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Homicide Offences & Causation Notes

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H OMICIDE O FFENCES & C AUSATION

[VOLUNTARY MANSLAUGHTER ]
Voluntary manslaughter is an unlawful killing which would otherwise amount to murder (i.e. committed with 'malice aforethought'), but is reduced by virtue of one of three types of mitigating circumstances: (1) loss of control, (2) diminished responsibility, or (3) suicide pact. Whereas murder carries the mandatory life sentence, manslaughter (voluntary and involuntary) carries a maximum punishment of life imprisonment.

1. Introduction a. Voluntary slaughter refers to killings with an intent to kill or cause GBH, where there is some form of legally recognised extenuation b. 3 types i. Committing prima facie murder in response to some incident or event which constitutes loss of control ii. Committing prima facie murder when afflicted with one or more of the conditions specified in s.2 of the
Homicide Act iii. Committing prima facie murder in pursuance of a suicide pact

LOSS

OF

CONTROL

**C ORONERS

AND

J USTICE A CT 2009

[54] - Partial defence to murder: loss of control

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 —
a. D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control, 2.

3. 4.

5. 6.

7. 8.

b. the loss of self-control had a qualifying trigger, and 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.
For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
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.
Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection
(1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury,
properly directed, could reasonably conclude that the defence might apply.
A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.
The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.

[55] - Meaning of "qualifying trigger"

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. This subsection applies if D's loss of self-control was attributable to D's fear of serious violence (subjective)
from V against D or another identified person.

4. This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which — a. constituted circumstances of an extremely grave character (objective), and b. caused D [& not another] to have a justifiable
(objective) sense of being seriously wronged
(subjective).
c. [this (1) can be from a third party, not just V, and (2)
does not have to be directed at D - e.g. racism directed to another of D's race]

5. This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and
(4).

6. In determining whether a loss of self-control had a qualifying trigger—
a. 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;
b. a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
c. the fact that a thing done or said constituted sexual infidelity is to be disregarded.
[56] - Abolition of common law defence of provocation

1. The common law defence of provocation is abolished and replaced by sections 54 and 55

__

Loss of self control

1. Loss of control a. A partial defence to murder, which first has to be established b. Threefold elements contained in s.54 of CJA 2009 c. D's loss of self-control i. Defined as "D's loss of ability to maintain his actions in accordance with considered judgment or he had lost normal powers of reasoning" (Jewell)
ii. Subjective test focusing on D's reaction + causal link iii. Exactly what psychological state represents loss of self-control cannot be precisely pinned down -
CoA in Gurpinar declined to consider whether loss of self-control encompassed loss of temper and whether it had to be total, since what constituted a loss of self-control is fact-sensitive iv. Need not be sudden (S.54) - evidence of premeditation and planning may not necessarily be incompatible with loss of control (Ibrams, Pearson)
d. Qualifying trigger i. Fear of serious violence

1. Quasi self-defence principle (S&S)

2. There only need to be fear of serious violence, it does not need to be shown that there was or is going to be violence - would apply even if D
mistakenly believed that serious violence was imminent

3. Fear must be of serious violence - fear of damage to property or minor acts of violence would not be sufficient

4. Threat of violence can be to another person -
e.g. D's child, family members, friends, etc.

5. Only applies where D kills the person posing the threat of serious violence - if D, in the face of serious violence from V, kills X, no defence

6. *There must still be a loss of self-control - if
D saw V was going to attack him, and calmly concluded that the only way to prevent it was to kill V, defence not available (Herring)

7. Where this overlaps with self-defence, a complete defence to murder, D should use self defence a. Loss of self-control is applied where killing was not reasonable in the circumstances of the case

8. Application a. Where V of sustained abuse kills abuser in order to thwart an attack that is anticipated but not immediately imminent b. Where someone overreacts to what they perceive as an imminent threat ii. Sense of being seriously wronged by things done or said

1. Requirement of "extremely grave character"
a. Objective test (Clinton)
b. Statute does not explain what these words mean, but best interpretation is that the circumstances facing D must have been unusual, and not part of the normal trials and disappointments of life (Herring) - so being jostled in a supermarket, or have someone queue jump, etc. would not suffice.
c. In Dawes, CoA suggested that ending of a relationship will not amount to a qualifying trigger

2. "Justifiable sense of being seriously wronged"
a. Whether D had a sense of being seriously wronged is a subjective test, assessed w.r.t. D's own perception i. If D was seriously insulted, but not upset, then they cannot rely on it as a trigger b. Whether D's sense of grievance was justifiable - objective test (Dawes)
i. However, line between 'justifiable'
and 'excusable' or 'understandable'
is difficult to draw c. Government gave example of V of rape who kills her attacker as the kind of case where defence might be applicable -
suggests that *only rarely will the trigger be available d. **One issue the court needs to address is a case where V did something that would not be a serious wrong to most people, but was to D, e.g. throwing bacon at a Muslim e. *The serious wrong must be done to D,
and not D's friend, family, etc.
However, *this is not straightforward i. Has someone who sexually abused a child, committed a grave wrong to his/her parents?
ii. Can racial insults uttered to one person be seen as insults to all members of that race, allowing a passer-by to lose self-control?
f. Only used where something is said or done - circumstances alone cannot suffice, e.g. that D's shares have fallen in value or there is a terrible traffic jam g. Exceptions of s.55(6b-6c)

3. Sexual infidelity is to be disregarded a. Government - unacceptable for D who has killed an unfaithful partner to seek blame for V for what occurred - to make it absolutely clear that sexual infidelity can never justify reducing murder to manslaughter b. Interpreted in Clinton to mean relating directly and exclusively to sexual activity, such that the effect of infidelity,
i.e. envy, jealousy or possessiveness,
would not be included. Relationship necessary, but need not be legally recognised (marriage). Provision interpreted as excluding sexual infidelity when it is the only trigger -
not a blanket exclusion, since events cannot be isolated from context i. Where there is sexual infidelity plus other facts, then sexual infidelity can be used to give other factors their context - Clinton where wife says D did not "have the balls" to commit suicide - must be understood in context of admission of infidelity ii. Rare that a case will be seen as pure sexual infidelity - any barrister would be able to point to another legitimate trigger, which can only be appreciated in the light of infidelity c. Since things said would suffice, difficulty arises where a partner may say to another
"I love you", as to whether this would be sexual infidelity, and further difficulty where it was untrue d. Supporters of Clinton will argue that
CoA found a neat way of side-lining a provision that cannot be sensibly interpreted, while critics would argue that the decision bypassed parliament's clear intention e. *Fundamentally, court in Clinton believed that sexual infidelity triggering the loss of control has nothing to do with notions of rights or ownership over sexual partners, but stems from a sense of betrayal, heart-break, and crushed dreams e. Objective standard i. Normal degree of tolerance and self-restraint

1. What constitutes a relevant circumstance - not conditions relating to D's tolerance or selfrestraint, but information establishing context and the circumstances of D is relevant a. That D was an alcoholic would not be a relevant circumstance, since it related only to D's general capacity for tolerance
& self-restraint - but it would be different had D been taunted about his alcoholism (S&S)

2. Designed to prevent D from using the defence of losing self-control because he/she has low levels of self-restraint, or holds an

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