Week 3- Manslaughter Flashcards
What is the mens Rea difference between voluntary and involuntary manslaughter?
- The distinction is based off of the mens rea of intention at the time of acting (ie no intention to kill or cause GBH falls within involuntary manslaughter).
- For voluntary manslaughter there may be an intention to kill or cause GBH but there is a defence to murder
What is the first (and main) defence for voluntary manslaughter as per Coroners and Justice act 2009 s54 and 55?
Loss of self control- where d kills with the mens rea of murder but at the time he had lost his self-control and one of the statutory qualifying triggers applies as per Coroners and justice act 2009
What defence did the new law on LOSC abolish and why did it need abolishing?
Abolished the common law defence of provocation
-Anything said or done could constitute grounds for provocation, and many scholars held that it unfavourably discriminated against women, as men were often more easily provoked by a range of things which could lead to them intentionally killing someone but using the defence of provocation to ignore a murder charge.
What is the second defence for voluntary manslaughter in Coroners and justice act s52?
2) D kills with mens rea of murder but is established on the balance of probability that he was suffering diminished responsibility (s52 of 2009 act)
What is the third defence for voluntary manslaughter?
Killing in the pursuance of a suicide pact
What does s54 of the coroners and justice act say are the necessary conditions to bring a defence of LOSC?
Where D kills or is a party to the killing of another victim, D is not convicted of murder if
a) Ds act or omissions in doing or being the party to the killing resulted from Ds loss of self-control (LOSC)
b) the loss of self-control had a qualifying trigger, and,
c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, MIGHT have reacted in the same or similar way as D
What does s55 of Coroners and justice act say about the nature of the LOSC and the qualifying triggers available??
- The nature of LOSC may not be sudden
- a) D’s fear of serious violence from V against D or another identified person, and/or
b) things said or done (or both) which: i) constitute circumstances of an extremely grave character, and ii) cause D to have a justifiable sense of being seriously wronged
3) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D.
What does the Coroners and Justice act say with regards to revenge killings and why is it said to be beneficial?
- Under the 2009 statute, if D acted in a considered desire for revenge the defence is denied whether or not the desire for revenge exists before any potential qualifying trigger- fear of serious violence or things said or done. It is enough that having been taunted, D goes away for a period of time to brood and returns to stab v.
- “the expression ‘considered desire for revenge’ achieves the right balance in ensuring that thought-out revenge killings are excluded without automatically barring every case where revenge may be part of a complex range of motivations”.
Is LOSC a subjective or objective test??
It is a SUBJECTIVE TEST. It doesn’t matter if the reasonable person in one’s situation with all circumstances considered might’ve lost their self-control, if D did not lose his self-control then the objective test of the reasonable person does not aid D. No loss of self-control=no defence. (following Dawes)
What does the CJA 2009 say with regards to D inciting a reaction from V?
- Finally, if D brought the qualifying trigger upon themselves, eg inciting a fight then the qualifying trigger is to be disregarded as per s55(6)
- A) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence
b) a sense of being seriously wronged by a thing said or done is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence.
What are the differences between self-defence and LOSC?
- The jury must deal with self-defence before LOSC; self-defence orders an acquittal of the charge whereas LOSC constitutes manslaughter. Therefore if there is grounds for self-defence due to a threat of imminent attack, it should be considered. Whereas with LOSC, D can rely on a fear of future non-imminent serious attack
- self-defence can be considered in the case of fear of any imminent use of violence (eg sexual violence) whereas LOSC must be in response to serious violence.
- where there is a LOSC on a genuine mistake of the facts that amount to the qualifying trigger of serious violence in the eyes of D, LOSC should still remain as a defence,
What does CJA 2009 say about the degree of tolerance and the circumstances of D when raising a defence of LOSC?
-Provides another objective requirement of the defence.
‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way”
The ‘circumstances of D’ refer to all other circumstances of D other than his degree of tolerance and self-restraint
-Therefore anything which may have affected Ds ability to exercise tolerance and self-restraint are not to be considered solely as the evidence for which LOSC rests on.
Morhall [1996] 1 A.C. 90 (cases for provocation under old common law)
Facts-D was convicted of murder after stabbing V, who criticised him for his solvent abuse. Under the 1957 Homicide act the judge directed the jury to apply the test of the reasonable man’s reaction but were told to exclude his solvent abuse addiction
Significance- -as shown by this case, the intention of this [HA 1957] statute was to allow characteristics of the defendant to be given weight in assessing the gravity of his provocation and subsequent reaction. Not merely assessing the reactions of the reasonable man, but that this reasonable man shares characteristics of the defendant which may change the effect of provocation to said defendant
Smith [2001] facts and significance?
provocation under the common law
Facts-S was convicted of murder after he stabbed M during a violent row. S appealed successfully to get the verdict substituted with manslaughter on the basis of provocation since he had many unresolved grievances against M, and Ms repeated denials in the face of allegations that M had stolen tools had inflamed his anger
Significance- the court were to take into account all the characteristics of the defendant, in addition to their age and sex. In this case, Smiths clinical depression should’ve been considered by the courts to determine whether someone of a similar age, sex and mental health issue might have reacted in the same way.
Attorney general for Jersey v Holley [2005] 2 AC 580 (provocation under the common law)
Facts- D and V were both alcoholics who often got into arguments when they drank together. V made comments about Ds self-esteem and taunted him as he held an axe saying ‘you haven’t got the guts’. D struck V and she died. D was originally charged with murder in the court of appeal of jersey and then substituted for manslaughter in the UK AC.
Significance- Privy council ruled that Smith was wrongly decided and that there was a distinction to be drawn between those characteristics of D which affect the gravity of the provocation that he faced (characteristics were important) and the characteristics relating to the ability to exercise self-control (not relevant).
If the defendant was taunted of his condition (as in Morhall) it may be taken into consideration by the jury as to the gravity of the provocation, but his actual state of intoxication should not be taken into account when deciding if he exercised the ordinary levels of self-control.
What did the 3 cases related to the provocation under common law establish in the end regarding the characteristics/ circumstances of d?
What is the main principle in the recent cases?
- Smith was wrongly decided and there was a difference to be drawn between characteristics of D which affect the gravity of the provocation (relevant to evidence), and the characteristics of D which affect his ability to exercise self-control (not relevant).
- The ability to exercise self control is taken to be an objective test under the CJA 2009.
- The gravity of the provocation was a subjective test, as different actions or words against an individual may affect people in different ways because of their personal circumstances.
- The CJA 2009 dictates that all characteristics other than those whose only relevance to Ds conduct is that they bear on Ds general capacity for tolerance or self-restraint are to be considered as to whether someone with similar characteristics might have reacted in the same way.
What sort of test was the old provocation defence under s3 of the Homicide act 1957
the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”
An objective test
What does CJA 2009 s55 say with regards to sexual infidelity??
Any action taken to murder kill someone resting solely on the discovery of sexual infidelity is to be disregarded as a qualifying trigger for LOSC.
Clinton [2012] EWCA Crim 2; [2013] Q.B.
Voluntary manslaughter under new laws
Facts- Clinton killed his wife because of her sexual infidelity, convicted of murder and arson (life imprisonment).
Significance- Sexual infidelity as the sole cause of a killing is to be disregarded as per s55 of CJA 2009, however if it plays part of a more complex set of motivations or context eg abuse, it should not void the defence of LOSC.