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16 Cards in this Set
- Front
- Back
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3 defenses that reduce from murder to voluntary manslaughter
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1. diminished responsibility
2.Loss of self control NEW 3. suicide pact |
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Key statute for diminished responsibility
and 3 ares |
Homicide Act 1957
1.abnormality of the mind 2. Specified clauses 3.significant impairment of D's |
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Byrne [1960]
How did Lord Parker define 'abnormality of mind' |
Byrne was a sexual psychopath who found it difficult, if not impossible, to control his perverted sexual desires he strangled a young woman and horrifyingly mutilated the body.
So, irresistible impulses are capable of amounting to diminished responsibility. ""a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal." |
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What are specified causes or how must the abnormality arise?
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1.arrested or retarded development
2.any inherent cause 3. induced by disease or injury |
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Examples of recognized medical conditions for A of the Mind
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Ahiwahlia 1992
Depression Hobson [1998] battered woman's syndrome Campbell [1987] epilepsy Sanderson 1994 D a drug addict had a violent argument with his girlfriend, whom he killed by hitting her 100 times with a wooden object a cricked bat and a hockey stick. Medical evidence established that D suffered from a paranoid psychosis, arising from inherent causes: namely, his upbringing. Held: A permissible cause of an abnormality of the mind includes 'any inherent cause', which covers functional mental illness as well as organic or physical injury or disease of the body, including the brain. "Brain" and "Mind" are not the same thing in law. Guilty of manslaughter by diminished responsibility. |
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significant impairment of D's
What does it mean and what are the changes in Section 2 |
It basically means
'substantial is less than total but more than trivial- Llloyd 1967 in previous it was D's general responsibility which had to be subsantially impaired in AMENDED defence the substantial impairment has to be d's abilty to 1. understand the nature of the conduct 2. form a rational judgement OR 3. exercise self control |
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Abnormality of the Mind and intoxication 2 cases 2 situations?
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Dietschmann 2003
[Diminished responsibility - voluntary consumption of alcohol can also be a cause of the killing] D killed a man in a savage attack whilst he was very drunk. He was also suffered from a mental abnormality, namely an adjustment disorder which was a depressed grief reaction following the death of his aunt, Sarah, with whom he had had a close emotional and physical relationship and whom he (wrongly) believed had committed suicide because of her drug problems. Held: To benefit from the finding of diminished responsibility, D does not have to show he would have killed had he been sober. Being intoxicated does not entitle D to the benefit of the defence of diminished responsibility, the only factor which the law recognises as capable of diminishing his mental responsibility is the mental abnormality described by the expert witnesses. Drink is only capable of amounting to Diminished Responsibility if it either causes damage to the brain or produces an irresistible craving so that consumpt |
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What was the partial defense for loss of C in HA 1957?
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3 elemets-
things said or done where D actually lost SC reasonable man |
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New Partial Defence of Loss of Contro
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The centuries old partial defence of provocation has been abolished by s.56 of the Coroners and Justice Act 2009 which came into force on the 4th of October 2010.
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What does s.56 of the Coroners and Justice Act 2009 replace
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The act replaces provocation with the new partial defence of loss of control which has three requirements. Under s. 54(1)(a) as a matter of fact, it needs to be established that D lost his self control. This is the subjective test as applied by the common law under the common law partial defence of provocation. Under s.54(1)(b) the act requires a qualifying trigger which it defines under s.55. The third requirement is contained in s.54(1)(c), which retains the objective test as established in Holley1 and Camplin2 by requiring that '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 in a similar way to D.' It is likely therefore that the older case law will continue to be of assistance in the way that the subjective and objective test applies.
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What are the main differences in the new laws of partial defense of loss of control?
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The main difference between the two partial defences is the abolition of the requirement for the loss of control to be sudden. It is thought that the abolition of this requirement was due to a perceived unfairness in the application of the defence towards women as opposed to men.
Following the wide acceptance of the battered woman syndrome, the requirement for the loss of control to be sudden was criticised as it arguably did not accommodate circumstances of a ‘last straw’ nature when involving women. The consequences may be however, that although the aim is to accommodate women suffering from the battered woman syndrome, this is not a specific requirement, therefore, the circumstances under which this defence may apply are likely to be wider than under the older defence of provocation. Furthermore, the requirement for the loss of control to be sudden was in place due to a need to differentiate between revenge killing and murder due to loss of control induced by acts of provocation. This fine line dist |
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What are the qualifying triggers?
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Further differences are to be found in s.55 of the Coroners and Justice Act 2009 which contains the definition of qualifying triggers. These two qualifying triggers can be considered as two limbs3 of the defence as they are slightly different in nature.
Under the new act, there can be a partial defence to murder arising out of self control due the fear of serious violence as stated in section 55(3). The loss of control out of fear of serious violence is entirely new to the defence of provocation. Murder by a person with a battered woman syndrome who is so provoked to kill might contain an element of fear, but, the circumstances under which the loss of control is to be attributed to fear exclusively are rarely if at all found in older case law. Not least perhaps because murder due to fear falls mainly on the complete defence of self-defence. Except perhaps in as far as under the new defence it is fear of serious violence, rather than fear for ones own life, thus the response of murder might be considered dis |
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What do we conclude about the new law of loss of control?
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Overall, the new act creates many more questions than it answers. That the requirement for loss of self control to be sudden is abolished is welcomed. However, it will take years of uncertainty for the judiciary to reach a level of sophistication comparable to the requirement to be sudden when drawing a fine line between loss of control due to provocation and murder out of revenge.
The act settles the objective test by adopting the minority opinion on Smith (Morgan)4 and the majority opinion on Holley. This in itself however was considered to be a settled matter. The act therefore helps only marginally. The main addition of the act is in addressing the question of battered woman syndrome. The way the act does so however, by adding a completely new defence, only marginally different from the common law defence of self defence, creates much uncertainty. For lawyers and law students however, all of this uncertainty is somewhat exciting for it allows us to engage in fine reasoning and logics at the very edge |
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Camplin 1978
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The courts then began to hold that to a certain extent the reasonable man is attributed with the defendant's particular characteristics which might be relevant to the provocation thus in Camplin the defendant was a 15 year old boy who, having been buggered by the deceased, was then taunted by him. The defendant killed the deceased by hitting him over the head with a heavy frying pan. He was convicted of murder following a direction by the trial judge to the jury that they were to judge him by the standards of the reasonable adult, not by a reasonable 15-year-old boy. The Court of Appeal allowed the defendant's appeal on the basis that a more subjective test, which took account of the defendant's age, should have been applied. This was endorsed by the House of Lords.
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Battered Woman Syndrome?
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A post-traumatic stress disorder.
The jury in a murder trial can consider Battered Woman Syndrome as a relevant characteristic, which makes her more prone to loss of self-control. In 1994 battered women's syndrome was included for the first time in the British classification of mental diseases. An appeal out of time was allowed in R v Hobson [1998] CA and a retrial ordered to consider the new medical evidence. Battered woman syndrome was confirmed as a characteristic in R v Smith (Morgan) [2001] HL However, in Jersey v Holley [2005] PC the position was returned to situation before Morgan Smith. |
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Holley [2005]
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[Provocation – objective test limited to reasonable man test including age and sex of D. Statutory interpretation – literal approach adopted]
D killed his girlfriend with an axe. He was an alcoholic (as was she). She told him she had just had sex with another man. He picked up the axe, intending to leave the flat and chop wood, when the deceased said, "You haven't got the guts" he hit her with the axe seven or 8 times. He pleaded provocation. Held: D’s alcoholism should not have been taken into account. Subjective element: The jury are required to assess the gravity of the provocation by reference to the defendant's individual characteristics in deciding if he lost self-control. Objective element: The jury are required to apply a uniform, objective standard of the degree of self-control to be expected of an ordinary person of the defendant's sex and age when judging whether his loss of self-control was sufficient to satisfy the defence. Not guilty of murder for other reasons Comment: Morgan Sm |
