#14657 - Murder Voluntary Manslaughter - GDL Criminal Law

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Murder

Principles & Reform

Murder is a common law offence

Age of D:

• Doli incapax (children 10-13) rebuttable presumption abolished by Crime and Disorder Act

• Criminal liability from 10

Timing of prosecution:

• Law Reform (Year and a Day Rule) Act 1996 abolished this rule due to medical advances

• However AG permission needed for 3+ years delay in death

Mandatory life sentences:

• Home Secretary used to establish life sentences & then taken over by judicial discretion

• Now governed by S.269 Criminal Justice Act which stipulates 15 years starting point extended by aggravating factors

S.1 Homicide Act abolishes felony murder rule (similar to unlawful act manslaughter but for murder)

Law Commission’s Draft Criminal Code:

• 1^st degree – intention to kill

• 2^nd degree – intention to bring about serious harm/recklessness – partial defences available to include duress

• 3^rd degree – involuntary manslaughter

These reforms have NOT be instigated (though loss of control & diminished responsibility have)

Actus Reus

The unlawful killing of a human being

‘Human Being’

R v Malcherek (above)

Held: they applied the brain stem death test by the Royal College of Physicians as the ending of life – at the time of death Vs were already dead thus meaning the doctors could not be the cause of death

Ag Ref No. 3 of 1994 (above)

Held: unlawful act affecting the unborn can evolve into unlawful act manslaughter if the foetus enjoys independent life from mother before death

• Sir John Smith: argued that this case could not be murder as there was no mens rea to kill/GBH a human being. However if the mens rea was to injure foetus with intent to bring about its death when born, this could amount to murder

Separate claims for destroying of foetus: child destruction/unlawful abortion

• Enoch defines a human being as an independent existence from the mother

• Rance defines a human being as some kind of independence like use of own lungs

Mens Rea

An intention to kill or cause serious harm

(See actus reus & mens rea for applicable general principles)

Voluntary Manslaughter

Unlawful killing of a human being with an intention to kill/GBH

+ loss of control (S.54(7) Coroners and Justice Act)

+ diminished responsibility (S.2(3) Homicide Act)

i.e. murder + a specific defence which ranks the crime down

Old Law: Provocation

Historical genesis in defence where wife has committed adultery against murder of the lover, or against the murder of someone sodomising their child

It is a concession to human weakness (compare: duress)

R v Lesbini

1. Was there loss of control (subjective)

2. Would a reasonable person have killed the victim as a result of the loss of control (objective)

Before Coroners and Justice Act reforms, a number of pressing issues surrounding the doctrine:

• Provocation as an evidential question & if any evidence were raised it had to be left to the jury

• Homicide Act established that:

  • Words alone could be provocation

  • D’s response did not have to be proportionate

  • 3^rd party provoker could accede D to the defence

• Gender bias:

  • The Duffy Test stipulated that provocation had to give rise to a “sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his or her mind” per Devlin J

  • R v Ibrams: planning stage extinguished provocation defence

  • R v Thornton: continuous abuse which led to a planned killing meant the delay did not satisfy the Duffy test. These women therefore had to go down the diminished responsibility route (where the burden is reversed)

  • R v Ahluwahlia: D poured petrol onto sleeping husband V and set fire to him. They had an arranged marriage and he had been abusive – the night before killing he had threatened a beating with an iron. Held: Duffy test was good law & the judge’s direction with regards to the abuse would have been sufficient

  • R v Emma Humphreys Justice4Women organised legal appeal for Humphreys 7 years after conviction & succeeded on basis of provocation. Held: cumulative impact on the final loss of self-control moment

  • R v Baillie confirmed that the loss of control could last hours or days as long as the moment itself is within such a moment

• Which characteristics can be absorbed into the objective stage?

  • R v Bede: sexual impotence was not considered as a part of the objective stage

  • R v Camplin: sex & age of D should be absorbed per Lord Diplock; internal factors cannot be absorbed which guide D’s actions as this is diminished responsibility

  • Prof Ashworth: “individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused’s level of self-control should not” approved by PC in AG for Jersey v Holley – divided into ‘response characteristics’ and ‘control characteristics’

    • R v Moorhall: CA held that a taunt about glue sniffing could absorb glue-sniffing into the objective test, however HL found that morally repugnant characteristics could not be absorbed into the test

    • R v Dryden: Council arriving with demolition tools to D’s house which he had built – characteristics absorbed

    • R v Smith (Morgan): HL moved away from an objective test and towards whether the loss of self-control had happened, and then whether or not it was sufficiently excusable to be a partial defence. Violent characteristics cannot be absorbed but others can. Lord Millett dissented that the “variable standard of self-control…subverts the moral basis of the defence”

    • R v Weller absorbed jealousy & possessiveness

    • R v Holley itself found that control characteristics can only be adapted by age & sex – anything else goes to diminished responsibility as D’s depression & worthlessness did. Disagreed with Smith (Morgan) that excusability was the test – there needed to be a uniform standard. James (CA) has followed the PC decision

New Law: Loss of Control

SS. 54-6 Coroners & Justice Act into force 2010

• Norrie: this is no longer a concession to human weakness but rather an imperfect justification defence

1. D must have killed V as a result of losing control

   1. No more sudden/temporary requirement

   2. Left to the courts to interpret

2. Loss of control must have had a qualifying trigger; either

   1. Fear of serious violence

   2. Things said or done which:

      1. Constitute circumstances of an extremely grave nature

      2. Cause D to have a justifiable sense of being wronged

3. Another person of D’s sex & age with a normal degree of tolerance & self-restraint must have reacted in the same or similar way

   1. Focus on circumstances not characteristics

NB: sexual infidelity & revenge killing excluded

• Sue Edwards: “This will undoubtedly leave the question of what is justifiable to the jury, whose sense of “justifiable” may still be founded on masculinist notions of what is and what is not a justifiable cause of lethal anger”

• Rudi Fortson: the reality is that the battered woman’s defence will be used for pub brawls where violence is feared

Evidential burden:

This is a much narrower test & will rarely be left to a jury (compare provocation which had to be left to the jury where any evidence was raised)

• Simon Parsons compares Doughty where a baby crying could raise provocation with Zebedee where abuse allegations gave rise to no qualifying trigger of grave circumstance

R v Jewel

D planned murder of V with vague plan of suicide in Scotland & note to neighbour to feed the cat

Held: (CA) insufficient evidence of loss of control raised because ‘his head was fucked up’ – all three stages must be satisfied

• Rafferty LJ: there must be evidence beyond that which is merely fanciful

R v Gurpinar emphasises evidential basis of loss of control & recommends following the statutory scheme without too much reliance on caselaw

R v Kojo Smith & R v Barnsdale-Quean emphasise sufficient evidence requirement for the defence to be left

Sexual infidelity:

R v Clinton

D had separated from V, his wife. He was depressed. He found out she had an active sex life & he couldn’t control himself when they met up. It was alleged she taunted him about a suicide attempt. He beat her to death

Held: (CA) construed the statute in D’s favour, that sexual infidelity could not be a stand-alone trigger amounting to an extremely grave circumstance but could alongside other factors (suicide attempt here). Loss of control as a ‘common sense analysis’

• LCJ Judge: “events cannot be isolated from context…to seek to compartmentalise sexual infidelity and exclude it when it is integral to the facts…is unrealistic and carries with it the potential for injustice”

Objective standard:

R v Asmelash

Dispute between D & V in a bar

Held: the objective stage of the defence cannot take into account intoxication because the normative person is not an alcoholic (but it might be relevant to where the things said or done go to the characteristics of D)

Inducing acts of D:

R v Dawes

D went back to his house where he found V sleeping with his estranged wife. Alleged D stabbed him to death in a jealous rage & self-defence to attack of V raised

Held: (CA) upheld trial judge’s direction as there was no rage evident to satisfy the factual stage. On the matter of inducing one’s own loss of control (provocation and counter-provocation under R v Johnson old law) held that D’s inducing behaviour does not automatically disapply the qualifying triggers but it does make fear of violence of a justifiable sense of being wronged harder...