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Same AR and MR as murder, but a partial defense may be applied to reduce this to voluntary manslaughter.
o For voluntary manslaughter trial judge has complete discretion.
o Two partial defences: Loss of Control (previously known as provocation); Diminished responsibility.
LOSS OF CONTROL (PROVOCATION)
Coroners and Justice Act 2009 s. 54 & 56 changed the law; came into force on 4th October 2010.
The old Law
19th century this was a male-based partial defence. At the end of the century there was only two types of provocation
A husband witnessing adultery by his wife, and killing either wife or lover.
A father witnessing sodomy on his son, killing either son or sodomite.
o Homicide Act 1957 - words alone were basis of provocation.
Left for the jury to decide
R v Doughty (1986) - father killed 17 day old baby claiming provocation from excessive crying. The trial judge did not allow the jury to consider provocation.
On appeal substituted for manslaughter as provocation was available.
Three issues with old law:
o 1) However tenuous the evidence, the trial judge had to leave it to the jury to decide.
o 2) There was only a two part test (see below)
o 3) D bore the burden of proving the defence (s. 2(2))
The two-part test (s.3)
o 1) Subjectively, did that defendant lose control.
o 2) Objectively, would the reasonable (or ordinary) person have reacted in the same way and lost control?
o Based on R v Duffy , per Devlin J: "causes a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind."
o Clearly to male responses (stereotype): anger, passion,
immediate violence. A problem especially with regards to
Battered Wife Syndrome
90s Cases where abused women killed their abuser:
R v Ibrams (1981) - BWS, the trial judge did not allow the defence of provocation to be put before the jury as the planning indicated that there was no sudden and temporary loss of self control. The appeal was dismissed. R v Thornton  - BWS. On second appeal conviction was quashed on basis of medical evidence for BWS: jury should have been directed that they could take into account her mental characteristics in assessing the standard of control expected of the defendant (This went down DR route)
R v Ahluwalia  - appeal allowed on groudns of
R v Humphreys  - CA said that the jury could consider the cumulative provocation up to the final killing.
There has to be a sudden and temporary loss of control when the fatal act occurred, but this can last for seconds, minutes, hours or day, provided that at the time of the killing the Jury still believed that there was a sudden and temporary loss of control. (also in Thornton II)
Did not take into account the actually characteristics of the defendants themselves.
Bedder v DPP  - mocked by prostitute for being impotent, killed V. The court refused to dilute normative standard: appeal was dismissed.
DPP v Camplin  - 15 year old boy who was raped against his will by the 'victim' (middle aged man)
who subsequently mocked him. D killed V.
Lord Diplock: "the reasonable … ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him"
o Court developed approach where there was a direct connection between the taunt and characteristic: Response
R v Morhall  The appellant stabbed a man seven times after he taunted him about his addiction to glue sniffing.
Lord Taylor in CA - Where the characteristcs are repugnant to the characteristics of a reasonable person then they cannot be used to modify test.
HoL disagreed, Lord Goff: Morally neutral and morally negative characteristics may be taken into account provided they are response characteristics.
o Control Characteristics: Can characteristics that lower the power of self-control be considered by the jury?
Humphries - When considering if a reasonable person would be provoked can take into account psychiatric illness or abnormal disorders (like BWS)
R v Dryden  - D had eccentric and obsessional personality traits, shot planning officer who had come to enforce demolition order.
CA held that the personality traits were sufficiently permanent to be attributed to the reasonable man. However they were insufficient to overturn conviction.
R v Smith (Morgan)  - an alcoholic suffering from a depressive illness, stabbed his drinking partner after a row over some stolen tools.
HoL allowed provocation's objective assessment of the reasonable man to account for very subjective characteristics of the defendant (with the jury to decide which characteristics specifically), arguably diluting the effectiveness of having an objective test at all
R v Weller  - Possessiveness and jealousy were allowed in as characteristics.
A-G for Jersey v Holley  - PC decision (HK
statute was same as ours) D had various personality traits (depression, feelings of worthlessness, stress,
HoL held that the decision in Smith (Morgan)
allowing mental characteristics to be attributed to the reasonable man in assessing the standard of self-control expected of the defendant is no longer good law.
Coroners and Justice Act 2009 (ss. 54-56), abolished provocation as a partial defence to murder. Replaced with 'Loss of Self-Control'
o Myers: a dogs-breakfast of reforms making fundamental changes to this defence.
Created a tripartite test for loss of self-control:
o 1) Subjective test: did that defendant lose self-control (s.54(1)
This no longer has to be sudden and temporary.
Law Commission thought we should abandon this entirely and look to America where they merge partial defences for extreme mental and emotional defence.
But Susan Edwards points out that counsel will still use the same language (bezerk, straw on camels back)
Also still doesn't help BWS as when there is a gap between event and killing it si still hard to show a loss of control.
o 2) Did the loss arise out of a qualifying trigger: (s.54(1)(b))
A fear of serious violence (s. 55(3)): targeted to help
Circumstances of an extremely grave nature that caused a justifiable sense of being seriously wronged (s.
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