Presentation Transcript

1. Homicide – Voluntary Manslaughter

   Loss of Control – s54 Coroners and Justice Act 2009
2. Issues with the old law (C issue) Sudden and temporary loss of control Role of the jury Meaning of the reasonable man Range of behaviour that could be provoking
3. New Law Provocation existed at common law before the law in this area was modified bys.3 Homicide Act 1957 (now ceases to have effect – s56 (2a) CJA 2009) This area has now been replaced by s54 and 55 of the Coroners & Justice Act 2009.
4. The New Law Before you continue – Print, then read and précis ‘Loss of Control’ by Carol Withey: http://www.criminallawandjustice.co.uk/index.php?/Analysis/loss-of-control.html ‘Loss of Control’ is now under s54 of the Criminal Justice Act 2009.
5. New Partial Defence - Loss of Control - s54(1) … (a) D’s act in killing resulted from loss of self-control – i.e. Did D lose control? (old law required sudden loss of control – watch Ahluwalia film to see how under the old law d would fall at the first hurdle! (b) loss of control had a qualifying trigger (c) A person of D’s sex and age, with a normal degree of tolerance and self-restraint, in the circumstances of D, would have reacted in the same/similar way. Use each of the above as one third of your para 5!
6. Evidence of Loss of Control The judge must decide if there is enough evidence and the Jury must assume that the defence is satisfied unless the Crown proves beyond all reasonable doubt otherwise. (note impact of R vDoughty – crying baby) No longer a requirement that loss was sudden
7. Role of the judge in loss of control pleas Look at these previous cases… Do you think they would meet the new threshold? Should the provocation have gone to the jury?
8. Loss of Self Control (2) For the purposes of subsection (1)(a) it does not matter whether or not the loss of control was sudden: Issues with this section: The longer the gap the more likely the judge will withdraw it Allows for a ‘cooling off period’ per Ahluwalia. Law Commission did not want to keep these words Allows a whole category of provoking actions or words to be taken into account. R v Duffy 1949 ‘Sudden and temporary loss of control’ R v Cocker 1989 ‘Still must be a loss of control’
9. Loss of Self Control Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. Why might these words cause problems? How might this have affected these older cases?
10. Qualifying trigger NOTE – Revenge (where have we seen this before?) does not apply (s54.4) and neither does sexual infidelity (Mohammed)(s55.6b) 2 accepted QT’s: 1. Fear of serious violence from V against D 2. Thing or things ‘done or said’ (or both) – restricted to (a) Of an extremely grave character (b) Caused D to have a justifiable sense of being seriously wronged.
11. Applicability of case law Old cases (pre 2009) no longer binding law – but they are useful for comparison purposes… Doughty (1986) – crying baby Davies (1975) – D provoked by wife’s lover into shooting his wife Pearson (1992) – D provoked by father’s abusive treatment of D’s brother into killing father with sledgehammer
12. Self induced actions To stop the possibility of a later appeal, D should usually be given the benefit of the doubt This may include cases where D himself has started the trouble: Johnson (1989) – But not if done so as to provide an excuse to use violence s55(6a)
13. Loss of self-control Revenge – why is the notion of revenge inconsistent with the defence of provocation/loss of control? Note s54(4) – requires that the defendant did not act in a ‘considered desire for revenge’
14. Cooling off period D had/may still have difficulty in successfully pleading provocation if they have waited some time before acting. Duffy (1949) Thornton (1992) Ahluwalia (1992) Do these cases still apply in the light of reform?
15. Cooling off period Despite apparent unfairness, the courts in domestic violence cases had consistently upheld the Duffy test which required a ‘sudden and temporary loss of self-control’. Sudden has now been removed. Would the case of Baillie (1995) be applicable?
16. Qualifying trigger s.55 Who can be threatened? What about other types of abuse? Who can issue the provocation? First Trigger D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person Judged subjectively Serious violence So D can even plead where: Uses excessive force Makes a mistake
17. Qualifying trigger s.55 Extremely grave character Second Trigger This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which – Constituted circumstances of an extremely grave character, AND Caused D to have a a justifiable sense of being seriously wronged. Justifiable sense of being seriously wronged
18. Other limitations on the qualifying trigger R v Johnson 1989 If D incites the violence from V, as an excuse, he cannot use it. Sexually infidelity isn’t accepted as an excuse D picks up the phone to hear his wife conducting a phone sex conversation with her lover. He put down the phone and strangles her. Could D use loss of control as a defence in these situations? D and V are arguing. V has been abusive to to V and punches her. He also says that she is useless and that he has been having an affair with her sister for the last year. D stabs him killing him. D comes home to find her husband sexually abusing their young child. She stabs him to death. Are there any other situations which should have been included?
19. Objective test – standard of self-control S54(1)(c) – would a person of D’s sex and age have acted in a similar way? The jury must be satisfied that a “person of D’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D, would have reacted in the same/similar way.” AG v Holley
20. The objective test Why include age? What about gender? Were the actions of V enough to prompt a person of D’s sex and age with a normal degree of tolerance and self restraint to lose their self control? Was it enough that D in those circumstances lost their control? AND
21. How is this different to earlier tests? Case law progression Stage one: Can you match the case – to the legal principle– to the description? Stage two: Can you put them in order and state how the test has developed? Its not!
22. Answers! Bedderv DPP ‘Ha ha, What are you going to do with that? Oh my is that a knife in your pocket or are you just pleased to see me?’ No characteristics are relevant to D’s self-control 1954 DPP vCamplin Age and sex are the only relevant characteristics relevant for self-control 1978 A good pan will get you out of most problems Luc ThietThuan Mental characteristics should not be taken into account when assessing the reasonable man “I don’t care how much money you give me I am still a better lover than your new bloke!” 1979
23. Answers! R v (Smith) Morgan Any characteristics which affects D’s self-control may be included I am a real tool for reacting like that. Hic. Sob. 2000 AG Jersey v Holley ‘I know we are no longer together but you cannot expect me to like your new lover - especially when I am so drunk and armed with an axe!’ Age and sex are the only relevant characteristics relevant for self-control 2005 R v James & Karimi Age and sex are the only relevant characteristics relevant for self-control How many women can have affairs in one appeal hearing? 2006
24. Higher order thinking The old law is still good law Read the case report for Camplin and answer the following questions: What were the facts of the case? What was the provocations alleged? What characteristics did D want to include in the reasonable man test? What does Diplock say the RM should include? What issue of public policy limited the defence? What are your thoughts about this? Should these be temporary or permanent characteristics? Extension – can you extend your commentary by referring to at least one other controversial case?
25. Objective test – standard of self-control The new test is similar to DPP vCamplin (1978) Privy Council in A-G for Jersey v Holley [2005] Essentially the age and sex of D can be attributed.
26. The objective test What word has changed from the old law? Circumstances …was characteristics. Why might that be more flexible than the old approach? Why include age? What about gender? Were the actions of V enough to prompt a person of D’s sex and age with a normal degree of tolerance and self restraint to lose their self control? Was it enough that D in those circumstances lost their control? AND
27. Which characteristics? Is this the same as circumstances in s.54? In a more liberal approach, the courts have allowed mental characteristics to be attributed to the reasonable man: Ahluwalia (1992) Dryden (1995) Humphreys (1995)
28. Temporary and self-induced characteristics Generally, a transient state of mind, e.g. intoxication will not amount to a‘characteristic’. However, the H of L has indicated that the jury should look at the ‘entire factual situation’ when considering the gravity of the provocation: Morhall 1996. See also the cases of: Gregson (2006) Hill (2008)
29. Apply the law Answer the question that is on your desk using the knowledge you now have. Remember IDEA Use this sequence for the E and A parts: Murder: Actus Reus Murder: Mens Rea Loss of control Qualifying trigger? Enough to provoke the person with the age and sex of D in the circumstances Causation?
30. Objectives Definethe elements of the partial defence of Loss of Control Explainin what circumstances the partial defence of Loss of Control can be used by a defendant Describe the application of the partial defence by reference to case law and problem scenarios