VM: Loss of Control

Created by

tanj

Cards (24)

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:
D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
The loss of self-control had a qualifying trigger, and
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:
A loss of self-control
Caused by a Qualifying Trigger
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.