Domestic Violence Murder Problem Case.

by nh68 (student)

Q2; SHERRY HAS BEEN SUFFERING DOMESTIC VIOLENCE FROM HER HUSBAND, STAN FOR MANY YEARS.

Battered woman syndrome:

R v Ahluwalia [1992] 4 All ER 889 d), • R v Thornton [1996] 1 WLR 1174

The jury may take into account actions over a period of time:

R v Ahluwalia [1992] 4 All ER 889

ONE EVENING ON RETURN HOME FROM RESTAURANT HE GOES TO BED,TELLING HER WHEN HE WAKES UP IN MORNING HE IS GOING TO GIVE HER THE HIDING OF HER LIFE .

AS HE RETURNS TO WALK UP STAIRS,SHERRY PICKS UP VASE FROM TABLE AND HITS HIM IN THE BACK OF THE HEAD.STAN FALLS OVER,SERIOUSLY INJURED HE GETS UP STAGGERS TO FRONT DOOR,SHERRY MOVES TOWARDS HIM,HE PANICS,STAGGERS DOWN DRIVEWAY AND INTO ROAD,WHERE HE IS HIT BY A CAR.DEAD ON ARRIVAL AT HOSPITAL

SHERRY COME TO U FOR ADVICE.WHAT DEFENCE OPEN TO HER IF CHARGED WITH STANS MURDER.

ACTUS REUS FOR MURDER/CAUSATION(FACTUAL/LEGAL)
IS THERE MENS REA FOR MURDER
ARE ELEMENTS OF PARTIAL DEFENCE OF LOSS OF CONTROL PRESENT.WHAT WOULD SHERRYS LAWYERS HAVE TO ESTABLISH
USE CASES TO ILLUSTRATE POINTS U MAKE
USE I.R.A.C

ANSWER:

Murder is 'the unlawful killing of a human being in the Queen's peace, with malice aforethought'.

The Actus Reus of murder is the unlawful killing of a human being in the Queen's peace; Unlawful killing can be committed by an act or an omission. All unlawful killings are result crimes and causation must also be established. Some killings may be classed as lawful. For example, killing in self-defence

It is clear from the information provided in the question that Sherry, the defendant satisfied the actus reus for murder; because sherry did the act of murdering Stan, her act was deliberate, the act was unlawful, as sherry did not kill Stan lawfully as he did die against civil or criminal law. The act was a significant cause of death would be difficult to satisfy as normally a person cannot die just by being hit by a vase and the death was of a person in being, as Stan was independently alive before being dead upon arrival at hospital.

The mens rea for murder is “malice aforethought”, which is the same as intent [R v Vickers (1957)]. It can be an intention to ill or cause grievous bodily harm. Motive is not intention as I can intend to do an act with the motive to achieve something else [R v Moloney (1985)].Intention can be indirect or oblique. R v Cunningham [1982]

If at the time of stans death, the defendant's acts or omissions must be the operating and most substantial cause of death with no Novus actus interveniens ( "new act breaking in") to break the chain of causation. Therefore, the defendant cannot choose how the victim is to act, or what personality for it to have.

The defendant must expect the victim to:

try to escape and if he or she dies in that attempt, the chain of causation is not broken;
Or seek medical treatment for the injuries sustained and, even if mistakes are made by the medical staff, this will not break the chain of causation unless the mistakes become the more substantial cause of death.

Since Stan died trying to be away from her therefore the chain of causation is not broken, so sherry cannot claim that she did not anticipate Stan to act in such a way because you have your victim as you find them (the thin skull rule).however Stan was hit by a car, does this contribute to a new act breaking in? It was Stan’s conscious action to run onto the road. (R v Blaue 1975)

The partial defence of “loss of control” replaced “provocation”, which is abolished. Section 56 of the Coroners and Justice Act abolished the common law defense of provocation; therefore Section 3 of the Homicide Act 1957 ceases to have effect. This was replaced by Sections 54 and 55 of the Act which created the new defense of loss of control.

The current/new law is based on Sections 54-56 of the Coroners & Justice Act 2009. The emphasis is upon a fear of serious violence, as a defence. There needs to be a “qualifying trigger”, like fear of serious violence or circumstances of an extremely grave character giving rise to a justifiable sense of being seriously wronged. Anger in such a situation may be sudden, such as might occur in the case of a man, or the steadily mounting anger, such as the “slow burning fuse” or the “last straw on the camel’s back” such as might occur in the case of a woman subject to continuous beating or abuse by her husband. (R v Ahluwalia [1992] 4 All ER 889, R v Thornton [1996] 1 WLR 1174)

The defence will not succeed where D is simply very angry, or motivated by revenge, or responding to sexual infidelity. In Sherry’s circumstances these do not apply considering the information provided in the question.
The test is that the degree of self-control to be expected of an ordinary person of the age and sex of D with ordinary powers of self-control, is, subjective only so far as age and sex are concerned, but objective so far as the normal degree of tolerance and self-restraint of a reasonable man is to be expected, [Attorney General for Jersey v. Holley (2005) UKPC 23, (2005) 2 AC 580 – which must be followed, R. v. James (2006) EWCA Crim 14, (2006) QB 588.] Therefore the disease of alcoholism in D does not qualify, this is yet to be determined for sherry, considering she returned from a restaurant, it is unknown if alcohol was consumed. If sufficient evidence is adduced to raise the issue of loss of control which in the opinion of the Judge could be left to the jury then the prosecution must dispose of that issue. Sherry must note that loss of control providing a partial defence for D1 does not necessarily apply to D2, as the circumstances of each crime differ.

Under Section 54 of the Coroners and Justice Act sherry will not be convicted of murder and will have her charge reduced to manslaughter if the following elements can be proven:

That the defendants acts or omissions in doing or being a party to the killing resulted from the defendants loss of self-control
That the defendant’s loss of self-control had a qualifying trigger
That a person of the defendants sex ad age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or in a similar ...

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Under Section 54 of the Coroners and Justice Act sherry will not be convicted of murder and will have her charge reduced to manslaughter if the following elements can be proven:

That the defendants acts or omissions in doing or being a party to the killing resulted from the defendants loss of self-control
That the defendant’s loss of self-control had a qualifying trigger
That a person of the defendants sex ad age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or in a similar way to the defendant

A loss of self-control will apply to an act happening in the spur of the moment where there has been a cause which for some reason the defendant has been unable to tolerate which has caused her to take the required action. Sherry must also consider the act specifies certain situations which would not fall within the definition of a loss of self-control, for example if she acted in a considered manner for revenge.

According to Section 55 of the Coroners and Justice Act a loss of self-control is said to have a qualifying trigger if any of the following two events, or a combination of both, occur:

Was Sherry’s loss of self-control was attributable to the defendant’s fear of serious violence against him or another party
Was sherry’s loss of self-control was attributable to things done or said which:

constituted circumstances of an extremely grave character
caused the defendant to have a justifiable sense of feeling wronged

According to the Act when establishing if there was a qualifying trigger sherry’s fear of serious violence must be disregarded if it was caused by an event with the defendant incited and is simply being used as an excuse for the act. Sexual infidelity will not count as a qualifying trigger.

In s.54 (2) of the Coroners and Justice Act 2009 there is no requirement for the loss of control to be sudden.

In sherry’s case she did not incite Stan to tell her he is going to give her the hiding of her life. It seems clear she is not using it as an excuse to use violence and her loss of control was attributable to her fear of violence from him therefore sherry does satisfy the requirements of a qualifying trigger.

The standard of proof required for loss of control is beyond a reasonable doubt. That is if there is sufficient evidence adduced to raise an issue of the defense being satisfied the prosecution must prove beyond a reasonable doubt that the defendant was not suffering from a loss of self-control.provided sherry successfully satisfies the requirements for the defence of loss of self control,it is most likely her charge can be reduced from murder to manslaughter.

Question 1:

"Sections 54-56 of the Coroners & Justice Act 2009 abolished provocation and established "loss of control" as a partial defence to murder.

Critically analyse the new defence."

The current/new law is based on Sections 54-56 of the Coroners & Justice Act 2009.
The previous/old law was of provocation.
The criticisms or perceived shortcomings/problems with provocation as a partial defence to murder under the old law are:
The aims/underlying principles of the new law of "loss of control" are:
The new law will address the problems of the old one,
The possible problems which could arise out of the new law,

ANSWER:

PROVOCATION

The defence of provocation was a special defence to murder contained in the Homicide Act 1957 alongside diminished responsibility and suicide pact. The Coroners and Justice Act 2009 made significant changes to the defences contained in the Homicide Act 1957. These are referred to as special defences as they only apply to the law of murder, and they have the effect of reducing criminal liability rather than absolving the defendant from liability completely They are also partial defences as they do not provide a complete defence but can reduce a murder charge to a manslaughter charge. Where manslaughter replaces murder due to one of the special defences this is known as voluntary manslaughter. This is because the defendant has the mens rea of murder which is often referred to as having murderous intent. Where a killing has occurred in the absence of murderous intent this is known as involuntary manslaughter.

The defence of provocation was found in s.3 of the Homicide Act 1957.

In order to successfully prove the defence of provocation under Section 3 of the Homicide Act 1957 the two following common law elements had to be proven:

The factual: A consideration of whether the defendant was, or may have been, provoked into losing self-control. The issue here is a pure question of fact.
The evaluative: The jury was required to answer the question of whether the provocation was enough to make the reasonable man do as he did. The issue here is a pure evaluation of fact.

Accordingly two different tests were developed in relation to the evaluative part of the defence of provocation. They were as follows:

Whether an ordinary person of ordinary powers of self-control would have reacted to the provocation in the way in which the defendant did – in this respect no allowance was given to specific characteristics of the defendant which may make him more volatile
That the circumstances were such to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter

The requirements of the defence of provocation under s.3 of the Homicide Act 1957 were:

1. There must be evidence of provocation.

2. The defendant must have been provoked to lose their self-control.

3. The provocation must be such as to make a reasonable man do as the defendant did.

There must be evidence of provocation:

S.3 requires there to be evidence that the person charged was provoked by things done or said. This extended the common law defence of provocation which did not recognise provocation by words.

There is no requirement that the provocative act was deliberate or aimed at the victim:

R v Davies [1975] 1 QB 691

Even the constant crying of a baby is admissible as evidence of provocation:

R v Doughty (1986) 83 Cr App R 319

However, without some evidence of a provocative act, the judge can not put the issue of provocation to the jury even where the circumstances suggest that the defendant lost their self-control:

R v Acott [1997] 1 WLR 306

The jury may take into account actions over a period of time:

R v Ahluwalia [1992] 4 All ER 889

A defendant will still be allowed the defence if they induced the provocation:

R v Johnson [1989] 1 WLR 740

The defendant must have been provoked to lose their self-control:

S.3 of the Homicide Act 1957 requires the accused to be provoked into losing their self-control. The common law definition provided by Devlin J in R v Duffy applies:

"Provocation is some act, or series of acts done (now includes words) 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 or her mind."

R v Duffy [1949] 1 All ER 932

R v Duffy was decided before the introduction of the Homicide Act 1957 which makes no reference to the requirement that the loss of self-control must be sudden and temporary for the defence of provocation. However, the Duffy definition was approved as being authoritative following the Act's introduction in countless cases. It has been argued that the definition is too restrictive and can operate harshly particularly on wives who kill abusive and violent husbands.

The provocation defence was unsuccessful in the following cases as the defendants were unable to demonstrate a sudden and temporary loss of control:

R v Ahluwalia [1992] 4 All ER 889
R v Thornton [1996] 1 WLR 1174

Any evidence of planning will not demonstrate a sudden and temporary loss of control:

R v Ibrams & Gregory(1982) 74 Cr App R 154

The loss of control need not be complete so as to negate murderous intent:

R v Richens [1993] 4 All ER 877

The provocation must be such as to make a reasonable man do as the defendant did.

This third element of the defence of provocation is a question for the jury. The jury is required to balance the gravity of the provocative act against the actions expected of a reasonable man. S. 3 of the Homicide Act 1957 provides that in determining the question of whether the provocation was enough to make a reasonable man do as the defendant did, "the jury shall take into account everything both done and said according to the effect, in their opinion, it would have on a reasonable man".

This element has proved problematic when the courts have sought to interpret and apply the section and has been the subject of many appeals.

Originally it was held that this third element was entirely objective and no account could be taken of characteristics of a particular defendant in assessing both the gravity of the provocation or the reaction of a reasonable man:

DPP v Bedder [1954] 1 WLR 1116

However, in the following case it was accepted that certain characteristics could be taken into account in assessing whether a reasonable man would have done as the defendant did:

DPP v Camplin [1978] AC 705

This lead to uncertainty as to what characteristics could be taken into account. In Newell it was stated that characteristics which were sufficiently permanent and actually related to the provocation could be considered by the jury:

R v Newell (1980) 71 Cr App R 331

This suggests that provided the characteristic is sufficiently permanent it should be taken into account no matter how incompatible with the concept of a reasonable man.

In Morhall the court accepted that even discreditable characteristics should be taken into account in the question of the gravity of the provocation but not in assessing the reaction expected of a reasonable man:

R v Morhall [1995] 3 WLR 330

It was accepted that mental characteristics should be attributed to the reasonable man in the following cases:

Battered woman syndrome:

R v Ahluwalia [1992] 4 All ER 889

Eccentricity and obsessional personality traits:

R v Dryden [1995] 4 All ER 987

Attention seeking:

R v Humphreys [1995] 4 All ER 1008

These cases lead to concern that the law on provocation had taken a wrong turning and that the law expressed in Newell had been misinterpreted in that the characteristics of the defendant could be taken into account not only in assessing the gravity of the provocation but also in assessing the reaction expected of the defendant. This concern culminated in the Privy Council decision in the following case:

Luc Thiet Thuan [1997] AC 131

Privy Council decisions are not generally binding in English law. In R v Smith (Morgan), the House of Lords had the opportunity to consider the issue and decided against the approach taken in Luc Thiet Thuan.

R v Smith (Morgan) [2000] 3 WLR 654

The difficulties arising from such an approach were seen in the following case where it was held that characteristics of excessive jealousy and possessiveness should be taken into account by the jury:

R v Weller [2003] Crim LR 724

In Australia the approach taken was different:

Stingel v. The Queen (1990) 171 CLR 312

Subsequently the issue of mental characteristics in relation to the law of provocation came before the Privy Council for further consideration in the landmark case of A-G for Jersey v Holley. The Judicial Committee of the Privy Council, consisting of nine members of the House of Lords, made an unprecedented announcement that they were declaring the law applicable to England and Wales and departed from the House of Lords precedent in R v Smith (Morgan) following the previous Privy Council decision in Luc Thiet Thuan.

Attorney General for Jersey v Holley [2005] 3 WLR 29

Following on from this case the Court of Appeal has accepted that the Privy Council did state the law on provocation applicable to England and Wales and has applied the decision in three subsequent cases and thereby departing from the House of Lords precedent in R v Smith (Morgan).

R v Mohammed [2005] EWCA Crim 1880
R v James & Karimi [2006] 2 WLR 887
R v Hill [2008] EWCA Crim 76

The main changes on the reform of provocation:

there is no requirement the loss of control need be sudden s.54(2)
Sexual infidelity will not count as a qualifying trigger
A qualifying trigger must relate to either fear of violence from the deceased or from things done or said.
There are two requirements to be satisfied where the trigger is through things done or said. These are that the circumstance must be of an extremely grave character and the circumstances must have caused the defendant to have a justifiable sense of being wronged.
If the fear of violence or things done or said were incited by the defendant they are to be disregarded.

Loss of Control

The partial defence of “loss of control” replaced “provocation”, which is abolished. Section 56 of the Coroners and Justice Act abolished the common law defence of provocation; therefore Section 3 of the Homicide Act 1957 ceases to have effect. This was replaced by Sections 54 and 55 of the Act which created the new defence of loss of control.

The Coroners and Justice Act 2009 is an act of parliament of the U.K. It changed the law in England and Wales on criminal justice and coroners; however for this assignment we shall only consider Sections: 54-56.

The current/new law is based on Sections 54-56 of the Coroners & Justice Act 2009. The emphasis is upon a fear of serious violence as a defence. There needs to be a “qualifying trigger”, like fear of serious violence or circumstances of an extremely grave character giving rise to a justifiable sense of being seriously wronged. Anger in such a situation may be sudden, such as might occur in the case of a man, or the steadily mounting anger, such as the “slow burning fuse” or the “last straw on the camel’s back” such as might occur in the case of a woman subject to continuous beating or abuse by her husband. (R v Ahluwalia [1992] 4 All ER 889, R v Thornton [1996] 1 WLR 1174)

The defence will not succeed where D is simply very angry, or motivated by revenge, or responding to sexual infidelity.
The test is that the degree of self-control to be expected of an ordinary person of the age and sex of D with ordinary powers of self-control, is, subjective only so far as age and sex are concerned, but objective so far as the normal degree of tolerance and self-restraint of a reasonable man is to be expected, [Attorney General for Jersey v. Holley (2005) UKPC 23, (2005) 2 AC 580 – which must be followed, R. v. James (2006) EWCA Crim 14, (2006) QB 588.] Therefore the disease of alcoholism in D does not qualify. If sufficient evidence is adduced to raise the issue of loss of control which in the opinion of the Judge could be left to the jury then the prosecution must dispose of that issue. Loss of control providing a partial defence for D1 does not necessarily apply to D2.

Under Section 54 of the Coroners and Justice Act the defendant will not be convicted or murder and will have their charge reduced to manslaughter if the following elements can be proven:

That the defendants acts or omissions in doing or being a party to the killing resulted from the defendants loss of self-control
That the defendant’s loss of self-control had a qualifying trigger
That a person of the defendants sex ad age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or in a similar way to the defendant

A loss of self-control will only apply to an act happening in the spur of the moment where there has been a cause which for some reason the defendant has been unable to tolerate which has caused him to take the required action. The Act specifies certain situations which would not fall within the definition of a loss of self-control, for example if the defendant acted in a considered manner for revenge.

According to Section 55 of the Coroners and Justice Act a loss of self-control is said to have a qualifying trigger if any of the following two events, or a combination of both, occur:

The defendant’s loss of self-control was attributable to the defendant’s fear of serious violence against him or another party
The defendant’s loss of self-control was attributable to things done or said which:

constituted circumstances of an extremely grave character
caused the defendant to have a justifiable sense of feeling wronged

According to the Act when establishing if there was a qualifying trigger the defendant’s fear of serious violence must be disregarded if it was caused by an event with the defendant incited and is simply being used as an excuse for the act.

Similarly a sense of being seriously wronged by a thing done or said will not be justifiable if the defendant incited the thing to be done or said and is simply using it as an excuse to use violence.

If the thing done or said constituted sexual infidelity, this will not be considered in establishing a qualifying trigger for the violence.

The standard of proof required for loss of control is beyond a reasonable doubt. That is if there is sufficient evidence adduced to raise an issue of the defence being satisfied the prosecution must prove beyond a reasonable doubt that the defendant was not suffering from a loss of self-control.

If there is more than one party to the killing each party’s case will be judged on its own facts. If one of the defendants is able to successfully plead the defence of loss of control being convicted of manslaughter it does not affect the case of the other defendants who can still be charged with murder.

Critics feel although it is right to concentrate upon the state of mind and intention of D and his degree of control, abolition of the word “provocation” might be seen as diverting attention from the conduct and responsibility of the victim for the death.

An issue that remains the same is that the defence of loss of control is a partial defence to murder in that it has the effect of reducing murder to manslaughter if proven to be in existence.

The fundamental problem in the law of murder is the mandatory life sentence which inevitably induces the defence to look for a partial defence to reduce the crime to manslaughter, so that the mandatory life sentence can be avoided. If there were no mandatory sentence then in a homicide or criminal killing or murder case (and the Judge could choose his own description) the Judge could take all the circumstances of the killing into consideration and in his discretion impose the right sentence for that killing

• The possible problems which could arise out of the new law