Voluntary Manslaughter- Loss Of Control

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The three special defences

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Diminished responsibility, loss of control and

suicide pact

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If the defence is successful...

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It will not result in a full acquittal, it will merely reduce the offence from murder to

manslaughter

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Introduced by Parliament by...

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The Homicide Act 1957

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Described as voluntary manslaughter because

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There is evidence that the defendant has both the MR and the AR, but there are extenuating circumstances that partially excuse his conduct

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Loss of control replaced

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the former defence of provocation.

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The law on loss of control is set out in

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section 54 of the Coroners and Justice Act 2009.

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S54 states:

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see s54

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Under s54(2) of the act, the loss of control does not have to be

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sudden

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provocation did have to be

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sudden

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Ahluwalia 1992

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The defendant had been physically abused for many years by her husband. One night her husband threatened her with violence to occur the next day, before he went to bed. D poured

petrol over him and set him alight. He died 6 days later.

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Ahluwalia was convicted of...

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murder. She appealed and the CoA did not allow the appeal on the basis of provocation. They said the D's reaction had to be 'sudden'. However, they did allow her appeal on the basis of

diminished responsibility.

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There has to be a qualifying trigger. s55 sets out the qualifying triggers which are permitted.

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These are where the loss of control was

attributable to:

D's fear of serious violence from V against D or another identified person (s55(3))

a thing or things done or said (or both) which-

a)constituted circumstances of an extremely grave character, and

b)caused D to have a justifiable sense of being seriously wronged (s55(4))

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s55(5) states that the qualifying trigger can be...

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a combination of the two

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The old law on provocation did not allow

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a defence where D had lost control due to fear of violence This is shown in the case of Martin 2002.

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Martin 2002

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The D shot two burglars who had broken into his farmhouse, one of whom died. The evidence showed that they were leaving when he shot them, and the one who died had been shot in the back. D was found guilty of murder.

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Martin appealed on the basis that...

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the defence of self defence should have been allowed as he was suffering from a paranoid

personality disorder which meant he may have genuinely thought he was in a dangerous situation.

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The CoA in Martin said

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personality disorders could not be taken into

account. However, the conviction was reduced to manslaughter on the grounds of diminished responsibility.

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s55(6)(a)

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where the defendant has incited the violence, D cannot rely on the fear of violence as a

qualifying trigger

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Dawes 2013

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D came home to find his wife and V asleep on the sofa together. D stabbed V, killing him. D was convicted of murder, on appeal he said the judge should've left the defence of loss of control to the jury. The CoA upheld his conviction and said a defendant cannot rely on sexual

infidelity as a qualifying trigger.

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Under s55(4) there are two points which have to be shown if the D is relying on things said or done. ('extremely grave character' and justifiable sense of being seriously wronged). Why is this different from the old law?

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these tests were not in the old law on provocation, thus meaning the law on loss of control is now narrower. The change can be seen by comparing Doughty (1986) and Zebedee (2012)

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Doughty 1986

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Killed his baby son (19 days) because he would not stop crying. He was convicted, but the CoA quashed the conviction as it should have been left to the jury to decide if the baby's crying

constituted 'things done'.

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Zebedee 2012

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The D lost control when his 94 year old father

repeatedly soiled himself. D killed his father. Put forward the defence of loss of control but was convicted of murder and the conviction was

upheld. In order for things done or said to be a qualifying trigger, they must constitute

extremely grave character and D must have a justifiable sense of being seriously wronged.

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Excluded matters include

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sexual infidelity

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In Clinton 2012, it was held that...

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the Coroners and Justice Act 2009 makes it clear that sexual infidelity is not a qualifying trigger. However it can be considered in determining the contextual severity of other qualifying triggers.

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Clinton 2012

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D was suffering from and receiving medication for depression. He killed his wife the day after she told him she had been having an affair. She had also taunted him about looking up suicide websites, saying he did not have the courage. He was convicted of murder but appealed, on the basis that loss of control should've been left to the jury. CoA agreed and quashed the conviction.

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In what case did the CoA confirm that sexual

infidelity alone is not a qualifying trigger?

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Dawes 2013

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The defence is also not allowed if the D acted in a "considered desire for revenge". This is similar to provocation because...

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in provocation there also had to be a 'sudden' loss of control

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Ibrams and Gregory 1981

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Following several incidents of threats and

harassment, the two defendants made a plan to attack the person who had threatened them. They carried this out and killed him two days

later. Convicted of murder and their convictions were upheld as there was no sudden loss of

control.

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HOWEVER, under the old law, if there was a

sudden loss of control as well as an element of revenge, then this would be acceptable. This is shown in the case of Baillie 1995

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D learnt that his son's drug dealer had

threatened that the son would 'get a slap' if he tried to get drugs from any other dealer. D took a razor and a shotgun and drove to the dealers house. D inflicted serious injuries on V with the razor and then fired the shotgun at him as he fled. Trial judge refused to allow the defence of provocation.

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The CoA in Baillie

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allowed D's appeal because there was evidence of provocation and it was for the jury to decide if D was still suffering from loss of control when he killed the dealer.

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Standard of self control-

The 2009 Act requires that, whichever 'qualifying trigger' is relied on, it is necessary for D to show that:

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"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 similar way"

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It was held in the case of Camplin 1978 that...

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the sex and age of the defendant should be considered in assessing the power of self control to be expected of D.

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Camplin 1978

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Camplin was a 15 year old boy who had been sexually abused by an older man who had then laughed at him. D reacted to this by hitting the older man over the head with chapatti pan. At the trial, the judge directed the jury to ignore the boys age and consider what effect the provocation would have had on a reasonable adult.

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Result of Camplin

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D was convicted of murder, but the HoL allowed his appeal and substituted a conviction for

manslaughter. Said the age and sex of the

defendant is to be considered.

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This was confirmed in the case of AG for Jersey v Holley 2005 where it was held that:

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none of D's personal characteristics (other than sex and age) were relevant in assessing D's ability to exercise self control.

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Although only the age and sex of the defendant can be considered in deciding the level of self control to be expected of the defendant, other circumstances can be considered when deciding whether such a 'normal' person would have acted in the same way

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This was also the rule under the defence of

provocation.

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Gregson 2006

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D was unemployed and suffered from

depression and epilepsy. V taunted him about his unemployment, epilepsy and depression. D was more sensitive to taunting due to his

epilepsy and depression. D lost control and killed V. He was able to use the defence of

provocation. His unemployment, epilepsy and depression could be considered in deciding the gravity of provocation.

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Hill 2008

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D had been sexually abused as a child. V tried to sexually assault D and D lost control and killed V. He was able to use the defence of provocation.

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Voluntary intoxication is not a matter to be considered as part of D's circumstances.

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CoA in Asmelash 2013 refused to allow D's

voluntary intoxication to be considered.

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The defence will fail if the jury believe that the 'normal' person would have lost control but would not have reacted in the same/ a similar way to the D. What case is an example of this?

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Van Dongen 2005- the jury thought that the

reasonable man would have lost self control but would not have acted in the same way as the D. Defence of provocation failed.

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Sufficient evidence -

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under the old law, the judge had to leave the

defence of provocation to the jury if there was any evidence thereof. Currently, the judge must assess the evidence to see if it is sufficient.