restraint
Facts of Holley (2005).
D was alcoholic and depressive.
Killed his partner with an axe after finding her in bed with another man.
Why were the D’s alcoholism and depression not considered in Holley (2005)?
These circumstances would affect a person’s capacity for tolerance and self-restraint
What is the old provocation principle which is written into the new law?
The jury should not take into account the D’s capacity for tolerance and self-restraint, even in cases of mental illness.
Case for alcohol and the objective test.
Asmelash (2013)
Facts of Asmelash (2013).
Asmelash killed Tadesse, his housemate and drinking partner, with a knife.
Both intoxicated at time of killing.
Asmelash claimed, Tadesse had made him so angry, he could not control himself.
What did Asmelash argue?
The fact that he was drunk at the material time was one of his ‘circumstances’ that had to be considered in accordance with section 54 (1)(c)
What does s.54 (1)(c), the argument Asmelash raised, say?
The court should consider whether a drunk person with a normal degree of self-restraint would have acted as he did.
How did the courts reply to the argument and appeal of Asmelash?
Under old law of provocation, drunkenness was to be disregarded by the court and on appeal Lord Judge said there was no evidence parliament intended to change this.
What did Lord Judge say in Asmelash (2013)?
The loss of control defence must be approached without reference to the defendant’s voluntary intoxication
If the trial judge provides sufficient evidence to allow the jury to consider loss of control, who does the burden of proof of ‘beyond all reasonable doubt’ lie on?
The prosecution
