#4618 - Loss Of Control And Diminished Responsibility - GDL Criminal Law

Murder

• Mandatory life sentence pursuant to the Murder Act 1965 (end of death penalty)

2 special defences – arise only in relation to murder: loss of control and diminished responsibility

Loss of control

• Consensus that the special defences to the offence of murder needed reform (judgements in Attorney General for Jersey v Holley)

• Coroners and Justice Act 2009 – changes to the special defences

  • Defence of provocation abolished and replaced with new defence entitled ‘loss of control’

S54 Coroners and Justice Act 2009:

Where a person (D) kills or is 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 arty 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-restrain and in the circumstances of D, might have reacted in the same or in a similar way to D – reaction of a normal person

• NEW area of law – has only come before the court once - R v Clinton, Parker & Evans (2012)

• Burden of proof rests with the prosecution – they need to prove beyond all reasonable doubt that only one of the components is absent for the defence to fail (R v Clinton)

• If successful then the conviction is reduced to manslaughter

• Despite Clinton – much remains undefined and untested

• Loss of self-control

• Element is not defined in the act

• Old common law largely (but not completely) irrelevant ( has replaced provocation) so fact based

• But some case law helpful:

• Following R v Richens (1993) – seems likely that although there won’t be a need for complete loss of control so that the defendant does not know who he was doing – he must have been unable to restrain himself – loss of temper not enough

• The loss of control need not be sudden - shows how the old law of provocation developed

  • case of Ahulwalia – defence of provocation not lost just because of delay btw the provocative words and the killing – but up to jury to decide length of the delay

• The Qualifying trigger

• Clinton: new defence has ‘raised the bar’ : more difficult to raise than provocation was

• ‘Qualifying trigger’ defined in S55:

1. This section applies for the purposes of section 54

2. A loss of self-control had a qualifying trigger if subsection (3), (4). Or (5) applies

3. If D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person

4. If D’s loss of self-control was attributable to a thing or things done or said (or both) which –

   1. Constituted circumstances of an extremely grave character, and

   2. Caused D to have a justifiable sense of being seriously wronged

5. If D’s loss of self-control was attributable to a combination of the matters in subsections (3) and (4)

6. In determining whether a loss of self-control had a qualifying trigger –

   1. D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence

   2. A sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be said for the purpose of providing an excuse…

• Fear of serious violence:

  • Link with self-defence - trigger to provide for situations where the defendant is justified in using force but where the force is unreasonable preventing self-defence – R v Martin (Anthony) – used excessive force on burglars so self-defence therefore not available. Old law on provocation not useful either given the degree of planning involved in his action – but new law might have helped

• Things said or done which constitutes circumstances of an extremely grave nature and causes a justifiable sense of being seriously wronged

  • No clear definition in the act But now have clear direction that both s 55 (4)(a) & (b) require objective evaluation (confirmed by Clinton)

1. Things said or done (or both)

   • Must be something actually said or done

   • R v Acott – if a person driving in slow-moving traffic caused by snow lost control wouldn’t be able to rely on defence (from old law)

2. Constitutes circumstances of an extremely grave nature

   • Difficult as act and explanatory notes are silent on the meaning of the phrase

   • We know it must be determined objectively

   • Thought that is the same as that required when evaluating the perception of the threat within the defence of duress

3. Causes defendant to have a justifiable sense of being seriously wronged

   • Whether sense of being seriously wronged is justifiable is an objective question – confirmed in Clinton

   • Narrows the law: Under the old law almost anything could constitute provocation: R v Doughty (a baby crying); R v Davies (watching an adulterous meeting)

   • Law Commission – a parent coming home to find his child was being raped = a situation where the defence would now be available

   • Old cases which provide examples of when the trigger could now arise:

     • R v Ahluwalia – D had been victim of domestic violence for years – on the night in question her husband had argued with her and threatened to beat her the following morning – after he fell asleep she poured petrol over him and set him alight, causing burns from which he later died

     • R v Thornton D was a long-term victim of domestic abuse – one evening after argument, went to kitchen, sharpened her knife and then stabbed her husband

     • R v Humphreys – D had been abused, sexually and mentally by partner, on the night of the killing was taunted and threatened with rape – lost self-control and stabbed husband

     • R v Baille : D learned that his son had been threatened by a drug dealer – drove to the dealer’s house with shotgun and razor – slashed his throat and chased him, shooting him twice

   • In contrast: cases like Davies and Doughty now unlikely to satisfy requirements

Limitations on use of this defence

1. Cannot be used in act of “considered revenge” – S 54 (4)

   • Mirrors old law: CA in R v Imbrams and Gregory – 7 days between bullying and murder with evidence of planning The defendant cannot create the qualifying trigger as an excuse to use violence himself

2. The D cannot create the qualifying trigger as an excuse to use violence himself – s55(6)

   • Defence would no longer be available in cases like R v Johnson - D had been drinking at a nightclub when he made threats of violence to the victim, struggle ensued and the victim was stabbed

3. The defence cannot be relied on if the thing said/done constituted sexual infidelity

• s55(6)(c) – discussed in Clinton : analysis of how difficult it is to determine whether the thing said or done actually constitutes sexual infidelity

  • Para 20 clearly states that ON ITS OWN sexual infidelity cannot constitute a trigger

  • But: provided that sexual infidelity is accompanied by taunts/other related issues – it will be relevent

• The reaction of a normal person – might he do as the defendant did?

Section 54 (1) (c): 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

Section 54 (3): In subsection (1)(c) the reference to the circumstances of D is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint

• Accepts that where a person has acted in a less than fully controlled manner, their culpability may be less

• Similar to the reasonable man test for provocation - debate over which characteristics of the defendant should be attributed to the reasonable man

  • Development of the ‘reasonable man’ element before 2009:

1. The reasonable man test under the Homicide Act 1957

   • DPP v Camplin: should be able to take into account some of the D’s personal characteristics when assessing the gravity of the taunt but when assessing the reaction apply reasonable man

     • Broadened further: HL decision in R v Smith (Morgan James) – broadened the issue of what characteristics should be taken into account : allowed consideration of personal characteristics for taunt AND reaction

       • But this approach rejected by the PC in Attorney General for Jersey v Holey –- relevant characteristics should be attributed to the normal man but his reaction should objectively be measured vs. a reasonable man exercising ordinary powers of self-control

2. Current position under s54(1)(c) CJA 2009

   • To a large extent replicates the requirements of DPP v Camplin and Attorney General for Jersey v Holley – in some ways indicate a slightly broader approach, more favourable to defendant than Camplin - can take into account ‘all the defendant’s circumstances’

   • Test for determining proportionality of the reaction remains wholly objective – normal person will have ordinary powers of self-control – jury will not take into account any characteristics or circumstances which would not affect normal tolerance and ability to exercise restraint

Intoxication and loss of self-control

• Provocation: the reasonable man is always sober and effect of drugs/drink is excluded

  • Expected that this will remain the case under new law

• R v Morhall – HL confirmed that intoxication should be excluded for policy reasons

  • but could consider addiction to drugs to be a factor in terms of it affecting the gravity of the provocation (if being taunted about use of drugs) – jury would be directed to consider the effect of the taunts on a sober alcoholic

• Following reasoning in R v Smith – appeared that alcoholism as a condition could be considered as characteristic of...