Homicide - Voluntary manslaughter - loss of control Flashcards
Previous law of provocation (def, problems x2, cases x 3)
- Had to be shown that 1. D was provoked by something said or done so as to lose self-control and 2. A reasonable person would have been provoked to lose his self control and do as D did
- PROBLEMS:
- Women were excluded from partial defence of provocation – became excuse for male anger and violence towards women whilst failing to roved a defence to women who did the same
- Judges showed sympathy towards males – e.g Joseph McGrail received suspended sentence for killing his alcoholic partner as ‘this lady would have tried the patience of a saint’, Thomas Corlett given three years for manslaughter after wife moved mustard pot to wrong side of table
- R v Duffy
o Wife suffered sexual assault and recurring abuse so killed husband – court said this was not enough – in comparison to above cases it shows gender bias as judges harder on female defendants
o Court said must be sudden loss of control – had to react immediately with deadly violence to whatever the provocation was – gendered requirement as easier for a man to react with deadly violence than it is for a woman - Sara Thornton
o Had to be sudden loss of control AT TIME OF KILLING
o Claimed victims of abuse etc could walk out or go upstairs rather than killing partner – attempt to accommodate female experience - Ahluwalia
o Women subjected to violent treatment may react to final act by a ‘slow-burn’ rather than sudden loss of control – period where anger is building and eventually boils over
o Called for Parliament to change law to accommodate this - Reasonable person test did not accommodate battered woman syndrome
Reformed law on loss of control (2 statutes)
- S56 Coroners and Justice Act 2009
o Abolishes provocation - S54 Coroners and Justice Act 2006 (Sets out loss of control defence)
Steps for loss of control defence (statute and steps)
- S54 Coroners and Justice Act 2009
1. D lost self-control
2. Loss of control was caused by qualifying trigger
s55: fear of serious violence, sense of being seriously wronged, removal of sexual infidelity
3. Person of D’s age and sex with normal degree of tolerance and self-restraint and in circumstances of D might have reacted in same way
Loss of control - 1. D lost self-control (4)
o Dawes
Subjective question – must show that this D has lost control at time of killing
For the individual with normal capacity for self-restraint and tolerance, unless the circumstances are extremely grave, normal irritation, and even serious anger do not often cross the threshold into loss of control
REFORM FROM PROVOCATION – loss of control does not need to be sudden
o Jewell
Whether D has lost his ability to maintain his actions in accordance with considered judgment or whether he had lost normal powers of reasoning
Not loss of control if it is a pre-planned, cold-blooded execution
o Gurpinar
Has to be evidence of loss of control in the facts
o Clinton
The greater the level of deliberation, the less likely that the killing followed a true loss of self-control
Loss of control - 2. loss of control was caused by qualifying trigger (8)
o Inglis
Must be a connection between loss of control and qualifying trigger
o Section 55 Coroners and Justice Act 2009 – qualifying triggers:
a) D had fear of serious violence from V against D or another person
b) Circumstances of an extremely grave character and cause D to have justifiable sense of being seriously wronged
Clinton, Parker and Evans
Have to show D’s actions would make anyone feel seriously wronged – jury apply objective test
Hatter
Circumstances facing D must be unusual and not normal trials and disappointments of life
Zebedee
Incontinent father soiling himself is not sufficient for qualifying trgger
Bowyer
D was trespasser in vctim’s home when killed him so victim was entitled to use reasonable force to remove D from their home, therefore D could not argue fear of serious violence of V as loss of control
Robert Knight
D angry at mother’s care in care home so killed mother out of mercy killing – judge said could rely on loss of control defence for things NOT done or said i.e. lack of care for mother
o Removal of sexual infidelity as possible trigger
Clinton
Wife had boasted about being unfaithful during marriage, victim knew husband thinking about suicide and said he did not have balls to commit suicide, finally said wanted him to look after kids not her
If sexual infidelity is integral to the facts as a whole could it be considered as possible trigger
Only exclude sexual infidelity where it is the ONLY thing to be qualifying trigger
Going against Parliament’s intention when they removed sexual infidelity from law when removed old law on provocation – Clinton reintroduces sexual infidelity into the law
Loss of control - 3. A person of D’s age and sex with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same/similar way (5)
o Objective question decided by the jury
o Tolerance and self restraint
Camplin
It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today
Rejmanski; Gassman
PTSD and personality disorder with anti-social/emotionally unstable personality traits – individuals who cannot reach normal standard have diminished responsibility defence instead
o In the circumstances
Asmelash
D drinking with V all day – D lost control and stabbed V to protect himself – tries to argue that intoxication should be circumstance – LofC had to be approached without consideration of D’s intoxication – if sober individual in D’s circumstances might have behaved in same way as D, then he could argue LofC
We have to exclude and ignore intoxication – cannot be a circumstance
Clinton
Sexual infidelity can be considered as a circumstance
o Might have reacted in same or similar way
Goodwin
D charged with murder of 75 year old neighbour. Neighbour died from blunt force head injury after sustaining 18 blows with hammer over 5 minute period. Victim lying on ground as attack happened. D gives evidence that V had attacked him with a hammer and in fear for his life he had grabbed hammer from V and struck the V. Judge decided a person of Goodwin’s sex and age with normal self-restraint would not have acted in a similar way - the attack happened for over 5 minutes, victim is older man, victim was lying in ground – reasonable person would not have reacted in the same way in these circumstances
Critical commentary of loss of control (5)
- Should Loss of control be abandoned entirely?
- Withey
o Parliament missed the opportunity to clarify the law
o Loss of control need not be sudden but lacks clarity as to what classifies as loss of control as led to broad applications
o Objective test lacks clarity and may lead to inconsistent interpretations of the law - Norrie
o Although removal of sudden requirement may help where D’s reaction is delayed or gradual, there can still be an argument as to whether there was a loss of control
o Abused women acting after time delay may still struggle to argue loss of control – how does one identify a loss of control, except as a moment of departure from being in control? - Was it right to exclude sexual infidelity from loss of control defence?
- Wake
o Sexual infidelity prohibition is superfluous since loss of control defence will only be left to the jury if sufficient evidence is raised – prohibition will rarely be invoked since it is unlikely sexual infidelity will be raised in isolation from other factors - Baker and Zhao
o Being able to consider sexual infidelity when investigating the defendant’s circumstances is letting the disqualified event in ‘through the back door - Clough
o Finding a case where sexual infidelity is completely separate from other events will be difficult and therefore reference to it in Coroners and Justice Act seems purely academic – will only cover small amount of cases – those of pre sexual jealousy and anger of a possessive nature makes it virtually impossible for women who kill in such circumstances)
