- Homicide Act 1957 section 3
Jury have to find that the d was:
- Provoked by things done/said or both
- To lose his self control
- And whether it was enough to make the reasonable man act as he did, taking into account the effect of everything said and done would have on the reasonable man.
- Confusing mixture of statute and common law. Very old.
- Difficult to determine the characteristics of the 'reasonable person' leading to inconsitencies in similar cases
- Difficult to exclude revenge killings
- Too wide - as seen in Doughty.
- Too narrow - had to be sudden, a characteristic more attributable to male offenders causing a gender bias and meant that 'battered wives' found it difficult to use the defence, demonstrated in Ahluwahlia.
- Burden of proof should be on the defence to be consistent with diminished responsibility
Loss of Control
- Coroners and Justice Act 2009, sections 54 - 56. (refer to as s3 abolished and replaced by s54 +55 by s56 of CJA)
The d is not to be convicted of murder if
- Murder resulted from d's loss of control
- which satisfied a qualifying trigger
- and a person of d's sex and age with a normal degree of tolerance and self-restraint in the circumstances of the d would have reacted in the same/similar way.
Loss of Control
- Does not need to be sudden so it is available for battered wives under s54(2). Whether it was sudden is up to the jury after the case of Baillie. In Aluhwahlia it was held the reaction should be 'sudden' but not 'immediate'. Ibrahims and Gregory were convicted as they waited 3 days so there was no 'loss of control.' It appears that it does not have to be sudden, but that it is helpful to the case if it is, and extended periods of time can mean it doesnt satisy a 'loss of control'.
Loss of Control 2
- D must have one or both of the qualifying triggers. S55(3) is where the d had a fear of serious violence against d or another identified person. S55(4) is where a d's loss of control was due to things said/done which a) consituted circumstances of an extremely grave character and b) caused the d to have a justificable sense of being seriously wronged
- S55(3) was not considered by provocation, and may have allowed a defence in the case of Martin and aid battered wives. D does not have to fear violence from the victim, but it cannot be a general fear of violence. This trigger was also used in the case of Pearson. Under S55(6) if the d incited this fear himself he cannot use the trigger.
- S55(4) Was also not in the old law and has narrowed the defence. It would have been unlikely that cases such as Doughty would have been allowed to use it, amd may have been satisfied in Camplin and Humphreys. also under S55(6) this trigger is not available if incited by the d.
- S55(6) says that sexual infidelity is to be disregarded and cannot be used as a trigger. Judges have explained that violence against women is unacceptable
- The defence of loss of control if the d acted in revenge under s54(4)
Loss of Control 3
A person if d's age and s e x with a normal degree of tolerance and self-restraint, in all the circumstances of the d would have reacted in the same way.
- Case of Camplin held that the age + sex of the d should have been taken into account and is now under statute. In AG vs Holley it was held that none of the d's other characteristics were relevant. Prejudice and hot temper should be excluded. It is an objective test.
- Circumstances can be taken into account when deciding if the normal person would react in the same way, but not to assess the d's level of self-control. S54(3) says that all of d's circumstances can be taken into account. This was seen in Hill, Gregson and Morhall.
- The case of Van-dongen was where the jury did not believe the reasonable man would have acted in the same or similar way.
Loss of Control Problems
- Allows ommissions, but a situation where a failure to act leading to a loss of control and death are unlikely to occur.
- Subjective test a to whether the d had a fear of violence - which means it can satisfy even if it was unreasonable to the ordinary person.
- The 'things said/done are much more restrictive, requiring circumstances of an extremely grave character or a justifiable sense of being seriously wronged.
- Is 'extremely grave character' objective or subjective?
- 'Justifiable sense of being wronged' may not be purely objective
- What is the difference between being 'wronged' and 'seriously wronged'?
- Why was sexual infidelity singled out to be excluded as a qualifying trigger over honour killings?
- No definition of 'considered desire for revenge' under s54(4) and so burgled house holders may be prevented from using the defence.
- Age and sex are not always relevant to conduct, in some cases they should be ignored.
Old Diminished Responsibility
- Homicide Act 1957 section 2
"Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from an
- anormality of mind
- arising from a condition of arrested or retarded development of mind or any inherent cause or disease or injury
- as to substantially impair his mental responsibility for his acts + ommissions in the killings.
- 'Out of date' - Law Commission
- Abnormailty of mind is not a psychiatrists term even though their evidence is crucial to the case. Not defined by statute
- Narrow, not in line with psychology, insulting.
- Mental responsibility - vague.
- Coroners and Justice Act 2009 s52. (refer to as s2 homocide act as ammended by s52 coroners and justice act"
"A d who kills or is party to a killing is not to be convicted of murder if d was suffering from
- An abnormailty of mind
- which arose from a recognised medical condition
- Substantially impaired the d's ability to understand the nature of their conduct/form a rational judgement/excersise self control
- That provides an explanation for d's acts/ommission
- Adjustment disorder - Deitchman Psychopathy - Byrne + Hendy
- ADS - Wood Schizophrenia - Moyle + Erskine + Khan
- Aspergers syndrome - Jama
- Battered wife syndrome - Hobson
- Depression - Seers + Ahluwahlia
- Epilepsy - Bailey and Cambell
- Othello Syndrome - Vinagne
- Paranoia - Simcox
- PMT - Reynolds
Diminished Responsibility 2
Abnormality of mental functioning
- Given a defintion in Byrne - "A state of mind so different from that of an ordinary human that the reasonable man would term it abnormal"
- In Gomez they held it did not have to have a degree of permanence, as long as it was effective at the time.
Recognised Medical Condition
- Simpler but wider. It would encourage defences to be ground in valid medical diagnosis. If there is more than one condition the case is strengthened, as seen in Reynolds.
Substantially impair their ability to understand the nature of their conduct, form a rational judgement or excersise self control.
- S52(1)A. In Byrne it was held that what is 'substantial' should be down to the jury. This was confirmed in Effinger and Khan. Lloyd held that sustantial is not totally impaired or trivial/minimal, it is somewhere inbetween.
Diminished Responsibility 3
Has to provide an explanation for the d's act
- This is satisfied if the abnormality of mental functioning causes or is a significant contributory factor in causing d to carry out his conduct. It doesnt have to be the sole factor but must contribute in a significant way.
- D bears the burden on the balance of probabilities.
- If a condition subsequently becomes recognised a conviction may be quashed under Hobson.
- Juries are essential, in some cases a jury may return manslaughter verdicts where the defendant has acted in extreme grief or stress. However, in some cases, the opposite can occur as in the case of Peter Sutcliffe
Diminished Responsibility 4
- Fenton held that intoxication on its own would not suffice for DM.
- Gittens held that where d suffered from an abnormality and killed while intoxicated, it is up to the jury to decide whether it affected the use of DM.
- In Deitchman they held that the effect of drink/drugs should be ignored and to determine whether the underlying abnormality satifsied DR. This was followed in Hendy, Robson and Swan.
- However, Fenton had held that a craving for drink/drugs could satisfy an abnormality.
- In Tandy it was agreed that if the d's alcholism had reached a level where the brain had been injured by repeated use so that there was gross impairment of judgement/emotional responses, or where drinking was involuntary then DR can be satisfied.
- Wood reassesed Tandy and argued that ADS could satisfy DR and that it was not necessary to prove brain damage or that drinking was involuntary. Whether it substantially impairs d's ability must be decided by the jury, ignoring the effect of any voluntary drinking. This was followed in Stewart.
Diminished Responsibility Problems
- Jury have to listen to complex medical evidence which may be difficult to understand, leading to wrong or inconsistent results
- Should the defence be extended to attempted murder? D would have to plead insanity which has a large social stigma and restricted sentencing.
- Abnormality of mental functioning is not a medical term and the term 'substantial' needs clarifying
- Psychiatric evidence is relied on heavily but cause and effect can not always be proved. Does this narrow the amount of people who can use the defence?
- Should 'substantial' be a matter for the expert witness?
- The elements that satisfy 'impaired ability' narrow the defence.
- Problems with the list of recognised medical conditions - severe intoxication is but developmental immaturity is not.
- Overlaps with insanity.