a) the rate of offending- males 30% of homicides convicted of manslaughter, and 12% acquitted. Females 55% for murder, 21% manslaughter and 14% acquitted.
b) types of manslaughter- Voluntary manslaughter- intentional killing in circumstances that mitigate the gravity of the offence (includes diminished responsibility Homicide Act 1957 s2, suicide pact HA 1957 s4, loss of control Coroners Act 2009 s54, and infanticide Infanticide Act 1938 s1)
Intentional manslaughter: unlawful killing without intent to kill or cause GBH (R v Taylor 1834) (includes constructive manslaughter, gross negligence manslaughter, corporate manslaughter and subjective recklessness manslaughter).
Diminished responsibility- have to prove balance of probabilities. S2 Homicide Act 1957 (amended by the Coroners and Justice Act 2009 s52, the reforms came into force Oct 2010.)
a) policy context- Peter Sutcliffe (Yorkshire Ripper)- did multiple murders, had paranoid schizophrenia but his diminished responsibility plea was dismissed by judge as he said public needed to see him be tried for murder. Convicted but kept in Broadmoor hospital.
The policy context of of criminal justice decision making.
b) abnormality of mental functioning- a state of mind so different from an ordinary person that the reasonable person would term it abnormal. Court not bound to accept medical evidence, it is for the jury to decide. R v Sanders 1991.
c) regonised medical conditions- this was added in 2009. World Health Organisations International Classification of Diseases and the American Psychiatric Associations Diagnostic and Statistical Manual of Mental Disorders. If in these it counts but the fact something appears here does not mean court has to accept it. Jury issue. Can call specialist as if not on the list it might still count. Has to be evidence and raised by the defence. Cant use diminished responsibility if drunk but not clear about alcoholism. Steven Andrew Dowds v The Queen 2012.
d) substantial impairment- R v Campbell 1987 and R v Kooken 1982.
New section 2(1)(b)- impairing the ability to do one of a) understand the nature of the defendants conduct b)to form a rational judgement c) to exercise self control.
R v Golds 2014- leading case- consider how jury should be directed on the word substantial. More than trivial (CPS guide)
R v Simcox 1964- 'Do we think, looking at it broadly as common sense people, there was a substantial impairment of his mental responsibility in what he did? If the answer is no, there may be some impairment but we do not think it substantial, we do not think it was something that really made any great difference although it may have made it harder to control himself, to refrain from crime, then you would find him guilty.'
e) diminshed responsibility and battered womens syndrome- BWS is a depressive condition that might satisfy the requirement of dimished responsibility.
Loss of control
If there is enough evidence the judge can leave it to the jury. Dont need to prove it. Issue as it is something contested. Used to be called provocatation.
Is in s54 of the Coroners and Justice Act 2009 and s55. Main points from the act are that the loss of control does not have to be sudden, there can be a delay and that if the loss of control resulted from sexual infedelity then it this defence cannot be used. What is a normal degree of tolerance? Men are more likely to be able to use this defence than a woman.
a) why change the law? the provocation defence had two legs i) did the provocation cause the defendant to lose his self control? (subjective) ii) was the provocation such that a reasonable person would have acted similarly? (objective)
b) why have a defence of loss of control? i) losing control is sometimes (partially) excusable. 'the defendants ability to exercise the level of self control/ forbearance necessary with conformity with the law was significantly encumbered by the intensity of his emotional response to external circumstances.' Uniacke- Emotional excuses.
ii) sometimes it is reasonable to lose control- Hoader gives the example of a ********** approaching a childs parents and telling them that he has just abused the child- Provocation and responsibility 1992.
Loss of control
Innocent or slight provocations do not count. Who is the ordinary person? Objective tests dont appreciate that we are all different.
c) elements of the defence- R v Clinton and others 2012- sexual infidelity is not defined. Judge said cant use loss of control. CoA said shouldve been left to the jury- sexual conduct part was merely part of the whole context.
s54(1) (b)- no requirement of suddenness
s54(1) (c) - the objective test: a person of the same age, sex with a normal degree of tolerance in the circumstance of D.
s54 (4) - defence not available for those who act with a considered desire for revenge.
s54(5)- burden of proof
s55- qualifying triggers.- 'there is no point pretending that the practical application of s55 will not create considerable difficulties' R v Clinton 2012
Loss of control
s55(3)- fear of serious violence introduces new subjective test for self defence.
s55(6) a - excludes violence incited by D in order to excuse use of violence. Dawes 2013- couldnt use defence as he went out looking for trouble. The Sentencing Guidelines Council: killings 'motivated by fear or desperation' will normally be treated as carrying the lowest levels of culpability.
s55 (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.
s55 a and b- fact specific and contingent upon objective evalutation.
s55 (6) (c)- sexual infidelity is to be disregarded. 'if there is evidence on which the jury could reasonably conclude that loss of control defence might apply, it must be left to the jury: if there is no such evidence then it must be withdrawn.' R v Clinton 2012.
Loss of control
But why just sexual infidelity? Mohammed (Faqir) 2005.
s55(5)- the triggers can be combined.
d) the gender debate- victim killer relationship= female victims are much more likely to know their killer- 45% by ex/partners where as only 4% of men. Majority of killings are carried out by men. Women who kill their partners tend to do so after long history of violence, men more hotheaded eg seeing partner with new partner.
Does the legal categorisation of defences fail to accommodate women? The example of PMS Smith 1982- legally problematic, had 30 offences. Claimed it turned Smith into a 'raging animal each month and forced her to act out of character.'
Battered womens syndrome? Thorton No.2 1992.
e) are diminshed responsibility and loss of control equals? How should a lawyer advise his client about the defences? depends on gender- if a woman should go with dimished responsibility. They relate more to women being mentally infirm.
Loss of control
Some say they are not equal and should be better distinguished.
'While the law sympathised with the jealous rage of men, it was assumed wives did not experience similar rage. In 1946, 275 years after a court first announced the defense of provocation, an English court finally stated that wives who killed their husbands or their husbands lovers could also avail themselves of the defence.' Taylor - Provoked reasoning in Men and Women- Heat of Passion Manslaughter and Imperfect Self Defence.
Consider gender and the reasonable person and the significance of discretionary decision making.
s1 of Infanticide Act 1938 and amended by the Coroners and Justice Act 2009 s57. Provides a partial defence for women who kill children whilst suffering from post natal depression. Burden of proving this is on the prosecution. R v Gore 2007- no requirement that all elements of murder are proved. Infanticide is the most common murder.
Comparison with abortion-
Sarah Catt-S58 Offences Against the Person Act 1861- administering a poison with intent to procure a miscarriage whilst she was 39 weeks. Buried babies body and was sentenced to 5 and half years.
a) the role of religion- 'there is no mitigation available by reference to the Abortion Act whatever view one takes of its provisions which are, wrongly, liberally construed in practise so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practioners. Per Justice Jemery Cooke- opinion and moralism.
b) the value of different 'living things'- 'you robbed the baby of the life it was about to have, the seriousness of the crime lies in between manslaughter and murder. Justice Jeremy Cook- VP of the Christian Fellowship.
Infanticide and abortion
S57 Offences Against the Person Act and s1 Abortion Act 1967 as amended by s37 of Human Fertilisation and Embyology Act 1990. The CoA reduced her sentence from 8 years to 3 and a half.
c) when does life start to exist? Jeremy Hunt said should be 12 weeks. To him at point life starts to exist.
d) the significance of human ness- dehumanistaion of fetus' to consider them differently.