week 7 - Voluntary Manslaughter - LOSC Flashcards
What offence does VM apply to and how?
- Murder
- Satisfies both the AR and MR elements for murder but fulfils a partial defence which reduces their liability to manslaughter.
What are the partial defences to murder?
1 - LSOC - D kills having lost self contour owing to fear of serious violence or beach of extremely grave circumstances giving them a justified sense of being seriously wronged.
2 - Diminished responsibility - D’s recognised medical condition led tt an abnormality of mental functioning which substantially impaired her capacity and caused her to kill
3 - suicide pact - D kills V in pursuance of an agreement that they will die together.
Where does the law on VM come from?
- pre 2009 - Homicide Act 1957 (law on provocation)
- reformed in Coroners and Justice Act 2009
What was the old law on VM
- Law on provocation
- Section 3 Homicide Act 1957
1 - Things said or done had provoked D
2 - D had suffered from sudden and temporary loss of self-control and
3 - A reasonable man would have responded in the same way.
Problems with Old law on Provocation
- too clear what amounted to LOSC (Duffy 1949)
- raised questions of how accumulative provocation should be assessed
- Gender bias - more suited where male D killed V in outburst of anger, allowed as response to sexual infidelity.
Cases on old provocation law
- Mawgride 1707 - ‘where a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer or knock out his brains this is bare manslaughter: for jealousy is the rage of man and adultery is the highest invasion of property’.
-Ahluwalia - D abused for years so set husband on fire in sleep and he died -> her depression ignored and convicted as not ‘sudden and temporary LOSC’ - Duffy [1949] - after years of abuse she attacked her husband with hammer -> court said had to be ‘sudden and temporary LOSC’
New law on VM
- Coroners and Justice Act 2009
- 3 elements to LOSC
1 - LOSC caused the killing (SUBJECTIVE)
2 - Resulting form one or both of the qualifying triggers
3 - and a person of the accused’s sex and age with a normal degree of tolerance and self-restraint and in the circumstances of the accused, might have reacted in the same or similar way. (OBJECTIVE)
Procedure for using defence fo LOSC
- all 3 elements must be satisfied (Clinton)
- evidence reseted by D during trial and judge determines whether a reasonable jury, properly directed could conclude that LOSC could apply.
- Jury to decide if LOSC applies.
Element 1 - LOSC and cases
- D must have killed as LOSC
- Jewell (2014) - - “loss of ability to act in accordance with considered judgement or a loss of normal powers of reasoning”.
- Dawes (2013) (HIGH THRESHOLD) - “for the individual with normal capacity of self-restraint and tolerance, unless circumstances are extremely grave, normal irritation and even serious anger do not often cross the threshold into loss of control”
- Section 54, para 2 - no longer needs to be sudden and temporary.
Element 2 - Qualifying trigger and cases
- section 55 of C&J Act
- a) owing to fear of serious violence (SUBJECTIVE)
- b) attributable to things said or done which- (OBJECTIVE)
- constituted circumstances of an extremely grave character and
-caused D to have a justifiable sense of being seriously wronged.
Qualifying trigger - Fear of serious violence
- SUBJECTIVE TEST
- D must react to genuine fear and it must be of serious violence
- includes when violence not imminent
- applies if D mistakenly believes violence was too be used against them (even if not seemingly to other people)
- threat violence could be to D or another person e.g., a child.
Qualifying trigger - Things said or done which resulted in D losing self control
- OBJECTIVE test - feeling of wrong must be justifiable and the circumstances must be grave
-Clinton - D cannot invite D to quit him based on that he personally feels seriously wronged.
-Seriously wrong - V’s words may not be unlawful but if they are legal it casts doubt on if justifiable sen of being seriously wronged.
Qualifying trigger - Things said or done which resulted in D losing self control - Extremely grave character
- not defined in statute
- Clinton - ‘it is not enough that the defendant has been caused by the circumstances to feel a sense of grievance. It must arise from a justifiable sense not merely that he has been wronged, but that he has been seriously wronged’.
- Dawes - Break up not sufficient.
Qualifying trigger - Things said or done which resulted in D losing self control - seriously wronged
- must be serious to D
- can take into account circumstances which affect the gravity of the situation.
-V’s acts or words need not be unlawful, but if they are legal this might cast serious doubt on whether D had a justifiable sense of being seriously wronged.
Qualifying trigger - Things said or done which resulted in D losing self control - justifiable sense
- prevent defence being used inappropriately e.e.g, honour killings, racist killings etc.
- allows cumulative abuse experience by wm who killed their partners
- objective test
-Meanza - D aggrieved of being asked to turn TV down in supervised unit, sense of being seriously wronged not seen as justifiable by court so not seen as trigger when killed member of staff in unit.
