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Criminal Law 8 LLB

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What defences reduce liability for murder, when do they apply: Coroners and Justice Act 2009 (CJA) Loss of Control (LOC) and Diminished Responsibility (DR) applies when D killed V intending KGBH

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conditions in CJA for LOC: D not to be convicted of murder=> manslaughter if: 1. acts/omissions resulted from LOC 2. qualifying trigger 3. a normal person in circumstances of D might have reacted in same or similar way BP on defence judge directs jury only if he thinks defence can apply

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Requirements for LOC:: -D unable to to restrain himself from doing what he did or omitted. sudden and temporary, need not be immediate (ahluwalia 1992), no requirement for delay, but up to jury and judge to direct. jury can taken into account delay. cannot be used in cases where D acts by revenge. must be result of a qualifying trigger.

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valid qualifying triggers: fear of serious violence justifiable sense of being seriously wronged combined triggers

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fear of serious violence<> self D: self D is a complete D, uses reasonable force fear of serious violence in LOC available when D overreacted with excessive force. note that fear does not need to be reasonable, only genuine. fear of violence must be directed at D or identified person. general people do not qualify.

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justifiable sense of being wronged: requires things of an extremely grave character and caused a justifiable sense of being seriously wronged. both require objective evaluations.

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evaluative element with respect to fact that a similar person with normal degree of tolerance would have reacted in same way.: short temperedness cannot be taken into account, however history of abuse can. Diminished Responsibility: D defined in CJA 2009 cannot be convicted of murdered is suffering from abnormality of mental functioning. -arose from medical functioning -substantially impaired D ability to (understand conduct, rational judgement, exercise self control) provides explanation for D's acts.

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burdeon of proof for DR: D, on BOP if D raises insanity P can raise DR, must prove BRD a plea of guilty to DR for manslaughter can be accepted if medical evidence not disputed.

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LOC cases: Richens (1994) : complete loss not necessary Duffy 1949,Ahluwalia [1992]: suddenness Duffy [1949] D killed her husband after mistreatment. She tried to remove their child from the home and when her husband was asleep killed him with a hatchet and a hammer.: required that the accused acted: under a sudden and temporary loss of self-control, rendering him so subject to passion as to make him for the moment not master of his mind. longer the time interval between the final act of provocation and the killing the less likely it was that the D did indeed suffer a loss of self-control.

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Ahluwalia [1992] [Provocation - such gravity as to make a reasonable man commit homicide - sudden and temporary loss of self-control subjectively determined] D, subjected to 10 years of spousal violence and degradation, threw petrol in her husband's bedroom and set it alight, causing his death.: Only Parliament, not the courts, could permit a provocation defence in circumstances of 'a " . slow-burn" . reaction [to long-term spousal violence] rather than by an immediate loss of control'. '[T]he subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a 'sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.' No evidence was adduced at trial that D suffered from a post-traumatic stress disorder or 'Battered Woman Syndrome', so as to effect the characteristics relevant to the reasonableness of D's actions under the second part of the provocation test. At re-trial her plea of manslaughter by defence of diminished responsibility was accepted.

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woman and LOC: Like Kiranjit Ahluwalia, women are more likely to respond to abuse by suffering a 'slow-burn' anger or fear which eventually leads to killing the man when he is asleep or for some other reason relatively vulnerable. And so the defence would fail on the grounds that she did not suffer a sudden loss of self-control. Under the new law, although there needs to be a loss of self-control, s.54(2) provides that it need not be 'sudden'. However, the extent to which s.54(2) eradicates the gender bias is not clear. First, it is questionable whether a loss of self-control can ever be anything other than 'sudden'. Is it not inherent in the ordinary meaning and understanding of a 'loss of self-control' that the person in question abruptly 'snaps' or 'explodes'?

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Richens (1994) D, a 17 year old student at Dover college killed a fellow student whom he thought had raped his girlfriend two weeks earlier. He and the girlfriend buried the body.: Held: The provocative conduct of the victim must lead to a sudden and temporary loss of self-control which resulted in the defendant being unable to restrain himself from doing what he did, but not so far as not knowing what he was doing. Where D told lies, or his conduct was evasive or discreditable they could treat the lies as tending to prove guilt, provided there was not some possible explanation for the lies. Guilty of manslaughter

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EX: Kiranjit, an Asian woman, returned home to find a man raping her 15 year old daughter. She picked up a knife from the kitchen. The man shouted racist abuse at her and started to run away. Kiranjit chased after him. He tripped and fell and she stabbed him in the back several times, killing him.: Kiranjit may be able to raise the defence of loss of self control on the basis that the rape of her daughter combined with racist abuse constituted circumstances of an extremely grave character and caused her to have a justifiable sense of being seriously wronged (s55(4)). She may also be able to rely on s55(3) and s55(5). But this will only be possible if, at the time of the kllling, she feared serious violence against herself or her daughter. b. Note that whatever the qualifying trigger relied upon, the defence will fail if either she did not suffer a loss of self-control (s54(1)(a)) at the time of the killing or the jury are sure that a person of ordinary tolerance and self-restraint would not have acted in the way that she did (s55(4)(1)(c)). c. The fact that she responded immediately upon discovering the rape is good evidence of a loss of self-control. In determining whether a person with normal tolerance and self-restraint might have reacted in the same way the jury should take into Kiranjit's sex and age and, to the extent that it is relevant to the insults, her ethnicity.

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Diminished responsibility cases: Dunbar [1958]: If D pleads diminished responsibility, then he must prove it on the balance of probabilities Grant [1960] : where the defendant has raised the defence of insanity the prosecution are entitled to raise diminished responsibility, in which case they must prove it beyond reasonable doubt Cox (1968) : A plea of guilty to diminished responsibility manslaughter may be accepted by the judge where the medical evidence is not disputed

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DR ingrediencts for successful D: D was suffering from an abnormality of mental functioning which arose from a recognised medical condition, 2 which substantially impaired D's ability to (a) to understand the nature of D's conduct or (b) to form a rational judgment or (c) to exercise self-control, and 3 which provides an explanation for D's acts and omissions in doing or being a party to the killing.

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An abnormality of mental functioning which arose from a recognised medical condition: recognized conditions These include both functional and organic conditions. Therefore, in addition to the recognised psychoses including schizophrenia, mood disorders such as mania and depression and neuroses such as the phobias and post-traumatic stress disorder, conditions like dementia and epilepsy might form the basis of a plea of diminished responsibility. Although ordinary jealousy will not amount to an abnormality of mental functioning arising

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DR Medical evidence: Dix [1981]: D must not be left to the jury unless there is medical evidence in support of the three elements. the availability of the defence is for the jury and not the medical experts. . A jury is entitled to reject even the unchallenged evidence of an expert and is entitled to take into account all the circumstances of the killing.

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Byrne [1960]; Matheson [1958];: D strangled to death and then mutilated a young woman in a YWCA, confessing to both in full. D raised the defence of diminished responsibility. Since childhood he had suffered from perverted sexual desires that created irresistible impulses. His acts were driven by one of these impulses on the day in question.

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R v Sanderson (1994) Byrne [1960];D strangled to death and then mutilated a young woman in a YWCA, confessing to both in full. D raised the defence of diminished responsibility. Since childhood he had suffered from perverted sexual desires that created irresistible impulses.: DR: Paranoid psychosis, arising from his upbringing. Byrne [1960];Diminished responsibility covers all the activities of the mind. Abnormality of the mind does no have to be connected with madness.

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R v Sanders [1991] D was diabetic, lost sight in one eye. substantial impairment of his other eye, unable to work, and was depressed. V had formed a relationship with another man. After killing V he attempted suicide. Two psychiatrists agreed that D suffered from an abnormality of mind (reactive depression) which substantially impaired D's responsibility: Abnormality of mental functioning means a state of mind so different from that of ordinary human beings that the reasonable person would term it abnormal. It covers the ability to exercise willpower or to control physical acts in accordance with rational judgement. It is a question for a jury. They are not bound to accept medical evidence:

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Substantially impairment of specific abilities must be with respect to 3: D's ability to understand the nature of his/her conduct D's ability to form a rational judgement D's ability to exercise self-control

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D's ability to form a rational judgment examples: a woman suffering from post-traumatic stress disorder, consequent upon violent abuse suffered at her husband's hands, comes to believe that only burning her husband to death will rid the world of his sins b. a mentally sub-normal boy believes that he must follow his older brother's instructions, even when they involve taking take part in a killing. He says, 'I wouldn't dream of disobeying my brother and he would never tell me to do something if it was really wrong' c. a depressed man who has been caring for many years for a terminally ill spouse, kills her, at her request. He says that he had found it progressively more difficult to stop her repeated requests dominating his thoughts to the exclusion of all else, so that 'I felt I would never think straight again until I had given her what she wanted'.

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D's ability to exercise self-control NOTE: This is to be contrasted with the loss of self-control defence discussed earlier in this chapter. Unlike the defence under s.54(1) this is not limited to cases where the loss of self-control had a qualifying trigger and 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.: example: A man says that sometimes the devil takes control of him and implants in him a desire to kill, a desire that must be acted on before the devil will go away.

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DR: Lloyd [1967] D strangled his wife. medical evidence was that he suffered from reactive recurrent depressions, and his mental responsibility was impaired by that abnormality to some extent, not to any substantial degree - it was not as low as minimal but, on the other hand, it was not substantial.: What amounts to 'Substantial' impairment is: (i) the jury should approach the word in a broad common sense way or (ii) the word meant 'more than some trivial degree of impairment which does not make any appreciable difference to a person's ability to control himself, but it means less than total impairment'.

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The abnormality of mental functioning provides an explanation for D's acts and omissions in doing or being a party to the killing: recommended by the Law Commission. Section 2(1B) states that for the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.

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DR vs insanity: Whereas insanity is limited to diseases of the mind affecting perception, understanding or cognition - the defendant must suffer a defect of reason such that he did not know what he was doing or did not know that what he was doing was legally wrong diminished responsibility is not so restricted. As we have seen, it includes abnormalities in self-control. '[T] he definition of insanity means that whether a defect of reason (stemming from a disease of the mind) amounts to insanity in law is an 'all or nothing' matter. Either D shows that the defect of reason led him or her not to know the nature or quality of his or her act or that it was legally wrong or the defect of reason did not have that effect.' By way of contrast, the definition of diminished responsibility requires a substantial impairment and thus is a matter of judgement and degree. So there remains:

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Alcohol, drugs and diminished responsibility: Di Duca (1959) 43 Cr App R 167 it was held that the transient effects of intoxicants do not constitute an abnormality of mind from one of the specified causes and thus cannot diminish responsibility. availability of the defence will depend on whether the abnormality substantially impaired one of the three abilities and caused, or was a significant contributory factor in causing, D to carry out that conduct. Even if the alcohol played a part the defence may be relied upon.

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Hill [2008: decided under the old law, it was held that as D's abnormality (an organic brain injury) would not have resulted in a significant impairment until it interacted with alcohol he had consumed, the defence was not available. It is submitted that that remains the position under the substituted s.2.

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Alcohol dependency syndrome: Thus it does not necessarily follow from the fact that the defendant suffered from alcohol dependency syndrome that he has established the necessary abnormality of mental functioning. Stewart [2009]: held that whether D is suffering from a mental abnormality will depend on 'the jury's findings about the nature and extent of the syndrome and whether, looking at the matter broadly, his consumption of alcohol before the killing is fairly to be regarded as the involuntary result of an irresistible craving for or compulsion to drink.' Under NEW LAW Under the new provision the jury will also have to consider whether the syndrome substantially impaired one of the key abilities and whether it was a significant cause of the relevant conduct.

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Frank, a deaf mute with an extremely low IQ, was taunted by local children. He lost his self-control and, intending to cause serious injury, beat one of them to death: It is important to start your answer by considering liability for murder. You should point out: u A person who, intending to kill or cause grievous bodily harm, kills another human being, is guilty of murder (Vickers [1957]; Moloney [1985]) and that is clear from the facts that both defendants killed with the required intent. u Therefore D will be convicted of murder unless he can take advantage of either of the two defences discussed in this chapter both of which reduce liability to manslaughter. a. Frank The defence of loss of control - s.54(1) of the Coroners and Justice Act 2009 You should point out the following. u The effect of a successful plea - s.54(7) u Although s.54(6) imposes an evidential burden on D, the burden of proof is on the prosecution s.54(5) who must prove beyond reasonable doubt that: u D's fatal acts or omissions did not result from a loss of self-control (s.54(1)(a)) and/or u the loss of self-control was not a result of a 'qualifying trigger' as defined in s.55 and/or u a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, would not have reacted in the same or in a similar way to D (s.54(1)(c)). The facts of the question indicate that Frank suffered a loss of self-control as required by s.54(1)(a). Provided the things done or said constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged they would qualify as triggers under s.55(4). Ultimately this would be for the jury to decide. The requirements that the things said or done constitute circumstances of an extremely grave character and that D was caused to have a justifiable sense of being seriously wronged are, presumably, objective questions. he question whether a person of normal degree and tolerance and self-restraint might, in the circumstances, have reacted in a similar way to Frank is an objective evaluative question ultimately for the jury. u Frank's low IQ might be taken into account if it caused him to misunderstand what the children were saying or doing. Similarly, the fact that Frank was not able to respond verbally to the provocation might also be taken into account. But evidence that his intellectual limitations and his disability caused him to be exceptionally volatile would not be admissible in support of a plea of loss of control as s.54(3) excludes from consideration circumstances 'which bear upon D's general level of tolerance and self-restraint'. Diminished responsibility - 2(1) of the Homicide Act 1957 as substituted by s.52 of the Coroners and Justice Act 2009 You should point out the following. u For a successful plea, D must prove on the balance of probabilities (s.2(2); Dunbar [1958]) that: u he was suffering from an abnormality of mental functioning which arose from a recognised medical condition, u which substantially impaired his ability to (a) to understand the nature of D's conduct or (b) to form a rational judgment or (c) to exercise self-control - subsection (1A), u and provides an explanation for his acts and omissions in doing or being a party to the killing. Diminished responsibility - 2(1) of the Homicide Act 1957 as substituted by s.52 of the Coroners and Justice Act 2009 You should point out the following. u For a successful plea, D must prove on the balance of probabilities (s.2(2); Dunbar [1958]) that: u he was suffering from an abnormality of mental functioning which arose from a recognised medical condition, u which substantially impaired his ability to (a) to understand the nature of D's conduct or (b) to form a rational judgment or (c) to exercise self-control - subsection (1A), u and provides an explanation for his acts and omissions in doing or being a party to the killing. u The facts indicate that Frank suffered from a low IQ. Depending on the overall level of Frank's intellectual ability this may amount to mental retardation which is recognised as a mental condition by the World Health Organisation ICD-10. u It is for the jury to decide on the basis of the medical evidence and other relevant circumstances whether the degree of retardation suffered by Frank amounted to an abnormality of mental functioning (Dix (1981); Byrne (1960); Walker [2009]). u The facts indicate that Frank lacked self-control at the time of the killing but it must be proved that his ability to exercise self-control was impaired by his mental abnormality. This again is a question for the jury to decide on the basis of the medical evidence and other relevant circumstances. he impairment must be 'substantial'. This involves consideration of the degree of impairment and it is for the jury and not for the medical experts to decide. Under the old law the jury was required to decide the issue in a 'broad commonsense way' (Byrne (1960); Hill [2008]; Khan (Dawood) [2010]) and it was held that the impairment must be more than 'trivial' or 'minimal' but need not be 'total' (Lloyd [1967]; R v R [2010]). A similar approach is likely to be followed in respect of the new legislation. Although a medical expert might give evidence on the nature of Frank's disorder and its likely effects on his ability to exercise self-control it will be for the jury to decide whether there was a 'substantial impairment' u In addition it must be proved that there was a 'significant' causal connection between the abnormality and the killing (s.2(1B)). The abnormality need not, however, be the sole cause. This, too, is a question for the jury. u Section 2(3) of the Act provides that a successful plea of diminished responsibility reduces liability from murder to manslaughter. In addition it must be proved that there was a 'significant' causal connection between the abnormality and the killing (s.2(1B)). The abnormality need not, however, be the sole cause. This, too, is a question for the jury. u Section 2(3) of the Act provides that a successful plea of diminished responsibility reduces liability from murder to manslaughter.

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Joseph, who had been drinking, went into a club and started to behave in an aggressive manner to some of the customers including William to whom he threatened violence. William responded by pouring a glass of beer over Joseph. This angered Joseph and he started to shout at William. William, still holding the glass, took hold of Joseph and punched him. Joseph, believing that William was about to hit him with the glass, drew out a knife and, intending serious injury, fatally stabbed him.: The defence of loss of control - s.54(1) of the Coroners and Justice Act 2009 Provided Joseph had lost his selfcontrol at the time of the killing he may raise the partial defence. There are a number of possible qualifying triggers under s.55: i. William pouring the beer over his head ii. William punching Joseph iii. Joseph's fear that William might cause him serious violence iv. a combination of the above. (i) and (ii) would qualify as triggers only if they were, in the opinion of the jury, extremely grave and caused Joseph to have a justifiable sense of being seriously wronged. The relative immediacy of Joseph's reaction to the triggers is good evidence of a loss of self-control. The fact that William's behaviour was induced by Joseph is not, in itself, enough to disqualify the triggers of his loss self-control. Only if the jury are sure that Joseph incited the behaviour for the purpose of providing an excuse to use violence should his fear of serious violence be disregarded and/or his sense of being seriously wronged be treated as unjustifiable (s.55(6)). Clearly if, at the time of the killing, Joseph was acting out of 'a considered desire for revenge' the defence is not available to him (s.54(4)). The question of whether a person of the same age and sex as Joseph, with a normal degree of tolerance and self-restraint might, in the circumstances, have reacted in a similar way are ultimately for the jury (s.54(5)). Note: Joseph may be entitled to rely then on the defence of self-defence. This is a complete defence and is discussed in Chapter 12 of this guide.