DEFENCES

HISTORY OF THE DEFENCES DR and provocation were put into statutory form in 1957 by the Homicide Act DR has always been considered a good defence but provocation had problems Was difficult to prove for women but too easy to use for jealous/ violent men

SOME OF THE OLD PROBLEMS STILL EXIST The partial defences were made available in statute form in 1957, when the death penalty was in force for murder. Is there still a need for these partial defences?

SOME OF THE OLD PROBLEMS STILL EXIST If so, wouldn’t the removal of the mandatory life sentence for murder remove any continuing need for these partial defences? On the other hand, if the partial defences were abolished, would a jury be more likely to acquit D if they were sympathetic to his circumstances  thereby allowing potentially dangerous people to escape the control of the law?

SOME OF THE OLD PROBLEMS STILL EXIST Both defences allow D to be convicted of a lesser offence (manslaughter) even though he has the mens rea of a greater offence (murder). How can this be justified? Is there ever an excuse?

DIMINISHED RESPONSIBILITY Evaluation

DIMINISHED RESPONSIBILITY - EVALUATION Old law worked in practice  Only once in 50 years had a case reached HL unlike the old law on provocation  Read p67 in your textbook to understand the difference between the old law and the new

EVALUATION OF UPDATED DEFENCE Provides more clarity and modern terminology However this is likely to be interpreted narrowly so fewer people can use the defence than in the past Mercy killers may find they have no defence as the situation is stressful but doesn’t amount to a recognised medical condition

EVALUATION (CONT) If the defence raise DR then the prosecution may counter this by raising insanity Insanity can result in an indefinite term in an institution which a defendant won’t want Prosecution may do this just to secure a conviction

EVALUATION (CONT) Negative stereotype of women  Ahluwalia – the defence applied to an abused woman who killed her abusive partner The Law Commission:..had her mental faculties not been impaired she would have continued to be a “happy punch bag” ….

HOMEWORK CHECK You will be paired up You will read each other’s murder essays You will write the following feedback on these:  Strengths- give reasons for these, why has that element been well discussed? Etc.  Areas for improvement? Any areas you think could be explained further? Does the essay contain enough case law? Remember this is being explained to someone who has no knowledge of law You will also go through and correct and SPaG errors. Write next to each correction what has been changed and why

LOSS OF CONTROL Evaluation

LOSS OF CONTROL - EVALUATION When considering the objective element of the defence of loss of control, couldn’t it be argued that a person with a normal degree of tolerance and self-restraint in the circumstances of D would never kill?

FEAR OF SERIOUS VIOLENCE ‘Sudden and temporary’ criteria was removed from defence However D still needs to lose self control This may not happen in domestic violence cases as fear does not usually cause this reaction Battered spouses may still find that they cannot use this defence

PROBLEMS WITH NEW LAW? Sexual infidelity may be extremely provocative. Why then should it be excluded as a relevant qualifying trigger when determining D’s loss of self-control? Law on this point now is slightly unclear- R v Clinton

POTENTIAL REFORM Law Commission:  Remove need for loss of self-control in relation to fear of serious violence  May need to remove or revise the controversial sexual infidelity exclusion Other suggestions:  Could follow New Zealand’s lead and abolish the anger trigger altogether- does anger ever justify killing?

SPEED DATING If you asked questions last time you are answering them this time And vice-versa

QUESTION Despite some recent reforms, there are still criticisms to be made of the current law on murder and voluntary manslaughter. Consider relevant criticisms of that law, and suggest any reforms that may be appropriate. (25 marks)

TASK- MINDMAPS To consolidate this information make two mind maps. One for murder and one for manslaughter Start as a skeleton framework of the info you have and then build up the detail Only allowed to use one sheet for each so you need to select your information carefully

QUESTION Despite some recent reforms, there are still criticisms to be made of the current law on murder and voluntary manslaughter. Consider relevant criticisms of that law, and suggest any reforms that may be appropriate.