Defences to homicide

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  • Created by: Nikki
  • Created on: 19-04-15 14:51

Types of defence

Permission

D entitled to do as they did --> 'justified' --> self-defence

Excuse

D cannot reasonably be expected to attain a standard of conduct, either because of mental disorder, or due to effect of circumstantial pressures --> DR and loss of control

Exemption

D's mental (in)capacities are such that they cannot fairly be made subject to liability and punishment at all --> infancy/insanity 

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Loss of control

Partial defence to murder --> reduces conviction to manslaughter

Coroners and Justice Act 2009, ** 54-5

Lo** of control

if D kills V as a result of lo** of self control

Lo** of self control must have been caused by

fear of serious violence

things said or done, amounting to exceptionally grave circumstances, which caused D to have a justifiable sense of being seriously wronged

Objective requirement

A person with ordinary powers of tolerance and self-restraint might have acted in the same or in a similar way, in the circumstances

Defence both for principal and for complicit party

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Coroners and Justice Act 2009, s54

(1) Where a person (D) kills or is a party to the killing of another (V), D is not to be convicted of murder if-

(a) D's acts and omission in doing or being a party to the killing resulted from D's loss of self-control

(b) the loss of self-control had a qualifying trigger, and

(c) a person of D's seX and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden

(3) In subsection (1)(c) the reference to 'the circumstances of D' is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint

(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge

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Coroners and Justice Act 2009, s55

A loss of self-control had a qualifying trigger if-

(3) D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person. Or:

(4) D's loss of self-control was attributable to a thing or things done or said which-

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged. Or:

(5) D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4)

(6) In determining whether a loss of self-control had a qualifying trigger-

(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence

(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence

(c) the fact that a thing said or done constituted sexual infidelity is to be disregarded

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Simplification of key points

s54

(1)(a) --> resulted from D's loss of self-control

(1)(c) --> person of D's seX and age etc might have acted the same way

(2) --> doesn't matter if loss of control was not suddent

(3) --> circumstances of D include all circumstances except those who only have a bearing on D's capacity for tolerance and self-restraint

(4) loss of self control doesn't arise if D acted in considered desire for revenge

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Simplification of key points (2)

s55

(3) fear of serious violence

(4) thing said or done

(4a) extremely grave character

(4b) justifiable sense of being wronged

(5) can be a combo of (3) and (4)

(6) things relevant to qualifying trigger

(a) fear of serious violence disregarded if incited by D to give excuse for use of violence

(b) provocation not justifiable if incited by D to give excuse for use of violence

(c) sexual infidelity is disregarded as provocation

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Case law (loss of control)

Clinton (2012)

sexual infidelity on its own excluded from being qualifying trigger but can be used as evdience for consideration as part of context in which to evaluate the trigger

Dawes (2013)

Judge should not leave defence to jury where there is no evidence of loss of control or one of the triggering conditions

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Self-defence (1)

Criminal Law Act 1967, s3

'A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.'

Reasonable force can be used in self-defence

Gladstone Williams (1984)

D judged on basis of facts as he beleives them to be, even if he has made an unreasonable mistake

Palmer (1971)

'If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be the most potent evidence that only reasonable defensive action had been taken.'

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Self-defence (2)

A-G Ref (No 2 of 1983)

pre-emptive force is permissible

Keane and McGrath (2010)

If you deliberately induce the circumstances in which it is necessary to use s-d, it is not reasonable and proportionate to use s-d --> exception of some limited circumstances

Martin (2002)

All of D's physical characteristics should be taken into account, but not appropriate, except in exceptional circumstances, in deciding whether excessive force was used, to take into account whether D is suffering from psychiatric condition

Self-defence and intoxication --> O'Grady (1987); Hatton (2006)

D cannot rely on a mistake resulting from intoxication

Self-defence and human rights 

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Criminal Justice and Immigration Act 2008, s76

'This section is intended to clarify the operation of the existing defence...'

(3) The question of whether the degree of force used by D was reasonable in the circumstance is to be decided by reference to circusmtances as D believed them to be...

(4) If D calims to have held a particular belief as regards the existence of any circumstances-

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b) if it is determined that D did genuinely hold it, D is entitled to rely on if for the purposes of subsection (3), whether or not - 

(i) it was mistaken, or

(ii) (if it was mistaken) the mistake was a reasonable one to have made

(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced

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Criminal Justice and Immigration Act 2008, s76

(6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D beleive them to be if it was disproportionate in those circumstances

(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case) - 

(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose

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Simplification of key points (2)

(3) reasonableness of D's force is decided based on circumstances as D believed them to be

(4)(a) - reasonableness of belief is relevant to whether D held it or not

(4)(b) - if D did hold a belief, D can rely on it whether or not it was mistaken (i) or whether or not that mistake was reasonable (ii)

(5) D cannot rely on any mistaken belief attributable to voluntary intoxication

(6) degree of force is not reasonable if disproportionate in circumstances as D believed them to be

(7)(a) D may not be able to judge exact response that is proportionate

(7)(b) if D did only what honestly and instinctively thought necessary then this is storn gevidence that only reasonable action taken

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Other provisions

Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 148

Inserts into s76 a reference to 'common law defence of property'

Inserts:

'(6A)' --> in deciding reasonableness, possibility that D could have retreated is something to be taken into account, rather than giving rise to duty to retreat

Crime and Courts Act 2013, s 43 --> new rule of s-d for householders

s76(9) --> 'This section, except so far as making different provisions for householder cases, is intended to clarify the operation of existing defences...

76 (5A) --> in a householder case, degree of force used by D is not reasonable if in circumstances as D believed them to be it was grossly disproportionate 

Why distinguish householders/non-householder cases?

What counts as grossly disproportionate?

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Diminished responsibility

Partial defence to murder --> becomes manslaughter

New law:

  • recognised medical condition 
    • tying law and medicine together
  • must explain D's actionsmust impair understanding
    • causal factor
  • must impair rationality
  • must impair self-control

Aim to bring greater clarity

Nature of conditions

  • whether D suffers a condition or not is expert question
  • if experts disagree, matter will go to jury
  • even if experts don't dispute, jury are free to decide whether or not D's condition substantially impaired D's ability to do understand, form rational judgment or exercise self-control
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Homicide Act 1957, s2(1), amended in 2009

(1) A person (D) who kills or is 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 or omissions in doing or being a party to the killing

(1A) Those things are - 

(a) To understand the nature of D's conduct

(b) To form a rational judgment

(c) To exercise self-control

(1B) 'provides an explanation for D's conduct' = causes or is a significant contributory factor in causes D's act

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Dowds (2012)

Acute intoxication as recognised medical condition --> but NOT for crimina law

Law has different concerns to science

Re-introduces law v medicine conflict?

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