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Describe the special defences of diminished responsibility and provocation, Comment on the advantages and disadvantages of these defences.

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Introduction

Nicola Osborne a) Describe the special defences of diminished responsibility and provocation b) Comment on the advantages and disadvantages of these defences There are three special defences to a charge of murder which can reduce the offence from murder to manslaughter. These are diminished responsibility, provocation and suicide pact. Diminished responsibility Where a person kills or is party to the killing of another, he / she shall not be convicted of murder if he/she was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his medical responsibility in doing or being a party to the killing. Homicide Act 1957 sec 2 The law is that the defendant has to prove that their responsibility was diminished. They have to satisfy a judge and jury of this through the balance of probabilities. Elements which the defence must prove are that when the crime took place the defendant was suffering from abnormality of mind. Abnormality of mind is said to be where the state of mind is different from an average person and would be judged as abnormal by a reasonable person. In R v Seers (1985) the defendant stabbed his estranged wife, and claimed diminished responsibility on the grounds of his chronic depression. ...read more.

Middle

The fact that something caused the defendant to lose self control is not enough. The law expects people to be able to have some control over their emotions, a tendency to have violent rages, is seen as a defect in character rather than an excuse. If there is evidence of provocation, it is down to the jury to see if the circumstances surrounding the crime were enough to make the loss of self control sufficiently excusable to reduce the offence from murder to manslaughter. In deciding if this is the case, the jury have to apply what they feel to be appropriate standard of behaviour, making allowances for human nature and emotions. They can also take into account any other relevant matters such as sex and age. In R v Davies (1975), it was held that the acts of the lover of Davies wife could be taken into account as provoking Davies to kill his wife. A young person isn't expected to have as much self control as an adult. The loss of self control must have been sudden when the crime was committed, if there is evidence that the defendant did not lose his/her self control but used the situation to carry out a deliberate killing then the defendant can not use the defence of provocation. Provocation is not ruled out as a matter of law either because the provocation conduct has been extended over a long period of time or because there has been a delayed reaction. ...read more.

Conclusion

Juries have a hard time with deciding on these types of cases and therefore losing this defence would remove the problems associated with these complicated charges for a jury, therefore it should cut down time involved. One big advantage of losing this defence is that it would get rid of the fear that men use this defence to kill women. With domestic violence on the increase this could be a major factor. There are also disadvantages to, losing this defence. If we did not have these defences in place there could be more acquittals by juries who feel that the accused was morally less worthy of blame and also a murder charge may seem inappropriate term for killing under provocation or diminished responsibility. Going back to domestic violence issues, the defence is useful for women in situations of domestic violence who kill in self defence. A bill to amend the Homicide Act was thrown out of Parliament in both 1991 and 1994. Different organisations want the bill amended to help women suffering from domestic violence with these defences. Diminished responsibility names medically a woman's actions and implies that had their mental facilities not been impaired they would have continued being used as a punch bag. I feel that the Homicide Act should be amended to help women suffering from domestic violence that do kill in self defence. Sources The Guardian Justice for women Homicide Act 1957 Criminal Law by Catherine Elliot ...read more.

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