Voluntary manslaughter: loss of control

Question 1

give examples of when the courts have disallowed this defence

Answer 1

• baby crying
• honour killing
• conditional threat to stop D seeing children unless divorce terms agreed to

Question 2

what are the elements?

Answer 2

1. Loss of control
2. Due to qualifying trigger
3. A person of D’s sex, age & history with a normal degree of tolerance & self-restraint would have acted the same/similar

Question 3

explain the ‘loss of control’ element

Answer 3

o Subjective.
o Question of fact.
o Could be sudden or in response to culmination of events over time.

Question 4

when can this defence not be relied upon?

Answer 4

there will not be a loss of control where the act is committed in revenge (i.e. planned, armed, delay between words/conduct and killing)

Question 5

what are the qualifying triggers?

Answer 5

1. fear
2. anger

Question 6

explain the ‘fear’ qualifying trigger

Answer 6

subjective - was D genuinely afraid of serious violence against them/another (even if unreasonable)?

Question 7

explain the ‘anger’ qualifying trigger (with reference to infidelity)

Answer 7

circumstances of extremely grave character which caused D to have a justifiable sense of being wronged

Justifiable = objective. Would ordinary person feel wronged?

infidelity is not a trigger, but if circumstances were grave + justified could be permissible

Question 8

explain ‘a person of D’s sex, age & history with a normal degree of tolerance & self-restraint would have acted the same/similar’

Answer 8

o Objective inc. consideration of D’s circumstances i.e. abuse, sexual infidelity
o D’s attributes are not considered i.e. angry, short tempered, voluntarily intoxicated

Question 9

explain the legal and evidential burden

Answer 9

1. P must prove the AR & MR for homicide BARD
2. D only has to prove the evidential burden. They must provide ‘sufficient evidence’ (= a properly directed jury could reasonably conclude defence might apply).
3. Judge will decide. If judge agrees, jury must assume defence is satisfied unless P can prove BARD it is not.