Criminal Homocide 1 - Voluntary Manslaughter

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Actus Reus for Murder Coroners and Justice Act 2009 ss 54-56

Unlawful killing of another human being under the Queen's peace with malice aforethought. Loss of Control. Loss of control is a new defence for murder. Replaces defence of provocation. If defence operates, D is guilty of manslaughter not murder s54(7). Burden of proof: s54(5)&(6) on prosecution. Judge: "common law heritage is irrelevant". Have to explain why using other cases. R v Clinton, Parker & Evans. s2(1)(a) Substantial impairment of D's ability: -to understand the nature of his conduct -to form a rational judgement -to exercise self-control. CJA 2009 s52 Amended the Homicide Act 1957 s2. As for loss of control if established, D guilty of voluntary manslaughter. D to prove defence on balance of probabilities HA s2(2) HA s2(1) -Was D suffering from an abnormality of mental functioning (R v Byrne) -Arising from a recognised medical condition Which substantially impairs the defendant's ability to do certain things? -And which provides an explanation for Ds acts and omissions in killing? note: could be physical or psychological condition. Did the defendant kill another person as a result of losing control? S54(1)(a) Did the loss of control have a qualifying trigger? S54(1)(b) Might "another person" have acted in the same or similar way? S54 (1)(c) Fear of violence caused by something D incited to be done: s55(6)(a) (but note R v Johnson - it might be ok so long as it wasn't intended to incite an excuse to commit murder.) A sense of being seriously wronged caused by something D incited to be done: s55(6)(b) Sexual infidelity: s55(6)(c) Clinton: usually sexual infidelity will be impossible to isolate from other circumstances in which case it may be considered as contributing.

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Law Commission report no. 304

Gives examples of when the factors in s2(1)(a) might apply. -boy who plays too many video games kills another. -woman kills husband to rid world of his sins. -mentally sub-normal boy follows brothers instructions. -man gives in to killing wife after much begging. -a man thinks the devil takes control over him. Intention to kill/cause GBH (R v Vickers) R v Martin [shot burglar running away] Fear of subjective violence s55(3) Did D subjectively fear serious violence from the victim aimed at him or another? S55(4)(a): Things said or done that "constitute circumstances of an extremely grave character" AND S55(4)(b) : Which "caused D to have a justifiable sense of being seriously wronged." Objectively judged: Clinton (i.e. an honour killing is not ok) Husband told her their marriage was over and wanted her out so his gf could move in . He demanded 200 for a hone bill, threatened to beat and brandish her. She put petrol (that she had bought recently) on his bed and set it alight. He died. First trial this showed planning so was guilty but appealed. s54(2) "it does not matter that the loss of control was not sudden" (but the longer the delay the weaker the defence. s54(4): There is no defence if D "acted in a considered desire for revenge". Abnormal state of mind. Court of Appeal: "state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal" Clinton was going through a hard time with his wife. They had a trial separation. He went on Facebook and saw her posting things to another man and on a different site saw pictures of her and the other man naked. He confronted her and she denied it. When he produced the evidence she admitted everything including several affairs she had had. She went into graphic detail. He hit her with a bat and strangled her with a string, using the bat as a tourniquet.

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Mens Rea for Murer Qualifying Trigger 1

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Diminished Responsibility Factors

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Diminished Responsibility.

Qualifying trigger 2 for Loss Of Control

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Elements of Diminished Responsibility

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Rv Ahluwalia [battered wife]

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Elements required for loss of control

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R v Byrne [strangled girl in a YMCA] R v Clinton [killed wife]

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Events that CANNOT be a qualifying trigger

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R v Cocker [killed wife with pillow] R v Deitchmann [killed man when drunk] R v Fenton [shot people, stole police car] R v Morhall R v Richens [Dover college kid] R v Simcox R v Stewart

Wife was very ill and kept asking to be killed. He grabbed a pillow to kill her but thought she had changed mind so stopped. Then she pulled the pillow back over her face and he finished killing her. Because he paused to think he showed control. [Deitchmann very sad about death of his aunt and savagely killed a man when drunk] "It is impossible for the jury to ignore the effect of alcohol and decide whether the defendant, sober, would still have killed as a result of a mental abnormality." Hate, jealousy or bad temper do not come within s2 Homicide Act.

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"normal degree of tolerance and self restraint" in S54(1)(c) should be a sober person. However, if is drunk and there are other circumstances it might be ok. Loss of control need not be complete impairment must be more than trivial or minimal. Jury to Consider: -Extent/Seriousness of the defendant's dependency -Extent to which ability to control drinking reduced -Whether he was capable of abstinence -If so, for how long -Whether he was choosing for some particular reason to get drunk or to drink more than usual. [Killed 11 year old daughter after she said her stepfather had abused her] Decided that because she could stop drinking (at 9/10th of the bottle) her alcoholism had not injured her brain and her drinking was not involuntary. Two qualifying triggers identified. The facts of a particular case may mean that both qualifying triggers apply: s55(5) Might a hypothetical person have acted in the same or similar way? S54(1)(c) "A person of D's age and sex" "in the circumstances of D" "with a normal degree of tolerance and self restraint" (Contrast with DPP v Camplin - these cases said only characteristics related to the provocation can be taken into account.)

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R v Tandy [alcoholic killed daughter] S55 CJA 2009 The reaction of "another person"

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