Read the facts of Moloney [1985] AC 905.

Involuntary manslaughter includes homicides which are unlawful but committed without malice aforethought. There are three categories, manslaughter by an unlawful and dangerous act, manslaughter by gross negligence and manslaughter by subjective recklessness. We first exclude the latter because Moloney did not foresee any risk in his conduct.

The issue is to determinate if he would be convicted of manslaughter by an unlawful and dangerous act or of manslaughter by gross negligence.

The Court of Appeal in R v Mitchell [1983] poses what it has to be shown to establish manslaughter by an unlawful and dangerous act.

Firstly, the accused has to commit an unlawful act. Since the decision in R v Franklin (1883), unlawful act manslaughter must be based on a criminal act, which includes therefore the mental element of intent. It does not require the intent to kill someone but it has to be established the intent of commit the unlawful act. This is posed in R v Lamb [1967], in which the Court of Appeal decided because D did not foresee that V would be injured, it would be a misdirection to tell the jury that pulling the trigger is ‘an unlawful and dangerous act’, because ‘mens rea is now an essential element of the offence’. Furthermore, the Court of Appeal in Jennings case [1990] specifies that the possession of a weapon, not offensive per se, is not such an unlawful act unless accompanied by the requisite intention to use it to inflict injury.

 Moloney had the conscious that the gun was loaded because he loaded himself, and he had the intent of firing before the victim did. Conversely to the Lamb case in which the two boys, joking, were not aware of the consequence of their game, Moloney wanted to shot to win the game. Whereas he did not use it to inflict injury and there is no intention of killing in itself, there is yet the presence of a criminal act. Nonetheless, the issue is still not resolved because there is no legal source which prohibits the act of firing.

Secondly, since Church [1966], the act must be dangerous, according to a reasonable person. This test does not require that D recognized the risk. The test of dangerousness is thus objective. It is useful recalling three aspects of the Church doctrine: first, there must be a ‘likelihood’ of harm.(it suggests more than a mere possibility), secondly, the type of harm involved is only ‘some harm’, thirdly, there no

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requirement from the accused of foresight of any risk of harm. Lastly, the act must be death.

 Thus, playing with a loaded gun and aiming at his stepfather can easily be considered as a “likelihood” of harm and the result of his conduct is the death of his stepfather.

To conclude, even if there is no legal source, to my knowledge, which states that using and aiming his gun  is not an unlawful act per se, there are all the elements which let us to think that Moloney would be convicted of constructive manslaughter.

Concerning gross negligence manslaughter, the accused has to commit a breach of duty based generally on a contractual, at least working, relationship. Even Moloney is a soldier and has to testify of wisdom and protection to others; he did not breach any duty. Moloney and his stepfather were both consenting to their game; Moloney was not in a relation of care with the victim.

2. What would you answer be if the facts were varied as follows? Moloney, who was suffering from post traumatic stress disorder in addition to being subject to domestic abuse by his wife, thought that his stepfather was calling him a coward?

  These facts would considerably modify the conviction of Moloney because they constitute extenuating circumstances, which, as we explain in the first question, lead us to qualify his manslaughter as a voluntary manslaughter. Moloney would have intended to kill his stepfather but his suffered state of mind prevents him from being convicted of murder.

Moloney, suffering from stress disorder, plus subject to domestic abuse by his wife, called a coward by his stepfather just before have killed him could be probably convicted of manslaughter by provocation.

The doctrine of provocation has two main elements, which emerge from section 3 of the Homicide Act 1957.

The first requirement of the qualified defense of provocation is essentially subjective; the jury has to have the evidence that Moloney was provoked to lose self-control and kill. Andrew Ashworth explains that the subjective requirement may be divided into two elements, that D was (a) provoked to (b) lose control.

 Firstly, according to Brown case [1776], the jury must take in consideration what the defendant has heard, even he has misheard. In Accot case [1997], Lord Steyn states that

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‘provoked’ is proved when there ‘is some evidence of a specific act or words of provocation resulting in a loss of control’ and adds that circumstances cannot be brought as evidence of provocation. However, in Doughty case [1986], the circumstance of the crying of a 17-day-old child is sufficient to consider his father provoked to be able to kill his own child. In our case, the word ‘coward’ can be considered as a provocation per se of his stepfather in a moment where Moloney had to prove he was the strongest, further, according to Doughty, abused by his wife; coward may be badly interpreted even if the victim was not aware of this fact, as a 17-day-old child. Furthermore, according to s. 3 of HA, the words were pronounced by the victim itself. Then, the disturbance to show loss of control required is clarified in Duffy [1949] “as a sudden and temporary loss of control”. The word ‘sudden’ suggests that the retaliation must occur quickly after the provocation has been received, rather than taking account the general state of mind of the accused. Indeed, Moloney killed just after hearing the provocation.

 

Secondly, provocation defense requires an objective condition. The jury has to consider if the provocation is such important that a reasonable man would react in the same way than Moloney. Andrew Ashwol states that it is not every act of provocation which should be allowed as the basis of this qualified defense, but only those serious enough to unbalance the behavior of a person with reasonable self-control. Then he proposes three questions to know if the objective question is filled. “How grave was the provocation in this case? How adequate was the level of self-control in response to it? And was the provocation grave enough to make an ordinary person do as the defendant did?”

The House of Lords in DPP v Camplin [1978] considers the jury has to compare the accused with an ordinary person of the same age and sex and also ‘in other respects sharing such of the accused’s characteristics as the think would affect the gravity of the provocation to him’. Moreover, in Newell [1980], the judge may take account the disability as the accused’s characteristic.

If the word ‘coward’ is not so grave in itself, the post stress traumatic disorder plus the abuse on Moloney can thus affect the gravity.

Then, s. 3 of HA insists on a reasonable degree of self-control in which individual factors should be left out of account. The doctrine of provocation is limited by the acceptance that everyone should show a reasonable amount of self-control. However,

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Smith [2001], the lord advice the jury to take into account the circumstances were ‘affected the degree of control’, including ‘matters relating to the defendant, the kind

of man he is and his mental state’ and it would be ‘unfair not to take into account’. Nonetheless, in 2005, AG for Jersey v Holley case does not follow this later decision. Thus, whereas in 2001, it would have been different, the jury risks today not to take account the disability of Moloney and so his conduct does not testify self control.

The facts Moloney suffered from post traumatic stress disorder in addition to being subject to domestic abuse by his wife conduct us to wonder if he could be convicted of manslaughter by reason of diminished responsibility, introduced in Section 2(1) of the HA 1957. Three requirements have to be filled.

Firstly, the accused has to suffer from ‘abnormality of mind’, concept interpreted in Byrne case [1960].This may be ‘wide enough to cover the mind’s activities in all its aspects’, including ‘the ability to exercise will-power and to control physical act’ in accordance with rational judgment. Moloney suffers from a post traumatic disorder which can be considered as a ‘mental impairment’, which risks to be evaluated nevertheless attenuated by the fact it is ‘post’ traumatic. But, to be abused by his wife emphasizes the abnormality of mind.

Secondly, we must a ‘specified cause’ of the abnormality of mind. Sanderson [1994] distinguishes three ways of this abnormality which is characterized by mental impairment, mental disorder without clear external cause or organic mental disorder.

Then, Moloney must show that the abnormality of mind ‘substantially impaired’ his mental responsibility; this is a question of degree of impairment to value.

Finally, s 2(1) requires the abnormality of mind ‘substantially impaired mental responsibility’.

Moloney knows two causes of mental impairment. Suffering from a post traumatic disorder is an internal factor of his diminished self control, he may not react as a reasonable person and certainly he may be victim of paranoia face to his stepfather who wanted joking. Moreover, the abuse by his wife may alter his confidence and his psychological state. In Mc Quade case [2005], sexual abuse is considered as a psychological injury and equal to an abnormality of mind. Furthermore, without consciousness, Moloney assimilates perhaps his stepfather to his wife and thus he has not all his mind in presence of his family which reduces considerably his responsibility.

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The provocation existing but risking to be evaluated not so grave, we think that Moloney should plead manslaughter by reason of diminished responsibility to avoid a conviction of murder.

Nevertheless, according an article by R.D Mackay, “Pleading provocation and diminished responsibility together”, it can be a good defense to bring the two pleas together because of their inter-relationship. “There is some psychiatric evidence which supports the contention that at the time of the killing, the accused may have suffering from of an abnormality of mind, then if this evidence also mentions provocation” and it will be thus advantageous for the accused to plead both defenses. Furthermore, “if there is some psychiatric evidence which suggests that a provoked accused may have mentally disorder at the killing, very serious considerations should be given to running both pleas concurrently as a part of a defense strategy”.

To conclude Moloney would have interest to plea both to have more chance to establish his loss of control which leaded to kill someone.

Bibliography:

-Criminal law, Smith and Hogan, 11th edition

-Principles of criminal law, Andrew Ashworth, 5th ed

-Criminal justice Act 1967

-Homicide Act 1957

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