Critical Evaluation: Voluntary Manslaughter September 2014

01/05/20152 Aims and Objectives…. Aim – to develop a critical understanding of the Law surrounding voluntary manslaughter Objectives – to demonstrate working knowledge of the topic To undertake independent research into key rules To evaluate key rules and use case law to highlight areas of concern To discuss potential reforms commenting critically upon their potential success or failure

01/05/20153 Key areas to address …. General evaluation of the structure of vol man. Evaluation of Loss of Control Evaluation of Diminished Responsibility

01/05/20154 Before we begin Structure of your answers Knowledge Criticisms Reform Conclusion

01/05/20155 General criticisms of the structure of the law on homicide Still needed? Reform = Removal of the mandatory life sentence.

01/05/20156 Critical Evaluation of Loss of Control Fill in the box on your handout considering: Where does the law come from? What is the effect of the defence The 3 key elements of the defence

7 You should have come up with…. S54 of the Coroners and Justice Act 2009 states there must be: 1)A loss of self control 2)There has to be a qualifying trigger and 3)A person of D’s age and sex with a normal degree of tolerance and self restraint and in the circumstances of D might have reacted in the same or similar way. A murder conviction can be reduced to manslaughter if the defence succeeds.

01/05/20158 The Current Law The Coroners and Justice Act 2009 abolished the old law on provocation and replaced it with loss of control. This reform had been made because there had been many problems with provocation. The reform has strengthened the law in many ways ….

9 Strengths of the Current Law The defence of loss of control is wider than the old defence of provocation as the loss of control does not have to be sudden. It arguably makes the law clearer on what can trigger a loss of control. Under the old common law of Duffy – the phrase “things said or done” was rather vague. It adds an objective element to the law which hopefully will lead to more common sense and just results (Doughty)

01/05/ However many problems still exist or remain unclear ….

01/05/ There must be a loss of control What is a loss of control? Will its make it harder for mercy killing cases? However the loss of control no longer has to be sudden s.54(2)

01/05/ There must be a loss of control Q - Why did the law change and why does the loss of control no longer needs to be sudden? Q- However what might still be the problem? A - So woman suffering from severe abuse at the hands of their husband could use this defence rather than DR without having to prove a final straw A –Such a D would still have to prove there was a “loss of control”

Critical Evaluation: Voluntary Manslaughter September2014

14 Considered Desire for Revenge This might be particularly problematic for the courts when a defendant has acted in a form of “self preservation/defence.” What will be the difference between protecting oneself and revenge? Look at how the cases on your handout: Were they a desire for revenge or a loss of control?

15 There must be a qualifying trigger Read through the information on your handout and then summarise your understanding in the space provided using your own words.

16 Sexual infidelity can not be a qualifying trigger. This is narrower than the old law on provocation. Do you agree with this exception? Why is it part of the statute? Perhaps this part of the statute should be abolished….?

……… The defence of provocation was created for situations where D found their partner with someone else. Now if someone finds their partner having sex with another person, they are likely to lose their self control and if they kill their partner because of this they will not have a partial defence for murder. 17

18 If a Defendant incited the trigger as an excuse for violence they can not rely on the defence. Difficulty in proving a D incited a trigger for the purposes of using it as an excuse for violence. Problematic for the jury But on the other hand it might enable common sense decisions.

19 The objective test Read through the information on your handout and then summarise your understanding in the space provided using your own words. Be ready to share it with the person sitting next to you – so make sure you make sense!

01/05/ Critical Evaluation of Diminished Responsibility Lecture and Note taking exercise

21 Key Points … Must be a RMC – new law narrower Problematic in mercy killing cases such as Lawson and Bailey. Would the D now have to prove depression? Might be confusing for the jury if the D and P produce contradictory evidence. Unclear whether the defence would still be denied on policy grounds as in Sutcliffe.

22 Key Points … The abnormality must SUBSTANTIALLY impair D as under the old common law - Lloyd Again this leaves a lot to the jury. The amended version of the Homicide Act now provide there must be a causal link.  Difficult to see the impact of this at this but it does raise the issue ; how will this be decided?  Will the courts use the but for and de minimus test?

23 Key Points … The law on intoxication stays the same and seems relatively clear following Dietschman and Wood:  Simple intoxication will not be an abnormality  ADS can possible be an abnormality However in the case of Stewart in 2009 Lord Judge CJ set out there are still areas of confusion within this area as the Jury still have to decide:  The extent and seriousness of D’s dependency  D’s ability to control his drinking  Whether D was capable of abstinence from alcohol  And, for how long he could abstain.

01/05/ One final point that cincerns BOTH DR and L of C and is Confusing for Juries and Defendants … Burdens of proof vary across the two partial defences May be problematic where dual pleas are running Judicial Obligation to put loss of control to jury even if D not relying on it Why is this a problem?