DEFENCE FOR MURDER – DIMINISHED RESPONSIBILITY AND LOSS OF CONTROL (Coursework Sample)

DEFENCE FOR MURDER – DIMINISHED RESPONSIBILITY AND LOSS OF CONTROL Name Date The issue(s) The main issues which will be addressed in this analysis include: Alina’s liability for the offence of murder of Susie. Whether there is any defence that Alina can raise, and if such a defence will be successful. In discussing the above issues, the brief will conclude and determine the probability of whether Alina may be found guilty of the offence of murder. The Law The defence of loss of control Under section 54 of the Coroners and Justice Act 2009, it is stated that a person who kills or is part of a killing may be convicted of manslaughter rather than murder when three conditions exist. These conditions are (a) the loss of control; (b) the loss of self-control and a trigger that is qualifying; and (c) the person of the defendant’s sex and age, with a normal degree of self-restraint and tolerance and in the circumstances of the defendant, might have acted in a similar way as the defendant. Under the Act, there is no requirement that such loss of control must be sudden. This is provided for under the provisions of section 54(2) of the Act above. This created a change in the previous law, which required that the loss of control by the defendant must be temporary and sudden, as had been outlined in the case of R v Duffy. By the provisions of section 54(4), if a defendant is found to have desired revenge, then the defendant cannot be permitted to rely on the defence of loss of self-control. As per the old law, the qualifying trigger was envisioned to be too wide, as virtually any act may be taken to be a provocation. However, the provisions of section 55 of the Coroners and Justices Act 2009 narrowed down the qualifying trigger. The provision states that such triggers will be limited to: When the defendant’s loss of control is associated with the defendant's fears of serious violence from the victim against the defendant or another person identified (section 55(3). Where the defendant’s loss of self-control is associated with a thing or things which are said or done or both, by the victim and which constitute circumstances of an extreme, grave character and cause the defendant to have a justifiable sense of being seriously wronged. The breakdown of a romantic relationship will normally not be considered as circumstances of extremely grave character, nor circumstances which allow an aggrieved party to have a justifiable sense that they have been seriously wronged. This ratio can be found in the case of R v Hatter. In addition, in the above similar case, the courts have determined that the question of what constitutes an extremely grave circumstance and what caused the defendant to have a justified sense of being wrongly serious is a matter that is determined objectively. The issue of determining the justifiable sense of being wronged was analysed in the case of R v Bowyer. In this case, the defendant was held to have no sense of being wronged due to the reason that he was the one who had been committing burglary at the time of the commission of the offence. The law has also placed certain restrictions on what constitutes qualifying triggers. Under section 55(6) of the Coroners and Justice Act 2009, the law provides for two further restrictions as to what can be classified as a qualifying trigger. First, there is a limitation on matters about sexual infidelity whereby if the thing done or said involves sexual infidelity, then that would be disregarded (section 55(6)(a)). Also, if the defendant incited the thing said or done or the violence, then they cannot raise the defence (section 55(6)(b)). The limits on sexual infidelity were created by courts so that people could raise the defence of provocation as an excuse for all sorts of crimes of passion. The reform was made because of the view that modern society was civilised enough, and hence there was no reason to excuse killing because of infidelity. The degree of self-restraint and tolerance is also required under section 54(1)(c), whereby it is necessary that 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 similar way. This test replaces the reasonable man test, which was used in the defence of provocation. In the case of R v Rejmanski (Bartosz), the court held that only sex and age must be considered, but any characteristic may be considered when determining the defendant’s circumstances under the provisions of section 54(3). In addition, under R v Clinton, it was held that sexual infidelity could be factored in when assessing circumstances under section 54(1)(c) in some cases. Defence of diminished responsibility For the defence of diminished responsibility, the provisions of section 2 of the Homicide Act 1957 and section 52 of the Coroners and Justice Act 2009 are relevant. These provisions state that there are three elements which a defendant must establish to successfully plead that defence: There must be an abnormality of the mental function that is caused by a recognised medical condition. That explains the acts and omissions of the defendant in the killing. That impairs substantially the mental ability of the defendant to either understand the nature of their actions or form a rational judgment or exercise control of self. The abnormality of the mental function is still reliant on the previous cases under the Homicide Act. The determination of whether a defendant is suffering from any abnormality of mental functioning is for determination by the jury after taking into account the evidence. The jury is not bound to follow any medical opinion in deciding if a defence of diminished responsibility will apply. However, as per Byrne and Bunch, medical opinion plays a key role in determining the abnormality of mental functioning. For instance, it has been held that medical evidence is required when such a defence is raised. As per the decision of R v Byrne, the abnormality of mental functioning is analysed with regard to what a reasonable man would consider to be abnormal. This has a wide meaning and also includes the inability of a defendant to exercise control and willpower. There is a wide variety of cases in which the courts have decided to constitute an abnormality of the mind. For instance, in R v Miller, it was found that jealousy would constitute an abnormality of the mind. In R v Vinagre, the case dealt with unfounded jealousy. In some cases, battered women syndrome was considered to constitute an abnormality of the mind. Such cases include R v Ahluwalia and R v Hobson. R v Reynolds and R v Smith 1982 dealt with pre-menstrual tension. Lastly, there are cases where epilepsy and chronic depression were accepted as an abnormality of the mind. The defence relies on causation as outlined in section 1B of the Homicide Act 1957. The section provided that the explanation of the conduct of the defendant must be associated with the abnormality of the mental functioning, and the same must be a significant contributing factor which led to the defendant's conduct. As per R v Tandy, if the conduct is caused by external factors or the abnormality does not explain the defendant’s conduct, the defence will not be applicable. This is a continuation of section 2 of the Homicide Act 1957, which provided that the abnormality must be a consequence of the arrested development of the mind or causes which are inherently associated with the disease. When considering if the abnormality of the mind has substantially impaired the mental ability of the defendant, the courts must consider the nature of the defendant's conduct. Also, the defendant must have failed to form a rational judgment or exercise self-control. In the case of R v Campbell, it was held that the defence didn't need to show the presence of a complete loss of control. Also, as held in R v Conroy when the defendant's thinking was rational, regardless of whether the outcome is considered irrational, the defence may easily fail. Discussion Application of the law on the defence of loss of control Alina’s murder case will rely on this defence because there are clear instances of loss of control and a qualifying trigger. Alina’s loss of self-control can be attributed to the words and things which were said and done by Susie when she confronted her. The question, however, will be whether her circumstances qualify as grave character and hence justify her being seriously wronged and hence justify her actions. Therefore, it is concluded that the infidelity is not a justifiable reason for the actions of Alina. Also, Susie said, “Alina confronted Susie about the affair. Susie laughed in Alina’s face and said, “So what if I was? You don’t deserve him, and he’s had enough of your crazy behaviour!” This does not qualify as a justifiable wrong to justify Alina’s reaction. Based on the case of R v Hatter, what can be concluded is that Alina’s case may not qualify under the defence of loss of control because her situation involves a breakdown of a romantic relationship. It appears that the actions of Alina will not be protected under the Act, and also, as per case law, due to the public policy which restricts the application of the defence of loss of self-control to crimes of passion. Alina’s actions are explained as crimes of passion. The same involved an affair that Mal was having with Susie, which she suspected. She read private messages from Mal stating that there were plans for a meeting between Mal and Susie. Also, the whole idea revolves around Alina confronting Susie about the affair, and in the process, she ends up killing her. The actions of Alina do not show self-restraint. When considering her situation and confrontation with Susie does not show that she exercised a degree of tolerance and self-restraint. Even though sexual infidelity is a factor which may be consi...