VM: Loss of Control

• Types of Manslaughter:

  • Voluntary Manslaughter
  • Loss of Control
  • Diminished Responsibility
  • Involuntary Manslaughter
  • Unlawful Act (Constructive) Manslaughter
  • Gross Negligence Manslaughter
• Difference between these types of manslaughter all relates to state of mind of the D.

  • Voluntary Manslaughter - many times the defendant has voluntarily ended the victim's life, but there are some overriding circumstances which explain why they took that action that they would not usually take.
• • Involuntary Manslaughter - these offences cover where the defendant has not intended to kill the victim - they have either committed another dangerous criminal offence which inadvertently lead to death, or they have been extremely negligent and have caused death as a result.
• Voluntary Manslaughter = Special Defences to Murder

  Where person is charged with murder, there are 3 partial defences which means that if successful, the offence of murder is reduced to manslaughter.

  • Loss of Control
  • Diminished Responsibility
  • Suicide Pact

  A D will not be charged with these - they come up as a defence during the trial and if successful, murder will be reduced to manslaughter.
• Loss of control - Coroners & Justice Act 2009 - Sudden and temporary loss of control

  Diminished Responsibility - Homicide Act 1957 as amended by Coroners & Justice Act 2009 - Acting under an abnormally of mental functioning

  Suicide Pact - Homicide Act 1957
• Change from murder to manslaughter is significant as it has an impact on the sentence given to the offender

  • Murder - mandatory life sentence - Judge has no discretion other than to set the "tariff" which is the minimum prison term before parole can be considered.
  • Voluntary Manslaughter - maximum life sentence - Judge has discretion and can give a Life sentence including a long stretch in prison, or can give much short sentence.
• Coroners & Justice Act 2009, s.54:

  "(1) Where a person (D) kills or is a party to the killing of another (V), D is not to be convicted of murder if:

  1. D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
  2. The loss of self-control had a qualifying trigger, and
  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 in a similar way to D"
• Elements of Loss of Control - Requirements for Using the Defence:

  1. A loss of self-control
  2. Caused by a Qualifying Trigger
  3. A person of D's sex and age and with a normal degree of tolerance and self-restraint would act the same way in D's circumstances (The Objective Element)
• Loss of Self Control:

  • When the D kills the V, D must have lost their self-control. The jury decides if this happened or not.
  • s.54(2): There is no need for this to be a sudden loss of control. However partial loss of control is not enough.
  • R v Martin 2017
  • R v Jewell 2014
• Loss of Self Control - R v Martin 2017:

  • "There is a clear distinction between the defence of self-defence and the partial defence of loss of control."
  • D stabbed V after an aggressive confrontation and argument. D attempted to say he panicked and lost control use to V's aggression. Many witnesses testified to D's uual aggressive character.
  • Held: No defence allowed. D was guilty of murder. Even if there was a panicked response, this is not enough for a loss of control.
• Loss of Self Control - R v Jewell 2014:

  • D claimed he was being intimidated by V, his work colleague. He turned up at V's house one morning to take V to work, but instead shot and killed V on his doorstep. Police found a survival bag in D's car (indicating he was intending to go on the run)
  • D claimed he was in a "dream-like state" and had lost control.
  • Held: Defence was not allowed, he was guilty of murder. His actions indicated he was clearly in control. Acting out of character or in anger is not enough.
• Qualifying Trigger:

  • These are defined in s.55 Coroners & Justice Act 2009, and include:
  • s.55(3): D has lost control due to D's serious fear of violence from the V against D or another person.
  • s.55(4): D's loss of control is attributable to something said or done which:
  • (a) Constitutes circumstances of an extremely grave character
  • (b) Caused D to have a justifiable sense of being seriously wronged.
  • s.55(5): Or a combination of both of both of the above.
• Qualifying Trigger:

  • These are defined in s.55 Coroners & Justice Act 2009, and include:
  • s.55(4): This is viewed objectively (according to R v Hatter)
  • Limitations on Qualifying Triggers:
  • s.55(6)(c): Sexual infidelity is to be disregarded (R v Clinton 2012)
  • s.55(6)(b): If D incites a reaction from V, D cannot then rely on that for the defence (R v Dawes 2013)
• Qualifying Trigger - R v Clinton 2012:

  • FACTS: D killed his wife after she cheated on him with 5 men, taunted him about the cheating in explicit detail, made fun of his depression and suicide attempts, and said she no longer wanted to see their children.
  • He claimed loss of control. Was initially rejected as sexual infidelity is not a qualifying trigger.
  • HELD: On appeal, D's murder charged was reduced to manslaughter on the basis of loss control.
  • Was not just sexual infidelity - that was one of many factors and existence of sexual infidelity does not automatically rule out using the defence.
• Qualifying Trigger - R v Dawes 2013:

  • FACTS: D found his estranged wife asleep on the sofa with another man (V). He attacked the man with a bottle, and when the man retaliated he stabbed him to death.
  • D attempted to claim loss of control due to fear of serious violence when V retaliated against him.
  • HELD: He was guilty of murder as the defence could not apply. D had incited (encouraged) V's violence and therefore could not rely on it as a defence.
• The Objective Element:

  • s.54(1)(c): states that jury must decide if a person of D's sex and age and in D's circumstances would react in the same way.
  • This hypothetical person needs to have a "normal degree of tolerance and self-restraint"
• The Objective Element:

  • There is a legal debate about what can be included in "D's circumstances"
  • Many defendants have tried to argue that mental health conditions should be taken into account here.
  • e.g. Would a person of D's sex and age who was suffering from depression have acted the same way.
• The Objective Element:

  • The problem arises when the mental health conditions cause come to not be considered a person with a "normal degree of tolerance and self-restraint"
  • Therefore this would indicate the mental health condition should not be taken into account by the jury in these circumstances.
• The Objective Element:

  • Rule is = it can be taken into account by the jury if it affects how serious the qualifying trigger was for D, but not if it causes D to have a less than normal level of tolerance and self-restraint.
• The Objective Element:

  • R v McGrory - Depression - Condition not considered by jury
  • R v Asmelash - Voluntary Intoxication - Condition not considered by jury
  • R v Wilcocks 2016 - Anti-Social Personality Disorder - Condition not considered by jury
• The Objective Element:

  • R v Meanza 2017 - Paranoid Schizophrenia - Condition not considered by jury
  • R v Gassman 2017 - Emotionally Unstable Personality Disorder and Cannabis dependency - Condition not considered by jury
  • R v Rejmanski 2017 - Post-Traumatic Stress Disorder (PTSD) - Condition not considered by jury
• Burden of Proof:

  • Refers to who has the responsibility (burden) of proving whether the defence applies or not - the prosecution or the defence
  • s.54(5) Coroners & Justice Act 2009
  • R v Gurpinar 2015
• Burden of Proof - s.54(5) Coroners & Justice Act 2009:

  • If there is evidence that a reasonable jury might use to conclude that there is a loss of control, the burden is on the prosecution to prove beyond reasonable doubt that the defence is not satisfied.
• Burden of Proof - R v Gurpinar 2015:

  • In this case, neither of the two defendant's brought up Loss of Control on their murder trial.
  • On appeal, they said the judge has a responsibility to bring it up as a possible defence for the jury to consider.
  • However, in the case there was insufficient evidence.