Murder and Voluntary Manslaugter

Question 1

What are the two partial defences to murder?

Answer 1

1. Loss of control

2. Diminished Responsibility

Question 2

What Act abolished the old defence of ‘provocation’?

Answer 2

Coroners and Justice Act 2009

Question 3

Why are only the defences of loss of control and diminished responsibility available when being charged with murder?

Answer 3

Because murder has a mandatory life sentence that cannot be mitigated.

Question 4

What is the effect of successfully using the defence of loss of control and diminished responsibility?

Answer 4

Charge of murder is reduced to voluntary manslaughter.

Question 5

Who has the burden of proof when the defence of loss of control is raised?

Answer 5

Prosecution to prove beyond reasonable doubt: s54(5)-(6) Coroners and Justice Act 2009

Question 6

Who has the burden of proof when the defence of diminished responsibility is raised?

Answer 6

Defendant to prove on balance of probabilities: s2(2) Homicide Act 1957.

Question 7

What three questions should be asked when determining whether the defendant committed his actions through loss of control?

Answer 7

1. Did the defendant kill another person as a result of losing control? s54(1)(a) CJA 2009.
2. Did the loss of control have a qualifying trigger? s54(1)(b) CJA 2009
3. Might “another” person have acted in the same or similar way? s54(1)(c) CJA 2009.

Question 8

Which cases illustrate that loss of control need not be complete?

Answer 8

R v Richens and R v Cocker

Question 9

Which case illustrates that loss of control may not be sudden or immediate but may accumulate over a long period of time?

Answer 9

R v Ahluwalia. See also s54(2) CJA 2009.

Question 10

Which section of the Coroners and Justice Act 2009 excludes ‘desire or revenge’ as a justifiable reason for loss of control?

Answer 10

s54(2) CJA 2009

Question 11

What are the two qualifying triggers that may allow the defence of loss of control?

Answer 11

1. Fear of serious violence aimed at him or another person: s55(3) CJA 2009
2. Things said or done that “constitute circumstances of an extremely grave character” (s55(4)(a)) AND which “caused the defendant to have a justifiable sense of being seriously wronged” (s55(4)(b)).

Question 12

The Parliamentary notes of the CJA 2009 give an explanation as to why fear of serious violence should constitute a defence for loss of control. What is it?

Answer 12

Where the defendant has reason to fear serious violence but consequently overreacts the defence of self-defence may not be available to them, but loss of control may be.

Question 13

Is the test for fear of serious violence subjective or objective?

Answer 13

Subjective

Question 14

Is the test for things said or done that “constitute circumstances of an extremely grave character” and which “caused the defendant to have a justifiable sense of being seriously wronged” subjective or objective?

Answer 14

Objective (probably: R v Clinton)

Question 15

What might thwart your defence of a qualifying trigger causing loss of control?

Answer 15

1. If fear of violence was caused by something that the defendant had incited: s55(6)(a) CJA 2009
2. A sense of being seriously wronged was caused by something D had incited: s55(6)(b)
3. Where sexual infidelity is the only issue: s55(6)(c)

Question 16

What is meant by “another” person in regards to the defence of loss of control?

Answer 16

“Another” person means a person of the defendant’s age and sex, in the circumstance of the defendant, and with a normal degree of tolerance and self-restraint.

Question 17

What case shows us that intoxication of the defendant while killing will ruin the defence of loss of control?

Answer 17

R v Morhall

Question 18

What are the elements of the defence of diminished responsibility?

Answer 18

1. Abnormality of mental functioning
2. Which arises from a mental condition
3. Which substantially impairs the defendant’s ability to do certain things
4. And which provides an explanation for the defendant’s acts or omissions in killing

Question 19

How can we clarify ‘substantial impairment’ when used in the context of diminished responsibility?

Answer 19

‘Substantial impairment’ relates to:

1. understanding the nature of your conduct
2. forming rational judgment
3. exercising self-control

Question 20

What cases may we look to for authority on ‘substantial impairment’ that diminishes responsibility?

Answer 20

R v Fenton; R v Simcox and R v Lloyd for temporary impairment.

Question 21

What is the leading case for diminished responsibility?

Answer 21

R v Byrne

Question 22

What cases may we refer to when considering intoxication and diminished responsibility?

Answer 22

1. R v Deitchmann for when intoxication is independent of abnormality of mind.
2. R v Tandy and R v Wood when intoxication is linked to abnormality of mind ie alcoholism
3. R v Stewart for what the jury should consider

Question 23

What did R v Stewart say the jury should consider when faced with a defence of diminished responsibility linked to intoxication?

Answer 23

1. Extent/seriousness of dependency upon alcohol;
2. Extent to which the ability to control drinking was reduced;
3. Whether the defendant is capable of abstinence and for how long;
4. Whether there was a particular reason to drink more than usual or get drunk.