MURDER AND VOL MANS DEFENCES mindmap LAW 03
- Created by: abic1
- Created on: 26-02-18 16:39
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- MURDER AND VOLUNTARY MANS. DEFENCES
- Former defence was Provocation s3 HOMOCIDE ACT 1957, replaced with LOSS OF CONTROL 2009
- Special defences = only available for the charge of murder
- Partial defence = murder reduced to manslaughter
- 3 defences available for murder
- Loss of Control 2009
- Subjective test based on defendant RICHENS 1993
- Loss of ability to act with considered judgement JEWELL
- Can't be guilty if act of killing was because of a loss of control, with a qualifying trigger, when a person of defendant's age and gender would react un same was in same situation
- Prosecution must prove beyond all reasonable doubt that there was no loss of control
- Courts take into consideration Cumulative Provocation DAWES 2013
- Sudden
- Loss of control does not have to be sudden DAWES 2013
- CORONERS AND JUSTICE ACT 2009
- Cumulative Provocation
- Slow Burn
- Defendant must still be out of control at time of killing
- Cooling off periods are not accepted but Slow Burn is
- The longer time between qualifying trigger and killing, less likely jury will accept defence, looks like revenge killing
- Qualifying Triggers
- Fear Trigger
- Old law on Provocation didn't allow defence when defendant lost control through fear MARTIN 2002
- Battered wives can use fear trigger, due to fear of violence from partners AHLUWALIA
- Defendant must fear that violence will be used against them or another identified person PEARSON
- Anger Trigger
- Things said or done CAMPLIN
- Must be of an extremely grave nature
- Cause the defendant a justifiable sense of being seriously wronged DOUGHTY
- s55 sets out the 2 qualifying triggers
- Standard of Self Control
- Expected of the defendant
- If answer is yes, murder reduced to manslaughter
- Would a person:
- Of defendant's sex and age CAMPLIN
- With a normal degree of tolerance and self restrain as the defendant HOLLEY
- In the same circumstances HILL or GREGSON or VAN DOGEN
- Have reacted in the same way?
- Can be a combination of the 2 triggers
- Fear Trigger
- Excluded Matters
- Sexual infidelity cannot be used as a qualifying trigger on its own CLINTON
- Revenge killings are not accepted as they are premeditated attacks IBRAMS & GREGORY
- S55 (4) Defendant cannot use defence if acted in "considered desire for revenge"
- Diminished Responsibility
- Set out in HOMOCIDE ACT 1957, amended by S52 CORONERS AND JUSTICE ACT 2009
- Reduces charge from murder to manslaughter
- Burden of proof on the defendant to prove on balance of probabilities they were suffering from diminished responsibility FOYE 2013
- Must be suffering from an abnormality of mental functioning, arising from a recognised medical condition, substantially impairing the defendant's mental responsibility,providing significant explanation to defendant's act in killing
- Abnormality of Mental Functioning
- "State of mind so different from that of an ordinary human beings' that the reasonable man would term it abnormal" BYRNE
- Jury decides if there is a mental abnormality
- Evidence from 2 medical practicioners provided
- Arose from Recognised Medical Condition
- Covers psychological harm, physical conditions and mental disorders
- Depression SEERS
- Paranoia MARTIN
- Battered Women's Syndrome AHLUWALIA
- Epilepsy
- Sleep Disorders
- Stress Disorders ROBSON
- PMT
- Alcohol Dependency Syndrome DIETSCHMANN
- Brain Damage HENDY
- Schizophrenia/ Dementia
- Substantially Impair Defendant's Mental Responsibility
- "Impairment must be significant, appreciable, or real" GOLDS 2016
- Jury decide if impairment is substantial enough BYRNE
- To understand nature of their conduct (delusions etc)
- To for rational judgement (paranoia etc)
- To exercise self control BYRNE
- Providing a Significant Explanation for Defendant's Conduct
- Must be a causual connection between defendant's act and kiling
- Provides explanation for conduct if it causes or is a significant factor in causing defendant to carry out that conduct S2 (1B) HOMOCIDE ACT 1957
- Abnormality of Mental Functioning
- + Intoxication
- Intoxication alone cannot support defence of diminished responsibility DI DUCA
- If, had the defendant been sober they would have reacted in same way, diminished responsibility can be used DIETSCHMANN 2003
- Psychotic disorder + intoxication = can use diminished responsibility HENDY 2006
- Stress disorder + intoxication = can use diminished responsibility ROBSON 2006
- Suicide Pact
- Loss of Control 2009
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