Maria was engaged to Frank, a climber.

Frank and his friend Gavin were

climbing when Frank fell and died. Gavin survived and Maria believes
he could have saved Frank. Maria is depressed and her doctor has
prescribed medication. The doctor says she must only take one pill at a
time and not drink alcohol. At a lunch in Frank’s memory Maria is
wearing a necklace he gave her. She hears Gavin say that Frank was a
dangerous climber who got what he deserved. Maria is upset and takes a
pill the doctor prescribed washed down with a glass of red wine. An
hour later, Maria is drinking a glass of lemonade when Gavin comes and
hugs her. She runs off and falls, breaking her necklace. Maria sees
Gavin laugh. She grabs a sharp knife from the lunch table and stabs
Gavin several times, killing him. Advise whether Maria can avoid
liability for murder by using the defences of loss of control or
diminished responsibility
Answer
• Loss of Control and Diminished Responsibility are both defences that
come under voluntary manslaughter. They’re both covered in
Coroners’ Justice Act 2009. If successful to the defence the murder
conviction will drop down to a manslaughter conviction.
• Loss of control is covered under section 54 of the Coroners Justice Act
2009. It’s the argument that the defendant loss self-control and was
provoked by the victim. There’s three elements that need to be satisfied
for a successful defence.
• Section 54(1) requires the defendant to lose self-control.
• Before the amendment that happened in 2009, the defendant would have
had to lose all self-control and would have needed to have lost control
immediately. This was removed due to gender discrimination. (R v
Ahluwalia), defendant initially failed the defence due to loss of control
didn’t happen immediately. (R v Thornton), if the case happened in 2009
the defendant may have qualified as she didn’t act immediately.
• The next element requires the defendant to have a qualifying trigger
(s54(1)(b)).
• This either has to be fear (s55(3)) or that the victim’s actions were so
grave in character that the defendant felt a justifiable sense of being
wronged (s55(4)).
• (R v Martin), defendant killed two burglars through fear but was still
convicted of murder due to the defence not being available.
• (R v Zebedee), the victim’s actions need to be grave in character. In
this case it wasn’t as the victim suffered from Alzheimer’s
• Section 54(1)(C) questions whether a person of the same age and sex
with a normal tolerance level do a similar thing that the defendant did.
• (R v Hill), personal characteristics will come to play as it questions
self-restraint.
• (R v Van dogen), questions whether the defendant may have
overreacted. (DPP v Camplin), defendant was wrongly compared to a
fully grown adult despite being a 15-year-old boy
• Diminished responsibility looks at the mental capacity of the defendant.
• It argues that due to a clinically diagnosed condition, the defendant was
unable to act reasonably. It’s covered in section 52 of the Coroner’s Justice
Act 2009.
• There are three elements.
• First being an abnormality of mental functioning (s.52(1)(a).
• (R v Byrne) defines this as a state of mind that is so different from an
ordinary man that a reasonable man would deem it to be abnormal.
• S52(1)(b) requires that the abnormality comes from a recognised medical
condition. Evidence will be required by a professional. Conditions that will
be included will be depression, anxiety as well as physical conditions such
as brain damage and illness.
• (R v Wood), alcohol dependency is a recognised medical condition
• The condition must substantially impair.
• The amount of impairment is up to the jury to decide.
• (R v Lloyd), the impairment needs to be more than minimal does not
need to be total.
• The Coroner’s Justice Act 2009 states specifically what needs to be
substantially impaired.
• This includes the ability to understand the nature of their conduct, the
ability to form a rational judgement and their ability to exercise self-
control.
• Only one of these have to be impaired
• Section 52(1)(c) requires the condition to provide an explanation.
• The abnormality must provide a reason for killing.
• (R v Egan), jury did not give the defence as if he had not voluntarily
drank, he would not have killed.
• The question asked was whether the defendant’s medical condition
impaired his ability to control himself. (R v Dietschmann), irrelevant
if defendant drank as long as medical condition was substantial cause
DIMINISHED RESPONSIBILITY
• To depend on this defence, Maria needs to have an
abnormality of the mind.
• Her husband dying tragically would cause her to not be
mentally stable. Also having thoughts about how Gavin
could’ve saved him could show that shes mentally
unstable.
• Her mind is arguably so different that a reasonable man
would deem it to be abnormal.
• This satisfies s52(1)(a) where she was suffering from
abnormality of mental functioning
• It has to be a recognised mental condition.
• She suffers from depression, and we know it’s severe as her doctor
prescribed her pills for it. A medical professional confirmed it.
• Her depression clearly impaired her ability to form a rational decision
as watching Gavin laugh at her was hard for her especially after what
she’s been through. Section 52(1)(b) will most likely be satisfied.
• Section 52(1)(c) requires her impairment to give
reasoning/explanation to the killing.
• As she was drinking, it may be harder to tell. Her
depression might be the substantial cause due to her
husband being dead. However, as she mixed her pill
with the alcohol arguably she ignored medical advice,
and this may have been the cause, not her depression.
• Depending on what the jury decide in s52(1)(c), Maria
might be able to have a successful claim for
diminished responsibility.
• This will lower her murder defence to a manslaughter
conviction.
LOSS OF CONTROL
• Maria lost control when she stabbed Gavin several times. She
grabbed a knife and stabbed him showing she lost control. It
doesn’t have to be immediate.
• Section 54(1)(a) is satisfied.
• She need to have a qualifying trigger. The trigger is s55(4) which argues
that Gavin’s was acting in grave character causing Maria to feel a justifiable
sense of being wronged.
• Throughout the event Gavin talks ill of the dead by saying he was a
dangerous climber and he deserved what he got. As Maria and Frank were
married, this would emotionally upset her and under the circumstances
(lunch in remembrance of Frank). She was also under the belief that Gavin
could’ve saved him so this build up could’ve resulted in a qualifying
trigger. Gavin hugging her probably made her feel uncomfortable especially
after he spoke negatively of her dead husband. It clearly took her by
surprise as she runs away.
• However, its questionable to whether Gavin’s actions
or the things he said was so grave in character.
• Hugging her is not grave in character.
• In the context of him bad mouthing Maria’s husband
during a lunch is arguably grave in character and
justifiably Maria did have a sense of being wronged.
• Gavin also laughed when he saw Maria fall and break her necklace.
• This could’ve led to an explosion of everything she felt during the lunch.
• Section 54(1)(b) will most likely be satisfied. Would a reasonable person of the
same age and sex with a normal level of tolerance do a similar thing as Maria?
• Gavin made comments, touched her without warning ad laughed when she fell.
This all would arguably lead to a woman the same age doing a similar thing.
The fact that the lunch was taking place as a remembrance of a dead spouse
increases the likelihood that a woman the same age would do a similar thing.
• However, the fact she stabbed him several times may be seen as extreme, and a
regular person might have stabbed him once but not several times enough to
kill him.
• Section 54(1)(c) is unlikely to be satisfied due to Maria stabbing Gavin more
than once.
• Maria would unlikely succeed in the partial defence of Loss of control.