Murder 1: Loss of self-control and Diminished

Responsibility

NOTE: To prepare for this tutorial it is essential to read the case of R v Clinton, Parker &
Evans [2012]. The case is available on the VLE.
Ok so let’s do it. Or maybe I’ll just copy the quizlet and elaborate.
All three murdered their wives, was about sexual infidelity. Court took opportunity to
review law in CJA 2009.
This case suggests that prosecution only need to prove that one of the components is
absent for the defence to fail.
ALSO, old case law can be used since the CJA 2009 but it's very limited, any use must be
justified. R v Richens is one of these. CoA made clear that Parliament has established a new
defence which is self-contained.
ALSO, by 55(4), 'circumstances of an extremely grave nature' is to be determined
objectively. Means that circumstances are not part of normal trials and disappointments of
life. 'Justifiable sense of being seriously wronged; is also objective.
ALSO brings up under 55(6)(c) whether if situations where someone has lied or made up
sexual infidelity to taunt D, this provision should be applied. Judge interpreted provision
strictly, if there are other things going on, then the defence should be considered with
sexual infidelity as a part of the trigger. ALSO here pointed out that sexual infidelity would
have to be ignored when considering trigger, but have to take it into account under S54(1)
(c) for the reaction of a normal person. Courts have confirmed that jury can take sexual
infidelity into overall consideration regardless of whether it goes it goes towards the gravity
of the tant, provided it does not only go towards the capacity to exercise self-restraint, as
prohibited under 54(3).
First Component ‘loss of control’
Need to look at the facts. Case law use has to be justified if they are from old defences
(which ofc they all were at this time).

Second component – ‘qualifying triggers’

This is what filters out inappropriate attempts to raise the defence. Court emphasised words
‘serious’, ‘extreme’, ‘seriously’.
Both S55(4)(a) and (b) require objective evaluation. It’s like in duress, so for jury to
determine whether D did believe that something said or done amounted to circumstances
of an extremely grave nature which caused him to feel that he had a justifiable sense of
being seriously wronged. I.e. jury needs to objectively decide whether he could have
thought that.
S55(4)(c) is a bit of an issue. On its own, sexual infidelity cannot qualify as a trigger. But if
therre are other things going on, then the defence should be considered with sexual
infidelity as a part of the trigger, at least for context. Similarly, if there are taunts that V is
about to leave D, but hasn’t sexually been intimate yet? Seems that jury needs to get whole
story.
Third component – normal person test
Sexual infidelity ONLY disregarded as a qualifying trigger. Jury can take into account sexual
infidelity as a circumstance under S54(1)(c). SO if there is evidence which jury feel is
relevant, jury can take it into consideration regardless of whether it goes towards the
gravity of the taunt provided it does not ONLY go towards the capacity to exercise self-
restraint.

Tutorial Question

Max and Finola have been married for 8 years and have 4 year-old twins. It has been a
volatile relationship as they both take offence easily and find it difficult to control their
tempers. On two occasions Finola has become so angry that she has hit Max. Max has been
to anger management classes which have not proved successful. The relationship became
even more strained when Max lost his job and the family struggled financially. Max is still
unemployed and minds that he cannot provide properly for his family.
One evening Finola tells Max to sit down as she has something important to tell him. She
explains that she is having an affair with her boss, Nigel. She tells him that she wants a
divorce and that she and the twins will move into Nigel’s large house at the weekend. ‘It will
be wonderful never having to worry about money again’ she sighs. Max, who had suspected
nothing, leaps to his feet in complete shock. ‘You bitch!’ he shouts. ‘How can you break up
the family like this? You won’t get the twins. You’ve been a rotten mother. I’ll tell them
everything. I’ll tell them about the time you took cocaine when you were pregnant. I’ll tell
them about the time you left them just to go shopping. I’ll tell them about...’ Before he can
finish, Finola grabs the brass candlestick from the sideboard and advances on him screaming
‘Stop it. Stop it. Mothers always get custody. You’ll see!’ Max picks up a kitchen knife and
stabs it repeatedly into Finola’s right shoulder and arm. Finola is bleeding heavily and Max,
still shaking, rings for an ambulance.
Finola loses a great deal of blood and is taken to hospital where she is given a blood
transfusion. Unfortunately, there is an administrative error and she is given a transfusion of
the wrong blood. Her antibodies reject the blood and she dies.
Advise Max as to his criminal liability for murder only.
AR: Unlawful killing of a reasonable person under the Queen’s peace.
Issue is with ‘killing’? Is there causation? Clear factual causation (R v White). Is it ‘operating
and substantial’ for legal causation R v Pagett. Seems substantial yep, more than minimal.
Operating? Does the incorrect blood transfusion constitute a NAI? NO see R v Smith, and R v
Cheshire, medical negligence does not break chain of causation.
MR: Malice aforethought – R v Vickers says intention to kill or cause GBH.
Yeah he clearly has intention as per R v Moloney plain definition to at least cause GBH.

Defences?
Intoxication and consent not really relevant.
1. Loss of control
Did D kill someone as a result of losing control?

 Unclear from facts, loss of control need not be complete (R v Cocker), but it certainly
seems possible. Is for the prosecution to prove otherwise under S54(5) CJA.
Did the loss of control have a qualifying trigger?

 Yes, he might well have had fear of violence as per S55(3) given Finola ran at him
with a brass candlestick. If his response was not reasonable given that situation, then
self-defence cannot be used, but loss of self-control still might be able to be applied
as in R v Martin.
 Sexual infidelity can be considered as part of the context (R v Clinton), despite 55(3)
(c).
 If the violence doesn’t work, we might say that it works by 55(4) given his wife is not
just admitting to sexual infidelity, but is threatening to take the kids away. This
seems to create a justifiable sense of being seriously wronged.
Might a ‘reasonable person’ acted in similar way?

 Hmmm a normal person might not have gone as far as to stab with a knife. We
cannot take into account their anger management issues because this is excluded by
S54(3), but we might take into account the fact that Finola says they will never have
to worry about money again when Max minds that he cannot provide for his family.
So it might well work!
2. Diminished Responsibility
Abnormality of mental functioning?

 Anger management issues. But R v Byrne, was his state of mind really that different
from ordinary humans? Going to anger management classes is not conclusive
evidence of that.
Arose from a recognised medical condition?
  This is arguable one.
Which substantially impaired D’s ability to e.g. exercise self-control under S2(1A)(c) HA
1957?

 Yep self-control.
Which provides an explanation for D’s acts?

 Certainly, seems causally related, but need medical evidence.