Defences
to Voluntary Manslaughter (murder)
Diminished Responsibility
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s2 of the homicide act 1957
as amended by s52 of the coroners and justice act 2009
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Special partial defence to murder
only
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Reduces conviction not necessarily
the sentence (judge’s discretion)
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If D’s mental problem can be treated the judge may order treatment
in hospital is carried out, or that a short imprisonment of community
sentence(in extreme cases) is more suitable
BUT if the defendant’s mental issue cannot be treated and he is
dangerous (e.g R v Byrne) then a judge may pass a sentence of life
imprisonment.
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Proved on the balance of probability
by the defendant only (with medical evidence given at the time of the trial)
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4 elements to be proved
s52
(1) Abnormality of mental functioning
R v Byrne
Lord Parker CJ – A state
of mind that is “so different from that
of the ordinary human being that the reasonable man would term it abnormal”
S52(1)(a)Caused
by a recognised medical condition
Amended act does not give examples but battered
wife syndrome(if it has been happening for possibly years or its long-term)Hobson(or Aluwahlia), Seers, Vinagre,
Martin can be used
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Also includes mental deficiency
(speake), schizophrenia, chronic depression(gittens), paranoid depression, obsessive
compulsive disorder, and post-traumatic
stress disorder
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Medical
evidence would be needed in support of the claim(don’t
forget to mention) but it’s the jury that needs to be satisfied that D’S AOMF
aroused from a recognised medical condition
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Can
be physical – e.g. epilepsy of diabtes
So,
D needs to have a recognised medical condition that can be supported by medical
evidence, which can satisfy the Jury that the defendant’s abnormality of mental
functioning arose from a recognised medical condition
S52(1)b
Causes substantial impairment to the defendants ability to understand, form
rational judgement, or exercise self
control
(R v Lloyd) – Edmund
Davies J - Substantial does not mean total
nor does it mean trivial or minimal, it is somewhere in between – for the jury
to decide
Understand?
– does D’s condition cause him to act in an automatic state to where he does
not know what he is doing. Is D suffering from delusions? Or has d got any
severe learning difficulties who has a low mental age?
Reason?
Paranoia or szhic? Battered wife syndrome?
Exercise
self control? – Sexual phyco?
S52(1)(c)
Provides an explanation to the killings - D’s abnormality of mental functioning must
cause or contribute to his conduct in relation to the death of V
The
above can be complicated with the presence of intoxication. There are two situations when
this can arise.
1.
D
has an AOMF and is intoxicated – jury are to disregard the intoxication, and
decide whether the AOMF solitarily caused substantial impairment. They do not
need to be satisfied that D would have killed R v Deitchman.
2.
OR
when d’s long term alcohol abuse has led to a RMC like ADS or DDS, which causes
an abnormality of mental functioning. In R v Wood, having that first
drink sparked further involuntary drinking. Furthermore it was decided that a
jury should question whether the ADS caused D to suffer from an AOMF, and did
it cause substantial impairment(jury may question whether d’s craving was
irresistible and whether the drinking up to the killing was voluntary)
Loss of control s54 CAJA 2009
1.
S54(2) D must be suffering from
a loss of self control when doing the acts which caused the death,
it need not be sudden, R
v aluwahlia – may be a time delay between the qualifying trigger and
the reaction of the defendant in regards to killing v (although the longer the
wait the less likely a judge is going to put it to the jury or that the jury
should believe D lost control)
BUT excludes acting in a considered desire for
revenge (hints if D has taken a long time e.g 4 days as seen in R v Ibrahms and Gregory)
2. S55 QT?
S55(3)Fear of serious violence – (martin) this is subjective, d will need to show he lost
control due to a genuine fear of
serious violence thus it being immaterial
whether his belief is reasonable.
The fear of serious violence must be towards the
defendant, or towards another person. But they MUST be identified – d cannot
have a general fear of serious violence.
NOTE: if that fear isn’t immediate, i.e.
the identified person is not in the close proximity of V at that time, then it
might be hard for a jury to understandingly correlate the loc and this qt
S55(4)
Grave Circumstance to which D has a justifiable sense of being seriously
wronged?
This is partially objective due to the word
“justifiable” here the judge will not take into account merely what d thought,
but whether or not D had a right to think in that way - R v Zebedee (2012 just because V shat himself
doesn’t mean it was grave nor did the court successfully believe it was
“justifiable”)
S55(5)
acknowledges a combination of both above
Excluded factors under s55(6)
if there operates an excluded factor like the
fact D’s loss of control was self induced to where D incited something to be
said or done to provide him with the excuse of violence then the defence
fails. This also goes the same for grave circumstance if he did something or
said something that caused in him a sense of being seriously wronged and he
incited this for the purpose of providing an excuse to use violence, R v Johnson.
Also sexual infidelity is not a defence but it’s
not entirely excluded if it operates amongst other factors to which it then can
be considered, r v Clinton.
3. Might a person of the same age
and sex, with normal restraint and tolerance in D’s circumstances have acted in
the same or a similar way?
Look at factors like d has been subject to abuse
for a long time, or they have had serious violence to them before for the “circumstances”
bit. R v Ashmeela
also says that voluntary intoxication does not justify D’s loss of control in
that situation so is not relevant.
If they have a short temper that doesn’t suffice since it only
relates to D’S capacity and this test is judged OBJECTIVELY with NORMAL
restraint and tolerance
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