Partial defences AO3

Question 1

diminished responsibility
Reverse burden : issue

Answer 1

reverse burden in diminished responsibility makes it hard to prove the defence

Question 2

diminished responsibility
Reverse burden : cause/example

Answer 2

burden of proof is on D to prove the defence on a balance of probabilities, rather than it being for the prosecution to disprove beyond reasonable doubt

Question 3

diminished responsibility
Reverse burden : consequence

Answer 3

• D has limited resources as its difficult to get medical evidence in favour of the defence (expensive + complicated)
• prosecution is funded by the state so have an advantage so would be easier to gather evidence to prosecute against DR.

IMBALANCE UNFAIR ON DEFENDANT

Question 4

diminished responsibility
changes in medical opinion : issue

Answer 4

changes in medical opinion means not all illnesses will be recognised when D commits a crime

Question 5

diminished responsibility
changes in medical opinion : cause/example

Answer 5

• D must prove they have a recognised medical condition (BUT some illnesses not recognised until years after case
• R v Ahluwalia : couldn’t use DR as battered women syndrome not medically recognised until years later. once this was recognised - murder conviction quashed.

Question 6

diminished responsibility
changes in medical opinion : consequence

Answer 6

• medical opinion can be slow to develop and people with legitimate reasons to kill are treated like murderers
• unfair on D’s who many need medical help rather than imprisonment

Question 7

loss of control
element is confusing : issue

Answer 7

‘loss of self control’ element is confusing

Question 8

loss of control
element is confusing : cause/example

Answer 8

• s54(2) says sloss does not need to be sudden but if more sudden = easier defence
• D cannot use defence if considered desire for revenge under s54(4)

Question 9

loss of control
element is confusing : consequence

Answer 9

• quick reaction remains evidence of LOC, this benefits those with quicker reaction (typically men)
• problems with old law still exists and change seems ineffective
• HOWEVER s54(2) makes it possible to prove defence for those who have slower reaction, whereas this would fail under OLD law
  = jury cannot assume slower reaction
• revenge must have evidence

Question 10

loss of control
sexual infidelity: issue

Answer 10

sexual infidelity exclusion seems unjust

Question 11

loss of control
sexual infidelity : cause/example

Answer 11

• s55 (6) (c) specifically excludes consideration of anything which ‘constitutes sexual infidelity’ from the anger trigger
• Clinton - sexual infidelity could be considered if other things said or done which could be understood without knowledge of infidelity

Question 12

Loss of control
Sexual infidelity : consequence

Answer 12

• in case of Clinton judge says that exclusion of sexual infidelity was artificial as circumstances that sexual infidelity can be anger trigger
• unfair as D has no say on what triggers him
• judges in Clinton may be undermining parliamentary supremacy by amending the law