Question 4 of 2014:

Ada has been married for 20 years. Her husband, Van, has consistently oppressed her. He
refuses to allow her to take paid employment, to go out with her friends or to take
driving lessons. He also belittles her in company and gives her only a tiny housekeeping
allowance on the excuse that he cannot afford it. Ada discovers that Van has a secret bank
account containing £100,000 and that he pays a monthly allowance of £1,000 to a secret
lover. She is outraged and still seething, when Van takes his bath an hour later, she throws
an electric fire into the bath, electrocuting him to death.

Discuss whether Ada may be able to raise the defence of loss of self-control and
evaluate the applicable law.

Answer:

The above-mentioned question is related to criminal homicide. The facts suggest that Ada has
killed her husband Van. The prosecution will charge Ada for murder of her husband. The actus
reus of murder is the killing of a human being unlawfully, mercy killing has been said as
unlawful as well ‘Nicklesson’. A human being is defined as a foetus independent of mother till
brain stem cell is dead R v. Malcherek. The mens rea of murder is “an intention to kill or cause
grievous bodily harm (Vickers Case), (Cumingham Case). The consequence of murder can be
intended even though it may not be deliberate (Molony case). Now, we will see that whether
the actus reus and mens rea will be satisfied or not.

According to the facts it is evident that the actus reus of murder will be satisfied because Ada
throws an electric fire into bath, which caused his death. However, it is important to see
whether the mens rea is satisfied or not. As per facts, it is clear that there was an intention to
kill or cause grievous bodily harm, because when Ada found out that her husband is cheating on
her she was outraged which lead to the murder of Van. Hence it is clear, that the intention was
present so mens rea will be established. Now we will discuss the elements of causation briefly
to make it clear that whether Ada will be held accountable for both factual and legal cause of
this murder. It is easy to understand that she was the factual cause, because of her act death
occurred and it is always easy to prove the factual cause. Chances are high that factual cause
will be the legal cause unless the factual cause is too insubstantial or remote. However, in this
scenario Ada will be held liable for both factual and legal cause of the death.

Murder is the only crime which has two partial defenses which mitigate the liability for murder
to voluntary manslaughter. It is named as voluntary manslaughter because the prosecution can
prove that the killing was voluntary. These defenses are known as Loss of self control and
diminished responsibility. We will discuss the elements of loss of self control at length because
diminished responsibility will not be considered as a favorable defense in this case. Loss of self
control was previously known as provocation. Provocation had a subjective and an objective
element. The subjective element was that the killing should be a result of loss of self-control
which was triggered by provocative deeds or actions. Loss of self-control which has not been
triggered by another’s deeds or actions is not covered by the defense (Acott 1996). The
objective element was that the defendant’s conduct should be consistent with that of
reasonable people faced with a similar trigger.

The Coroners and Justice Act 2009 reserve the overall structure of provocation, but only
restricts its application considerably by limiting the kind of triggers upon which the defendant
can rely to ground their loss of self-control. According to the previous law, defendants had
successfully exercised the defense in many cases thought to be undeserving, i.e. loss of self-
control triggered by a crying infant, a nagging partner or, an unfaithful partner. It is no longer
available because the new defense demands the defendant’s conduct to be partially justified by
the context. Under the old law the act of provocation and the killing had to be sudden or else
no liability (Duffy 1949). However, we have a case of Ahluwalia 1992, where it was said that
despite the fact that provocation required a loss of self-control it did not certainly follow that it
should be by way of immediate reaction. In context to mounting domestic abuse might lose her
self-control after a period of ‘slow burn’, simmering anger which flares up after the last
provocative event. It was said that as long as the killing was by way of loss of self-control, and
not revenge or premeditation, the defense remained available.

Now, we will discuss the defense of Loss of self control under the Coroners and Justice Act
2009, this defense is set out under section 54 of the Act. The subjective element of this defense
is that the murder has to because of loss of self-control. As, mentioned-above under
provocation, there was a requirement for the loss of self-control to be sudden (Duffy Case).
However, this act specifically states the LOSC need not be sudden. But, if there is a long time
lapse then it might get difficult for defense to prove the murder was due to LOSC as opposed to
being premediated. The LOSC has to be due to one of qualifying triggers. Fear of serious
violence is a qualifying trigger (Clegg case). But this trigger is cannot be said as a qualifying
triggered because there was no fear of violence by Van. In second trigger the circumstances
have to be grave excludes trivial trigger like nagging, complaining etc, there has to be
something “extremely grave”. It is explicitly stated in Section 55(6) of the Act, that sexual
infidelity is not a trigger. In Dawes and Hatter and Bowyer case, girlfriend-prostitute found out
while committing burglary, jealousy, killed, but no defense was given. However, if there are
more triggers than one trigger operating and one of them is sexual infidelity then defense can
be given (Clinton Parker case). Section 55(6) of the Act clearly states that LOSC cannot be used
by anyone as an excuse to kill.
The jury will see the scenario through objective test and D has to show that a reasonable
person of the same age/sex etc. would also have acted same if he/she was in the defendant’s
circumstances. However, intoxication and mental disabilities are not considered here. It is up to
jury. Now, the defense will try to attain the defense of loss of self control. However, it is
pertinent to discuss, that the only real issue here is whether ordinary people would have
reacted by electrocuting as opposed to shooting. Nonetheless, it is evident that Ada’s husband
Van used to oppress her. He also did not allow her to take paid employment, restrict her to go
out with her friends or to even take driving lessons. He also belittles her in company and gives
only a tiny housekeeping allowance on the excuse that he cannot afford it. However, Ada’s
discovered that he has a secret bank account containing 100,000 pounds and that he also pays
a monthly allowance of 1000 pounds to a secret lover. When she found out this, outraged Ada
with simmering anger, lost her self control and throws an electric fire into the bath,
electrocuting him to death. Defense will argue that sexual infidelity is not the only cause here
but it is one of the causes. We will see that either this trigger was a result of loss of self-control
or a desire to be avenged or a rational decision to put an end to an ongoing source of torment
under S.54(1) and (4). According to facts, defense will raise the argument that this was a result
of loss of self-control and not a desire to take revenge.