Homicide – Voluntary Manslaughter Loss of Control – s54 Coroners and Justice Act 2009

Issues with the old law (C issue) Sudden and temporary loss of control Role of the jury Meaning of the reasonable man Range of behaviour that could be provoking

New Law Provocation existed at common law before the law in this area was modified bys.3 Homicide Act 1957 (now ceases to have effect – s56 (2a) CJA 2009) This area has now been replaced by s54 and 55 of the Coroners & Justice Act 2009.

The New Law Before you continue – Print, then read and précis ‘Loss of Control’ by Carol Withey: http://www.criminallawandjustice.co.uk/index.p hp?/Analysis/loss-of-control.html ‘Loss of Control’ is now under s54 of the Criminal Justice Act 2009.

New Partial Defence - Loss of Control - s54(1) … (a) D’s act in killing resulted from loss of self-control – i.e. Did D lose control? (old law required sudden loss of control – watch Ahluwalia film to see how under the old law d would fall at the first hurdle! (b) loss of control had a qualifying trigger (c) A person of D’s sex and age, with a normal degree of tolerance and self-restraint, in the circumstances of D, would have reacted in the same/similar way. Use each of the above as one third of your para 5!

Evidence of Loss of Control The judge must decide if there is enough evidence and the Jury must assume that the defence is satisfied unless the Crown proves beyond all reasonable doubt otherwise. (note impact of R vDoughty – crying baby) No longer a requirement that loss was sudden

Role of the judge in loss of control pleas Look at these previous cases… Do you think they would meet the new threshold? Should the provocation have gone to the jury? R v Doughty R v Betambeau R v Baillie R v Pearson Doughty, R v (1986) CA - [Provocation of such gravity as to make a reasonable man commit homicide]D killed his 17-day-old son, raising the defence that the baby's persistent crying and recklessness constituted provocation. Held:  The trial judge erred in refusing to leave the defence of provocation to the jury.   The Homicide Act 1957 requires the trial judge to leave to the jury the issue of the objective test, i.e. the second part of the test set out in s 3 of the Act. Guilty of manslaughter, not murder. Betambeau, R v (2001) - [Provocation - sentence of probation]D stabbed and strangled his wife Stella to death when he lost control after she nagged him over the way he cut a joint of beef. Held: by a judge at the Crown Court"I accept that your wife was a difficult woman to live with and offered you a fair degree of provocation".D, 62, has spent 20 months in prison since the incident, the judge ruled that he was of no threat to the public and sentenced him to two years probation. R v Baillie 1995 V had been supplying drugs to D's sons and had begun making threats against them,one of the sons told D and D decided to confront V,D got a shotgun and a razor from the attic, got in his car and went for petrol then went to V's home,after a brief conversation D shot V and killed him,D was originally tried with murder and a plea of provocation but it was rejected bu the trial judge,on appeal the CoA stated that even though there was strong evidence of premeditation rather than loss of self control it should still be put to the jury. R v Pearson 1992 two brothers D1 and D2 kill their abusive father and took turns in hitting him with a sledgehammer,whilst D1 had been away from home D2 suffered abuse from his father and D1 returned to protect his brother,both were convicted of manslaughter by reason of provocation, under the new law the same conclusion would be reached,even though the threat was not aimed at D1, it was at an identifiable person and it was logical that this would cause him to lose self control.

Loss of Self Control (2) For the purposes of subsection (1)(a) it does not matter whether or not the loss of control was sudden: Issues with this section: The longer the gap the more likely the judge will withdraw it Allows for a ‘cooling off period’ per Ahluwalia. Law Commission did not want to keep these words Allows a whole category of provoking actions or words to be taken into account. R v Duffy 1949 ‘Sudden and temporary loss of control’ Duffy, R v [1949] CA - [Provocation – the classic definition of Devlin J upheld]D killed her husband after mistreatment.  She tried to remove their child from the home and when her husband was asleep killed him with a hatchet and a hammer. Held: At trial Devlin J used the following words which the CofA thought it might well stand as a classic direction given to a jury:"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”Guilty Cocker 1989 - DOES NOT HAVE TO BE COMPLETE LOSS OF CONTROL... BUT THE FACTS OF THIS CASE INDICATE THAT IF YOU HAVE A REASONABLE AMOUNT OF AWARENESS, LOSS OF CONTROL WILL NOT BE APPLICABLED and V were married. V had repeatedly asked D to commit euthanasia on herD claims that he eventually ‘snapped’, lost control and gave inDuring the process, D claims that he got the impression the V had changed her mind, so he stopped smothering her with the pillow to checkV grabbed on to the pillow and pulled it back on the her faceCourt ruled that D had not lost control, because he had enough mental awareness to stop himself to double-check that V had not changed her mind R v Cocker 1989 ‘Still must be a loss of control’

Loss of Self Control Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. Why might these words cause problems? How might this have affected these older cases? R v Mohammed R v Ibrams & Gregory R v Baillie Mohammed, R v [2005] CA - [Provocation – objective, reasonable man test adopted - Holley followed - precedent, PC case favoured over HofL]D a devout Muslim killed his daughter (24) whom he had discovered in her bedroom with her boyfriend. He locked the bedroom door, fetched a knife from his bedroom, and stabbed the deceased to death; the boyfriend jumped out of a window. 

Held: Evidence of previous violence had shown that he was not a peaceable and non-violent man, whose loss of self-control had been completely out of character.

The trial judge had applied the law as it then was but applying the approach since Holley, the defendant’s temperament would have been relevant to the first or subjective element of provocation. However, it would not have been relevant to how the "reasonable man" of the age and sex of the defendant, exercising ordinary powers of self-control, would have reacted. 

Accordingly, the direction to the jury had involved a more favourable interpretation of the second limb than would have been applied under the strict test.

Guilty
Comment: The Court of Appeal followed Attorney General for Jersey v Holley [2005] PC, which has added some certainty as to which precedent would be favoured (Holley or Smith). In R v Campbell in 1997 when faced with a similar choice of precedents the CofA did not follow the PC. In the press this case was inappropriately described as an “honour killing”, it was in fact plain murder by a violent father. R v Ibrams & Gregory (1982) 74 Cr App R 154 - The two appellants had been harassed and terrorised by John Monk. Ibram's girlfriend ,Andronik, left him to start a relationship with Monk. However, Monk was extremely violent towards her leading her to flee the country. She returned to the UK and resumed the relationship with Ibrams. Monk was serving a sentence in Borstal. However, on his release, Monk started visiting the couple using violence and making threats and forcing Andronik to sleep with him. The police had been informed of the events but did not take any action. On one of his visits Gregory a, friend of the couple witnessed the violence. They hatched a plan whereby, Andronik would invite Monk round, get him drunk and entice him into bed. Ibrams and Gregory would then burst in and beat him up. In fact the two appellants went further than planned and killed Monk. They stated that once they started beating him they lost their control. The trial judge did not allow the defence of provocation to be put before the jury as the planning indicated that there was no sudden and temporary loss of self control. The defendants appealed.Held:The appeal was dismissed.

Qualifying trigger NOTE – Revenge (where have we seen this before?) does not apply (s54.4) and neither does sexual infidelity (Mohammed) (s55.6b) 2 accepted QT’s: 1. Fear of serious violence from V against D 2. Thing or things ‘done or said’ (or both) – restricted to (a) Of an extremely grave character (b) Caused D to have a justifiable sense of being seriously wronged.

Applicability of case law Old cases (pre 2009) no longer binding law – but they are useful for comparison purposes… Doughty (1986) – crying baby Davies (1975) – D provoked by wife’s lover into shooting his wife Pearson (1992) – D provoked by father’s abusive treatment of D’s brother into killing father with sledgehammer

Self induced actions To stop the possibility of a later appeal, D should usually be given the benefit of the doubt This may include cases where D himself has started the trouble: Johnson (1989) – But not if done so as to provide an excuse to use violence s55(6a)

Loss of self-control Revenge – why is the notion of revenge inconsistent with the defence of provocation/loss of control? Note s54(4) – requires that the defendant did not act in a ‘considered desire for revenge’

Cooling off period D had/may still have difficulty in successfully pleading provocation if they have waited some time before acting. Duffy (1949) Thornton (1992) Ahluwalia (1992) Do these cases still apply in the light of reform?

Cooling off period Despite apparent unfairness, the courts in domestic violence cases had consistently upheld the Duffy test which required a ‘sudden and temporary loss of self-control’. Sudden has now been removed. Would the case of Baillie (1995) be applicable?

Qualifying trigger s.55 Who can be threatened? What about other types of abuse? Who can issue the provocation? First Trigger D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person Judged subjectively Serious violence So D can even plead where: Uses excessive force Makes a mistake

Qualifying trigger s.55 Extremely grave character Second Trigger This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which – Constituted circumstances of an extremely grave character, AND Caused D to have a a justifiable sense of being seriously wronged. Justifiable sense of being seriously wronged

Other limitations on the qualifying trigger If D incites the violence from V, as an excuse, he cannot use it. Sexually infidelity isn’t accepted as an excuse R v Johnson 1989 D picks up the phone to hear his wife conducting a phone sex conversation with her lover. He put down the phone and strangles her. Could D use loss of control as a defence in these situations? D and V are arguing. V has been abusive to to V and punches her. He also says that she is useless and that he has been having an affair with her sister for the last year. D stabs him killing him. D comes home to find her husband sexually abusing their young child. She stabs him to death. Are there any other situations which should have been included?

Objective test – standard of self-control S54(1)(c) – would a person of D’s sex and age have acted in a similar way? The jury must be satisfied that 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.” AG v Holley

Was it enough that D in those circumstances lost their control? The objective test Were the actions of V enough to prompt a person of D’s sex and age with a normal degree of tolerance and self restraint to lose their self control? Was it enough that D in those circumstances lost their control? Why include age? What about gender? AND

How is this different to earlier tests? Case law progression Stage one: Can you match the case – to the legal principle– to the description? Stage two: Can you put them in order and state how the test has developed? Use Loss of Control Case Card Sort Activity from the web site. Its not!

Answers! 1954 1978 1979 Bedder v DPP DPP v Camplin Luc Thiet Thuan ‘Ha ha, What are you going to do with that? Oh my is that a knife in your pocket or are you just pleased to see me?’ 1954 No characteristics are relevant to D’s self-control DPP v Camplin 1978 Age and sex are the only relevant characteristics relevant for self-control A good pan will get you out of most problems Luc Thiet Thuan “I don’t care how much money you give me I am still a better lover than your new bloke!” Mental characteristics should not be taken into account when assessing the reasonable man 1979

Answers! R v (Smith) Morgan 2000 I am a real tool for reacting like that. Hic. Sob. Any characteristics which affects D’s self-control may be included AG Jersey v Holley ‘I know we are no longer together but you cannot expect me to like your new lover - especially when I am so drunk and armed with an axe!’ 2005 Age and sex are the only relevant characteristics relevant for self-control R v James & Karimi How many women can have affairs in one appeal hearing? Age and sex are the only relevant characteristics relevant for self-control 2006

Higher order thinking The old law is still good law Read the case report for Camplin and answer the following questions: What were the facts of the case? What was the provocations alleged? What characteristics did D want to include in the reasonable man test? What does Diplock say the RM should include? What issue of public policy limited the defence? What are your thoughts about this? Should these be temporary or permanent characteristics? Extension – can you extend your commentary by referring to at least one other controversial case?

Objective test – standard of self-control The new test is similar to DPP v Camplin (1978) Privy Council in A-G for Jersey v Holley [2005] Essentially the age and sex of D can be attributed.

Was it enough that D in those circumstances lost their control? The objective test Were the actions of V enough to prompt a person of D’s sex and age with a normal degree of tolerance and self restraint to lose their self control? Was it enough that D in those circumstances lost their control? Why include age? What about gender? AND What word has changed from the old law? Circumstances …was characteristics. Why might that be more flexible than the old approach?

Which characteristics? Is this the same as circumstances in s.54? In a more liberal approach, the courts have allowed mental characteristics to be attributed to the reasonable man: Ahluwalia (1992) Dryden (1995) Humphreys (1995)

Temporary and self-induced characteristics Generally, a transient state of mind, e.g. intoxication will not amount to a ‘characteristic’. However, the H of L has indicated that the jury should look at the ‘entire factual situation’ when considering the gravity of the provocation: Morhall 1996. See also the cases of: Gregson (2006) Hill (2008)

Apply the law Answer the question that is on your desk using the knowledge you now have. Remember IDEA Use this sequence for the E and A parts: Murder: Actus Reus Murder: Mens Rea Loss of control Qualifying trigger? Enough to provoke the person with the age and sex of D in the circumstances Causation?

Objectives Define the elements of the partial defence of Loss of Control Explain in what circumstances the partial defence of Loss of Control can be used by a defendant Describe the application of the partial defence by reference to case law and problem scenarios