Criminal 2 Murder and Voluntary Manslaughter

Diminished Responsibility

Special, partial defence to murder

Homicide Act 1957, Section 2(3)

If a defence of Diminished responsibility is successful, they will be convicted of voluntary manslaughter

Murder (Abolition of Death Penalty) Act 1965

Judge has discretion in sentencing on voluntary manslaughter

Burden of Proof for Diminished Responsibility (Section 2(2) HA 1957)

Falls upon the defence upon the balance of probabilities

R v Campbell

Diminished responsibility is not available as a defence

The Homicide Act 1957, s2(1) as amended by the Coroners and Justice Act 2009, s 52

Statute for Diminished Responsibility

Requirements for Diminished Responsibility

Defendant was suffering from an abnormality of mental function that a) arose from a recognised medical condition, b) substantially impaired their ability (to do 1A) and c) provides an explanation for their acts or omission in the killing

Subsection 1A Diminished Responsibility

A) to understand the nature of their conduct B) to form a rational judgment C) to exercise self control

R v Byrne

An abnormality of mental functioning is so different from that of an ordinary human being’s that the reasonable man would term it abnormal

R v Dowds

Voluntary Intoxication cannot give rise to a defence of Diminished Responsibility

R v Golds

Substantial impairment of the defendant’s ability means something more than merely trivial

Section 2(1B) HA 1957

AMF must also be an explanation for the defendant’s conduct if it is a significant contributory factor and not the only cause

R v Brennan

The charge of murder will be withdrawn from the jury if there is uncontradicted expert evidence of diminished responsibility

Coroners and Justice Act 2009

Abolished defence of provocation and replaced it with loss of control

Requirements for Loss of control CJA 2009 s54(1)

Defendant must have lost self-control; due to the fear and/or anger qualifying trigger; and a normal person might have acted in a similar way to the defendant

Loss of Control

Partial defence to murder

Burden of Proof for Loss of Control CJA 2009 s54(5)

Rests with the prosecution once the issue is raised

R v Clinton, Parker and Evans

Prosecution needs only to prove that one component was absent for defence to fail

Judge’s Decision for Loss of Control CJA 2009, s54(6)

The judge can decide whether the defence can be put before the jury

R v Jewell

Loss of control is a significant change from law on provocation

Sentencing for Loss of Control CJA 2009 s54(7)

If defence is successful, conviction will be reduced from murder to voluntary manslaughter

R v Richens

A mere loss of temper is not enough for loss of self-control

Timing of Loss of Control CJA 2009, s54(2)

Does not need to be sudden

Revenge and Loss of Control CJA 2009 s54(4)

Defence will be lost if there is a considered desire for revenge

R v Ahulwalia

An increased delay between trigger and loss of self-control will reduce the likeliness of the defence succeeding

Qualifying Trigger CJA 2009, s55

3) must be fear of serious violence 4) circumstances must have been of extremely grave and cause a justifiable sense of being seriously wronged

R v Dawes, Hatter and Bowyer

Loss of Control and Self-Defence are two distinct defences

Fear Trigger and Inciting Violence CJA 2009, s55(6)(a)

Defendant cannot rely on the fear trigger if they incited it as an excuse to use violence

R v Martin (Anthony)

Use of defence of loss of control under fear of serious violence as a qualifying trigger

Requirements for Anger Trigger

Things said and/ or done; constitute circumstances of an extremely grave nature; and that caused the defendant to have a justifiable sense of being seriously wronged

Limitations to Anger Trigger

Cannot be used to incite violence (s 55(6)(b)) or where the thing said or done constituted sexual infidelity (s 55(6)(c))

R v Acott

If a person was driving in slow moving traffic caused by snow and lost-self control, they would not be able to rely on this defence

R v Clinton (Anger Trigger)

Anger Trigger must be determined objectively and these circumstances should not be established easily

The Normal Person Test for Loss of Control CJA 2009, s54(1)(c)

a person of the defendant’s sex and age with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or in a similar way to the defendant

DPP v Camplin

Gravity of the qualifying trigger is very important

Characteristics or Circumstances likely to be excluded in the Normal Person Test

Bad Temper, Intoxication, Extreme Sensitivity, Post-Traumatic Stress Disorder and Personality Disorder

R v Wilcocks

A personality disorder could be an important characteristic depending on whether they are triggered by it or by the mocking of it

Potential Exceptions to the rule on Sexual Infidelity

If it is in the background, if it has been made up to taunt the defendant, if it has not yet taken place, if there are other factors affected by sexual infidelity (ie children or property)

Intoxication

Can be used to negate the mens rea of as an influencing factor for loss of control and diminished responsibility

R v Morhall

If the defendant is taunted about their intoxication, this may form a qualifying trigger, being intoxicated however will not

Court approaches to Intoxication and Diminished Responsibility

Independent of the abnormality, the defendant has an abnormality of mental functional and is voluntarily intoxicated; or as a result of alcohol dependency syndrome

Intoxication Independent of the Abnormality

Despite the drink, the jury should consider whether the defendant was suffering from mental abnormality and did that abnormality impair their responsibility?

Abnormal Mental functioning arising from ADS

AMF must arise from the ADS which impaired the defendant’s ability and provides an explanation for the defendant’s conduct

R v Dietschmann

If the defendant had not been drunk, would he have killed him as in fact he did?