Changes to Voluntary Manslaughter

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An update regarding loss of control/provocation under s.52 of the Coroners and Justice Act 2009.  The release is designed for practitioners and as such is pretty heavy-going for A-level: important none the less.

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Defences to Murder ­ Changes effective from 4th October 2010
When Does the Law Change?
On 4th October 2010 the defence of provocation will be abolished (for acts committed on/after that
It will be replaced by a new, partial defence known as "Loss of Control".
On the same day the defence of Diminished Responsibility will be amended considerably.
Legal Sources
s.52 ­ 55 of the Coroners and Justice Act 2009
Statutory Instrument 816 of 2010
Diminished Responsibility
s.52 "(1) In sections 2 of the Homicide Act (HA) 1957 (persons suffering from diminished
responsibility), for subsection (1) substitute ­
(1) A person (D) who kills or is a party to the killing of another is not to be convicted of murder if D
was suffering from an abnormality of mental functioning which ­
(a) Arose from a recognised medical condition,
(b) Substantially impaired D's ability to do one or more of the things mentioned in subsection (1a) and
(c) provides an explanation for D's acts and omissions in doing or being party to the killing.
Ss(1a) Those things are ­
(a) To understand the nature of D's conduct;
(b) To form a rational judgement;
(c) To exercise self-control.
(1b) For the purposes of subsection (1)(c ), an abnormality of mental functioning provides an
explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out
that conduct."
What's the Difference between the Old and New Law?
The law has been amended to catch up with developments in medicine.
The old-fashioned concept of "abnormality of the mind" is removed and replaced with a more 21st
Century wording of "abnormality of mental functioning."
The amended Act requires the abnormality of mental functioning to be derived from a "recognised
medical condition."
Now the "substantial impairment" must arise from the new statutory criteria at SS1A.

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Lastly the abnormality must provide an explanation for D's impairment.
Many cases in which the defence would have succeeded under the old law would give rise to the
same result today. But note ­ the new law now requires the defence ­ or any person raising the
defence ­ to fulfil the new statutory criteria if the defence is to be left to the jury.
These criteria differ from the old ones.…read more

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This has happened in the past with conditions such as ME and Repetitive Strain Injury.
Ultimately it is a question of fact for the jury to decide. R v Jennion 46 Cr App R 212 CCA.
Given the role of expert evidence, both case management and summing up with be important ­ R v
Henderson; R v Butler; R v Oyediran LSGazette July 1st, 16 CA.
Henderson et al adopts guidelines from the medical profession in order to evaluate an expert
witness ("W").…read more

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To form a rational judgement;
(c) To exercise self-control.
The act(s) or omission(s) which forms the abnormal mental functioning must, under S1A1(c) provide
an explanation for the killing or for D's secondary role in it.
This is causation.
Again the burden of proof is upon the defendant.…read more

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This is housed in subsection (3). This subsection applies if D's loss of self-control was attributable to
D's fear of serious violence from V against D or another identified person.
This will be a question of fact.
Evidence of V's bad character will plainly hold great value here.…read more

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The Test for Loss of Control
The new test is both subjective and objective ­ ss(1)(c ) ­ the jury must look at D and identify
whether he did in fact lose control and thereafter, whether that loss emanated from a qualifying
trigger (a subjective test).
If the answer to the first two issues is "yes", the jury must then decide whether a person with this
Defendant's characteristics would have reacted in the same way or in a similar way (the objective
test).…read more

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A person who, but for this section, would be liable to be convicted of murder is liable to instead be
convicted of manslaughter.
The fact that one party to a killing is by virtue of this section not liable to be convicted of murder
does not affect the question whether the killing amount to murder in the case of any other party to it.…read more


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