Murder and the Partial Defences PDF

5 Murder and the Partial Defences LEARNING OUTCOMES When you have completed this chapter, you should be able to: demonstrate how the current law of homicide is structured and understand the relationship between the different homicide of...

5 Murder and the Partial Defences LEARNING OUTCOMES When you have completed this chapter, you should be able to: demonstrate how the current law of homicide is structured and understand the relationship between the different homicide offences; explain the definitions of murder and voluntary manslaughter and appreciate how the partial defences of diminished responsibility and loss of control may apply; discuss, in outline, the proposed changes to the current law of homicide. 5.1 Introduction The unlawful killing of a person is generally regarded as one of the most heinous crimes it is possible to commit. As a consequence, there is extensive media coverage of such offences: for example, the mass murderers Dr Harold Shipman and Fred and Rose West, as well as the fatal stabbings of teenagers, and so-​called ‘mercy killings’ where a person is killed by a relative to end their suffering. 5.2 Different types of homicide offences Although there is currently no such offence in English law, the word ‘homicide’ is used as a generic term for unlawful killings. The term encompasses situations where the defendant is criminally liable for the death of the victim, and the most commonly reported such offences are murder and manslaughter. However, there are also different types of manslaughter, namely voluntary, unlawful act and gross negligence manslaughter, as well as corporate manslaughter. The other type of homicide covered in this textbook is the causing of death by dangerous or careless driving. It is interesting to note that countries classify homicide offences in different ways. In England and Wales, the most serious offence is murder, followed by voluntary manslaughter, then unlawful act and gross negligence manslaughter. The Law Commission proposed that the current classification be changed (see the Law Commission Report No 304, referred to below), as a criticism of the current law is that the offence of murder covers such a wide range of behaviour. The mercy killer, motivated by a desire to help end the suffering of a much-​loved relative, is treated in the same way as the terrorist who has caused indiscriminate multiple deaths –​they are both convicted of the crime of murder and sentenced to life imprisonment. In contrast, in the United States of America the crime of murder is split into first and second 81 Criminal Law degree murder, and in Denmark there are four different murder offences –​‘general’, child killings, mercy killings, and genocide. We will return to the proposals for reform of our law later in this chapter. 5.3 The actus reus of homicide The common element in all homicide cases is that the accused has caused the death of a human being. The actus reus of murder or manslaughter cannot be established without this, and it will usually be very easy for the prosecution to prove –​for example that the defendant shot or stabbed the victim to death. However, there are occasions where difficulties do arise in establishing this element. 5.3.1 The victim must be a human being The defendant will only be guilty of murder or manslaughter if the victim is a human being, and (very occasionally) this aspect has been disputed, with one such scenario being in the context of an unborn child. The point for consideration here is when does a foetus become a human being so they are afforded the protection of the law of homicide. It is not homicide to kill a child in the womb and abortion is not murder. There are, however, some statutory protections under s 58 of the Offences Against the Person Act 1861 and, where the child is capable of being born alive, the Infant Life (Preservation) Act 1929, but these are beyond the scope of this textbook. To be given the protection of the law of homicide, the child must be wholly expelled from the mother’s body and be alive (R v Poulton (1832) 5 C & P 329), and have an existence independent of the mother. The courts have said this means the child should have independent circulation and have drawn breath after birth. A high profile case in 2000 involved the decision by the courts on whether to allow the separation of conjoined twins that would result in the death of the weaker twin, Mary –​Re A (Children) (conjoined twins: surgical separation) 2 WLR 480. One question for the court was whether the weaker twin was a human being. It had been argued that as Mary had an underdeveloped heart, lungs and brain, and depended on the stronger twin (Jodie) for survival, she was not a separate person and therefore it would not be murder if she was to be killed. This argument was unanimously rejected by the Court of Appeal. Brooke LJ stated: Here Mary has been born in the sense that she has an existence quite independent of her mother. The fact that Mary is dependent upon Jodie, or the fact that twins may be interdependent if they share heart and lungs, should not lead the law to fly in the face of the clinical judgment that each child is alive and that each child is separate both for the purposes of the civil law and the criminal law. In very rare instances, the assault takes place whilst the unborn child is in the womb but the death occurs afterwards. Example Nazra is pregnant. Tuah knows this and, intending to kill the unborn child, she gives poison to Nazra. The child is born and dies two days later as a result of the poisoning. Tuah is liable for homicide of the baby because the child was born and had an existence independent of the mother. It does not matter that the injury occurred when the child was in the womb because it is the time of death that is the relevant consideration, not the time of the injury. 82  Murder and the Partial Defences This was confirmed by the case of Attorney-​General’s Reference (No 3 of 1994) 3 All ER 936, where the defendant stabbed his girlfriend who was pregnant with their child. The stab wound penetrated the foetus, the baby was born prematurely as a result and died after 120 days. The House of Lords held that murder could not be committed where unlawful injury had been deliberately inflicted to a mother carrying a child where the child was subsequently born alive and then died as a result of the injuries inflicted while in the uterus. Their reasoning was that any mens rea the defendant had in relation to the mother could not be transferred to the unborn foetus. However, the House of Lords went on to conclude that in these circumstances the defendant could be liable for unlawful act manslaughter. 5.3.2 When does death occur? The second point of general application to all homicide offences, having identified the victim as a human being, is the consideration of when the victim actually dies. This may sound an odd point, but there could be a difference of opinion particularly in light of medical advances. Does a person die when they stop breathing or are ‘brain-​dead’? What if they are being kept alive artificially on a life support machine? Is the victim dead only if the heart has stopped beating? Obviously, a person who is already dead cannot be killed. In R v Malcherek and Steel 1 WLR 690, the defendant assaulted the victim, resulting in brain damage. The victim was put on a life support machine. Having concluded that she was brain dead, the doctors disconnected the machine and the victim was pronounced dead half an hour later. The defendant argued that it was the doctors, not he, who had caused the death by turning off the machine. Unsurprisingly, the argument was rejected by the Court of Appeal. The defendant’s act was clearly an operating and substantial cause of death. During his judgment Lord Lane CJ stated the generally accepted legal definition of death as: … the irreversible death of the brain stem, which controls the basic functions of the body such as breathing. When that occurs it is said that the body has died, even though by mechanical means the lungs are being caused to operate and some circulation of blood is taking place. In conclusion, it is irrelevant that the task of switching off a victim’s life support machine falls to the medical staff –​the perpetrator of the injuries remains liable for the death. 5.3.3 Unlawful Homicide requires that the death of the victim is unlawfully caused. Thus, if a police officer shoots a terrorist as they are about to detonate a bomb, this would be a lawful killing as it is justified to prevent a crime and defend others. As a consequence, there is no ‘homicide’ and the officer would not be guilty of a criminal offence. 5.3.4 Causation The final element that is common to all offences of homicide is that the accused must cause the death of a human being. The usual rules of causation apply and these may be found in Chapter 2. This means that the prosecution must prove that the defendant was both the factual and legal cause of the victim’s death. This is a question for the jury to determine. 5.4 Murder Having considered the points relevant to all homicide offences, we can now turn to specific offences, starting with murder. Murder is one of the most serious offences in the criminal justice system as it involves the deliberate taking of a human life. This is reflected in the mandatory life sentence imposed on 83 Criminal Law anyone who is convicted. However, this does not mean that an individual will spend the rest of their life in prison (although the most dangerous offenders may receive a whole life sentence). The judge will decide the minimum term that a defendant must serve and thereafter, if deemed no longer a threat to society, they will be released. Once back in the community, they are subject to a life licence, which means they can be recalled to prison if they commit a further offence. Whilst there are two statutes –​the Homicide Act (HA) 1957 and the Coroners and Justice Act (CJA) 2009 –​that deal with partial defences to murder, the offence itself is a common law offence. Coke’s classic definition of murder is: The unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought. 5.4.1 Actus reus Although the definition of murder refers to a ‘reasonable creature in being’, this is an outdated phrase and is rarely used. It is clear from the definition that the actus reus of the offence requires the defendant to cause the death of a human being as discussed above. The killing must take place under the Queen’s (or King’s) peace; thus, where a defendant kills an enemy combatant during times of war, they have a defence to a charge of murder. 5.4.2 Mens rea The mens rea of the offence is ‘malice aforethought’ but this term is unhelpful and misleading. Even if a defendant kills with benevolent intentions to put a dying relative out of their misery (so-​called ‘mercy killings’), they will still be guilty of murder, as confirmed by the Court of Appeal in R v Inglis 1 WLR 1110. The term ‘malice’ is also confusing because, in the context of non-​fatal offences against the person, ‘malice’ is defined as ‘intentional or reckless’ behaviour (see R v Cunningham 2 QB 396), whereas the mens rea for murder can only be established by an intention. The mens rea for murder is more accurately defined in R v Moloney 1 AC 905 as either an intention to kill or an intention to cause grievous bodily harm. It is important to note that only such an intention is an adequate mens rea for murder; recklessness or any other type of mens rea will not suffice. It is an entirely subjective test, so the question is whether the individual defendant intended to kill or to cause grievous bodily harm. There are two types of intention in the criminal law. Direct intention means that the defendant desired something to happen, or it was their aim, purpose or goal. In other words, the word ‘intention’ is given its ordinary meaning (R v Moloney 1 AC 905). Indirect or oblique intention occurs where the defendant’s primary aim or desire was not the forbidden consequence but where they foresaw the consequence as virtually certain. Applying this to the case of murder, the jury may (but do not have to) find that the defendant intended the consequence of death or grievous bodily harm (R v Woollin 1 AC 82). This is a question for the jury to decide. Examples (1) Zoe and Yvonne are animal rights extremists, and Frank is the head scientist of a local laboratory that conducts experiments on animals. In order to disrupt the work of the laboratory, Zoe and Yvonne plant an incendiary device in Frank’s house. 84  Murder and the Partial Defences Zoe hates Frank as he sexually abused her as a child and wants him to burn to death. Yvonne wants Frank’s house to burn down, hoping this will frighten Frank into abandoning animal testing. The incendiary device goes off, killing Frank and destroying his house. Zoe intended to kill Frank as it was her direct intention that he would die; she desires that result. In contrast, Yvonne’s direct intention is to cause criminal damage and prevent animal testing. However, if she foresaw Frank’s death or serious injury as a virtually certain consequence of her actions, the jury may find that she intended it. (2) Anton deliberately and intentionally breaks Sunita’s arm. Due to a rare physiological disorder, Sunita dies. Anton would be liable for murder because an intention to cause grievous bodily harm is sufficient mens rea for the offence. Some academics have criticised this, arguing that the label of ‘murderer’ should be reserved only for those who intend to kill. 5.4.3 Summary of murder (a) The actus reus of murder is the unlawful killing of a human being (not a foetus) under the Queen’s (or King’s) peace and this is common to all homicides. (b) The mens rea for murder is the intention to kill or cause grievous (really serious) harm. It is an entirely subjective test –​did this particular defendant have the relevant intention? (c) Murder is a crime of specific intent so it cannot be committed recklessly. (d) Either direct or indirect intent will satisfy the mens rea for murder. Figure 5.1 Murder MURDER AR MR unlawfully intention to kill or causes death intention to cause grievous of a human being bodily harm under the King or Queen’s peace 85 Criminal Law 5.5 Manslaughter Usually, if the actus reus and mens rea of murder are established, the defendant will be convicted and will receive a mandatory life sentence. Many consider this to be right, as taking another person’s life can never be excused, and it is fair to say that in most homicides, the defendant deserves little or no sympathy. However, the reality is that there are degrees of culpability for this offence, and the law recognises that there are certain situations where someone who has killed should be treated differently and more favourably. The case of R v Ahluwalia (1993) 96 Cr App R 133 illustrates this point. The defendant had been violently abused by her husband for over 10 years until she could take no more. One night, she poured petrol over her sleeping victim and then set fire to him. Her husband died from his burns. Most people would sympathise with Ahluwalia’s predicament and even the fact that she killed her husband; after all, she was reacting to a violent bully. Arguably, she is not morally culpable at all, because she was provoked by the abuse she received over a period of time. However, although the law recognises a defence for those who are pushed to the edge so that they lose their self-​control, the means adopted were extreme, particularly as Ahluwalia’s husband was asleep at the time. This case illustrates the complexity of the issues that may arise. On the one hand, Ahluwalia has taken a life but, on the other, she herself is clearly a victim. This case was adopted by women’s groups who were pressing for a change in the way the courts dealt with domestic violence cases, and her conviction for murder was subsequently reduced to manslaughter. The case of R v Martin (Anthony) EWCA Crim 2245 is another example. Martin’s home, known as Bleak House, had been plagued by burglars over the years. One night, he confronted a burglar in his house; then, as the burglar was fleeing his property, Martin shot him dead with a gun he used for shooting rabbits. Although there was much sympathy for Martin, he remains morally culpable. The fact that the victim was running away at the time of the shooting demonstrates that this is not a case of self-​defence or prevention of crime. Both these defendants were subsequently convicted of manslaughter, of which there are two different types –​voluntary and involuntary manslaughter –​and it is important to be able to distinguish them. 5.6 Voluntary manslaughter There are three special situations in which the law recognises that a person who has killed another with the necessary mens rea for murder should be treated less harshly. These are: (a) diminished responsibility; (b) loss of control; and (c) suicide pact. It is important to note that none of these provide a true defence since, even if successful, the accused is still liable for a criminal offence (voluntary manslaughter). Hence, they are referred to as ‘partial defences’. Furthermore, they are defences only to murder –​they only apply where the defendant has killed with the intention to kill or cause grievous bodily harm and so satisfies the actus reus and mens rea of murder. The partial defences should not be considered in relation to any other crime. The significance of being found guilty of manslaughter rather than murder is that the judge has discretion in sentencing and they can properly take account of all the relevant circumstances. In particular, there is no mandatory life sentence so that although life imprisonment may be appropriate, often a less severe penalty is imposed. This chapter concentrates on two of the partial defences, namely diminished responsibility and loss of 86  Murder and the Partial Defences control as the third, suicide pact (HA 1957, s 4), is very rarely raised as a defence and thus is not covered in this textbook. To assist, the following flowchart illustrates whether the defendant has committed murder and the relationship between this offence and manslaughter. Figure 5.2 Murder and voluntary manslaughter Did D cause the death of a WHICH HOMICIDE? human being (actus reus)? Yes No Did D intend to kill or Not murder or cause GBH (mens rea manslaughter of murder)? Yes No Does D have a partial defence Consider involuntary (diminished responsibility, loss manslaughter – see of control or suicide pact)? Chapter 6 No Yes Voluntary Murder manslaughter 5.6.1 Background Until October 2010, the partial defences of diminished responsibility and provocation were contained in ss 2 and 3 of the HA 1957. Over time, both defences were the subject of a large body of case law in which the courts concerned themselves with the exact meaning of these definitions. The defence of provocation proved particularly controversial, with different courts reaching different decisions in their efforts to interpret the intentions of Parliament. As a result, the Government asked the Law Commission to review this area of law. In its report, ‘Partial Defences to Murder’ (Law Com No 290), the Law Commission recommended changing the definitions of the (then) existing partial defences of diminished responsibility and provocation, contained in ss 2 and 3 of the HA 1957 respectively. It later affirmed these recommendations in its report, ‘Murder, Manslaughter and Infanticide’ (Law Com No 304). In 2008 the Government responded by publishing its own Consultation Paper, ‘Murder, manslaughter and infanticide: proposals for the reform of the law’. Whilst accepting some of the Law Commission’s proposed changes, the Consultation Paper set out new proposals, notably to abolish the defence of provocation and replace it with a new defence labelled ‘loss of control’. Following a period of consultation, the Government incorporated proposed changes to the definitions of these partial defences in Part 2 of the Coroners and Justice Act 2009. 87 Criminal Law 5.7 Diminished responsibility The rationale for diminished responsibility is that, although the defendant has committed the actus reus of murder with the necessary mens rea, they were suffering from a recognised medical condition which, whilst it does not give them the legal defence of insanity, does provide them with a partial excuse for their actions. 5.7.1 Evidential issues Once the prosecution has proved the actus reus and mens rea of murder beyond a reasonable doubt, the legal burden of proving all the elements of diminished responsibility switches to the defendant. This is unusual in the criminal law as the prosecution is generally required to disprove any defence raised. However, the burden of proof on the defence is only ‘on a balance of probabilities’, and this is a much lower burden than the usual criminal standard of proof of ‘beyond a reasonable doubt’. In terms of percentages, on a balance of probabilities would mean anything over 50%; in other words, the defendant must demonstrate that it is more likely than not they were suffering from diminished responsibility. 5.7.2 Coroners and Justice Act (CJA) 2009 The partial defence of diminished responsibility is outlined in s 52(1) of the CJA 2009 and has been incorporated into s 2(1) of the HA 1957. It provides: (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 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) 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. Thus, there are four elements to the defence that must be established for it to be pleaded successfully and these are: (a) an abnormality of mental functioning; which (b) arose from a recognised medical condition; and (c) substantially impaired the defendant’s ability to understand the nature of their conduct, and/​or form a rational judgment, and/​or exercise self-​control; and (d) provides an explanation for the defendant’s acts and omissions in doing or being a party to the killing. 5.7.3 Abnormality of mental functioning The first question for the jury to consider is whether the defendant was suffering from an abnormality of mental functioning when they killed their victim. There is no further definition in the Act as to what this actually means, although it tends to be interpreted widely, and it falls to the jury to decide having heard expert medical evidence. 88  Murder and the Partial Defences The definition ‘abnormality of mental functioning’ replaces the old definition of ‘abnormality of mind’ contained in s 2 of the HA 1957 which, according to the Court of Appeal in R v Byrne 2 QB 396, meant a state of mind so different from ordinary human beings that the reasonable man would term it abnormal. The Government preferred the new definition as, unlike the phrase ‘abnormality of mind’, it is a term commonly used by medical experts who will testify in court on this issue. As Lord Bach said when introducing the second reading of the Bill in the House of Lords: The changes to the partial defence of diminished responsibility will ensure that this area of law is modernised and properly takes into account the needs and practices of medical experts. This is as it should be, given that it is the evidence of such experts which is crucial to determining whether any claim of diminished responsibility is properly made out. 5.7.4 Recognised medical condition The second requirement for diminished responsibility is that the abnormality of mental functioning must arise from a ‘recognised medical condition’. This phrase replaces the rather more convoluted wording under s 2 of the HA 1957, which stated that the abnormality of mind had to arise from ‘a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury’. This complex wording caused some issues, particularly the phrase ‘inherent causes’ which was used in practice to include almost anything, including pre-​menstrual tension and extreme stress. During the Committee stage of Parliamentary debate, Maria Eagle (the Parliamentary Under-​ Secretary of State for Justice) said the Government envisaged that qualified medical experts giving evidence would refer to accepted classification systems encompassing recognised medical conditions (whether physical, psychiatric or psychological) such as the World Health Organization’s international classification of diseases (ICD10). Furthermore, if a medical expert testified that, at the time of the killing, a defendant was suffering from a condition included in one of these lists, and this was accepted by the jury, the test will be met. Ms Eagle also stated that conditions which are not included in such a list could still be deemed ‘recognised medical conditions’ for the purposes of the defence. She pointed out the need to cater for emerging conditions that had not yet been recognised and put on the classificatory lists. The defence could therefore call a recognised specialist to give evidence about such conditions, and it would then be for the jury to decide whether the partial defence requirement was met. The Crown Prosecution Service confirmed this approach in its Legal Guidance on Homicide: Murder and Manslaughter: Examples of recognised medical conditions within these classificatory lists are schizophrenia, phobic anxiety disorders, bipolar affective disorder, depression and battered person syndrome. Physical conditions, such as diabetes and epilepsy, are also included provided they impact on the defendant’s mental state. Example Denise killed her friend. Her evidence is that she finds it almost impossible not to drink vodka every day, and once she has consumed the first drink, she cannot control her urge to drink more. If she does not drink vodka, she gets headaches, nausea, uncontrollable shaking and other symptoms. 89 Criminal Law Denise can plead diminished responsibility as a partial defence to her murder charge because she is suffering from a recognised medical condition according to the World Health Organization’s international classification of diseases (ICD10), that of alcohol dependence syndrome. The relevant extract from ICD10 appears below. V. Mental and behavioural disorders due to psychoactive substance use (F10-​F19) 2. Dependence syndrome A cluster of behavioural, cognitive, and physiological phenomena that develop after repeated substance use and that typically include a strong desire to take the drug, difficulties in controlling its use, persisting in its use despite harmful consequences, a higher priority given to drug use than to other activities and obligations, increased tolerance, and sometimes a physical withdrawal state. The dependence syndrome may be present for a specific psychoactive substance (for example tobacco, alcohol, or diazepam), for a class of substances (for example opioid drugs), or for a wider range of pharmacologically different psychoactive substances. Thus, it includes chronic alcoholism, dipsomania and drug addiction. Deciding whether an accused is suffering from an abnormality of mental functioning arising from a recognised medical condition may be challenging at times and even controversial. In the case of R v Blackman EWCA Crim 190, the defendant, then a member of the Royal Marines, shot and killed a badly wounded rebel while serving in Afghanistan. At his trial, Blackman was found guilty of murder as the evidence was that he acted calmly and deliberately. However, his original conviction for murder was overturned on appeal as a result of psychiatric evaluations that suggested the defendant was suffering from an adjustment disorder, compounded by the presence of several ‘exceptional stressors’. As a consequence, Blackman was incapable of making rational judgements or exercising self-​control, and a finding of manslaughter was substituted. 5.7.5 Diminished responsibility and intoxication It is not unusual for offences to be committed while the defendant is under the influence of alcohol or drugs, and there have been several cases in which the judges have considered the relationship between intoxication and the partial defence of diminished responsibility. The issue becomes even more complex when a defendant relies on diminished responsibility due to alcohol dependence syndrome but was also drunk at the time of the offence. This question was considered by the House of Lords in R v Dietschmann 1 AC 1209. Although the case was decided according to the ‘old’ law under s 2 of the HA 1957, the decision was approved by the Law Commission in its report, ‘Partial Defences to Murder’ (Law Com No 290), and thus should be equally relevant to the ‘new’ definition of diminished responsibility. In Dietschmann, the defendant began to drink heavily after the death of his aunt and was prescribed anti-​depressants and sleeping tablets by his doctor. A few days later the defendant was drinking with friends and became involved in a fight with the victim, during which the victim was killed. The defendant was charged with murder and raised the defence of diminished responsibility. Evidence from two psychiatrists was adduced at trial –​both agreed that at the time of the killing the defendant was suffering from an abnormality of mind. In summing up to the jury, the trial judge directed them that they could find the defence of diminished responsibility established only if they were satisfied that, if he had not been drinking, the defendant would have killed and would have been under diminished responsibility when he did so. The defendant was convicted of murder but appealed successfully. 90  Murder and the Partial Defences The House of Lords said that s 2 of the HA 1957 did not require the abnormality of mind to be the sole cause of the defendant’s acts; the question is whether the defendant was suffering an abnormality of mind at the time of the killing which substantially impaired their mental responsibility. If the jury considered that the impairment of responsibility may have been caused partly by drink and partly by an underlying abnormality, it was still open to them to uphold the defence of diminished responsibility provided they were satisfied that, despite the drink, the abnormality of mind substantially impaired their mental responsibility for the fatal act. In R v Wood 2 Cr App R 507, the Court of Appeal followed R v Dietschmann and confirmed that the defence of diminished responsibility was not precluded by the mere fact that the defendant consumed alcohol voluntarily before committing the fatal act. In deciding whether the defendant’s mental responsibility for the killing was substantially impaired as a result of his alcoholism, the jury should focus exclusively on the effect of the alcohol consumed as a direct result of the defendant’s illness and ignore the effect of any alcohol consumed voluntarily –​a somewhat difficult task. In its report, the Law Commission confirmed that the law in connection with the impact of the voluntary consumption of alcohol on the availability of the defence is ‘clear and satisfactory’, and so these cases are equally valid to the current definition of diminished responsibility. In R v Dowds EWCA Crim 281, the Court of Appeal considered whether voluntary acute intoxication which is uncomplicated by any alcoholism or dependence is capable, under s 2 of the HA 1957, of being relied upon to found diminished responsibility. The Court confirmed that such intoxication, whether from alcohol or other substance, cannot. There are public policy reasons at play here; an offender who voluntarily takes alcohol and drugs and then behaves in a way they would not have done when sober should not be excused from responsibility. In summary: (a) If the defendant commits murder while intoxicated but does not suffer from alcoholism or a dependency-​related condition, they cannot rely on diminished responsibility. (b) If the defendant suffers from a recognised medical condition such as schizophrenia and kills the victim when in a psychotic state which was triggered by their voluntary intoxication, they may successfully plead the partial defence of diminished responsibility. The law does not require the abnormality of mind to be the sole cause of the defendant’s acts. (c) If the defendant has alcohol dependence syndrome but is also intoxicated at the time of the murder, the jury must focus exclusively on the effect of the alcohol consumed as a result of their illness and disregard the effect of any alcohol consumed voluntarily. 5.7.6 Substantial impairment of D’s ability The next element of the defence is the ‘substantial impairment’ of the defendant’s ability to do one or more of the things set out in s 2(1A) of the HA 1957. Whether there has been a ‘substantial’ impairment is a question of fact for the jury. The case of R v Lloyd 1 QB 175 (based on the ‘old’ law) found that for the impairment to be ‘substantial’, it must be ‘more than trivial or minimal’. In R v Golds UKSC 61, the Supreme Court reviewed the authorities from both England and Scotland on the meaning of this phrase and concluded that ‘substantial’ meant ‘important or weighty’. This is not surprising when the context is borne in mind.; the partial defence only comes into play when the prosecution has proved that the defendant has committed murder. As such, the judges ruled that there must be a ‘weighty’ impairment of the defendant’s abilities before this grave offence may be reduced to the lesser offence of manslaughter; a reason that is so minor it just passes the trivial will not be enough. Although ordinarily there would be no need to direct a jury on the meaning of ‘substantial’, they would be required to consider the question of degree when all the evidence has been heard. 91 Criminal Law Under the ‘old’ definition of diminished responsibility, there was a general requirement for a substantial impairment of the defendant’s mental responsibility. However, under the amended s 2 the defendant’s ability to do particular things must be substantially impaired, namely, to understand the nature of their conduct, and/​or to form a rational judgment, and/​or to exercise self-​control. Set out below are illustrations of what incidents may satisfy s 2(1A) of the HA 1957. Example (1) Stefan enjoys playing violent computer games. He stabs Perry in the heart, believing that he will come back to life as the victims do when he replays his computer games. In this example it appears that Stefan does not understand the nature of his conduct –​s 2(1A)(a). He does not realise that stabbing someone in the heart has fatal consequences and that his ‘real life’ victim cannot be resuscitated. (2) Stefan is obsessed with the belief that the security services want to question him on terrorist charges (which is totally untrue). He shoots the postman when he rings on the doorbell with a delivery, believing that the postman is an MI5 agent. Stefan appears to be suffering from some sort of neurosis which impairs his ability to form a rational judgment under s 2(1A)(b). (3) Stefan hits his neighbour in the face with a hammer after his neighbour plays his music too loudly all evening despite Stefan’s complaints. It may be that Stefan lacks the ability to exercise self-​control under s 2(1A)(c). 5.7.7 The abnormality of mental functioning must provide an explanation for the killing One major criticism the Law Commission identified under the old definition of diminished responsibility contained in s 2 of the HA 1957 was that there was no causal link required between the defendant’s abnormality of mind and their act (or omission) in killing. As the Parliamentary Under-​Secretary of State for Justice (Maria Eagle) stated during the Committee stage of Parliamentary debate: The Government agree with the Law Commission that it is necessary for there to be some causal connection between the abnormality of mental functioning and the killing in order for the partial defence to succeed. It is right for there to be some connection between the condition and the killing, otherwise the partial defence could succeed in cases when the defendant’s mental condition made no difference to their behaviour, and they would have killed regardless of the medical condition. For that reason, subsection (1B) [of s 52 of the CJA 2009] provides that, for the partial defence to succeed, any such abnormality of mental functioning must have been at least a significant contributory factor in causing the defendant to do as he did. It need not have been the only cause, the main cause or the most important factor, but it must be more than merely trivial. The partial defence cannot succeed when the truth is that the recognised medical condition and the impairment were randomly present by coincidence and made absolutely no difference to the behaviour that ensued. In other words, causation must be established. For the defence to succeed, the defendant must show that the homicide would not have occurred if the mental abnormality, which amounts to a recognised medical condition, had not been present. This is important because, otherwise, anyone who suffers from a psychiatric condition would automatically succeed in 92  Murder and the Partial Defences this defence even if the condition had no bearing whatsoever on their fatal act. Accordingly, if the accused suffers from a paranoid personality disorder but kills the victim in a fit of rage, unassociated with their personality disorder, they will not be able to rely on diminished responsibility as a defence, despite their abnormality of mental functioning arising from a recognised medical condition. Determining this question will involve considering the extent to which the defendant is answerable for their behaviour in light of their state of mind and ability to control their physical actions. Realistically, the jury will not be able to answer these questions without medical evidence; for example, even the phrase ‘abnormality of mental functioning’ would be difficult for a lay person to interpret as it requires an understanding of the processes going through the defendant’s mind –​something that only an expert is likely to have. Figure 5.3 Diminished responsibility DIMINISHED provides an abnormality RESPONSIBILITY explanation of mental for D’s act (or functioning omission) in killing + + substantial recognised + impairment medical condition of D’s ability to: understand exercise and/ and/ the nature self or or of their form a control conduct rational judgment 5.7.8 Diminished responsibility and legal insanity Diminished responsibility is a partial defence to murder which, if successfully proved by the defendant on the balance of probabilities, reduces murder to voluntary manslaughter. It can only ever be pleaded as a defence to a murder charge, not to any other offence. However, there is a different defence that a defendant may raise in relation to any crime with which they are charged, that of ‘insanity’. This requires the defendant to prove, again on the balance of probabilities, that they were suffering from a ‘disease of the mind’ causing a ‘defect in reason’ so that either they did not know the ‘nature and quality’ of their act, or they did not know their act was legally and morally wrong. This defence arises from M’Naghten’s Case (1843) [1843–​60] All ER Rep 229. The defence of insanity is rarely used and is only mentioned here so you are aware of its existence and the potential overlap with the defence of diminished responsibility. Unlike diminished responsibility, however, insanity is a complete defence, resulting in a special 93 Criminal Law verdict of ‘not guilty by reason of insanity’. A high-​profile example of a defendant successfully pleading insanity as a defence to an attempted murder charge is Michael Abram, who attacked former Beatle member George Harrison in his own home in 1999. After Mr Abram successfully raised the defence, the judge ordered him to be held in a secure psychiatric hospital (from which he has now been released). 5.8 Loss of control Loss of control is the second partial defence which, if successful, would reduce murder to voluntary manslaughter. Again, it does not come into play until the prosecution has proved that the defendant has killed with the intention to kill or cause grievous bodily harm, and so is liable for murder; thus, it should not be pleaded if the defendant is charged with an assault, for example. The rationale behind the defence is an acceptance by the law that everyone has a breaking point and circumstances may arise that push people so far, they lose their self-​control. Providing this defence acknowledges that such defendants (subject to fulfilling the required conditions) are less morally culpable than deliberate murderers, and they will be liable for voluntary manslaughter as a consequence. This has the practical advantage, from a defence point of view, of giving the judge a discretion in sentencing. There are many examples of where a defendant has lost control but where they are regarded less severely than a ‘normal’ murderer by the criminal justice system. Situations commonly pleaded would be a reaction to racial taunts, ridiculing physical disabilities or peculiarities, insults to a family member or friend, or an accused coming home to find their partner having sex with someone else. However, is the fact that the accused lost their self-​control enough on its own? For example, a defendant may be a very volatile character who ‘flies off the handle’ at the slightest thing. Should they be allowed to rely on the defence? What if the accused takes offence at his girlfriend smiling at another passenger on the train; should he be able to rely on loss of control as a partial defence to murder if he then loses his temper so badly that he beats his girlfriend to death? The law does not consider so and has introduced an objective element into the defence. 5.8.1 Background: s 3 of the Homicide Act (HA) 1957 Historically, provocation was a common law defence which was then introduced into statute by s 3 of the HA 1957. However, the definition of the defence proved controversial and was the subject of much case law. It consisted of two tests which the defendant had to overcome to be able to rely on it, namely: (1) Was the defendant provoked by things said or done (or both) to suddenly and temporarily lose their self-​control? (Subjective test) (2) Would the provocation have made a reasonable person lose their self-​control and do as the defendant did? (Objective test) In its Consultation Paper, ‘Murder, manslaughter and infanticide: proposals for the reform of the law’, the Government argued that the defence of provocation was too generous in cases where a defendant killed in anger, and that the law relating to the objective test in particular was too complex and uncertain. There had been much debate and a whole line of case law on the issue of who, exactly, is the ‘reasonable person’ for the purposes of the objective test. For example, could any of the defendant’s characteristics be taken into account? It was generally agreed, following DPP v Camplin AC 705, that the reasonable person is the same sex and age as the defendant. However, the objective nature of the test was considerably compromised by the controversial case of R v Smith (Morgan) 4 All ER 387. 94  Murder and the Partial Defences The majority decision of the House of Lords was that the jury could take into account any of the characteristics of the defendant it felt was just to do so when considering how the ‘reasonable person’ would have reacted. However, the position changed again with the decision of the Privy Council in Attorney-​General for Jersey v Holley 2 AC 580. The majority view here was that the defendant’s characteristics could only be taken into account when determining the gravity of the provocation towards the defendant. Having assessed how serious the provocation was, the defendant then had to be judged according to the standards of self-​ control to be expected of an ordinary person of the defendant’s age and sex. Because the definition under s 3 of the HA 1957 proved both complex to interpret and difficult for a jury to apply, the Government decided to abolish the defence of provocation and replace it with a new defence called ‘Partial defence to murder: loss of control’. This defence is contained in ss 54 and 55 of the CJA 2009. Section 56 of the Act both abolishes the common law defence of provocation (by s 56(1)) and repeals s 3 of the HA 1957 (by s 56(2)(a)). 5.8.2 Definition of the partial defence of loss of control The definition of loss of control is contained in s 54 of the CJA 2009 (extracts of which are set out below): (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 omissions 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. In summary, the three elements of the defence that need to be established for it to be pleaded successfully are: (a) the defendant must lose self-​control; (b) the loss of control must have a qualifying trigger; and (c) a person of the defendant’s sex and age, with a normal degree of tolerance and self-​ restraint and in the same circumstances, might have reacted in the same or similar way to the defendant. Some 60% of those accused of murder rely upon the defence of loss of control, and, to succeed, all three requirements listed in s 54 of the CJA 2009 must be satisfied. Only then will their conviction for murder be reduced to manslaughter. 5.8.3 Evidential issues There is one important difference between the two partial defences. Unlike diminished responsibility, the conventional burden of proof in criminal cases applies to loss of control. Section 54(5) places an evidential burden only on the defendant. The effect is that, provided the accused can produce some evidence that raises the defence, the burden will revert back to the prosecution to disprove loss of control beyond reasonable doubt. If the prosecution fails to do so, the jury must assume the defence is satisfied. 95 Criminal Law 5.8.4 Defendant must lose control When determining if the defendant has lost control, a number of issues arise and these are considered in turn. First it must be established that the defendant lost self-​control and this is a question of fact for the jury. Because the issue is subjectively assessed, they must be satisfied that this particular defendant lost self-​control; it is not enough that the reasonable person would have done so but the accused actually did not. Example Felipe’s wife, Moira, constantly criticises him both in public and at home. As soon as he steps through the front door, he faces a torrent of abuse. Moira has also thrown saucepans at him and scratched his car when she is angry. Felipe is an exceptionally calm individual but he decides that he can no longer tolerate her behaviour. However, he does not want to pay his wife a divorce settlement, so he decides that the next time she begins to insult him, he will kill her. Two days later, he strangles Moira to death. Even though a reasonable person may well have ‘cracked’ under the continuous verbal onslaught, Felipe cannot rely upon the partial defence of loss of control. This is because Felipe, in fact, did not because he planned Moira’s death. Although the statute does not define the term loss of control, the courts have provided some assistance. In R v Jewell EWCA Crim 404, the accused shot and killed a work colleague. He alleged that the victim had intimidated and threatened him the previous evening and that he had armed himself for protection. He claimed that, when he saw the victim, he could not control himself. The Court of Appeal approved the meaning of loss of control as a loss of the ability to act ‘in accordance with considered judgement, or a loss of normal powers of reasoning’. However, in this instance, the degree of planning was found to be such that the defendant was convicted of murder. Example Baxter is caught stealing a laptop computer by Gethan. Gethan calls Baxter ‘a good for nothing thug’ and says perhaps he should not be surprised as Baxter’s family are all ‘thieving bastards’. Baxter loses his temper and kills Gethan. Baxter may rely on the partial defence because he has lost his self-​control, and the fact that Baxter induced Gethan’s comments by stealing Gethan’s laptop is irrelevant. However, to rely on the defence, Baxter must also satisfy the other elements too, and here there may not be a ‘qualifying trigger’ (see below). 5.8.4.1 No need to be sudden Although the court must be satisfied that the defendant did indeed lose control, there is no requirement for the defendant to suddenly ‘snap’ so that they are acting, for example, in a fit of rage. This is because s 54(2) provides that the reaction need not be ‘sudden’. 96  Murder and the Partial Defences Returning to the case of R v Ahluwahlia, which was discussed earlier in this chapter, the defendant set fire to her husband and killed him while he slept. Initially, Ahluwalia was unsuccessful in her attempt to reduce her criminal liability to manslaughter. This was because, under the test that applied at the time, the loss of control had to be sudden. However, more understanding of how domestic violence victims react to their abusers led to a change in the law so that (now) the defendant need only prove that they actually did lose control at the time of the killing. The effect is that killings which occur in the domestic violence context, where the defendant’s reaction builds up over a period of time, are not excluded. Nevertheless, in reality, the greater the level of deliberation, the less likely it is that the killing followed a true loss of self-​control. In summary, there may be a loss of control where the defendant ‘snaps’; or their reaction is a response to a culmination of events, such as incidents of abuse, that occur over time. 5.8.4.2 Considered desire for revenge Whilst the loss of self-​control need not be sudden and without warning, it will not apply where the defendant acted in a considered desire for revenge (CJA 2009, s 54(4)). Although it may be difficult for the jury to distinguish between a planned attack and the reaction of a victim of abuse, this is a decision they must make. It is important that defendants who take deliberate steps to kill the victim should be distinguished from those who act on impulse or in fear or both. As to what qualifies as a ‘considered’ desire for revenge, there is no guidance in the statute. However, during the consultation process, a number of concerns were expressed over so-​ called honour killings (in which the victim is killed because they are perceived to have brought dishonour on the family), and the need to prevent those charged with such from taking advantage of the defence. In its Impact Assessment Statement, the Government said: ‘following consultation we are also amending the defence to ensure that it excludes killings carried out in a considered desire for revenge, which is likely to be relevant to “honour” killings.’ Other factors that may satisfy the test could include where the defendant arms themselves with a weapon, there is evidence of planning or there is a significant delay between the provoking words or conduct and the killing. Examples (1) Beryl has been subjected to physical abuse from her husband for some years. One day her husband threatens to slap her, and she loses her temper and kills him. Beryl has lost her self-​control for the purposes of the defence in these circumstances. The fact that his final comment may not, on its own, be that serious does not matter –​it can be ‘the straw that breaks the camel’s back’. (2) As above, but Beryl leaves the house and goes to the park where she plans how she is going to kill him. She returns three hours later and carries out her plan. In this instance, the partial defence will almost certainly not apply. There is no evidence that Beryl lost her self-​control at the time of the killing. The facts also suggest that she has had time to ‘cool down’ and has planned her attack; this points to revenge rather than to a loss of self-​control. (3) As in e ­ xample 2 above, but when she returns her husband slaps her face, resulting in Beryl ‘snapping’ and stabbing her husband. Here, she may succeed. There is a significant difference from the previous example in that Beryl has lost her self-​ control at the time of killing due to a fresh action by her husband. 97 Criminal Law 5.8.4.4 Multiple defendants Finally, it is worth noting that, under s 54(8), just because one party to a killing successfully pleads the defence, this does not affect the criminal liability of any other party. Thus, if two defendants attack and kill the victim, one may still be liable for murder even if the other successfully pleads loss of control as a partial defence. 5.8.4.5 Summary of loss of control When determining if there has been a genuine loss of control, the jury will need to consider all the facts. In particular, evidence of there being a delay does not automatically preclude a defendant from relying upon the partial defence of loss of control, but it may mean that the defence is less likely to succeed. Set out below is a summary of the law that applies to this aspect of loss of control. Figure 5.4 Loss of control D must LOSS OF not if in a actually CONTROL considered lose control desire for (subjective) revenge need not includes a be sudden reaction to a build up of events 5.8.5 The ‘qualifying trigger’ One of the criticisms of the ‘old’ defence of provocation is that it was a model based around anger. It acknowledged that, in certain circumstances, a defendant might get so angry they lost control and, as a result, killed someone. Both the Law Commission and the Government felt that a shift in emphasis was needed. As the Parliamentary Under-​Secretary of State for Justice, Maria Eagle, stated during the Committee stage of Parliamentary debate: The Government are persuaded that in a small number of murder cases the existing partial defence of provocation is too generous to those who kill in anger and is poorly tailored to killings in response to fear. She went on to point out that the partial defence of loss of self-​control was intended to have a higher bar than the provocation defence, as there must now be a specified ‘qualifying trigger’, respectively known as the ‘fear’ and ‘anger’ triggers, which causes the loss of self-​control. The loss of control must be the result of one of these or a combination of both. The Government’s intention was to make the defence available in a smaller number of cases than the previous law. To achieve this, the statute provides: 55 Meaning of ‘qualifying trigger’ (1) This section applies for the purposes of section 54. (2) A loss of self-​control had a qualifying trigger if subsection (3), (4) or (5) applies. (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. 98  Murder and the Partial Defences (4) This subsection applies if D’s loss of self-​control was attributable to a thing or things done or said (or both) which —​ (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged. (5) This subsection applies if D’s loss of self-​control was attributable to a combination of the matters mentioned in subsections (3) and (4). It is important to note that, according to s 55(6)(a) and (b), the defendant’s fear of serious violence must be disregarded, and their sense of being seriously wronged is not justifiable if they incited the thing said or done in order to provide an excuse to use violence in response. In such circumstances, the defendant cannot rely on the triggers and the partial defence will fail. Example Neil has had an argument with Pete. With the aim of starting a fight, Neil insults Pete and his family. Pete loses his temper and attacks Neil with a baseball bat. Neil reacts by stabbing Pete with a knife, killing him. Neil is unlikely to be able to rely on the defence due to s 55(6)(a) as his fear of serious violence from Pete is disregarded to the extent that it was caused by a thing which Neil had done or said for the purpose of providing an excuse to use violence. In insulting Pete, Neil’s intention was to start a fight, thus providing an excuse to use violence against Pete. 5.8.5.1 The fear trigger The ‘fear trigger’ under s 55(3) will apply where the loss of control ‘was attributable to the defendant’s fear of serious violence from the victim against the defendant or another identified person’. The fear is subjectively assessed so that the jury must be satisfied that the defendant was genuinely afraid of such violence even if the fear is not reasonable; and the fear must be from the victim against the defendant or another identified person, rather than a more general fear. Example Jessie has been married to Pili for 3 years. During that time, he has subjected her to violence, especially when he has been drinking. One evening he returns from a night out, clearly drunk. Jessie picks up a kitchen knife and stabs Pili when he approaches her. Provided Jessie has lost her self-​control, she should be able to rely on the qualifying trigger under s 55(3) if she feared serious violence from Pili against her. The same would be true if she feared serious violence against someone else other than her personally, for example against their child. Unlike under s 55(4), there is no objective element to this subsection, so the question is not whether the jury would have been in fear of serious violence but whether Jessie herself was in fear of such violence from Pili at the time of the killing. 99 Criminal Law 5.8.5.2 The anger trigger The anger trigger under s 55(4) applies where the defendant’s loss of control was attributable to things said and/​or done that amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wronged. No definitions are included in the Act. However, in its Consultation Paper, ‘Murder, Manslaughter and Infanticide’ (Law Com No 304), the Law Commission gave a parent coming home to find their child being raped as an example of when s 55(4) might apply. Whether the defendant’s sense of being seriously wronged is justifiable is an objective question to be determined initially by the judge, who must decide whether a properly directed jury could reasonably conclude that it was. Only then should the judge leave the question as one of fact to be decided by the jury. Effectively, the judge is acting as a filter here. Example Deepak finds out that his sister, Amina, has a boyfriend. She has kept this a secret as she is aware that her family will be extremely angry. In a fit of rage, Deepak kills Amina because of her relationship as he believes it will bring shame to his family. Deepak may personally feel that his sister’s relationship brings dishonour to the family, thus constituting circumstances of an extremely grave character and causing him to have a justifiable sense of being seriously wronged. However, he would not be able to rely on s 55(4) as a qualifying trigger because of the objective elements within the Act. In particular, whether or not the circumstances are of an ‘extremely grave character’ is to be decided by the jury, and it is highly doubtful they would consider that Amina’s relationship meets this requirement. Furthermore, the sense of being ‘seriously wronged’ must be ‘justifiable’, and a jury is unlikely to share Deepak’s belief in this regard. Thus, Deepak would be guilty of murder. 5.8.5.3 Sexual infidelity Historically and statistically, the partial defence of loss of control (or its equivalent) was used by defendants who reacted violently to their partner’s adultery. To combat this, the statute deliberately excludes such an excuse, providing that the fact that a thing done or said constituted sexual infidelity is to be disregarded (s 55(6)(c)). This subsection caused a great deal of debate in its passage through Parliament. The Government stated that the ‘words and conduct’ partial defence would apply only in circumstances of an extremely grave nature, so eliminating its possible application to routine relationship and domestic conflicts. This would be reinforced by the explicit statement in s 55(6) that sexual infidelity on its own could not constitute grounds for the defendant to have a justifiable sense of being seriously wronged to an extent that would warrant reducing murder to manslaughter. Example Dewi returns home to find his partner, Steve, having sex with another man. He loses his temper and attacks Steve ferociously, killing him instantly. Dewi has clearly lost his self-​ control under s 55(4). However, sexual infidelity on its own is to be disregarded as a qualifying trigger under s 55(6) and, thus, he is liable for the offence of murder. 100  Murder and the Partial Defences However, although understandable, such a rigid approach is perhaps not realistic. Difficulties arise where, for example, the victim taunts the defendant with their infidelity amongst a torrent of other abusive comments. Should one be ignored and others taken account of? In R v Clinton, Parker and Evans EWCA 2, the Court of Appeal was asked to determine whether sexual infidelity is entirely excluded from consideration in a case involving other potential qualifying triggers. The court ruled that where sexual infidelity is the only ‘provocation’, such evidence must be excluded. However, to avoid potential injustice, the judges also confirmed that sexual infidelity is ‘not subject to a blanket exclusion’ and that where it ‘forms an essential part of the context’, it may be considered. The effect of this decision is that where the sexual infidelity is part of the background or context to other possible triggers, then evidence relating to it may be relevant when assessing that other potential qualifying trigger. Example Gawain and his wife, Jody, have been married for eight years and have three young children. However, Jody wishes to separate and has contacted a lawyer about divorce proceedings. Gawain is devastated about the break-​up of his marriage and tries to dissuade her. The two begin to argue and Jody taunts Gawain about a range of matters including her repeated sexual infidelity, his visits to suicide websites (specifically that he did not have the courage to kill himself), and also her lack of care for their children. Gawain suddenly flips, beating Jody to death. Jody’s sexual infidelity may be considered as part of the background, but it cannot be the qualifying trigger on its own. In Gawain’s case there are other factors, namely the taunts about his suicidal thoughts and his wife’s attitude to the children, that can (in the context of the sexual infidelity) count as a potential trigger. Combined together, the things said and done were such as to constitute circumstances of an extremely grave character, which caused Gawain to have a justifiable sense of being seriously wronged. The effect is that Gawain’s conviction for murder may be reduced to voluntary manslaughter. The fact that sexual infidelity cannot be relied upon on its own as a qualifying trigger, but can be taken into account as one of a number of factors, is generally regarded as a sensible compromise reflecting the complexities of relationships and the fact that murders are often committed when passions are roused, which may be for several reasons. In summary: (a) Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there are other qualifying triggers. (b) Where other factors suggest a qualifying trigger, sexual infidelity may be also taken into account in assessing whether things done or said amounted to circumstances of an extremely grave character and gave the defendant a justifiable sense of being seriously wronged. Note that sexual infidelity may be taken into account in the third component of the defence in examining whether a person of the defendant’s sex and age, with a normal degree of tolerance and self-​restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way. 101 Criminal Law 5.8.5.4 Overview of the qualifying triggers Figure 5.5 Qualifying triggers for loss of control of QUALIFYING Sexual infidelity: serious TRIGGERS Not on its own violence Yes if part of the overall context due to to D or FEAR things said ANGER another and/or amounting to identified done circumstances person of an extremely D must be D must have a grave character genuinely justifiable afraid (objective) sense (subjective) of being seriously wronged Either or But not if D incited the both triggers situation to provide an may apply excuse to use violence 5.8.6 Similar reaction of a person of the defendant’s sex and age Loss of control is subject to a third requirement, which is primarily objective in content. The reason is that, to maintain the rule of law and a peaceful society, there are standards of behaviour that must be adhered to whenever possible. The partial defences provide a compassionate outcome to those who are unable to meet this standard in specific circumstances, but it does not mean the killing is acceptable. The third element of the defence is set out in s 54(1)(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. The ‘circumstances of D’ are defined in s 54(3) as: 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. In making this assessment, the ‘normal’ person will have the same history and characteristics as the defendant in so far as they are relevant to the qualifying triggers that prompted the loss of self-​control. However, if the defendant is particularly aggressive or short tempered, they will not be able to rely upon these characteristics as an excuse for the killing. This part of the defence adopts the approach of the majority decision of the Privy Council in Attorney-​General for Jersey v Holley (discussed above), and was designed to replace the old ‘objective’ test of provocation under s 3 of the HA 1957. The aim was to overcome concerns that the objective test in provocation had become too subjective, particularly as there were conflicting cases and confusion over who, exactly, was the ‘reasonable person’. The provision is interesting in itself since, as loss of control can only ever be a partial defence 102  Murder and the Partial Defences to murder, the law is accepting that a person with a ‘normal’ degree of self-​restraint might intentionally kill another in some circumstances. In doing so, the statute aims to put ‘clear water’ between the two partial defences of loss of control and diminished responsibility. The Act includes age and sex as general characteristics to be taken into account, although the relevance of both has been questioned. The Government, by including the defendant’s sex as a factor in this test, seems to imply that people of different sexes may have different levels of self-​control in some situations, although no examples are given as to when this may apply. It has been argued that the defendant’s sex may be most relevant when considering the fear of serious violence trigger, as set out in s 55(3) of the CJA 2009. This is presumably on the basis that females are generally less physically powerful than men or that they react differently to threats of serious violence, and thus have a lower capacity for self-​restraint when faced with such threats. With regard to the second characteristic, age has long been a factor in determining this aspect of the partial defence. When considering reform of the law, both the Law Commission and the Government agreed that age has an influence on the amount of self-​control to be expected of a person. A child generally has a lower capacity to control themselves and their emotions than an adult, and so the defendant should be judged according to the level of tolerance and self-​restraint to be expected of a ‘normal’ person of their age. To judge a child defendant against the level of self-​control expected of an adult would not be fair. There are some who argue that age is not really the issue –​maturity is. However, age is an objective, if somewhat crude, way of measuring this. Set out below are three examples of how this element of the offence would apply in practice. Examples (a) Jay, who is 19 years of age, is waiting for a train with his girlfriend, Amy. As they enter the train, Tobias, who is boarding at the same time, smiles at Amy. Jay is convinced that Tobias is flirting with Amy despite his protestations to the contrary. Jay becomes more and more agitated and then loses his control completely, stabbing Tobias to death with a flick knife. In this scenario, a 19-​year-​old male with a normal degree of tolerance and self-​ restraint would not have stabbed Tobias to death just because he smiled politely at the defendant’s girlfriend, so the partial defence would fail. (b) Ariana is a 14-​year-​old girl who has been sexually abused by Richard for over two years. One day, after she has been drinking heavily, Richard sexually assaults Ariana and then laughs at her distress. Ariana hits Richard with a vase and kills him. Ariana must satisfy the jury that a 14-​year-​old girl with a normal degree of tolerance and self-​restraint might have killed her abuser when taunted in this way. Her voluntary intoxication will not be taken into account and she will be assessed as if she were sober. Even so, the defence is likely to succeed. (c) Nyofi is 25 years of age and recently entered into a civil partnership with her girlfriend, Marnie. However, Marnie has just announced that she is leaving Nyofi and taking their five-​year-​old daughter, Jemma, with her. The two argue and Marnie screams at Nyofi that she is sick of her partner’s ‘disapproving African family’ and that she does not want to be in a lesbian relationship any longer. Nyofi is devastated as she has cut all ties with her family to be with Marnie. As Marnie 103 Criminal Law is leaving the house, she yells: ‘Lesbians are all bitchy and African ones are the worst –​I need to get Jemma out of this toxic atmosphere.’ Nyofi grabs a kitchen knife and fatally stabs Marnie. Nyofi would have to establish that a 25-​year-​old female with a normal degree of tolerance might have reacted by stabbing her partner to death, when taunted about being a lesbian and her African heritage and confronted with the loss of her daughter. Because Nyofi is being taunted about her sexual orientation and racial origin, the normal person will have the same sexual orientation and racial origin. It is likely that Nyofi could rely successfully upon the partial defence of loss of control to reduce her criminal liability to manslaughter. Set out below is a summary flowchart of similar reaction. Figure 5.6 Similar reaction for loss of control SIMILAR REACTION A person of D’s age and sex have reacted with a normal degree of in the same or in those tolerance and might similar way circumstances self-restraint all are taken into account except D’s general capacity for tolerance and self-control e.g. aggression / short temper 5.8.7 ‘Sufficient evidence’ Unlike the ‘old’ defence of provocation under s 3 of the HA 1957, there is now a ‘filter’ on whether the issue is to be brought before the jury. In the past, if the defendant raised any evidence of provocation, the judge had no discretion. In R v Doughty (1986) 83 Cr App R 319, the defendant appealed against his murder conviction when the trial judge refused to allow the defence of provocation to be left to the jury. The defendant had claimed that the persistent crying of his baby caused him to lose his temper and to kill the child. The Court of Appeal held that, since there was evidence of a causal link between the crying of the 104  Murder and the Partial Defences baby and the defendant’s response, it was wrong for the trial judge to withhold the matter of provocation from the jury. Now, under s 54(6) of the CJA 2009, the defence of loss of control can only be presented to the jury if there is sufficient evidence that ‘in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply’. How this works in practice is that, at the conclusion of the evidence, the trial judge will consider whether enough evidence has been raised in respect of all the components of the defence. If any one element is missing, that is the end of the matter and the partial defence will not apply. The jury will have no involvement at this stage. In R v Jewell (see earlier in this chapter), when giving evidence, the defendant recited as if from legal textbooks: ‘I did it because I lost control. I could not control my actions.’ The Court of Appeal judges confirmed that a mere assertion by the defendant that he had lost control was not on its own sufficient evidence upon which a jury could reasonably conclude that the defence might apply. Other examples of circumstances where the judge could intervene to remove the partial defence entirely from consideration by the jury include deaths in response to a baby’s persistent crying or a threat to prevent the defendant seeing his children unless he agreed to the victim’s divorce settlement terms. However, these would rarely arise in practice. 5.9 Summary To conclude: (a) Murder is a common law offence committed when the defendant unlawfully causes the death of the victim with an intention to kill or cause grievous bodily harm. (b) The actus reus and mens rea for murder and voluntary manslaughter are the same. (c) In certain situations, the law accepts that the accused’s culpability for murder should be reduced. The defendant remains liable for causing the death, but their behaviour is excused in some way. These are referred to as the partial defences. If the defendant succeeds in establishing all the elements required for one of the partial defences, their conviction for murder will be reduced to manslaughter. (d) For the partial defence of diminished responsibility, the defendant must suffer an abnormality of mental functioning; arising from a recognised medical condition; which substantially impairs their ability to understand the nature of their conduct, form a rational judgment or exercise self-​control; and explains the defendant’s acts or omissions in doing the killing. (e) For the partial defence of loss of control, the defendant must actually lose control; this must be attributable to a qualifying trigger so that the defendant feared serious violence from the victim against either the defendant or another identified person; and/​ or something was said or done that constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged. Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but it can be taken into account as one of a number of factors. Thus, its mere presence does not prevent reliance on the defence where other qualifying triggers exist. Finally, it must be shown that a person of the defendant’s sex and age with a normal degree of tolerance and self-​restraint might have reacted in the same or a similar way in the circumstances. Having completed our study of murder and voluntary manslaughter, test your understanding using the activity below. 105 Criminal Law ACTIVITY (1) Barney is an alcoholic and has a paranoid personality disorder. He is staying at his friend, Tamara’s house. He drinks a great many whiskies and decides to start a fire in the living room as he believes that Tamara is haunting him. The fire spreads rapidly and Tamara is burnt to death. Is Barney guilty of either murder or voluntary manslaughter in respect of Tamara’s death? COMMENT Barney commits the actus reus of murder as he unlawfully caused Tamara’s death. However, he may lack the necessary mens rea for this offence because there is no evidence to suggest that he wanted to kill or cause serious bodily harm, although he does believe that Tamara is ‘haunting’ him. The prosecution may submit that Barney indirectly intended Tamara’s death as he set fire to the living room of her house, and this will be satisfied if they can prove that Barney appreciated that death or serious harm was virtually certain to result from his actions. If Barney does satisfy the mens rea, he could try to prove diminished responsibility based on an abnormality of mental functioning caused by a recognised medical condition (his paranoid personality disorder and alcohol dependence syndrome). The jury would then decide whether Barney’s ability to understand the nature of his conduct, and/​or to form a rational judgment, and/​or to exercise self-​control, was substantially impaired by the abnormality of mental functioning. In determining this, they would have to ignore the effects of any voluntarily consumed alcohol and focus only on his personality disorder and the effect of the alcohol consumed as a direct result of his alcoholism. (2) Eithne is 35 years of age. She has been married to Aaron for 10 years and they have a six-​year-​old daughter, Iona. Eithne is significantly overweight and was bullied at school because of this. Furthermore, during the marriage, Aaron has punched and kicked Eithne on a frequent basis, and constantly taunted her about her weight. In each of the scenarios below, consider whether Eithne lost control when she carried out the fatal act. (a) One evening, Aaron returns from work in a foul mood. He starts shouting at Eithne, calling her an ‘ugly fat bitch’ before grabbing her hair and slapping her face. This is usually the prelude to a violent assault. Eithne is chopping vegetables when Aaron enters the kitchen and uses the knife to stab him to death. (b) As for scenario (a) above, except that Eithne does not respond immediately. Aaron continues with the violence, punching his wife in the face and then repeatedly kicking her as she cowers on the floor. When he leaves the kitchen, Eithne hides in the under-​stairs cupboard and waits until Aaron falls asleep in front of the television, which he does two hours later. When she emerges, Eithne sees him lying there and, unable to take any more, she grabs a kitchen knife and stabs Aaron to death. (c) One morning during breakfast, Aaron looks at Eithne and says contemptuously: ‘You really could make a bit of effort –​you look a right state!’ Eithne storms out of the kitchen and grabs Aaron’s golf club, which is in a bag in the hallway. She runs towards him and smashes Aaron repeatedly over the head with the club, killing him. (d) As for scenario (c) above, but instead of reacting immediately, Eithne walks out of the house to go to work. During the day, she plans how she is going to kill Aaron. That evening, she goes into the garage and finds a hammer and then, while he is playing computer games, she hits Aaron repeatedly over the head, killing him. 106  Murder and the Partial Defences COMMENT (a) Here, there is a clear loss of control –​Eithne ‘snaps’ and reacts instantly to Aaron’s assault. (b) In this example, there is not (on the face of it) a lack of control because Eithne did not react spontaneously to the assault but, instead, waited for a couple of hours until Aaron was asleep. However, her action was a response to an accumulation of years of provocation, something that has been described as ‘a snapping in slow motion, the final surrender of frayed elastic’ –​a quote from the book ‘Eve was Framed: Women and British Justice’ by Helena Kennedy. It is now established that certain defendants, such as those who have been the victim of domestic violence, may lose control in a manner that is not obviously so. (c) Here, the evidence is clear that Eithne lost her temper when she killed her husband, satisfying the test for loss of control. The fact that the final comment on its own may not be the most offensive does not matter as it can be the so-​called ‘straw that breaks the camel’s back’. (d) On this evidence, the jury would not find a loss of control at the time of the fatal act. Not only has Eithne had time t