Fatal offences-Voluntary manslaughter (Loss of control)

Question 1

Where does voluntary manslaughter arise from?

Answer 1

Where the definition of murder appears to be satisfied (both AR and MR) but 1 of 2 defences can be successfully pleaded:
Loss of control
Diminished responsibility

Question 2

If the D successfully pleads loss of control OR diminished responsibility, what will he be charged with?

Answer 2

Voluntary manslaughter

Question 3

What is the judge allowed to pass instead of a mandatory life sentence if a person has been successfully charged with voluntary manslaughter?

Answer 3

Discretionary sentence

Question 4

What is a discretionary life sentence?

Answer 4

Sentence which is available for serious offences but is not fixed by law.
Chosen by judges

Question 5

Loss of control and diminished responsibility are defences only available for charges of murder.
True or false?

Answer 5

True.
This is why they are referred to as “special defences”.

Question 6

What are these “special defences” also sometimes referred to as?

Answer 6

Partial defences

Question 7

Why are these defences, if successful, not given the not guilty verdict?

Answer 7

They are only partial defences and result in reduced sentences.

Question 8

What old defence does the defence of loss of control replace?

Answer 8

Provocation

Question 9

What section and Act was the defence of loss of control introduced?

Answer 9

s.54 of the Coroners and Justice Act 2009

Question 10

How many tests must be met for a defence of loss of control to be successful?

Answer 10

3

Question 11

Where a person kills or is party to the killing of another, the defendant is not to be convicted of murder if:
What is the 1st test?

Answer 11

1. Acts of omissions in killing resulted from loss of control

Question 12

Where a person kills or is party to the killing of another, the defendant is not to be convicted of murder if:
What is the 2nd test?

Answer 12

2. Loss of control had a qualifying trigger

Question 13

Where a person kills or is party to the killing of another, the defendant is not to be convicted of murder if:
What is the 3rd test?

Answer 13

3. A person of D’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D, would have reacted in the same/similar way.

Question 14

What does s.56 of the Coroners and Justice Act state?

Answer 14

That the “common law defence of provocation is abolished and replaced”

Question 15

What does s.56 of the Coroners and Justice Act mean?

Answer 15

The pre-2009 cases referred to in textbooks are no longer binding in court

Question 16

What does s.54 (4) state?

Answer 16

The defence of loss of control cannot be used if the act of killing was a “considered desire for revenge”

Question 17

What question do you need to consider for the 1st test because of s.54 (4)?

Answer 17

Was there a loss of control or a considered desire for revenge?

Question 18

Under the old defence of provocation, what did the loss of control have to be?

Answer 18

Sudden

Question 19

How has time delay changed in the new 2009 act?

Answer 19

s.54 (2) states that “it does not matter whether or not the loss of control was sudden”

Question 20

Why did the 2009 act introduce the change in time delay?

Answer 20

To better protect abused wives, who often could not access this partial defence as their actions in killing their husband were not “sudden”.

Question 21

What case is used to explain why the 2009 act introduced the change in time delay?

Answer 21

Ahluwalia (1992)

Question 22

Facts of Ahluwalia (1992).

Answer 22

D had been abused by her husband over many years.
One night, after a day on which she had again suffered violence, she poured petrol on him while he slept and set him alight.
The husband died from the injuries

Question 23

Did the defence of provocation work in Ahluwalia (1992) and why?

Answer 23

No as loss of control was no “sudden”

Question 24

Had the incident in Ahluwalia (1992) occurred after 2009, would a defence of loss of control worked and why?

Answer 24

Yes as loss of control does not have to be sudden after the 2009 Act

Question 25

What was the result of Ahluwalia’s prosecution?

Answer 25

Was downgraded to voluntary manslaughter but based on a defence of diminished responsibility

Question 26

There can be a time delay between a qualifying trigger and the murder but what is the general rule?

Answer 26

The longer the time delay, the more likely it is that the jury will decide there was a “considered desire for revenge” rather than a loss of control.

Question 27

Case for length of time delay.

Answer 27

Baille (1995)

Question 28

Facts of Baille (1995).

Answer 28

D discovered his sons had been supplied with drugs and threatened by the dealer.
Took his own sawn-off shotgun and cut-throat razor to where the dealer lived.
On the way, there was a delay caused by a road accident.
At house, there was an argument and D shot V.

Question 29

Did the defence of provocation work in Baille (1995)?

Answer 29

Yes, on appeal.

Question 30

Why did the defence of provocation work in Baille (1995)?

Answer 30

Although there was a short time delay between the loss of control and the AR, the D had not recovered his control in this time.

Question 31

If the incident in Baille (1995) had occurred after 2009, would a defence of loss of control have worked?

Answer 31

The stipulation (condition) that the loss of control must be sudden is gone, so certainly the new defence would be available if the old one was.

Question 32

Which section of the Act sets out the qualifying triggers for the 2nd test?

Answer 32

s.55

Question 33

What are the qualifying triggers?

Answer 33

Fear of serious violence from the victim

Things done and/or said

Combination of both of the above

Question 34

What subsection of s.55 is used to state the qualifying trigger of things done and/or said?

Answer 34

s.55 (4)

Question 35

What subsection of s.55 is used to state the qualifying trigger of fear of serious violence?

Answer 35

s.55 (3)

Question 36

What subsection of s.55 is used to talk about the combination of both of the qualifying triggers?

Answer 36

s.55 (5)

Question 37

What are the 2 things s.55 (4) say things done and/or said must make up this trigger?

Answer 37

a. constituted circumstances of an extremely grave character, and

b. caused D to have a justifiable sense of being seriously wronged.

Question 38

Is the defendant having to fear violence a subjective or an objective test?

Answer 38

Subjective

Question 39

What is a subjective test?

Answer 39

Concerned with the D’s perspective

Question 40

What are the rules for the s.55 (3) qualifying trigger?

Answer 40

D must have feared violence

Anticipated violence must have been serious

Anticipated violence must be against the D or an identified person (e.g., the D’s child)

Question 41

The act does not state whether anticipated violence in the s.55 (3) qualifying trigger needs to be imminent, although what does it seem reasonable to suggest?

Answer 41

That the defence is more likely to work when the threat is imminent (close)

Question 42

When will loss of control from a fear of serious violence normally be pleaded?

Answer 42

Where the amount of force used is considered excessive in response to the threat

Question 43

What is the s.55 (4) qualifying trigger also known as?

Answer 43

The “anger trigger”

Question 44

Is the s.55 (4) qualifying trigger subjectively or objectively tested?

Answer 44

Objectively i.e. would a reasonable person consider feeling seriously wronged due to things said/done

Question 45

What are the 2 restricted qualifying triggers?

Answer 45

Incitement
Sexual infidelity

Question 46

What subsection of s.55 is states that the qualifying trigger is to be disregarded if the D incited it?

Answer 46

s.55 (6)

Question 47

Define incited

Answer 47

Encouraged or stirred up

Question 48

Which section and subsection states that sexual infidelity is to be disregarded as a potential qualifying trigger?

Answer 48

s.56 (5)

Question 49

Which case included sexual infidelity in its defence but was still considered as voluntary manslaughter?

Answer 49

Clinton (2012)

Question 50

Give facts of Clinton (2012).

Answer 50

D was on trial for murdering his wife, who had recently:

Left him and posted photos on Facebook showing she was having affairs

Said she didn’t want custody of the children

Told him he would not have guts to commit suicide (he was suicidal)

Question 51

What was the original verdict of Clinton (2012)?

Answer 51

Murder

Question 52

What did the CoA decide in Clinton (2012)?

Answer 52

Voluntary manslaughter as sexual infidelity not the only trigger

Question 53

Is the 3rd test subjective or objective?

Answer 53

Known as “objective” test.

Question 54

Why is the 3rd test seen as “objective” not objective?

Answer 54

Some parts, for example when considering the age and gender of the D are subjective but it is mostly objective

Question 55

What does s.54 (3) say about the 3rd test?

Answer 55

All aspects of the D’s circumstances are to be taken into account-except those which affect his capacity for tolerance and self-restraint.

Question 56

Cases for the 3rd test.

Answer 56

Camplin (1978)
Mohammed (2005)
Holley (2005)

Question 57

Facts of Camplin (1978).

Answer 57

D, 15 year old boy, killed a middle-aged man by hitting him over the head with a chapati pan.

Question 58

What defence did the D in Camplin (1978) raise at his murder trial?

Answer 58

Defence of provocation stating that the deceased had raped him and then laughed at him, at which point he lost control

Question 59

What did the trial judge direct the jury to consider in Camplin (1978) and what did the jury convict the D of?

Answer 59

Whether a reasonable adult would have acted as the D did (rather than take the D’s age).
Jury convicted D of murder.

Question 60

What did the D argue in Camplin (1978) when he appealed?

Answer 60

Argued the judge was wrong to direct the jury that age was irrelevant

Question 61

What was the result of the appeal in Camplin (1978)?

Answer 61

Appeal was allowed

Question 62

What was the old provocation principle deriving from Camplin (1978) which has now been written into the new law?

Answer 62

The jury should be allowed to consider the age of the D

Question 63

Facts of Mohammed (2005).

Answer 63

Mohammed was a strict Muslim father with a reputation for being violent and bad tempered.
Found his daughter in her bedroom with her boyfriend.
Man ran away by Mohammed went to get a knife and stabbed his daughter to death.

Question 64

What was not relevant in deciding what the reasonable man would have done in the circumstances in Mohammed (2005)?

Answer 64

Mohammed’s bad tempered character

Question 65

What is the old provocation principle deriving from Mohammed (2005) which has been written into the new law?

Answer 65

The jury should not take into account the D’s capacity for tolerance and self-restraint

Question 66

Facts of Holley (2005).

Answer 66

D was alcoholic and depressive.
Killed his partner with an axe after finding her in bed with another man.

Question 67

Why were the D’s alcoholism and depression not considered in Holley (2005)?

Answer 67

These circumstances would affect a person’s capacity for tolerance and self-restraint

Question 68

What is the old provocation principle which is written into the new law?

Answer 68

The jury should not take into account the D’s capacity for tolerance and self-restraint, even in cases of mental illness.

Question 69

Case for alcohol and the objective test.

Answer 69

Asmelash (2013)

Question 70

Facts of Asmelash (2013).

Answer 70

Asmelash killed Tadesse, his housemate and drinking partner, with a knife.
Both intoxicated at time of killing.
Asmelash claimed, Tadesse had made him so angry, he could not control himself.

Question 71

What did Asmelash argue?

Answer 71

The fact that he was drunk at the material time was one of his ‘circumstances’ that had to be considered in accordance with section 54 (1)(c)

Question 72

What does s.54 (1)(c), the argument Asmelash raised, say?

Answer 72

The court should consider whether a drunk person with a normal degree of self-restraint would have acted as he did.

Question 73

How did the courts reply to the argument and appeal of Asmelash?

Answer 73

Under old law of provocation, drunkenness was to be disregarded by the court and on appeal Lord Judge said there was no evidence parliament intended to change this.

Question 74

What did Lord Judge say in Asmelash (2013)?

Answer 74

The loss of control defence must be approached without reference to the defendant’s voluntary intoxication

Question 75

If the trial judge provides sufficient evidence to allow the jury to consider loss of control, who does the burden of proof of ‘beyond all reasonable doubt’ lie on?

Answer 75

The prosecution